VA-HD-28 Democratic Suit For TRO To Prevent Certification (Nov. 2017)

CM/ECF - vaed https://ecf.vaed.uscourts.gov/cgi-bin/Dispatch.pl?
237146340043869
U.S. District Court
Eastern District of Virginia -
Notice of Electronic Filing
The following transaction was entered by Branch, Aria on 11/21/2017 at 5:15 PM EST and filed on 11/21/2017
Case Name: Plaintiff v. Defendant
Case Number: 1:17-at-99999
Filer:
Document Number: 817
Docket Text:
Complaint KENNETH J. LECKY; DOLORES (D.D.) LECKY; and PHILLIP RIDDERHOF v.
VIRGINIA STATE BOARD OF ELECTIONS; JAMES B. ALCORN, in his capacity as Chairman of
the Virginia State Board of Elections; DR. CLARA BELLE WHEELER, in her capacity as Vice-
Chair of the Virginia State Board of Elections; SINGLETON B. MCALLISTER, in her capacity as
Secretary of the Virginia State Board of Elections; the VIRGINIA DEPARTMENT OF
ELECTIONS; EDGARDO CORTES, in his capacity as Commissioner of the Virginia Department
of Elections ( Filing fee $ 400, receipt number 0422-5822617.).
No public notice (electronic or otherwise) sent because the entry is private
The following document(s) are associated with this transaction:
Document description:Main Document

Original filename:n/a
Electronic document Stamp:
[STAMP dcecfStamp_ID=1091796605 [Date=11/21/2017] [FileNumber=7588014-
0] [3460a34f0c97e3d691a05612421816c6eaf7cd63368ad1e93caf0133a4b79b5275
a4b92d967357795148a70554d1366ab2923d9624d538447c742a81c915eb38]]
Document description:Civil Cover Sheet
1] [15a3e9adcd78cd4679ae896e1a4137ec108b57255b205fda02906ec987c029b109
f7a177864fd757a6e8e0636dffc9241b6dcf1167b914d2ee1358293a08a396]]
Document description: Summons Dr. Clara Belle Wheeler
2] [85d9826fb5abb2f2d81444da7f362e4249f42b755f52f024e92bec4af7768ad2b5
868ca09f61bd56b920ae4ad84cf821cda0de2898aaec857058236deab992aa]]
Document description: Emergency Motion for a Temporary Restraining Order and Preliminary Injunction
3] [02113fe985a8434f8c109d74aeeee07635ab601347d4c75f77a509f52a22e986ab
1 of 3 11/21/2017, 5:16 PM
CM/ECF - vaed https://ecf.vaed.uscourts.gov/cgi-bin/Dispatch.pl?237146340043869
a52414051d04ac7d7d0a6ef276623e45b05b7feef74ca416750e362206aa0e]]
Document description: Memorandum of Points and Authorities in Support of Emergency Motion for a
Temporary Restraining Order and Preliminary Injunction
4] [98292d9dc4815f62816f24aec48bc1e547a72d71ad57600877 3be305dfb55e57c0
91131b27a50f8e6f3e84a9be4ed29dc715b5fa0e12c993557d80e6cb0a1153]]
Document description: Declaration of Jonathan Berkon in Support of Emergency Motion for a Temporary
Restraining Order and Preliminary Injunction
5] [54cdb24b59a5ba5b7e17447aa90240899e699dc5587a6ca2622cac8c3a28dcbfb2
62ca17ac3364cbdaec086267b7f166acb83555a231fbc3299a02abb60cee24]]
Document description:Exhibit A to Jonathan Berkon Declaration
6] [3611252d46ab2acbd872a2ad1537ea52dfc41ce333b4151904c56af846f0b7e6de
48f6b247ed48498332d4df6c1f7b424b0111ba272291d30134501deb10080f]]
Document description: Declaration of Kenneth Lecky in Support of Emergency Motion for a Temporary
7] [57764c3573d828b657f600c4d58ff36d349d68f9f56017a98623cb80815e24dce5
d2ab47d5141520608868f285dd466e43e4bc4d07d0f3466f0b4a8a86ba12ec]]
Document description:Exhibit A-C to Declaration of Kenneth Lecky in Support of Emergency Motion for a
Temporary Restraining Order and Preliminary Injunction
8] [1240b20bc622945ce07522a134b0fe45c9d2996b32b07eff6fb1f99da0c8e9f241
a1f979b10ac7126616b718a6c7d5f4f4d5a1728bfb82a96deb3c42e45c9e3c]]
Document description: Declaration of Dolores Lecky in Support of Emergency Motion for a Temporary
9] [75d5764ed499ccadcafc60a95ab473e288b9ffcf081ebc0e7dceb69ba262e38bbc
1fb6941f9e6292aff5bdf99a5591ee8fc86a6f9c5909e9487a1ffec7a55d7a]]
Document description: Declaration of Phillip Ridderhof in Support of Emergency Motion for a Temporary
10] [3997aea7a1a8b0a04a47aea0afeb065db0f8dd204205ca0a9ba275e8988a12d99
2 of 3 11/21/2017, 5:16 PM
CM/ECF - vaed https://ecf.vaed.uscourts.gov/cgi-bin/Dispatch.pl?237146340043869
80d509f4d2688bd6f87b7a9736e77f10cb7de855d2afbe847e9444e7ebc65ed]]
Document description: Notice of Emergency Hearing
11] [9c87896c89b95619f65af7ef9452cb257a59f663b5269b7f8984a1284c937fac8
c5fb74d488c976f65bdc14af8473d3a235e5e8fd70e635ed221918da2e06d1b]]
Document description:Proposed Order Granting Emergency Motion for a Temporary Restraining Order and
Preliminary Injunction
12] [7f1f1e76dc6ad6d8b66ed489eb37e3251f268f9e77d99ccfe2a045e1623b78610
f0786725b786bcba360fd51bd423f8307e73cbf7690da4e78b3520522d3e47b]]
3 of 3 11/21/2017, 5:16 PM
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF VIRGINIA
ALEXANDRIA DIVISION
KENNETH J. LECKY; DOLORES (D.D.)

