Fed Case 2 - Pl's Reply in Support of MTN For PI

Case 1:17-cv-01336-TSE-IDD Document 98 Filed 12/29/17 Page 1 of 19 PageID# 694
IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA
ALEXANDRIA DIVISION
KENNETH J. LECKY, et. al.,
Plaintiffs, Civ. Action No. 1:17-cv-01336-TSE-IDD

v.
VIRGINIA STATE BOARD OF ELECTIONS,

et. al.,
Defendants.
PLAINTIFFS’ REPLY IN SUPPORT OF THEIR

MOTION FOR A PRELIMINARY INJUNCTION
In the election for Virginia’s House of Delegates District 28, Robert Thomas, Jr., has
been certified under Virginia law as the winner by a 73-vote margin over Joshua Cole. 1 But this
election is indelibly tainted by the unconstitutional acts of Defendants. Two of the Plaintiffs –
Delores “D.D.” and Kenneth Lecky – along with at least 84 other residents of House District 28
were unconstitutionally denied their right to cast a vote in the House District 28 election. Moreo-
ver, at least 61 votes were cast in this election by non-residents of House District 28. These ille-
gally-cast votes impermissibly diluted the legally-cast votes of Plaintiff Amy Ridderhof and
more than 23,000 other residents of House District 28 who cast a vote for their representative in
the House of Delegates.
Contrary to the arguments of the Registrars, 2 Thomas, and Interveners, the vote denial
1
The State Board originally certified the results of the elections with 11,842 votes for
Robert Thomas, Jr., and 11,760 votes for Joshua Cole, a margin of 82 votes. Cortes Decl. (ECF
No. 62-1) ¶ 11. After a recount, the count stands at 11,849 votes for Mr. Thomas, and 11,776
votes for Mr. Cole, a margin of 73 votes. Absent a court order, this will be the final result of the
election, as no candidate filed a contest within the three days of the conclusion of the recount. Va.
Code Ann. § 24.2-803(B).
2
For clarity, this reply refers to the brief of Stafford Registrar Greg Riddlemoser, Freder-
icksburg Registrar Marc Hoffman, Stafford Board Chairman Rene Rodriguez, Fredericksburg
Board Vice-chair Marie Gozzi, and Stafford Board Secretary Gloria Chittum as the Registrars’
-1-
and vote dilution were not caused by the inadvertent errors of volunteer poll workers or the vot-
ers themselves. Instead, Defendants’ deliberate acts (and omissions) caused the voters to be mis-
assigned among House Districts. In the City of Fredericksburg, the problem of misassigned vot-
ers was known to the Office of the Registrar and the Board for more than two years preceding
the November 2017 election. And, yet, the problem was not solved. Even worse, when presented
with evidence of the problem early on Election Day, the Registrar and Board made a deliberate
decision to deny provisional ballots to the affected voters – the proper remedy contemplated by
Virginia law – or take any remedial steps to address the issue. Incredibly, the Board decided on
Election Day that the eventual prospect of a contest before the House of Delegates was a suffi-
cient remedy for voters whose constitutional rights were being infringed before their very eyes.
The Board may not have been seeking to favor any candidate; we have no reason to be-
lieve they were. But “wrongful intent is not required” for an election irregularity to constitute a
constitutional violation and merit federal correction by a federal court. Krieger v. City of Peoria,
No. CV-14-01762-PHX-DGC, 2014 WL 4187500, at *4 (D. Ariz. Aug. 22, 2014); accord Griffin
v. Burns, 570 F. 2d 1065, 1077 (1st Cir. 1978) (“[T]here is precedent for federal relief where
broad-gauged unfairness permeates an election, even if derived from apparently neutral action.”).
All that is required is that the election “is conducted in a manner that is fundamentally unfair.”
Bennett v. Yoshina, 140 F.3d 1218, 1226 (9th Cir. 1998), as amended on denial of reh’g and
reh’g en banc (June 23, 1998); accord Griffin, 570 F.2d at 1077 (“If the election process itself
reaches the point of patent and fundamental unfairness, a violation of the due process clause may
be indicated and relief under § 1983 therefore in order.”).
That standard is met here. And at this point, this Court is the only body with the authority
to remedy the constitutional violation and prevent the irreparable harm that will occur in the ab-
sence of intervention. Even the State Defendants (ECF No. 69) and two members of local elec-
Opposition. Two other local election officials – Fredericksburg Vice Chairman Aaron Markel
and Stafford Chairman Douglas Filler – filed a separate response. (ECF No. 97.) One other local
election official – Fredericksburg Secretary Cathie Fisher Braman – has not filed a response.
-2-
toral boards (ECF No. 97) – parties with an institutional interest in resisting federal court inter-
vention – agree that the errors are so pervasive that a federal court remedy is appropriate and just.
Accordingly, Plaintiffs respectfully submit that this Court should grant Plaintiffs’ Motion
for Preliminary Injunctive Relief (“Motion”) and enter an order enjoining Defendants from seat-
ing Robert Thomas Jr. in the Virginia House of Delegates as the duly elected delegate for House
District 28 and requiring a special election to fill the vacancy.
FACTUAL BACKGROUND
HD-28 and HD-88 in the 2015 Election.
The problems of incorrect assignments between House District 28 and House District 88
were known by City of Fredericksburg election officials in 2015. By March 2015, the Freder-
icksburg Registrar’s office had “received a telephone call . . . about the possibility of voters be-
ing given incorrect ballots for the two Districts: 28 and 88.” See Exhibit 1 (“Marshall Decl.”) At-
tach. A (March 10, 2015 minutes). The Registrar at the time acknowledged that “[i]n looking at
the maps of the Precincts … it seems some of the voters are listed in the wrong district” and stat-
ed that “[t]his must be cleared up before the June Primary in District 28 only,” id., where then-
Speaker Bill Howell was facing a primary challenge. Presumably in reaction to this news, in
April 2015, the husband of the Board’s Secretary was swiftly reassigned from one House District
to the other and back again, despite no change in his address. Marshall Decl. Attach. D 3 (origi-
nally assigned to House District 28, re-assigned to House District 88 on April 16, 2015, re-
assigned to House District 28 on May 1, 2015). Notably, these re-assignments occurred after ab-
sentee balloting began on April 25, 2015, 45 days before the June 9, 2015 election. See Va. Code
Ann. § 24.2-612 (“The general registrar shall make printed ballots available for absentee voting
not later than 45 days prior to any election.”).
3
The attachments to the Marshall Declaration are not lettered consecutively to avoid in-
consistency with the lettering of attachments to another Marshall Declaration filed in this case on
the same day (ECF No. 96-1, an exhibit to the reply on the Plaintiffs’ discovery motion (ECF.
No. 77)).
-3-
Further Consideration on HD-28 and HD-88 in 2016.
Discussion of the misassignments between House District 28 and House District 88 con-
tinued into 2016. At the April 22, 2016 meeting of the Fredericksburg Board, the Chairman in-
sisted the problem be resolved promptly:
Chairman Rodriguez asked about the status of the 4 individuals

