Lecky v. Virginia State Board of Elections

          MEMORANDUM OPINION

          T. S. Ellis, III United States District Judge

         This matter is before the Court on plaintiffs' Motion for a Preliminary Injunction (Doc. 36). Plaintiffs, four residents of Virginia House District 28 (“HD 28”), brought this suit claiming that their First and Fourteenth Amendment rights were infringed when poll workers mistakenly gave ballots for House District 88 (“HD 88”) to residents of HD 28 at the general election in Virginia on November 7, 2017. Plaintiffs are now seeking a preliminary injunction ordering officers of the Virginia State Board of Elections to vacate the certification results for HD 28, barring the Clerk of the Virginia House of Delegates (“House of Delegates”) from seating the winner of the HD 28 race, and ordering a new election for HD 28.

         I.

         Plaintiffs are all registered voters and residents of HD 28 in Virginia. Each of the plaintiffs voted in the November 7, 2017 general election in Virginia. On Election Day, three of the plaintiffs, Kenneth Lecky, Dolores (“D.D.”) Lecky, and Phillip Ridderhof were given ballots for HD 88 despite being residents of HD 28. Amy Ridderhof successfully voted in HD 28.^[1]

         Defendants include several organizations as well as individuals. The organizations include: the Virginia State Board of Elections (“State Board of Elections”), which regulates Virginia elections and certifies the results of those elections; the Virginia Department of Elections (“Department of Elections”), which implements election laws and regulations to support accurate fair, open, and secure elections; the Stafford County Electoral Board (“Stafford Board”), which prepares ballots, administers absentee voting, conducts elections, and ascertains results of elections in Stafford County; and the City of Fredericksburg Electoral Board (“Fredericksburg Board”), which prepares ballots, administers absentee voting, conducts elections, and ascertains results of elections in the City of Fredericksburg. The individual defendants, each sued in their official capacities, include James B. Alcorn, Clara Wheeler, and Singleton McAllister of the State Board of Elections; Edgardo Cortes, the Commissioner of the Department of Elections; Doug Filler, Marie Gozzi, and Gloria Chittum of the Stafford Board; Greg Riddlemoser, the General Registrar of Stafford County; Rene Rodriguez, Aaron Markel, and Cathie Fisher Braman of the Fredericksburg Board; Marc Hoffman, the General Registrar of the City of Fredericksburg; Robert Thomas, Jr. (“Thomas”), the certified winner of the HD 28 election; Paul Nardo, the Clerk of the House of Delegates; and Terry McAuliffe, the Governor of Virginia.

         A brief summary of voting procedures in Virginia will provide necessary context for the events that occurred on November 7, 2017. Voting assignments in Virginia track the United States Census. Following the publication of a Census, the General Assembly redraws districts and assigns localities or precincts^[2] to each district based on federal and constitutional restrictions. Precincts may be wholly within a particular district or split to include voters from multiple districts. After new districts are finalized, the 133 General Registrars across Virginia manually assign addresses to districts in the Virginia Election & Registration Information System (“VERIS”), a statewide database which contains voting data. Because roads and addresses do not follow the locality and precinct boundaries used in the Census, this process of assigning addresses to particular districts is not without significant complexity. Post office accommodations, homeowner petitions, and changes to street names can further complicate this process. When an election occurs, the State Board of Elections provides VERIS data to polling locations so that poll workers can distribute the correct ballots to individual voters.

         In April 2011, following the 2010 Census, the General Assembly completed redistricting of all 100 House of Delegates seats. The resulting district map split Stafford County and the City of Fredericksburg between HD 28 and HD 88.^[3] Specifically, using the precincts in existence as of April 1, 2011, ^[4] the General Assembly assigned 12 full precincts and part of another precinct in Stafford County and two full precincts and part of another precinct in the City of Fredericksburg to HD 28. See Va. Code § 24.2-304.3. General Registrars statewide then updated the addresses assigned to each district in VERIS, accounting for changes to the boundaries.

         Several months after the 2011 redistricting, the City of Fredericksburg redrew its precinct lines. As a result, several precincts not formerly split between HD 28 and HD 88 became split between the districts, meaning that voters in the same precinct were located in different house districts. Different voters at the polling place would have different ballots from voters in polling booths next to them depending not on the current precinct lines, but on the precinct lines that were previously in the 2010 Census reports.