LECKY; and PHILLIP RIDDERHOF,
Civil Action No. ____________
Plaintiffs,
v.
VIRGINIA STATE BOARD OF ELECTIONS;

JAMES B. ALCORN, in his capacity as
Chairman of the Virginia State Board of
Elections; DR. CLARA BELLE WHEELER, in
her capacity as Vice-Chair of the Virginia State
Board of Elections; SINGLETON B.
MCALLISTER, in her capacity as Secretary of
the Virginia State Board of Elections; the
VIRGINIA DEPARTMENT OF ELECTIONS;
EDGARDO CORTS, in his capacity as
Commissioner of the Virginia Department of
Elections,
Defendants.
COMPLAINT
1. Plaintiffs are registered voters in Virginia and residents of Virginia House of
Delegates District 28. On Tuesday, November 7, 2017, due to an apparent error by the election
registrar and poll workers, Plaintiffs were given the wrong ballots. Plaintiffs, all of whom are
properly registered voters in who live in House District 28, were improperly given ballots for
voters who live in House District 88.
2. Plaintiffs have filed this action to seek an emergency order to stop the State
Board of Elections from certifying the vote totals in House of Delegates District 28 at the
State Board of Elections meeting scheduled to be held on November 22, 2017, at 9:30 a.m.
COMPLAINT - 1 Perkins Coie LLP

700 Thirteenth St. NW, Suite 600
Washington, DC 20005-3960
Phone: 202.654-6200
Fax: 202-654-6211
3. Because the right to vote is fundamental, and the voters whose ballots are at issue
undertook all of the steps necessary to have their votes counted, this Court should issue an order
withholding certification of the results of the election until each voter barred from voting in
House District 28 is given a reasonable opportunity to have his or her vote counted in the proper
House District. Such an order is particularly crucial here, because the election for House District
28 is very close; the current margin is only 82 votes. Failure to allow the voters who received the
wrong ballot to have their votes counted in the proper House District would violate their First
and Fourteenth Amendment rights to vote in House District 28 and could result in an outcome
that does not reflect the will of the legal voters who sought to cast votes in the General Election.
JURISDICTION AND VENUE
4. This Court has jurisdiction to hear Plaintiffs claims pursuant to 28 U.S.C.
1331, 1343(a)(3), and 1357, and 42 U.S.C. 1983 and 1988. This Court has jurisdiction to
grant declaratory relief pursuant to 28 U.S.C. 2201 and 2202.
5. Venue in this district is proper under 28 U.S.C. 1391(b) because a substantial
part of the events or omissions giving rise to the claim occurred in this judicial district and in this
division.
PARTIES
6. Plaintiff Kenneth J. Lecky is a United States citizen registered to vote in the
Commonwealth of Virginia. Mr. Lecky voted in the General Election held on November 7, 2017.
Mr. Lecky resides at his home at 1205 Charles St., Fredericksburg, VA 22401, the address listed
on his/her voter registration. 1205 Charles St., Fredericksburg, VA 22401 is in House of
Delegates District 28. Due to an election officials error, Mr. Lecky was listed in the poll book
as a District 88 voter. Mr. Lecky intended to vote for Joshua Cole to represent District 28 in the
Phone: 202.654-6200
Fax: 202-654-6211
Virginia House of Delegates, and had he been properly given a ballot to vote for the House of
Delegates District 28, Mr. Lecky would have voted for Joshua Cole.
7. Plaintiff Dolores (D.D.) Lecky is a United States citizen registered to vote in
the Commonwealth of Virginia. Ms. Lecky voted in the General Election held on November 7,
2017. Ms. Lecky resides at her home at 1205 Charles St., Fredericksburg, VA 22401, the
address listed on her voter registration. 1205 Charles St., Fredericksburg, VA 22401 is in House
of Delegates District 28. Due to an election officials error, Ms. Lecky was listed in the poll
book as a District 88 voter. Ms. Lecky intended to vote for Joshua Cole to represent District 28
in the Virginia House of Delegates, and had she been properly given a ballot to vote for the
House of Delegates District 28, Ms. Lecky would have voted for Joshua Cole.
8. Plaintiff Phillip (Phil) Ridderhof is a United States citizen registered to vote in
the Commonwealth of Virginia. Mr. Ridderhof voted in the General Election held on November
7, 2017. Mr. Ridderhof resides at his home at 226 Princess Anne St, Fredericksburg, VA 22401,
the address listed on his voter registration. 226 Princess Anne St, Fredericksburg, VA 22401 is in
House of Delegates District 28. Despite being listed in the poll book as a District 28 voter, an
election official provided Plaintiff with a ballot that did not include the candidates running for
the House of Delegates in House District 28. Mr. Ridderhof intended to vote for Joshua Cole to
represent District 28 in the Virginia House of Delegates, and had he been properly given a ballot
to vote for the House of Delegates District 28, Mr. Ridderhof would have voted for Joshua Cole.
9. Defendant Virginia State Board of Elections (the SBE) is responsible for the
regulation of Virginia elections. The SBEs duties include certifying the results of the election
for District 28s seat in the House of Delegates, among other elections.