whom had been erroneously put in Precinct 401 but should have
been in 201. Director Pitchford said that she thought that was part
of the 28th/88th issue. . . . Chairman Rodriguez asked what would
be a good follow-up to have this accomplished and Director Pitch-
ford stated that she would have it fixed by Monday, April 25, 2016.
Marshall Decl. Attach. C. See also id. Attach. B (March 22, 2016 minutes). At the same time, the
then-registrar sought guidance from the Virginia Department of Elections. Id. Attach. E (Juanita
Pitchford, Fredericksburg City General Registrar, to Martha B. Brissette, Virginia Department of
Elections, March 18, 2016). The Department ultimately assured her “everything is A-OK!” Id.
Attach. F (Braun Brooks, Virginia Department of Elections, to Pitchford, May 10, 2016). It was
not.
Election Day 2017.
The Fredericksburg Election Board knew of at least three voters who complained of in-
correct House of Delegates district assignments on Election Day. (Marshall Decl. Attach. G.)
One of those voters was Plaintiff Delores “D.D.” Lecky, who shortly after 9.am. informed two of
the members of the Fredericksburg Board, Mr. Rodriquez and Mr. Markel, that she was a House
District 28 voter who had incorrectly received a House District 88 ballot. Exhibit 2 (“D. Lecky
Decl.”) ¶¶ 5, 13-15; Marshall Decl. Attach. H at 151 (showing Delores Lecky checked-in to vote
in precinct 402 at 9:05 a.m.). 4
4
Registrar Hoffman appears to have been in close contact with the Virginia Department of
Elections throughout the day. Marshall Decl. Attach. J (“Subject: Requested Data,” receiving
voter assignment data on Nov. 7, 2017 at 11:50 a.m.); Attach. K (receiving street assignment da-
ta on Nov. 7, 2017 at 11:53 a.m.); Attach. L (providing phone number for the Department of
Elections at 12:41 p.m.).
-4-
Ms. Lecky and the two Board members then together looked at a district map to deter-
mine whether Ms. Lecky was correct. Not only did the map show that Ms. Lecky was in fact
within House District 28, as the State Department of Elections report later confirmed, but also
that Ms. Lecky’s address was many blocks within the District 28 boundary:
See Cortes Decl. Attach. at 37 (ECF No. 62-1 at 39). But rather than correct the problem by of-
fering Ms. Lecky a provisional ballot – and seeking to determine which other voters might have
been affected – the two board members instead “concluded that the map must have been wrong
and removed the map from the polling place,” following a brief consultation with the Depart-
ment of Elections. D. Lecky Decl. ¶¶ 13-15.
-5-
Then, notwithstanding the clear directive in Virginia law to allow voters to cast provi-
sional ballots when a question of eligibility is presented, the Board adopted its attorney’s rec-
ommendation to deny provisional ballots to voters who claimed to be misassigned. Marshall
Decl. I. The Board based this decision on two premises: first, that that the “State Board of Elec-
tions database is entitled a presumption of validity” – notwithstanding any contradictory evi-
dence in maps – and second, that “[i]f in fact the database is incorrect, then the appropriate
means for challenging it is through the formal contest procedure” found in Va. Code Ann. §
24.2-803.
Astonishingly, the Registrars’ Opposition (ECF No. 89 at 4-5) blames the Leckys for fail-
ing to uncover the election officials’ systematic errors. It argues that the Mr. Lecky and Ms.
Lecky should have realized the Fredericksburg Registrar’s incorrect House District assignment
when they voted in the 2017 primary. But the Registrars either misunderstand or misstate Virgin-
ia law. When only one candidate from a political party files for an office, “the person filing the
declaration shall be declared the nominee of the party for the office for which he has announced
his candidacy and his name shall not be printed on the ballot for the primary.” Va. Code Ann. §
24.2-256. In June 2017, neither Joshua Cole nor House District 88 nominee Steve Aycock faced
a primary opponent; therefore, the House of Delegates office was not on the Democratic primary
ballot when the Leckys cast their votes in the Democratic Primary. Marshall Decl. Attach. M
(House of Delegates results for June 2017 Democratic Primary) & Attach. N (Fredericksburg
City results for June 2017 Democratic Primary); D. Lecky Decl. ¶ 4. The first time Mr. Lecky
and Ms. Lecky voted in Fredericksburg in a House of Delegates election was November 2017,
when they attempted to cast their ballots for Joshua Cole. See D. Lecky Decl. ¶¶ 4, 9, 12. In that
election, Ms. Lecky immediately raised the issue in a face-to-face conversation with a majority
of members of the Fredericksburg Board of Elections, well before Mr. Lecky voted. See D.
Lecky Decl. ¶¶ 13, 20; K. Lecky Decl. (ECF No. 37-3) ¶¶ 4, 5, 8; Marshall Decl. Attach. H at
151 (showing Kenneth Lecky checked-in to vote in precinct 402 at 4:08 p.m.).
-6-
In the hours between that conversation and vote and Mr. Lecky casting a ballot in House
District 88, the Fredericksburg Board of Elections decided not to offer voters provisional ballots
and provide no other remedy to affected voters. Marshall Decl. Attach. I.
State Department of Elections Report.
Following the election, the Virginia Department of Elections (the “Department”), issued
a detailed report concluding that:
• 384 registered voters were erroneously assigned or not assigned to vote in the House Dis-
trict 28 election.
• Of these voters, 147 voted in the General Election.
• Eighty-six (86) of these 147 voters were residents of House District 28 but were misas-
signed to House District 2 or House District 88.
• The other 61 of these 147 voters were residents of House District 88 but were misas-
signed to House District 28.
Cortes Decl. (ECF No. 62-1) Attachment. That report was unanimously adopted by the bipartisan
Virginia State Board of Elections and appended to its certification of the results by unanimous
vote. Cortes Decl. ¶ 11. The facts recited in the report show that despite more than 87 percent of
the votes in House District 28 being cast in Stafford County, a majority of the misassigned voters
resided in Fredericksburg, a jurisdiction where Cole won more than 70 percent of the votes cast.
ARGUMENT
I. DEFENDANTS DENIED PLAINTIFFS’ CONSTITUTIONAL RIGHT TO VOTE

BY PROVIDING PLAINTIFFS INCORRECT BALLOTS AND FAILING TO
ADOPT AN APPROPRIATE REMEDY.
A. Plaintiffs’ Injuries Are Severe, Constitutional Injuries that Violated Plain-