         The general election for the House of Delegates occurred on Tuesday, November 7, 2017. On that day, plaintiffs all went to their respective polling locations to attempt to vote in the HD 28 race between Joshua Cole (“Cole”) and Thomas. Amy Ridderhof successfully voted in HD 28. Phillip Ridderhof, despite being correctly assigned in the VERIS database as a voter in HD 28, received a ballot for HD 88 due to poll worker error. Kenneth Lecky and D.D. Lecky were given ballots for HD 88 because the VERIS database incorrectly reflected their addresses as falling within HD 88, and not HD 28. When poll workers gave D.D. Lecky a ballot for HD 88, she told the poll workers that she believed she should have been registered to vote in HD 28. After she voted, DD Lecky raised her concerns again to two Board Members, Rodriguez and Markel, who directed her to the map of HD 28. When the map suggested that she had been assigned to the wrong district, the Board Members determined, on the basis of the VERIS database, that the map was incorrect and removed it from the polling place. The election officials also denied provisional ballots to the affected voters on Election Day based on their determination that the VERIS database was entitled to a presumption of validity and that if the database were incorrect, state mechanisms could remedy the errors. Specifically, the Virginia Code allows an unsuccessful candidate in an election to request a recount of the votes cast in the election^[5] or to contest the validity of the election in the General Assembly on the basis of objections to the conduct or results of the elections.^[6]

         Complaints prompted the Department of Elections to investigate the reasons for, and the extent of, any irregularities. On November 27, 2017, the Department of Elections issued a summary of the findings of the investigation, including:

• 260 voters were incorrectly listed in the VERIS database as residing in HD 2 or HD 88, rather than HD 28.

• 86 of those 260 individuals voted in the November 7 election.

• 124 voters who were not residents of HD 28 were incorrectly listed as residents of HD 28.

• 61 of those 124 individuals voted in the November 7 election.

         Thus, in total, 384 voters were assigned to incorrect districts in the VERIS database, 147 of whom voted in the November 7, 2017 election.

         Plaintiffs brought this suit pursuant to § 1983 on November 21, 2017, alleging violations of their First and Fourteenth Amendment rights and seeking a temporary restraining order (“TRO”) to enjoin the Department of Elections from certifying the results of the HD 28 election. Because the statutory deadline for certifying the election results was fast-approaching, plaintiffs sought a prompt hearing on the request for a TRO. Following full argument on the merits, the Court denied the motion for a TRO, noting that, for the reasons stated by the Court in the course of the hearing, plaintiffs had not met the requirements for the issuance of a TRO as set forth in Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7 (2008). Specifically, the plaintiffs had not made a clear showing of likelihood of success on the merits. Nor did the record reflect that the plaintiffs would suffer immediate irreparable harm as there was a potential state remedy for any inadvertent error in the distribution of ballots. And the balance of equities and public interest weighed in favor of allowing certification to proceed.^[7] Accordingly, on November 22, 2017, an Order issued denying plaintiff's motion for a TRO. See Lecky v. Va. State Bd. of Elections, 1:17-cv-1336, at *1 (E.D. Va. Nov. 22, 2017) (Order). Thereafter, pursuant to Virginia Code § 24.2-679, the State Board of Elections certified the results of HD 28 for the 2017 general election with Thomas receiving 11, 842 votes and Cole receiving 11, 760 votes-a margin of victory of 82 votes. A later recount, requested by losing candidate Cole, confirmed Thomas as the winner of the election, but reduced the margin of victory to 73 votes. Cole did not give written notice of his intent to contest the election within three days of the conclusion of the recount, and, as such, these election results are now final.^[8]

         Because the only remedy plaintiffs sought in the original complaint was an injunction prohibiting the Department of Elections from certifying the election results, an Order issued on November 29, 2017, directing plaintiffs to show cause why the complaint should not be dismissed as moot. See Lecky v. Va. State Bd. of Elections, 1:17-cv-1336, at *1 (E.D. Va. Nov. 29, 2017) (Order). On December 6, 2017, plaintiffs filed an amended complaint and the motion for a preliminary injunction at issue here. The amended complaint alleges that the errors in house district assignments were the result of “[d]efendants employing inadequate safeguards, including allocating insufficient resources, against erroneous depravations [sic] of the right to vote.” Am. Compl. ¶ 33. The amended complaint further alleges that administrators of this election knew, or had reason to know, that significant numbers of registered voters were incorrectly assigned to house districts well before the 2017 election. To support this allegation, plaintiffs attached declarations to their reply in support of the motion for a preliminary injunction which disclosed that in March 2015, the Fredericksburg Registrar's Office received a telephone call about possibility of voters being given incorrect ballots for two districts. Later, on April 22, 2016, at a meeting of the Fredericksburg Board, Chairman Rodriguez discussed the problem of incorrectly assigned voters and requested that the issue be fixed. Plaintiffs also filed a motion to file supplemental briefing on January 4, 2018, the night before the hearing on their motion for a preliminary injunction. Plaintiffs attached declarations to that motion which provided additional evidence of the discussion of these problems prior to 2017, namely that the Speaker of the House of Delegates complained about the incorrect assignment of voters in April 2015 and the loser of the 2015 Republican primary requested FOIA documents in March 2016 about the assignment of voters to HD 28 and 88. Finally, the supplemental briefing reveals that the Hoffman, the General Registrar of Fredericksburg, sent emails to the Department of Elections in March 2017 asking how to ensure he received the correct ballots for Fredericksburg precincts.^[9]