Phone: 202.654-6200
Fax: 202-654-6211
10. Defendants James B. Alcorn, Dr. Clara Belle Wheeler, and Singleton B.
McAllister are sued in their respective official capacities as Chairman, Vice-Chair, and Secretary
of the SBE.
11. Defendant Virginia Department of Elections is the agency responsible for
promoting and supporting accurate, fair, open, and secure elections for the citizens of the
Commonwealth. It is charged with implementing election laws and regulations for all elections
in the Commonwealth.
12. Defendant Edgardo Corts is sued in his official capacity as Commissioner of the
Virginia Department of Elections.
FACTUAL ALLEGATIONS
13. The 2017 general election for the Commonwealth of Virginia was held on
Tuesday, November 7, 2017 (Election Day). That election included races for all 100 seats in
the Virginia House of Delegates.
14. House District 28 is located in Stafford County and Fredericksburg. In the
November 2017 election, the candidates who ran to represent District 28 are Joshua Cole, a
Democrat, and Robert (Bob) Thomas, Jr., a Republican.
15. In the November 2017 election, the candidates who ran to represent House
District 88 are Steve Aycock, a Democrat, and Mark Cole, a Republican.
16. In 2011, the General Assembly established the boundaries for all 100 districts for
the Virginia House of Delegates.
17. On Election Day in November 2017, polling locations in the City of
Fredericksburg were provided with Virginia Election & Registration Information System
(VERIS) voter lists from the Virginia State Board of Elections that incorrectly listed the odd
Phone: 202.654-6200
Fax: 202-654-6211
numbered addresses of Charles Street in House District 88. The odd numbered addresses of
Charles Street are actually in the House District 28.
18. As a result of these errors, at least 83 voters were erroneously listed as in House
District 88 rather than House District 28.
19. The Fredericksburg Electoral Board issued a statement on November 15, 2017,
acknowledging that the board and registrar received complaints regarding House Districts 28
and 88.
20. At least 83 voters residing in House District 28 were mis-assigned by the poll
books to receive House District 88 ballots.
21. Other voters residing in House District 28 who were properly listed in the poll
books as House District 28 voters were nevertheless erroneously given House District 88 ballots.
22. The initial, unofficial vote count in House District 28 resulted in an 82-vote lead
for Bob Thomas over Joshua Cole.
23. On Monday, November 20, 2017, the Virginia Board of Elections unanimously
certified the results of 98 of 100 elections to the House of Delegates. The Board of Elections did
not certify the results House District 28 or House District 88, because it discovered and
acknowledged the irregularities in the elections described in this complaint and the
Commissioner acknowledged that he had insufficient time to confirm whether other similar
irregularities existed. The Board of Elections adjourned to permit additional investigation of
these irregularities. That investigation is ongoing.
24. Given the statutory deadline for certification of the vote totals, the State Board of
Elections intends to reconvene at 9:30 a.m. on Wednesday, November 22, 2017, to certify these

Phone: 202.654-6200
Fax: 202-654-6211
vote totals. Absent an order from this Court, voters who were improperly denied the opportunity
to vote in House District 28 will not be given that opportunity before the election is certified.
25. Plaintiffs have no state law remedy. Under Virginia law, only candidates, not
voters, may request recounts. Va. Code 24.2-800(B). In any case, because Plaintiffs never
received their ballots, a recount of the paper ballots cast on or before November 7 would not
address the deprivation of Plaintiffs right to cast a ballot in the election. Similarly, only a
candidate, not a voter, can contest an election in Virginia. Id. 24.2-803. And such a contest
would be heard by the House of Delegates, not a court. Id.
CAUSE OF ACTION
COUNT I
(Denial of the Right to Vote - Equal Protection Clause)
26. Plaintiffs reallege and incorporate by reference all prior paragraphs of this
Complaint as though fully set forth herein.
27. It has been repeatedly recognized that all qualified voters have a constitutionally
protected right to vote and to have their votes counted. Reynolds v. Sims, 377 U.S. 533, 554
(1964) (internal citation omitted). That right can neither be denied outright, nor destroyed by
alteration of ballots, nor diluted by ballot-box stuffing. Id. (internal citations omitted).
28. Under the First Amendment and the Equal Protection Clause of the Fourteenth
Amendment, a court considering a challenge to an official act relating to voting must carefully
balance the character and magnitude of the injury to First and Fourteenth Amendment rights that
the plaintiff seeks to vindicate against the justifications put forward by the State for the burdens
imposed by the rule. See Burdick v. Takushi, 504 U.S. 428, 434 (1992); Anderson v. Celebrezze,
460 U.S. 780, 789 (1983). However slight th[e] burden may appear, . . . it must be justified by
Phone: 202.654-6200
Fax: 202-654-6211
relevant and legitimate state interests sufficiently weighty to justify the limitation. Crawford v.
Marion Cnty. Election Bd., 553 U.S. 181, 191 (2008) (Stevens, J., controlling opinion) (internal
quotation marks omitted).
29. Here, the failure to provide voters lawfully registered in District 28 with the
correct ballot imposes a severe burden on the voters who cast those ballots: disenfranchisement.
These voters were erroneously denied the right to vote for their representative in the Virginia
House of Delegates.
30. Providing a correct ballot to every lawfully registered voter who appears at the
polls imposes only a minimal burden on Defendantsand a burden that is part and parcel of
competent election administration. Further, because these voters are required to receive the
correct ballots under current law, requiring Defendants to provide every lawfully registered voter
with the correct ballot will not require Defendants change their ballot-counting procedures in the
future or otherwise affect Virginia law relating to the counting of ballots.
31. The burden that not permitting voters in House District 28 to cast lawful votes
would impose on First and Fourteenth Amendment interests thus far exceeds Defendants
interests, or any other state interest, in not providing a ballot listing the House District 28 race.
32. Plaintiffs have no adequate remedy under state law.
COUNT II
(Denial of the Right to Vote - Due Process Clause)
33. Plaintiffs reallege and incorporates by reference all prior paragraphs of this
Complaint as though fully set forth herein.