tiffs’ Due Process Rights.
1. Defendants Violated Plaintiffs’ Substantive Due Process Rights.
“[A]n election is a denial of substantive due process if it is conducted in a manner that is
fundamentally unfair.” Bennett, 140 F.3d at 1226. Courts have distinguished such circumstances
from “garden variety election irregularities,” which do not merit federal court intervention.
-7-
Hutchinson v. Miller, 797 F.2d 1279, 1283 (4th Cir. 1986) (quoting Griffin, 570 F.2d at 1076).
Here, the Plaintiffs’ substantive due process rights were violated, because there were
“pervasive error[s] that undermine[d] the integrity of the vote.” Bennett, 140 F.3d at 1226. For
more than two years preceding the 2017 election, the City of Fredericksburg was aware that vot-
ers had been misassigned among House of Delegates districts. Yet the City failed to correct the
error in advance of the 2017 election. As a result, enough voters to provide the margin of victory
were incorrectly prevented from (and, in at least 61 cases, incorrectly permitted to) voting in a
narrowly-decided election. At bottom, the errors made were a systematic failure of the principal
election officials charged with the oversight of this election—not temporary poll workers—to
afford legal voters the right to vote and not to permit illegal votes to dilute their votes. These er-
rors seriously undermined the integrity of the House District 28 election.
In addition to the initial misassignment, Plaintiffs “complain about the official action tak-
en by Defendants to remedy those errors, actions that, although clearly undertaken in good faith,
produced fundamental unfairness.” Krieger, 2014 WL 4187500, at *4. As soon as the Freder-
icksburg election officials received the complaint from Ms. Lecky, they should have determined
whether the voters in question were eligible to vote in House District 28 and, if that could not be
confirmed, offer the voters a provisional ballot. “[E]ach qualified voter at a precinct shall be
permitted to vote.” Va. Code Ann. § 24.2-643(A). “When a person offers to vote … and the gen-
eral registrar is not available or cannot state that the person is registered to vote, then such person
shall be allowed to vote by [provisional] ballot.” Id. § 24.2-653(A). Every voter in Virginia en-
joys a statutory right to a provisional ballot when her eligibility to vote in a given election is
questioned. See Virginia Dep’t of Elections, Voter Rights & Responsibilities, available at
https://www.elections.virginia.gov/registration/voter-rights-responsibilities/index.html (“As a
Virginia Voter, you have the following rights: To vote a Provisional Ballot if your status as a
qualified voter is in question, and to be present when the Electoral Board meets to determine if
your ballot will be counted.”).
-8-
Moreover, when presented with evidence that the information in the electronic pollbook
may be incorrect, election officials are required to investigate it. If a voter disputes the infor-
mation in the pollbook, local officials are instructed to “check the street file records, alpha roster,
electronic pollbooks, other such materials provided, or information from the general registrar to
determine if the voter is in the correct precinct.” GREB Handbook, Chapter 17.4.1 at 438. The
Board members failed to follow these protocols. After receiving Ms. Lecky’s complaint, the
Board members “pointed [Lecky] to a map hanging in the polling place which showed that [her]
address was well within the House District 28 boundaries.” D. Lecky Decl. ¶ 13. But rather than
correct the problem by offering the voters a provisional ballot – and seeking to determine which
other voters might have been affected – the two board members instead “concluded that the map
must have been wrong and removed the map from the polling place.” Id. ¶¶ 14-15. In other
words, when the election officials identified clear evidence establishing Ms. Lecky’s eligibility
to vote in House District 28, they simply ignored it and then prevented other voters from verify-
ing their own eligibility.
The Board then adopted its illegal policy of denying provisional ballots to voters who
claimed to be assigned to the wrong House of Delegates district. Marshall Decl. Attach. I. This
was clear error. See GREB Handbook, Chapter at 17.4.1.1 at 439 (emphasis in original) (“The
officer of election must inform the individual of his or her right to cast a provisional ballot if the
individual believes he or she should be legally registered to vote in the precinct, and the individ-
ual signs the Provisional Ballot Envelope under felony penalty for making false statements that
he or she is a registered voter of the precinct.”). Incredibly, the Board reasoned that provisional
ballots were unnecessary because, “[i]f in fact the database is incorrect, then the appropriate
means for challenging it is through the formal contest procedure” found in Va. Code Ann.
§ 24.2-803.
The idea that a post-election contest is a viable substitute for a provisional ballot is entire-
ly unsupported by law. In fact, Congress enacted legislation to mandate the provisional ballot in
federal elections (which Virginia law extends to nonfederal elections) to avoid the situation that
-9-
we now face in House District 28. To forego the provisional ballot remedy in favor of a specula-
tive contest that the voters in question have no standing to bring was a grievous error. See 148
Cong. Rec. S10488-02 (daily ed. Oct. 16, 2002) (statement by Sen. Bond) (HAVA “requires eve-
ry jurisdiction . . . to offer voters who claim to be registered in a jurisdiction but do not appear on
the voter rolls for that jurisdiction the right to cast a provisional ballot. . . . No voter will be
turned away from the polls because of a mistake or oversight at the administrative level.”); see
also 148 Cong. Rec. S709-03 (daily ed. Feb. 13, 2002) (statement by Sen. Schumer) (stating that
one of the main purposes of HAVA is “to ensure that every eligible American who goes to vote
gets to vote and that every vote cast counts”); 148 Cong. Rec. S2527-01 (daily ed. Apr. 11, 2002)
(statement by Sen. Dodd) (“We do not want to disenfranchise anyone, accidentally or otherwise,
who is eligible to vote.”). The fact that the affected voters do not even have standing to bring a
contest further exacerbates the constitutional harm.
In their oppositions, Defendants cite a number of cases in which courts dismissed federal
constitutional challenges to state election errors. These courts, however, dismissed each of these
cases for reasons not present in this case. For example:
• In Hennings v. Grafton, 523 F.2d 861, 865 (7th Cir. 1975), the court dismissed the
case because the complaint had no factual basis. See id. (“[P]laintiffs had failed to
prove their allegations that persons were denied the right to vote because of long
lines.”).
• In White-Battle v. Democratic Party of Virginia, 323 F. Supp. 2d 696, 706 (2004),
the court dismissed the case because it concerned aberrational mistakes made by
poll workers, rather than a systematic failure by the principal election officials.
See also id (“[T]here is no evidence that the alleged election errors, if true, are
anything more than ‘the irregularities that are inevitable in elections staffed large-
ly by volunteers.’”) (quoting Hutchinson, 797 F.2d at 1287).
• And, in Harris County Dep’t of Ed. v. Harris Cty., Tex., No. H–12–2190, 2012
WL 3886427, at *8 (S.D. Tex. Sept. 6, 2012), the court rejected plaintiffs’ chal-
- 10 -
lenge because there was no plausible claim of harm from the wrongdoing. See id.
(plaintiff’s challenge to incorrect maps used in initial primary rejected after plain-
tiff’s lost run-off election using the correct maps).
Finally, Defendants cite pre-Griffin cases that take the position that no federal relief is
available, a position rejected by the First Circuit in Griffin and, by extension, the Fourth Circuit
in Hutchinson. See, e.g., Pettengill v. Putnam Cty. R-1 School Dist., Unionville, Mo., 472 F.2d
121, 122 (8th Cir. 1973) (“Appellants cite no cases, and we have found none, which authorize a
federal court to be the arbiter of disputes over whether particular persons were or were not enti-
tled to vote . . . .”); Registrars’ Opp’n at 6 n.1 (citing case). These cases are not the law of this
Circuit: in Hutchinson, the Fourth Circuit expressly noted that equitable relief may be available
for depravations of the right to vote. 797 F.2d at 1287.
That Defendants characterize their actions preventing voters from casting ballots as “in-
advertent” does not shield them from this Court’s review, as Defendants claim (at ECF No. 89 at
8). Courts have expressly held that “[w]rongful intent is not required” for an election irregularity
to raise constitutional concerns. Krieger v. City of Peoria, No. CV-14-01762-PHX-DGC, 2014
WL 4187500, at *4 (D. Ariz. Aug. 22, 2014). Were this Court to hold otherwise, there would be
no constitutional limit to a state systematically disenfranchising an unlimited number of voters
and then shielding the results based on the excuse of inadvertence.
2. Defendants Violated Plaintiffs’ Procedural Due Process Rights.
In their oppositions, none of the Defendants have even directly addressed the Plaintiffs’
procedural due process claim. Specifically, Defendants have failed to demonstrate that the pro-
cedures they undertake to prevent incorrect district assignments were reasonable in this case. Nor
could they.
As set forth in Plaintiffs’ memorandum, Defendants have violated Plaintiffs’ procedural
due process rights because Defendants’ assignment processes had insufficient procedural safe-
guards to ensure that the right to vote was not erroneously denied by assigning voters to the in-
correct election districts. See Amended Complaint (ECF No. 42-1) (Count II, ¶¶ 48-56); Pls.’
- 11 -
Mem. § V.1.b. As discussed above, many addresses were reassigned to other House Districts
after 2011, and the Registrars did so with so many errors that it can only be inferred that no ade-
quate protections were available. In addition, Defendants failed to follow the procedure on Elec-
tion Day provided by State law – providing misassigned voters with provisional ballots – that
potentially could have averted the deprivation of Plaintiffs and numerous other voters right to
vote.
B. Defendants’ Failure to Provide Plaintiffs and Other Voters the Correct Bal-
lots Unconstitutionally Burdened the Right to Vote.
Defendants’ incorrect assignment of ballots, and deliberate decision not to remedy such
incorrect assignment, impermissibly burdened the fundamental right to vote. Under the Supreme
Court’s standard in Anderson v. Celebrezze, 460 U.S. 780, 789 (1983) and Burdick v. Takushi,
504 U.S. 428, 434 (1992) (“Anderson-Burdick test”), courts weigh: (1) “‘the character and mag-
nitude of the asserted injury to [plaintiff’s] rights’ . . . against” (2) “‘the precise interests put for-
ward by the State as justifications for the burden imposed by its rule,’ taking into consideration
‘the extent to which those interests make it necessary to burden the plaintiff’s rights.’” Burdick,
504 U.S. at 434 (quoting Anderson, 460 U.S. at 789).
In this case, 86 House District 28 voters were unable to vote in the House District 28
election because they were incorrectly listed in the registration records. This is a severe burden.
See One Wis. Inst., Inc. v. Thomsen, No. 15-cv-324-jdp, 2016 WL 4059222, at *929 (W.D. Wis.
July 29, 2016) (finding “severe” burden on the right to vote where approximately 100 people
were disenfranchised). Defendants have not, and cannot, identify any interest that justifies this
severe burden.
Instead, the Intervenors and Mr. Thomas counter (at 9) that the Anderson-Burdick test
does not apply because “Plaintiffs challenge neither a ‘voting regulation’ nor a calculated state
decision that may amount to ‘invidious discrimination’” and instead challenge only “uninten-
tional human error.” But that is untrue. The decision by the Fredericksburg Board of Elections to
deny provisional ballots to affected voters and force them to rely on a contest procedure before
- 12 -
the House of Delegates was a calculated state decision where the burden on the voters’ rights
(denying their participation to vote in the House of Delegates election) substantially exceeded
whatever minimal work would have been required to identify the affected voters, contact them,
and offer them a provisional ballot.
Moreover, Thomas and the Intervenors identify no case that expressly cabins the applica-
tion of the Anderson-Burdick test to only “voting regulations” or such “calculated state deci-
sison[s].” And Plaintiffs have found none. To the contrary, courts have used the Anderson-
Burdick test to evaluate burdens on voters imposed due to, among other things, election admin-
istration error. See, e.g., Northeast Ohio Coalition for Homeless v. Husted, 696 F.3d 580 (6th Cir.
2012) (evaluating burden imposed by automatic-disqualification rule for wrong-precinct ballots
and noting that the burden included disqualification of voters based on poll-worker error).
C. Defendants’ Failure to Provide Plaintiffs and Other Voters the Correct Bal-
lots Violated Equal Protection Guarantees in At Least Two Additional Ways.
In addition to the burdens placed on Plaintiffs, see Anderson, 460 U.S. at 789; Burdick,
504 U.S. at 434, Defendants have violated Plaintiffs’ equal protection guarantees in at least two
additional ways. Defendants make no mention of either basis for relief in their oppositions.
First, as Plaintiffs set forth in their opening Memorandum (at 12-14), Defendants have
violated their equal protection guarantees by expressly and impermissibly discriminating
amongst voters. Specifically, Defendants continued to give some Virginia House District 28 res-
idents correct ballots for the House District election. But, and after being alerted to the problem
and intentionally declining to fashion a remedy of any kind, it gave other Virginia residents in-
correct ballots, those for House Districts 2 and 88. There is no rational basis for treating some
residents of House District 28 differently than other residents.
Second, and as set forth in Plaintiffs’ Memorandum (at 14), by providing correct ballots
to some voters and incorrect ballots to others, Defendants imposed “‘arbitrary and disparate
treatment’” on similarly situated voters in violation of the Equal Protection Clause. Hunter v.
Hamilton Cty. Bd. Of Elections, 635 F.3d 219, 234 (6th Cir. 2011) (quoting Bush v. Gore, 531
- 13 -
U.S. 98, 104-105 (2000)).
II. PLAINTIFFS WILL SUFFER IRREPARABLE HARM ABSENT RELIEF.
Absent the issuance of an injunction, Plaintiffs will suffer irreparable harm. See League
of Women Voters of N.C. v. North Carolina (“LOWV”), 769 F.3d 224, 236 (4th Cir. 2014). If
Defendants are not enjoined from seating Mr. Thomas in the Virginia House of Delegates and a
new election for House District 28 is not ordered, Plaintiffs’ and other Virginians’ due process
and equal protection rights will be violated because their right to vote in House District in 2017
will have been forever lost, as outlined above. This is the essence of irreparable harm. See id. at
247 (“Courts routinely deem restrictions on fundamental voting rights irreparable injury.”); see
also Melendres v. Arpaio, 695 F.3d 990, 1002 (9th Cir. 2012) (“[T]he deprivation of constitu-
tional rights ‘unquestionably constitutes irreparable injury.’”) (quoting Elrod v. Burns, 427 U.S.
347, 373 (1976)).
Moreover, Plaintiffs will suffer irreparable injury if their preliminary injunction is denied
and they are represented by Mr. Thomas as the Delegate for House District 28 during the pen-
dency of this lawsuit. Under Virginia law, the House of Delegates is organized at the beginning
of session. That is when the Speaker is chosen and committees are selected. The Republican
House leader has publicly announced “that the House will hold that vote [for Speaker], assign
committees and move forward with business on Jan. 10,” regardless of whether there are pending
legal disputes. 5 If this Court does not act, the House of Delegates will be organized with the par-
ticipation of Mr. Thomas, even if he is later unseated. These votes will have an inordinate effect
on which bills are subsequently considered and voted on by the full House of Delegates – and the
harm would be irreparable if those decisions were shaped by a Delegate whose election was con-
stitutionally infirm.
5
Jordan Pascale, “Virginia Board of Elections will randomly draw winner for 94th District
Jan. 4, barring court ruling,” The Virginian-Pilot (Dec. 29, 2017),
https://pilotonline.com/news/government/politics/virginia/article_2a85c1d0-6814-50be-b010-
39d20574480b.html.
- 14 -
In addition, that period would likely include a large number of votes, including the most
critical – and most partisan – votes to be taken during the delegate’s two-year term. The longest
session of Virginia’s part-time legislature convenes in January of even-numbered years (e.g.,
2018), and the organization of the House of Delegates would likely remain frozen – tainted by
Mr. Thomas’s vote – even if Mr. Thomas were later unseated. See Exhibit 3 (“Toscano Decl.”).) 6
Courts have recognized that federal court intervention is appropriate where delay would
prejudice the plaintiffs. See Roe v. State of Ala. By and Through Evans, 43 F.3d 574, 582 (1995).
(“The unnecessary delay that would result were we to leave the plaintiffs to their state court rem-
edy would be particularly insidious: it would extend the time that the two offices at issue remain
in limbo, hindering those offices in the handling of state affairs. Time is, therefore, of the es-
sence.”). That is undoubtedly the case here as well.
III. THE BALANCE OF EQUITIES AND PUBLIC INTEREST FAVOR RELIEF.
“The public interest and the balance of the equities favor ‘prevent[ing] the violation of a
party’s constitutional rights.’” Ariz. Dream Act Coal. v. Brewer, 818 F.3d 901, 920 (9th Cir.
2016) (alteration in original) (citation omitted); see also Giovani Carandola, Ltd. v. Bason, 303
F.3d 507, 521 (4th Cir. 2002) (“[U]pholding constitutional rights surely serves the public inter-
est.”). This is even more so when, as here, voting rights are at issue because “[t]he public has a
‘strong interest in exercising the fundamental political right to vote,’” and in “‘permitting as
many qualified voters to vote as possible.’” LOWV, 769 F.3d at 247-48 (citations omitted). Again,
absent relief from this Court, a number of Virginians will have been deprived due process and
equal protection guarantees through the conduct of this election.
A new election is the proper remedy when the margin of victory is smaller than the num-
6
At least the Intervenors and Mr. Thomas argue (at 10–11) that there would have been no
irreparable harm if the election results are not enjoined and Mr. Thomas is seated because Mr.
Thomas could have still been removed after an election contest. Not only has no contest been
filed, such a remedy would have been inadequate because it would permit Mr. Thomas to con-
tinue to represent the district during the pendency of the contest, and potentially to vote – despite
his clear conflict of interest – on the result of the contest. See Toscano Decl. ¶ 4; Roe, (untimely
state election law remedies inadequate).
- 15 -
ber of eligible voters denied a ballot or the number of ineligible voters offered a ballot. See Ste-
ven F. Huefner, Remedying Election Wrongs, 44 Harv. J. on Legis. 265, 307 (2007) (a court
should “call [a] new election” when the number of “[l]egal votes necessarily excluded” or the
“[number] of illegal votes” “creates reasonable uncertainty” in the election’s outcome). See also
N.C. Gen. Stat. § 163A-1181(a) (authorizing the State Board of Elections to order a new election
when “[i]neligible voters sufficient in number to change the outcome of the election were al-
lowed to vote in the election, and it is not possible from examination of the official ballots to de-
termine how those ineligible voters voted and to correct the totals” or “[e]ligible voters sufficient
in number to change the outcome of the election were improperly prevented from voting.”). Sev-
eral state supreme courts have reached the same conclusion. See Crow v. Bryan, 113 S.E.2d 104,
106-07 (Ga. 1960); Akizaki v. Fong, 461 P.2d 221, 224 (Haw. 1969); McCavitt v. Registrars of
Voters, 434 N.E.2d 620, 631 (Mass. 1982); Creamer v. City of Anderson, 124 S.E.2d 788, 790
(S.C. 1962). Here, the 147 votes unlawfully cast or prevented from being cast exceeds the 73-
vote margin between the candidates and a new election is the only mechanism to remedy the
constitutional violations in this case.
Even the State Defendants agree that state law does not offer an adequate administrative
remedy and that federal court intervention is therefore appropriate. In his declaration, the Com-
missioner of Elections concluded that “[t]he errors currently identified in the elections for House
Districts 28 and 88 are of great concern to the Department of Elections. As the Department has
no mechanism to provide a remedy to these voters, the Department supports the court providing
an appropriate remedy.” Cortes Decl. ¶ 12. The State Defendants concede that “the State Board
and Department have no mechanism, under Virginia law, to address” the systematic errors iden-
tified by the Commissioner in his report. State Def. Resp. at 5. Moreover, because “the ballots
cast by misassigned voters are indistinguishable from the ballots cast by voters properly voting in
the affected districts, officials are unable to calculate out the votes cast by misassigned voters for
each candidate.” Id. As a result, the State Defendants “are supportive of any appropriate resolu-
tion of this matter, whether through the avenues provided for unsuccessful candidates under Vir-
- 16 -
ginia law, or through litigation to vindicate fully and appropriately recognize the affected voters’
fundamental right to vote and have that vote counted.” Id. at 7 (emphasis added). A new election
is the appropriate remedy here.
Again, that Mr. Cole could have filed an election contest, as the Intervenors and Defend-
ant Thomas suggest (at 9–10), does not tip this balance. No state election contest has been filed,
and, in any case, a contest in the legislature would not remedy the constitutional harm suffered
by Plaintiffs. See note 7, supra, & accompanying text. “The legislature . . . is not an adequate or
proper forum for the resolution of the federal constitutional issues presented.” Roe v. State of Ala.
By and Through Evans, 43 F.3d 574, 583 (11th Cir. 1995). 7