         Based on these allegations, the amended complaint asserts the following five claims: (1) denial of the right to vote in violation of substantive due process; (2) denial of the right to vote in violation of procedural due process; (3) undue burden on the right to vote in violation of the First Amendment and the Equal Protection Clause of the Fourteenth Amendment; (4) disparate treatment of voters in violation of the Equal Protection Clause; and (5) disparate treatment. Plaintiffs also seek a preliminary injunction ordering the State Board of Elections to vacate the certification results for HD 28, barring the Clerk of the House of Delegates from seating the winner of the HD 28 race, and ordering a new election for HD 28.^[10]

         II.

         The standard for the issuance of a preliminary injunction is too well-settled to require extended discussion. A party seeking a preliminary injunction must demonstrate “that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” Di Biase v. SPX Corp., 872 F.3d 224, 230 (4th Cir. 2017) (quoting Winter, 555 U.S. at 20). With respect to likelihood of success on the merits, the Fourth Circuit has made clear that though the movant need not show a certainty of success, he must make a “clear showing” that he is likely to succeed on the merits. Pashby v. Delia, 709 F.3d 307, 320 (4th Cir. 2013). Analysis of each of these factors discloses that plaintiffs have not made the required showing for a preliminary injunction.

         A.

         To begin with, plaintiffs have not made the requisite clear showing of likely success on the merits. The Supreme Court has made clear that the first inquiry in any suit under § 1983 is “whether the plaintiff has been deprived of a right secured by the Constitution and laws.” Baker v. McCollan, 443 U.S. 137, 140 (1979) (internal quotation marks omitted). In the context of state or local election irregularities, the Fourth Circuit has also made clear that “[w]hether the irregularity amounts to a constitutional claim depends on its severity, whether it was intentional or more of a negligent failure to carry out properly the state election procedures and whether it erodes the democratic process.” Hendon v. N.C. State Bd. of Elections, 710 F.2d 177, 182 (4th Cir. 1983) (quoting Gamza v. Aguirre, 619 F.2d 449, 453 (5th Cir. 1980)). Importantly, Fourth Circuit precedent also requires courts considering these claims to pay mind to “[t]he functional structure embodied in the Constitution, the nature of the federal court system, and the limitations inherent in the concepts both of limited federal jurisdiction and of the remedy afforded by section 1983 . . . .” Hutchinson v. Miller, 797 F.2d 1279, 1282 (4th Cir. 1986) (quoting Gamza, 619 F.2d at 452). In other words, it is important for federal courts to be exquisitely sensitive to interfering in state and local elections because, as the Supreme Court has noted, states have the power “to regulate the elections of their own officials.” Oregon v. Mitchell, 400 U.S. 112, 125 (1970) (opinion of Black, J.). This does not mean that federal courts should never intrude into the state electoral process, but it does underscore that federal courts should not do so absent thorough consideration of both the merits of the claims and the implications of intervention.

         Plaintiffs in this case argue that they were denied the right to vote in HD 28^[11] or had their votes diluted in violation of the Due Process and Equal Protection Clauses of the Fourteenth Amendment. With respect to plaintiff's substantive due process claims, courts in this circuit and elsewhere have uniformly distinguished between “broad-gauged, ” “patent and fundamental unfairness that erode the democratic process” and “garden variety election irregularities” that do not give rise to a due process claim under § 1983. See, e.g., Hutchinson, 797 F.2d at 1283, 1287.^[12] In this regard, cases justifying federal intervention have involved attacks “upon the fairness of the official terms and procedures under which the election was conducted” and have not required the federal court to “enter into the details of the administration of the election.” Griffin, 570 F.2d at 1078. Importantly, “[m]ere fraud or mistake will not render an election invalid.” Bennett v. Yoshina, ...