Phone: 202.654-6200
Fax: 202-654-6211
34. The Due Process Clause of the Fourteenth Amendment is violated if an election is
fundamentally unfair. League of Women Voters of Ohio v. Brunner, 548 F. 3d 463, 478 (6th
Cir. 2008).
35. Numerous voters, including Plaintiffs Kenneth J. Lecky, D.D. Lecky, and Phil
Ridderhof, arrived at the proper polling place on Election Day, sought to vote in the general
election, and were not provided a ballot for House of Delegates District 28 in violation of
Virginia law and proper election administration procedures. They were thereby denied the right
to vote.
36. The widespread deprivation of the proper ballots to lawful voters undermined the
fundamental fairness of the general election for House of Delegates District 28.
37. Plaintiffs have no adequate remedy under state law.
PRAYER FOR RELIEF
WHEREFORE, Plaintiff requests that this Court:
A. Declare that, under the First and Fourteenth Amendments to the United States
Constitution, Defendants cannot certify the results of House District 28 for the 2017 general
election;
B. Issue a Temporary Restraining Order barring Defendants from certifying the
results of House District 28 for the 2017 general election; and
C. Issue an injunction ordering Defendants not to certify the results of House District
28 for the 2017 general election; and
D. Grant such other or further relief the Court deems to be appropriate, including but
not limited to an award of Plaintiffs attorneys fees and reasonable costs.

Phone: 202.654-6200
Fax: 202-654-6211
Dated: November 21, 2017
Respectfully submitted,
By Aria C. Branch
Marc Erik Elias (pro hac vice to be filed)
Bruce V. Spiva (pro hac vice to be filed)
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: ABranch@perkinscoie.com
Attorneys for Plaintiffs

Phone: 202.654-6200
Fax: 202-654-6211
CERTIFICATE OF SERVICE
I certify that on November 21, 2017, I filed the foregoing with the Clerk of the Court
using the ECF System which will send notification of such filing to the registered participants as
identified on the Notice of Electronic Filing.
Date: November 21, 2017
Aria C. Branch
Aria C. Branch
JS 44 (Rev. 06/17) CIVIL COVER SHEET
The JS 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law, except as
provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for the
purpose of initiating the civil docket sheet. (SEE INSTRUCTIONS ON NEXT PAGE OF THIS FORM.)
I. (a) PLAINTIFFS DEFENDANTS

Kenneth J. Lecky; Dolores ("D.D.") Lecky and Phillip Ridderhof Virginia State Board of Elections, et al.
(b) County of Residence of First Listed Plaintiff Fredericksburg County of Residence of First Listed Defendant
(EXCEPT IN U.S. PLAINTIFF CASES) (IN U.S. PLAINTIFF CASES ONLY)
NOTE: IN LAND CONDEMNATION CASES, USE THE LOCATION OF
THE TRACT OF LAND INVOLVED.
(c) Attorneys (Firm Name, Address, and Telephone Number) Attorneys (If Known)
II. BASIS OF JURISDICTION (Place an X in One Box Only) III. CITIZENSHIP OF PRINCIPAL PARTIES (Place an X in One Box for Plaintiff
(For Diversity Cases Only) and One Box for Defendant)
1 U.S. Government 3 Federal Question PTF DEF PTF DEF
Plaintiff (U.S. Government Not a Party) Citizen of This State 1 1 Incorporated or Principal Place 4 4
of Business In This State
2 U.S. Government 4 Diversity Citizen of Another State 2 2 Incorporated and Principal Place 5 5
Defendant (Indicate Citizenship of Parties in Item III) of Business In Another State
Citizen or Subject of a 3 3 Foreign Nation 6 6