IV. THE DOCTRINE OF LACHES DOES NOT PRECLUDE THIS ACTION.
The Registrars’ last-ditch argument that Dolores and Kenneth Lecky’s claims are barred
under the doctrine of laches is similarly without merit. “[T]he equitable defense of laches re-
quires a defendant to prove ‘(1) lack of diligence by the party against whom the defense is as-
serted, and (2) prejudice to the party asserting the defense.’” E.E.O.C. v. Navy Fed. Credit Union,
424 F.3d 397, 409 (4th Cir. 2005) (quoting White v. Daniel, 909 F.2d 99, 102 (4th Cir. 1990)).
First, the Lecky’s did not “unreasonably delay[] in pursuing [their] claim[s].” Id. Plaintiff
D.D. Lecky alerted the poll worker that she had been given the incorrect ballot before she voted
and informed a majority of the members of the Fredericksburg Board of Elections minutes after
she voted. Second, the local election administrators cannot show unfair prejudice, as they must.
Contrary to Registrars’ arguments, Plaintiffs are not responsible for correcting their errors. Ra-
ther, voters are permitted to rely on election officials’ instructions and cannot be deprived of the
right to vote as a consequence of following those instructions. See Hunter, 635 F.3d at 223.
Moreover, this case is a far cry from the principal case cited by the Registrars (at 7), which con-
7
Mr. Nardo has represented that if the State Board decertifies Mr. Thomas’s election (or,
presumably, if the Court declares the certification invalid), he will not seat Mr. Thomas in the
House of Delegates. (Nardo Opp’n (ECF No. 72).) Assuming he abides by that commitment, and
Plaintiffs secure all other relief they seek, Plaintiffs agree that enjoining Mr. Nardo is not strictly
necessary to remedy their injuries.
- 17 -
cerns a post-election challenge to an explicit, announced rule for counting ballots with mixed
indications of voter intent that had been in force for more than 25 years. See Hendon v. N.C. State
Bd. of Elections, 710 F.2d 177, 182 (4th Cir. 1983).
Regardless, the application of a laches defense is inappropriate in this case, where the
challenged conduct affected the right to vote of an unknown number of Virginians, apart from
the Plaintiffs. See Bishop v. Lomenzo, 350 F. Supp. 576, 581 (E.D.N.Y. 1972) (noting that the
“public interest in [the] enforcement” of a law that “affect[] the rights of thousands of qualified
voters” is “paramount and should not be defeated because of laches on the part of the named
plaintiffs”).
CONCLUSION
For the reasons stated above, Plaintiffs respectfully request this Court grant injunctive
and declaratory relief.
Dated: December 29, 2017 By: /s/ Aria C. Branch

Marc Erik Elias
Bruce V. Spiva
Brian Simmonds Marshall
Aria C. Branch (VSB No. 83682)
Perkins Coie LLP
700 13th St. N.W., Suite 600
Washington, D.C. 20005-3960
Phone: (202) 434-1627
Fax: (202) 654-9106
Email: MElias@perkinscoie.com
Email: BSpiva@perkinscoie.com
Email: BMarshall@perkinscoie.com
Email: ABranch@perkinscoie.com
Attorneys for Plaintiffs
- 18 -
CERTIFICATE OF SERVICE
I certify that on December 29, 2017, I filed the foregoing with the Clerk of the Court us-
ing the ECF System which will send notification of such filing to the registered participants as
identified on the Notice of Electronic Filing. In addition, I caused this filing to be sent by email
to and U.S. Mail Priority Mail Express (overnight delivery) to:
Cathie Fisher Braman

1424 Littlepage Street
Fredericksburg, Virginia 22401
cathiebraman@yahoo.com
Date: December 29, 2017 /s/ Aria C. Branch

Aria C. Branch (VSB No. 83682)
- 19 -
Case 1:17-cv-01336-TSE-IDD Document 98-1 Filed 12/29/17 Page 1 of 52 PageID# 713
Exhibit 1

EASTERN DISTRICT OF VIRGINIA
ALEXANDRIA DIVISION
Kenneth J. Lecky, et al.
Plaintiffs,
Civil Action No. 1:17-cv-01336-TSE-IDD
v.
Virginia State Board of Elections, et al.
Defendants.
DECLARATION OF BRIAN SIMMONDS MARSHALL IN SUPPORT OF PLAINTIFFS’

REPLY IN SUPPORT OF THEIR MOTION FOR A PRELIMINARY INJUNCTION
I, BRIAN SIMMONDS MARSHALL, swear under penalty of perjury that the following
is true and correct.
1. I am an attorney with the law firm of Perkins Coie LLP, and am counsel for Plaintiffs in
this litigation. I have personal knowledge of the matters set forth below and am
competent to testify.
2. Attached as Attachment A is a true and correct copy of the Minutes of the March 10,
2015 Meeting of the City of Fredericksburg Electoral Board.
3. Attached as Attachment B is a true and correct copy of the Minutes of the March 22,
2016 Meeting of the City of Fredericksburg Electoral Board.
4. Attached as Attachment C is a true and correct copy of the Minutes of the April 22, 2016
Meeting of the City of Fredericksburg Electoral Board.
5. Attached as Attachment D is a true and correct copy of the Commonwealth of Virginia
Voter Cards issued to Walter Royce Braman, dated May 1, 2015, April 16, 2015 and
October 17, 2003.