Foreign Country
IV. NATURE OF SUIT (Place an X in One Box Only) Click here for: Nature of Suit Code Descriptions.
CONTRACT TORTS FORFEITURE/PENALTY BANKRUPTCY OTHER STATUTES
110 Insurance PERSONAL INJURY PERSONAL INJURY 625 Drug Related Seizure 422 Appeal 28 USC 158 375 False Claims Act
120 Marine 310 Airplane 365 Personal Injury - of Property 21 USC 881 423 Withdrawal 376 Qui Tam (31 USC
130 Miller Act 315 Airplane Product Product Liability 690 Other 28 USC 157 3729(a))
140 Negotiable Instrument Liability 367 Health Care/ 400 State Reapportionment
150 Recovery of Overpayment 320 Assault, Libel & Pharmaceutical PROPERTY RIGHTS 410 Antitrust
& Enforcement of Judgment Slander Personal Injury 820 Copyrights 430 Banks and Banking
151 Medicare Act 330 Federal Employers Product Liability 830 Patent 450 Commerce
152 Recovery of Defaulted Liability 368 Asbestos Personal 835 Patent - Abbreviated 460 Deportation
Student Loans 340 Marine Injury Product New Drug Application 470 Racketeer Influenced and
(Excludes Veterans) 345 Marine Product Liability 840 Trademark Corrupt Organizations
153 Recovery of Overpayment Liability PERSONAL PROPERTY LABOR SOCIAL SECURITY 480 Consumer Credit
of Veterans Benefits 350 Motor Vehicle 370 Other Fraud 710 Fair Labor Standards 861 HIA (1395ff) 490 Cable/Sat TV
160 Stockholders Suits 355 Motor Vehicle 371 Truth in Lending Act 862 Black Lung (923) 850 Securities/Commodities/
190 Other Contract Product Liability 380 Other Personal 720 Labor/Management 863 DIWC/DIWW (405(g)) Exchange
195 Contract Product Liability 360 Other Personal Property Damage Relations 864 SSID Title XVI 890 Other Statutory Actions
196 Franchise Injury 385 Property Damage 740 Railway Labor Act 865 RSI (405(g)) 891 Agricultural Acts
362 Personal Injury - Product Liability 751 Family and Medical 893 Environmental Matters
Medical Malpractice Leave Act 895 Freedom of Information
REAL PROPERTY CIVIL RIGHTS PRISONER PETITIONS 790 Other Labor Litigation FEDERAL TAX SUITS Act
210 Land Condemnation 440 Other Civil Rights Habeas Corpus: 791 Employee Retirement 870 Taxes (U.S. Plaintiff 896 Arbitration
220 Foreclosure 441 Voting 463 Alien Detainee Income Security Act or Defendant) 899 Administrative Procedure
230 Rent Lease & Ejectment 442 Employment 510 Motions to Vacate 871 IRSThird Party Act/Review or Appeal of
240 Torts to Land 443 Housing/ Sentence 26 USC 7609 Agency Decision
245 Tort Product Liability Accommodations 530 General 950 Constitutionality of
290 All Other Real Property 445 Amer. w/Disabilities - 535 Death Penalty IMMIGRATION State Statutes
Employment Other: 462 Naturalization Application
446 Amer. w/Disabilities - 540 Mandamus & Other 465 Other Immigration
Other 550 Civil Rights Actions
448 Education 555 Prison Condition
560 Civil Detainee -
Conditions of
Confinement
V. ORIGIN (Place an X in One Box Only)
1 Original 2 Removed from 3 Remanded from 4 Reinstated or 5 Transferred from 6 Multidistrict 8 Multidistrict
Proceeding State Court Appellate Court Reopened Another District Litigation - Litigation -
(specify) Transfer Direct File
Cite the U.S. Civil Statute under which you are filing (Do not cite jurisdictional statutes unless diversity):
42 U.S.C. 1983 and 1988; 28 U.S.C. 2201 and 2202
VI. CAUSE OF ACTION Brief description of cause:
Denial of the right to vote (equal protection clause and due process clause)
VII. REQUESTED IN CHECK IF THIS IS A CLASS ACTION DEMAND $ CHECK YES only if demanded in complaint:
COMPLAINT: UNDER RULE 23, F.R.Cv.P. JURY DEMAND: Yes No
VIII. RELATED CASE(S)
(See instructions):
IF ANY JUDGE DOCKET NUMBER
DATE SIGNATURE OF ATTORNEY OF RECORD
FOR OFFICE USE ONLY
RECEIPT # AMOUNT APPLYING IFP JUDGE MAG. JUDGE

JS 44 Reverse (Rev. 06/17)
INSTRUCTIONS FOR ATTORNEYS COMPLETING CIVIL COVER SHEET FORM JS 44

Authority For Civil Cover Sheet
The JS 44 civil cover sheet and the information contained herein neither replaces nor supplements the filings and service of pleading or other papers as
required by law, except as provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is
required for the use of the Clerk of Court for the purpose of initiating the civil docket sheet. Consequently, a civil cover sheet is submitted to the Clerk of
Court for each civil complaint filed. The attorney filing a case should complete the form as follows:
I.(a) Plaintiffs-Defendants. Enter names (last, first, middle initial) of plaintiff and defendant. If the plaintiff or defendant is a government agency, use
only the full name or standard abbreviations. If the plaintiff or defendant is an official within a government agency, identify first the agency and
then the official, giving both name and title.
(b) County of Residence. For each civil case filed, except U.S. plaintiff cases, enter the name of the county where the first listed plaintiff resides at the
time of filing. In U.S. plaintiff cases, enter the name of the county in which the first listed defendant resides at the time of filing. (NOTE: In land
condemnation cases, the county of residence of the "defendant" is the location of the tract of land involved.)
(c) Attorneys. Enter the firm name, address, telephone number, and attorney of record. If there are several attorneys, list them on an attachment, noting
in this section "(see attachment)".
II. Jurisdiction. The basis of jurisdiction is set forth under Rule 8(a), F.R.Cv.P., which requires that jurisdictions be shown in pleadings. Place an "X"
in one of the boxes. If there is more than one basis of jurisdiction, precedence is given in the order shown below.
United States plaintiff. (1) Jurisdiction based on 28 U.S.C. 1345 and 1348. Suits by agencies and officers of the United States are included here.
United States defendant. (2) When the plaintiff is suing the United States, its officers or agencies, place an "X" in this box.
Federal question. (3) This refers to suits under 28 U.S.C. 1331, where jurisdiction arises under the Constitution of the United States, an amendment
to the Constitution, an act of Congress or a treaty of the United States. In cases where the U.S. is a party, the U.S. plaintiff or defendant code takes
precedence, and box 1 or 2 should be marked.
Diversity of citizenship. (4) This refers to suits under 28 U.S.C. 1332, where parties are citizens of different states. When Box 4 is checked, the
citizenship of the different parties must be checked. (See Section III below; NOTE: federal question actions take precedence over diversity
cases.)
III. Residence (citizenship) of Principal Parties. This section of the JS 44 is to be completed if diversity of citizenship was indicated above. Mark this
section for each principal party.
IV. Nature of Suit. Place an "X" in the appropriate box. If there are multiple nature of suit codes associated with the case, pick the nature of suit code
that is most applicable. Click here for: Nature of Suit Code Descriptions.
V. Origin. Place an "X" in one of the seven boxes.