6. Attached as Attachment E is a true and correct copy of a letter from J. Pitchford, City of
Fredericksburg, to M. Brissette, Virginia State Board of Elections, dated March 18, 2016.
7. Attached as Attachment F is a true and correct copy of an email from B. Braun to J.
Pitchford, re: 28th & 88th Districts, dated May 10, 2016.
8. Attached as Attachment G is a true and correct copy of the Elections Issue Log for
November 2017, undated.
9. Attached as Attachment H is a true and correct copy of an excerpt of the “Voters
Checked In By House District” Report for the November 2017 General Election (Election
Date November 7, 2017), dated November 15, 2017, at pages 1, 151 & 211.
10. Attached as Attachment I is a true and correct copy of an email string among R.
Rodriguez, M. Hoffman, A. Markel, C. Braman and K. Dooley, re: Precinct 402, dated
November 7, 2017.
11. Attached as Attachment J is a true and correct copy of an email from M. Davis to M.
Hoffman, re: Requested Data, dated November 7, 2017.
12. Attached as Attachment K is a true and correct copy of an email from M. Davis to M.
Hoffman, re: Street File Listing Report for 402, dated November 7, 2017.
13. Attached as Attachment L is a true and correct copy of an email from M. Davis to M.
Hoffman, re: Elect #, dated November 7, 2017.
14. Attached as Attachment M is a true and correct copy of the Virginia Department of
Elections 2017 June Democratic Primary Official Results, House of Delegates, last
modified Jun. 15, 2017, available at
http://results.elections.virginia.gov/vaelections/2017%20June%20Democratic%20Primar
y/Site/GeneralAssembly.html (last visited Dec. 28, 2017).
-2-
15. Attached as Attachment N is a true and correct copy of the Virginia Department of
Elections 2017 June Democratic Primary Official Results, Fredericksburg City, last
modified Jun. 13, 2017, available at
http://results.elections.virginia.gov/vaelections/2017%20June%20Democratic%20Primar
y/Site/Locality/FREDERICKSBURG%20CITY/Index.html (last visited Dec. 28, 2017).
I declare under penalty of perjury that the foregoing is true and accurate to the best of my
knowledge and belief and that this declaration was executed on the 29th day of December, 2017,
in Washington, D.C.
DATED: December 29, 2017

Brian Simonds Marshall
-3-
Attachment A
Attachment B
Attachment C
Attachment D
Attachment E
Attachment F
Attachment G
Attachment H
Report Date
Voters Checked In By House District 11/15/2017 11:26:24 AM
Election 2017 November General Election Date : 11/7/2017
House District 028

Name ID Cng-Sen-Hse Check In Date Time
ABDULKADER, AMIR MOHAMED 039479314 01-017-028 11/7/2017 9:38:43 AM
ABOLD-LABRECHE, BENJAMIN JOSEPH 189661602 01-017-028 11/7/2017 11:35:07 AM
ABRAHAMSON, JENNIFER CLAIRE 157359227 01-017-028 11/7/2017 11:17:24 AM
ACHE, DANIEL JEFFERSON 660380321 01-017-028 11/7/2017 9:27:35 AM
ADAMS, ELIZABETH 920326414 01-017-028 11/7/2017 1:27:35 PM
ADAMS, IESHA LATRICE 359612403 01-017-028 11/7/2017 2:30:24 PM
ADAYE, EMNET TAREKEGN 197274231 01-017-028 11/7/2017 6:36:20 PM
AGNELLO, PAUL THOMAS 920086756 01-017-028 11/7/2017 8:23:04 AM
AGUILAR, RIGOBERTO C 070063418 01-017-028 11/7/2017 4:11:50 PM
AGUIRRE, KELSEY MARIE 005619714 01-017-028 11/7/2017 12:16:15 PM
AHEARN, ANN LOUISE 701022225 01-017-028 11/7/2017 7:57:50 AM
AHEARN, DENNIS EUGENE 702022225 01-017-028 11/7/2017 9:14:41 AM
AIDS, WILEY LOVEJOY 807019907 01-017-028 11/7/2017 10:50:34 AM
AIKEN, MICHAEL ANTHONY 918025538 01-017-028 11/7/2017 7:48:24 AM
AKKERMAN-CRAWFORD, BONNIE LEE 604009058 01-017-028 11/7/2017 12:24:55 PM
ALGERT, DAVID CHRISTIAN 918688162 01-017-028 11/7/2017 6:20:09 AM
ALGERT, MARY BETH 917443565 01-017-028 11/7/2017 10:02:33 AM
ALLEN, EDWARD LEFEBVRE 122004154 01-017-028 11/7/2017 6:58:57 AM
ALLEN, HENRY 802019908 01-017-028 11/7/2017 10:03:22 AM
ALLEN, LENA WASHINGTON 803019908 01-017-028 11/7/2017 10:03:42 AM
ALLEN, NOURA COLEMAN 780868480 01-017-028 11/7/2017 10:51:01 AM
ALLEN, YOLANDA FAYE 917021429 01-017-028 11/7/2017 3:14:26 PM
ALLISON, ALLISON SKEER 341512557 01-017-028 11/7/2017 4:00:44 PM
ALTHOUSE, JEDIDIAH SHANE 592225824 01-017-028 11/7/2017 8:53:02 AM
ALTMAN, DEBORAH BRYANT 803019389 01-017-028 11/7/2017 12:06:19 PM
ALTMAN, RANDOLPH MARSHALL 804019389 01-017-028 11/7/2017 12:07:04 PM
AMES, PAMELA JANE 108019822 01-017-028 11/7/2017 8:55:23 AM
AMURRIO, CHRIS JULIAN 571181328 01-017-028 11/7/2017 1:06:33 PM
ANCARROW, JOSHUA KEITH 430404646 01-017-028 11/7/2017 11:20:35 AM
ANDERSON, ANSLEY NICOLE 008409087 01-017-028 11/7/2017 7:49:01 AM
ANDERSON, BARBRA LYNNE 917184381 01-017-028 11/7/2017 5:37:56 PM
ANDERSON, BRYCE JAY 679871907 01-017-028 11/7/2017 4:20:03 PM
Page 1
Report Date
House District 088

LAROCHELLE, RICHARD EUGENE 805018375 01-017-088 11/7/2017 9:54:25 AM
LAROSE, MARGARET ELLIS 606011701 01-017-088 11/7/2017 7:42:59 AM
LARSEN-CABRERA, AMY FRANCES 553915888 01-017-088 11/7/2017 7:57:59 AM
LARUE, WENDY JO 714001935 01-017-088 11/7/2017 8:30:20 AM
LASEUR, KATELIN JOANNE 387395283 01-017-088 11/7/2017 11:57:27 AM
LASH, PATRICK FRANCIS 811020023 01-017-088 11/7/2017 9:24:17 AM
LASSINGER, ROBERT THOMAS 612012898 01-017-088 11/7/2017 12:30:49 PM
LATURNO, THOMAS WARREN 919581656 01-017-088 11/7/2017 7:35:54 AM
LAURORE, MICKELINA LAFLEUR 776803480 01-017-088 11/7/2017 5:35:04 PM
LAVINUS, ANDREW DAVID 920051981 01-017-088 11/7/2017 3:29:52 PM
LAW, CARL CALDWELL 808020023 01-017-088 11/7/2017 1:32:31 PM
LAW, CAROLYN GREENLEE 809020023 01-017-088 11/7/2017 1:35:26 PM
LAWRENCE, LEAH KELLEY 918544054 01-017-088 11/7/2017 2:50:24 PM
LAWRENCE, MARCUS ANDREW 917473255 01-017-088 11/7/2017 11:45:07 AM
LAWSON, JO-ANN OCKSRIDER 808019764 01-017-088 11/7/2017 11:18:28 AM
LAWSON, JONATHAN EDWARD 676892057 01-017-088 11/7/2017 4:47:14 PM
LAWSON, ROGER CARLTON 809019764 01-017-088 11/7/2017 6:30:34 AM
LAWSON, STEPHANIE MARIE 719183808 01-017-088 11/7/2017 4:58:42 PM
LAY, JAMES LAWRENCE 337264866 01-017-088 11/7/2017 5:12:07 PM
LAYTON, BERTIE VIRGINIA 811019295 01-017-088 11/7/2017 11:02:34 AM
LAYTON, BRIAN FORREST 708029284 01-017-088 11/7/2017 7:33:29 AM
LAYTON, NORMA GOSPER 710000777 01-017-088 11/7/2017 12:11:41 PM
LAYTON, SHANNON LYNN 918485346 01-017-088 11/7/2017 5:00:57 PM
LAZAR, SHARON L 212011297 01-017-088 11/7/2017 11:28:43 AM
LEAGUE, KATHIE STEIN 920249164 01-017-088 11/7/2017 7:00:48 AM
LEAGUE, WILLIAM LUDWIG 920246354 01-017-088 11/7/2017 7:01:09 AM
LEAS, DAVID CHRISTOPHER 919396423 01-017-088 11/7/2017 5:16:39 PM
LEASE, LISA PORTZ 919693676 01-017-088 11/7/2017 2:29:24 PM
LEATHERLAND, ROBERT WADE 918752885 01-017-088 11/7/2017 11:17:22 AM
LECKY, DOLORES DANIELLE 918229846 01-017-088 11/7/2017 9:05:59 AM
LECKY, KENNETH JAMES 918876893 01-017-088 11/7/2017 4:08:17 PM
LEDBETTER, CAROLYN JOHNSON 009445964 01-017-088 11/7/2017 2:12:49 PM
Page 151
Report Date
House District 088

YOUNG, MARGUERITE BAILEY 805019905 01-017-088 11/7/2017 8:12:44 AM
YOUNG, MARK ALEXANDER 917443469 01-017-088 11/7/2017 6:21:14 AM
YOUNG, ZACHARY CLINTON 026693044 01-017-088 11/7/2017 12:10:34 PM
ZACCAGNI, PATRICIA LEE 917145628 01-017-088 11/7/2017 2:06:14 PM
ZAMAN, WAHEED-UZ 698128226 01-017-088 11/7/2017 3:35:20 PM
ZARIN, BABAK AKBARI 047258584 01-017-088 11/7/2017 7:07:47 AM
ZAYLOR, EMILY ANNE 389071727 01-017-088 11/7/2017 6:15:41 PM
ZBRZEZNJ, DEBRA JEAN 920234154 01-017-088 11/7/2017 7:03:14 AM
ZEIGLER, EDWARD C 919281751 01-017-088 11/7/2017 7:00:39 PM
ZEIGLER, JAMNIAN YUENYAO 281416184 01-017-088 11/7/2017 6:40:55 PM
ZELLI, MARY DIANE 810019625 01-017-088 11/7/2017 9:47:04 AM
ZIES, DEBORAH LEE 920349582 01-017-088 11/7/2017 2:24:48 PM
ZIMMERMAN, ADAM EUGENE 920283445 01-017-088 11/7/2017 5:39:11 PM
ZINS, CONNOR PAUL 841941648 01-017-088 11/7/2017 3:59:20 PM
ZIRKLE, CARL STEVEN 802020123 01-017-088 11/7/2017 9:01:47 AM
ZOROYA, NOAH LOUIS 451032848 01-017-088 11/7/2017 11:10:30 AM
ZUBICK, MELISSA OLIN 710001785 01-017-088 11/7/2017 9:22:17 AM
ZUBICK, MICHAEL ANDREW 711001785 01-017-088 11/7/2017 9:25:02 AM
ZUCCARO, DANIELLE ANNE 378396083 01-017-088 11/7/2017 7:37:09 AM
ZUKOR, TEVYA M 917218319 01-017-088 11/7/2017 7:53:51 AM
ZUZA, LAUREN ASHLEY 088195715 01-017-088 11/7/2017 6:10:17 PM
Total Checked In for House District 088 3989
Total Checked In 6711
Page 211
Attachment I
Attachment J
Attachment K
Attachment L
Attachment M
12/28/2017
Case 2017
1:17-cv-01336-TSE-IDD Document June Democratic
98-1 Primary
Filed 12/29/17 Page 47 of 52 PageID# 759
Washington Building First Floor
1100 Bank Street,
Richmond, VA 23219
Phone (804) 864-8901
Toll Free (800) 552-9745
Fax (804) 371-0194
Email: info@elections.virginia.gov
2017 June Democratic Primary
Official Results
Virginia Department of Elections > Election Results > 2017 June Democratic Primary
Member House of Delegates (002)
Candidate Votes Percent
Jennifer D. Carroll Foy

2,182 50.14%
Democratic
Joshua L. King
2,170 49.86%
Democratic
Last Modified on 06/16/2017 03:56 PM
Steve G. McBride
2,591 63.90%
Democratic
Bryan A. Keele
1,464 36.10%
Democratic
Last Modified on 06/19/2017 11:58 AM
Mansimran Singh Kahlon

821 18.92%
Democratic
Danica A. Roem
1,863 42.94%
Democratic
Steven A. Jansen
1,365 31.46%
Democratic
Andrew A. Adams
290 6.68%
Democratic
Tom R. Brock
1,459 31.00%
Democratic
Kelly K. Convirs-Fowler
3,248 69.00%
Democratic
http://results.elections.virginia.gov/vaelections/2017%20June%20Democratic%20Primary/Site/GeneralAssembly.html 1/4
12/28/2017
Case 2017
98-1 Primary
Elizabeth R. Guzman
3,062 52.15%
Democratic
Sara E. Townsend
2,809 47.85%
Democratic
Tia L. Walbridge
2,697 52.30%
Democratic
Mavis B. Taintor
2,460 47.70%
Democratic
Kathy K. L. Tran
3,977 53.64%
Democratic
N. Tilly Blanding
3,437 46.36%
Democratic
Kenny Allen Boddye

1,876 33.67%
Democratic
Hala S. Ayala
3,695 66.33%
Democratic
Lizzie M. Drucker-Basch
2,481 48.75%
Democratic
Melissa M. Dart
2,608 51.25%
Democratic
David J. Toscano
8,665 66.81%
Democratic
Ross A. Mittiga III

4,304 33.19%
Democratic
12/28/2017
Case 2017
98-1 Primary
Lashrecse D. Aird
5,062 72.11%
Democratic
Gerry J. Rawlinson
1,958 27.89%
Democratic
John J. Wandling
1,660 32.98%
Democratic
Jerry Alexander Cantrell

1,437 28.55%
Democratic
Rebecca S. Colaw
1,937 38.48%
Democratic
Karrie K. Delaney
3,887 65.35%
Democratic
John W. Carey
706 11.87%
Democratic
Hannah K. Risheq
1,355 22.78%
Democratic
Dawn M. Adams
4,556 47.30%
Democratic
Mary Jo Sheeley
3,487 36.20%
Democratic
Ben J. Pearson-Nelson
1,590 16.51%
Democratic
Alexander W. Mejias
1,719 19.53%
Democratic
Delores L. McQuinn
7,082 80.47%
Democratic
12/28/2017
Case 2017
98-1 Primary
Kimberly Anne Tucker

2,309 68.54%
Democratic
Nancy M. Carothers
1,060 31.46%
Democratic
David E. Rose-Carmack
2,970 70.87%
Democratic
M. Justin Morgan
1,221 29.13%
Democratic
Jerrauld C. "Jay" Jones

5,242 66.19%
Democratic
Joe W. Dillard
2,678 33.81%
Democratic
Jeion A. Ward
7,030 87.98%
Democratic
Michael A. "Mic" Harris

960 12.02%
Democratic
Vivian L. "Viv" Messner

1,551 45.98%
Democratic
Francis Nicholas Edwards

1,822 54.02%
Democratic
Page generated on 07/28/2017 11:44 AM
Legend
Showing a summary of results.
Showing partial race results. Click for full race results.
This office has multiple contested seats.
Attachment N
12/28/2017
Case 2017
98-1 Primary
Washington Building First Floor
1100 Bank Street,
Richmond, VA 23219
Phone (804) 864-8901
Toll Free (800) 552-9745
Fax (804) 371-0194
Email: info@elections.virginia.gov
2017 June Democratic Primary
Official Results
Virginia Department of Elections > Election Results > 2017 June Democratic Primary > FREDERICKSBURG CITY
Governor
Ralph S. Northam
926 51.19%
Democratic
Tom S. Perriello
883 48.81%
Democratic
Lieutenant Governor
Justin E. Fairfax
732 42.73%
Democratic
Gene J. Rossi
172 10.04%
Democratic
Susan S. Platt
809 47.23%
Democratic
Page generated on 07/28/2017 11:44 AM
Legend
Showing a summary of results.
Showing partial race results. Click for full race results.
This office has multiple contested seats.