Original Proceedings. (1) Cases which originate in the United States district courts.
Removed from State Court. (2) Proceedings initiated in state courts may be removed to the district courts under Title 28 U.S.C., Section 1441.
When the petition for removal is granted, check this box.
Remanded from Appellate Court. (3) Check this box for cases remanded to the district court for further action. Use the date of remand as the filing
date.
Reinstated or Reopened. (4) Check this box for cases reinstated or reopened in the district court. Use the reopening date as the filing date.
Transferred from Another District. (5) For cases transferred under Title 28 U.S.C. Section 1404(a). Do not use this for within district transfers or
multidistrict litigation transfers.
Multidistrict Litigation Transfer. (6) Check this box when a multidistrict case is transferred into the district under authority of Title 28 U.S.C.
Section 1407.
Multidistrict Litigation Direct File. (8) Check this box when a multidistrict case is filed in the same district as the Master MDL docket.
PLEASE NOTE THAT THERE IS NOT AN ORIGIN CODE 7. Origin Code 7 was used for historical records and is no longer relevant due to
changes in statue.
VI. Cause of Action. Report the civil statute directly related to the cause of action and give a brief description of the cause. Do not cite jurisdictional
statutes unless diversity. Example: U.S. Civil Statute: 47 USC 553 Brief Description: Unauthorized reception of cable service
VII. Requested in Complaint. Class Action. Place an "X" in this box if you are filing a class action under Rule 23, F.R.Cv.P.
Demand. In this space enter the actual dollar amount being demanded or indicate other demand, such as a preliminary injunction.
Jury Demand. Check the appropriate box to indicate whether or not a jury is being demanded.
VIII. Related Cases. This section of the JS 44 is used to reference related pending cases, if any. If there are related pending cases, insert the docket
numbers and the corresponding judge names for such cases.
Date and Attorney Signature. Date and sign the civil cover sheet.
AO 440 (Rev. 06/12) Summons in a Civil Action
UNITED STATES DISTRICT COURT

for the
Eastern District
__________ DistrictofofVirginia
__________
)
)
Kenneth J. Lecky, Dolores ("D.D.") Lecky and )
Phillip Ridderhof )
Plaintiff(s) )
)
Civil Action No.
)
v. )
)
)
Virginia State Board of Elections, et al. )
Defendant(s) )
SUMMONS IN A CIVIL ACTION
To: (Defendants name and address)
DR. CLARA BELLE EELER, in he ca acit as

Vice Chai o the Vi inia State Boa d o Elections
ashin ton B ildin
1100 Bank St., Fi st Floo
Richmond, VA 23219
A lawsuit has been filed against you.
Within 21 days after service of this summons on you (not counting the day you received it) or 60 days if you
are the United States or a United States agency, or an officer or employee of the United States described in Fed. R. Civ.
P. 12 (a)(2) or (3) you must serve on the plaintiff an answer to the attached complaint or a motion under Rule 12 of
the Federal Rules of Civil Procedure. The answer or motion must be served on the plaintiff or plaintiffs attorney,
whose name and address are:
Aria C. Branch
e kins Coie, LL 00
13th St N
ashin ton, DC 2000
If you fail to respond, judgment by default will be entered against you for the relief demanded in the complaint.
You also must file your answer or motion with the court.
CLERK OF COURT
Date:
Signature of Clerk or Deputy Clerk
AO 440 (Rev. 06/12) Summons in a Civil Action (Page 2)
Civil Action No.
PROOF OF SERVICE
(This section should not be filed with the court unless required by Fed. R. Civ. P. 4 (l))
This summons for (name of individual and title, if any)

was received by me on (date) .
I personally served the summons on the individual at (place)

on (date) ; or
I left the summons at the individuals residence or usual place of abode with (name)
, a person of suitable age and discretion who resides there,
on (date) , and mailed a copy to the individuals last known address; or
I served the summons on (name of individual) , who is

designated by law to accept service of process on behalf of (name of organization)
on (date) ; or
I returned the summons unexecuted because ; or
Other (specify):
.
My fees are $ for travel and $ for services, for a total of $ 0.00 .
I declare under penalty of perjury that this information is true.
Date:
Servers signature
Printed name and title
Servers address
Additional information regarding attempted service, etc:

ALEXANDRIA DIVISION

LECKY; AND PHILLIP RIDDERHOF,

Plaintiffs,
v.
VIRGINIA STATE BOARD OF ELECTIONS,
et al.,
Defendants.
EMERGENCY MOTION FOR

A TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION
ENJOINING CERTIFICATION OF ELECTION RESULTS
NOW COME Plaintiffs Kenneth J. Lecky, Dolores (D.D.) Lecky, and Phillip (Phil)
Ridderhof move, by and through undersigned counsel, who move this Court to order Defendants
temporarily restrained from certifying the results of the Virginia House of Delegates election in
the 28th District (HD 28), pending this Courts ruling on the merits. As set forth in the
accompanying memorandum of points and authorities in support and supporting exhibits, a
significant number of voters in Precinct 402 were mis-assigned between House District 28 and
House District 88, with many House District 28 residents being shown in the registration books
as assigned to House District 88, and vice versa. Those voters were given -- and voted -- ballots
for the incorrect House of Delegates election. The Board of Elections has sought to investigate
these irregularities, but it takes the position that it is bound by Virginia law to certify the results
1
of the election no later than this Wednesday, November 22, 2017. Va. Code 24.2-679. Absent
a court order, it intends to convene at 9:30 a.m. on that date to do so.
The United States Constitutions protection of the fundamental right to vote mandates
that lawfully-registered voters in House District 28 are afforded their right to cast a lawful ballot.
It has been repeatedly recognized that all qualified voters have a constitutionally protected right
to vote and to have their votes counted. Reynolds v. Sims, 377 U.S. 533, 554 (1964) (internal
citation omitted). That right can neither be denied outright, nor destroyed by alteration of ballots,
nor diluted by ballot-box stuffing. Id. (internal citations omitted).
The failure of Defendants to provide voters lawfully registered in District 28 with lawful
ballots violates the First Amendment and the Equal Protection Clause of the Fourteenth
Amendment, see Burdick v. Takushi, 504 U.S. 428, 434 (1992); Anderson v. Celebrezze, 460 U.S.
780, 789 (1983), and constitutes a severe burden on the voters who cast these ballots
disenfranchisementthat is not justified by any state interest. Cf. Frank v. Walker, 819 F.3d 384,
386 (7th Cir. 2016) ([P]laintiffs contend that high hurdles for some persons eligible to vote
entitle those particular persons to relief. Plaintiffs approach is potentially sound if even a single
person eligible to vote is unable to get acceptable photo ID with reasonable effort. The right to
vote is personal and is not defeated by the fact that 99% of other people can secure the necessary
credentials easily.).
Accordingly, for the reasons set forth above and in the accompanying memorandum and
exhibits, Plaintiffs respectfully request that the Court declare that Defendants are temporarily
restrained from certifying the results of House District 28 for the 2017 general election. Further,
because the Virginia State Board of Elections is scheduled to meet to certify the results of the
election on Wednesday, November 22, see Va. Code Ann. 24.2-679, Plaintiffs respectfully
2
request that the Court hold a hearing and rule on this emergency motion as soon as possible. 1 An
accompanying Notice of Emergency Hearing has also been filed.

By Aria C. Branch
Perkins Coie, LLP
700 13th St. N.W., Suite 600
Phone: (202) 434-1627
Fax: (202) 654-9106
Email: ACallais@perkinscoie.com
Attorneys for Plaintiff
1
The State Board of Elections is set to certify the vote totals at a meeting to be held on November 22nd, 2017 at
9:30am. Plaintiffs request an emergency hearing prior to that deadline or as soon as possible thereafter. Plaintiffs
understand from counsel for Defendants that the State Board of Elections may postpone the timing of its meeting if
the court sets an emergency hearing on this motion.
3
Aria C. Branch
Aria C. Branch
FOR THE EASTERN DISTRICT OF VIRGINIA
ALEXANDRIA DIVISION

LECKY; AND PHILLIP RIDDERHOF,
Plaintiffs,
v.

Elections; DR. CLARA BELLE WHEELER, in
Elections,
Defendants.
PLAINTIFFS MEMORANDUM IN SUPPORT OF THEIR EMERGENCY MOTION