This locality has a local contest.
This locality does not have a local contest.
http://results.elections.virginia.gov/vaelections/2017%20June%20Democratic%20Primary/Site/Locality/FREDERICKSBURG%20CITY/Index.html 1/1
Exhibit 2

EASTERN DISTRICT OF VIRGINIA
ALEXANDRIA DIVISION
Kenneth J. Lecky, et al.
Plaintiffs,
Civil Action No. 1:17-cv-01336-TSE-IDD
v.
Virginia State Board of Elections, et al.
Defendants.
DECLARATION OF DOLORES (“D.D.”) LECKY
I, Dolores (“D.D.”) Lecky, swear under penalty of perjury that the following is true and correct.
1. I reside at 1205 Charles Street, Fredericksburg, Virginia 22401. Since October 2016, I
have been registered to vote at this address.
2. I am a U.S. citizen.
3. To the best of my knowledge, my address, 1205 Charles Street, Fredericksburg, Virginia

22401 is located in Virginia House of Delegates District 28.
4. On June 13, 2017, I voted in the Democratic primary election, including for the office of
Governor. No House of Delegates election was listed on my primary ballot. I understand
that no Democratic primary election was held in 2017 for either House district in
Fredericksburg, House District 28 or House District 88.
5. On November 7, 2017, I arrived at my polling place at 9 a.m. or shortly thereafter to cast

my ballot for the 2017 general election.
6. My polling place is located at the VFW at 2701 Princess Anne Street, Fredericksburg
Virginia 22401.
7. After showing the poll worker my photo identification, the poll worker handed me a
ballot for House District 88.
8. I knew that the ballot I was given by the poll worker was for House District 88 because it
listed candidates Steve Aycock and Mark Cole, both of whom I knew were running to
represent House District 88.
9. I previously volunteered for Joshua Cole’s campaign, so I knew he was running to

represent House District 28 and expected to see Joshua Cole’s name listed on my ballot.
10. Upon realizing I had received a ballot for House District 88, I notified the poll worker
that I should have received a ballot for House District 28, as that was my correct district.
11. The poll worker proceeded to explain that the poll book listed me as registered in House
District 88.
12. Despite receiving a ballot for House District 88, I still cast my ballot to ensure that I
could vote for statewide offices, voting for all of the Democratic candidates on the ticket.
13. Next, before leaving my polling place, I informed Aaron Markel and Rene Rodriguez,
members of the Fredericksburg City Electoral Board who were present, that I had
received the incorrect ballot. They pointed me to a map hanging in the polling place
which showed that my address was well within the House District 28 boundaries and that
I should have received a ballot in House District 28. In that conversation, I was asked
what House District my primary ballot listed earlier in 2017, despite there not having
been a 2017 Democratic primary for the House of Delegates election in Fredericksburg.
14. Markel and Rodriguez also called the Virginia State Board of Elections, who stated that I
was required to vote in House District 88 pursuant to the information in the poll book.
15. Markel and Rodriguez concluded that the map must have been wrong and removed the
map from the polling place.
16. During this time, I also notified Jason Graham, Chairman of the Fredericksburg
Democrats, of my issues at the polling place through Facebook Messenger. I wanted to
notify him of what could potentially be a major issue.
17. Upon further research when I got home, I confirmed that I should have received a ballot
for House District 28.
18. I knew that I should have received a ballot for House District 28 because the legislature’s
website confirmed that I was registered to vote in House District 28.
19. There was also a gentleman who resides in the 1100 block of Charles Street with
identical voting issues at my polling place. He thought he should have received a ballot
for House District 28 but instead had received a ballot for House District 88. Aaron
Markel wrote down his name and address.
20. I informed my husband, Kenneth Lecky, who resides and is registered at the same
address, that I received a House District 88 ballot before he voted at the same polling
place in the afternoon.
I declare under penalty of perjury that the foregoing is true and accurate to the best of my
knowledge and belief and that this declaration was executed on the 28th day of December, 2017,
in Virginia.
DATED: December 28, 2017 _________________________

Dolores Lecky
-2-
Exhibit 3

Fed Case 2 - Pl's Reply in Support of MTN For PI

Enviado por

Dados do documento

Título original

Direitos autorais

Formatos disponíveis

Compartilhar este documento

Compartilhar ou incorporar documento

Opções de compartilhamento

Você considera este documento útil?

Este conteúdo é inapropriado?

Direitos autorais:

Formatos disponíveis

Fed Case 2 - Pl's Reply in Support of MTN For PI

Enviado por

Direitos autorais:

Formatos disponíveis

Case 1:17-cv-01336-TSE-IDD Document 98 Filed 12/29/17 Page 1 of 19 PageID# 694

IN THE UNITED STATES DISTRICT COURT

KENNETH J. LECKY, et. al.,

Plaintiffs, Civ. Action No. 1:17-cv-01336-TSE-IDD

VIRGINIA STATE BOARD OF ELECTIONS,

PLAINTIFFS’ REPLY IN SUPPORT OF THEIR

the House of Delegates.

be indicated and relief under § 1983 therefore in order.”).

District 28 and requiring a special election to fill the vacancy.

HD-28 and HD-88 in the 2015 Election.

not later than 45 days prior to any election.”).

Further Consideration on HD-28 and HD-88 in 2016.

sisted the problem be resolved promptly:

Chairman Rodriguez asked about the status of the 4 individuals

Pitchford, Fredericksburg City General Registrar, to Martha B. Brissette, Virginia Department of

Election Day 2017.

in precinct 402 at 9:05 a.m.). 4

ment of Elections. D. Lecky Decl. ¶¶ 13-15.

ommendation to deny provisional ballots to voters who claimed to be misassigned. Marshall

tions database is entitled a presumption of validity” – notwithstanding any contradictory evi-

and provide no other remedy to affected voters. Marshall Decl. Attach. I.

State Department of Elections Report.

a detailed report concluding that:

• Of these voters, 147 voted in the General Election.

signed to House District 2 or House District 88.

signed to House District 28.

I. DEFENDANTS DENIED PLAINTIFFS’ CONSTITUTIONAL RIGHT TO VOTE

A. Plaintiffs’ Injuries Are Severe, Constitutional Injuries that Violated Plain-

“[A]n election is a denial of substantive due process if it is conducted in a manner that is

rors seriously undermined the integrity of the House District 28 election.

your ballot will be counted.”).

ing their own eligibility.

contest further exacerbates the constitutional harm.

cases for reasons not present in this case. For example:

• In White-Battle v. Democratic Party of Virginia, 323 F. Supp. 2d 696, 706 (2004),

ly by volunteers.’”) (quoting Hutchinson, 797 F.2d at 1287).

tiff’s lost run-off election using the correct maps).

for depravations of the right to vote. 797 F.2d at 1287.

to raise constitutional concerns. Krieger v. City of Peoria, No. CV-14-01762-PHX-DGC, 2014

no constitutional limit to a state systematically disenfranchising an unlimited number of voters

and then shielding the results based on the excuse of inadvertence.

2. Defendants Violated Plaintiffs’ Procedural Due Process Rights.

As set forth in Plaintiffs’ memorandum, Defendants have violated Plaintiffs’ procedural

504 U.S. at 434 (quoting Anderson, 460 U.S. at 789).

and offer them a provisional ballot.

2012) (evaluating burden imposed by automatic-disqualification rule for wrong-precinct ballots

violated their equal protection guarantees by expressly and impermissibly discriminating

residents of House District 28 differently than other residents.

U.S. 98, 104-105 (2000)).

II. PLAINTIFFS WILL SUFFER IRREPARABLE HARM ABSENT RELIEF.

347, 373 (1976)).

session of Virginia’s part-time legislature convenes in January of even-numbered years (e.g.,

sence.”). That is undoubtedly the case here as well.

III. THE BALANCE OF EQUITIES AND PUBLIC INTEREST FAVOR RELIEF.

equal protection guarantees through the conduct of this election.

constitutional violations in this case.

is the appropriate remedy here.

By and Through Evans, 43 F.3d 574, 583 (11th Cir. 1995). 7

and declaratory relief.

Dated: December 29, 2017 By: /s/ Aria C. Branch

Attorneys for Plaintiffs

to and U.S. Mail Priority Mail Express (overnight delivery) to:

Cathie Fisher Braman