FOR A TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION
I. INTRODUCTION
Pursuant to Rule 65, plaintiffs Kenneth J. Lecky, Dolores (D.D.) Lecky, and Phillip
(Phil) Ridderhof move the Court for an order temporarily enjoining Defendants from certifying
the results of the general election for District 28 of the Virginia House of Delegates, pending this
Courts ruling on the merits. Plaintiffs further request a preliminary injunction, after a hearing to
be scheduled at the Court's earliest convenience, incorporating the terms of the temporary
restraining order. Granting injunctive relief will permit Defendants to further investigate the
137705833.2
scope of the serious irregularities that barred numerous voters from casting their ballot for House
District 28 prior to certification. Plaintiffs further request that these injunctive orders be issued
with no bond, or a nominal one.
II. STATEMENT OF FACTS
The relevant facts are set forth more completely in the complaint and the declarations
submitted contemporaneously with this memorandum. To summarize:
The result of the November 7, 2017 election for Virginias 28th House of Delegates
District (HD 28) has not yet been certified by the Board of Elections, and the outcome remains
in doubt. As of the date of this filing, the margin between the candidates in that race is a mere 82
votes, and that margin will almost certainly change if all eligible voters are permitted a
reasonable opportunity to cast a ballot in the election.
An initial review by the Virginia Department of Elections (the Department) suggests
that a significant number of voters were mis-assigned between House District 28 and House
District 88, with at least 83 House District 28 residents being shown in the registration books as
assigned to House District 88 (including Kenneth J. Lecky and D.D. Lecky), and vice versa.
Those voters were given -- and voted -- ballots for the incorrect House of Delegates election.
Moreover, several residents of House District 28 (including Phil Ridderhof) were given -- and
voted -- a ballot for House District 88 despite being listed in the poll book as House District 28
voters.
These serious irregularities resulted in House District 28 residents inadvertently casting
ballots in the House District 88 election and being improperly denied the right to vote in their
own election. (In addition, many residents of House District 88 appear to have improperly voted
in the House District 28 election.) Although the precise number of voters affected is not yet
known, it likely is greater the 82-vote margin in the current vote total.
-2-
137705833.2
The Board of Elections has sought to investigate these irregularities, but it nevertheless
intends to certify the results of the election no later than this Wednesday, November 22, 2017,
and is scheduled to convene at 9:30 a.m. on Wednesday to do so.
III. ARGUMENT
A. Standard for Issuance of a Temporary Restraining Order
Under Rule 65 of the Federal Rules of Civil Procedure, the decision whether to issue a
temporary injunction is committed to the discretion of the Court. See Hughes Network Sys. v.
Interdigital Commcns Corp., 17 F.3d 691, 693 (4th Cir. 1994). The Court utilizes the same four
factor balancing test that is used for issuance of a preliminary injunction. Blackwelder Furniture
Co. of Statesville, Inc. v. Seilig Mfg. Co., 550 F.2d 189 (4th Cir. 1977).
To win such a preliminary injunction, Plaintiffs must demonstrate that (1) they are likely
to succeed on the merits; (2) they will likely suffer irreparable harm absent an injunction; (3) the
balance of hardships weighs in their favor; and (4) the injunction is in the public interest.
League of Women Voters of NC v. North Carolina, 769 F. 3d 224, 236 (4th Cir. 2014).
B. Plaintiffs Meet Each Factor of the Test for Injunctive Relief
1. Plaintiffs Will Suffer Irreparable Harm If Defendants Are Not Restrained
a. Losing the Right to Vote is an Irreparable Injury
There is no adequate damages remedy for disenfranchisement. Thus, [c]ourts routinely
deem restrictions on fundamental voting rights irreparable injury. League of Women Voters of
NC v. North Carolina, 769 F. 3d 224, 247 (4th Cir. 2014) (collecting cases). In addition, the
certification of erroneous election results is itself an irreparable injury. See Shannon v.
Jacobowitz, 301 F. Supp. 2d 249, 258 (N.D.N.Y. 2003) (enjoining [t]he Board of Elections
from carrying out its ministerial function [by] certify[ing] erroneous election results).
-3-
137705833.2
b. Virginia Law Provides Plaintiffs No Adequate Remedy
Moreover, because Plaintiffs have no state law remedy, they will be left with no remedy
at all absent an order of this Court.
Under Virginia law, only candidates, not voters, may request recounts. Va. Code 24.2-
800(B). In any case, because Plaintiffs never received their ballots, a recount of the paper ballots
cast on or before November 7 would not address the depravation of Plaintiffs right to cast a
ballot in the election.
Similarly, only a candidate, not a voter, can contest an election in Virginia. Id. 24.2-
803. And such a contest would be heard by the House of Delegates, not a court. Id.
Even if the voters had access to these remedies, they would not be adequate. It is not a
fair remedy to require the Board of Elections to certify an election result which it knows is
incorrect. . . . It is not a fair remedy where the one avenue to correct such an injustice is available
only after the fact, and then is purely discretionary and doubtless protracted. Shannon, 301 F.
Supp. 2d at 25758. Given that the procedures under Virginia law are inadequate to vindicate the
rights of voters, relief must be available to plaintiffs in this federal forum. Id. at 255 (enjoining
certification of erroneous election results).
2. A Weighing of the Equities Decidedly Favors Plaintiffs, As Defendants Will

Not Be Harmed By a Temporary Injunction
Defendants will not suffer any legally cognizable harm if the court grants the injunctive
relief requested by Plaintiffs. In particular, Defendants will not be damaged by an order
prohibiting their certification of erroneous election results on Wednesday, November 22, 2017,
49 days before newly-elected members of the House of Delegates take office. Delegates elected
at the November 2017 general election will not be sworn in until the first day of the legislative
session, January 10, 2018. See Virginia Constitution art. IV, sec. 6. Consequently, delaying
-4-
137705833.2
certification of the erroneous results of the House District 28 will not delay the seating of a
delegate for that district.
In any case, any harm that would result from a slight delay in certifying the election
results is minimal in comparison to the irreparable injury that occurs when an individual suffers
the loss of his constitutional rights. Awad v. Ziriax, No. CIV-10-1186-M, 2010 WL 4676996, at
*5 (W.D. Okla. Nov. 9, 2010); see also Stein v. Thomas, 672 Fed. Appx. 565, 569-70 (6th Cir.
2016) (upholding injunctive relief to modify state law procedures to avoid extinguishing voters
rights to accurate election returns).
Balanced against the harm that will be suffered by Plaintiffs if the temporary injunction is
not issued -- the irretrievable loss of the right to vote in the election -- the balance of harms is
decidedly in favor of Plaintiffs.
3. Plaintiffs are Likely to Prevail on the Merits of Their Claims
The United States Constitutions protection of Plaintiffs fundamental right to vote
mandate that the election not be certified when voters are disenfranchised. It has been
repeatedly recognized that all qualified voters have a constitutionally protected right to vote and
to have their votes counted. Reynolds v. Sims, 377 U.S. 533, 554 (1964) (internal citation
omitted). That right can neither be denied outright, nor destroyed by alteration of ballots, nor
diluted by ballot-box stuffing. Id. (internal citations omitted). Here, it is quite clear that under
any standard that Plaintiffs right to cast a ballot in the House District 28 election have been
violated. 1
1
Although the the closeness of the election may be relevant in determining a plaintiffs right to
relief, a plaintiff need not establish that with mathematical certainty that the errors in the elections
administration tipped the outcome of the election. Griffin v. Burns, 570 F.2d 1065, 1080 (1st Cir. 1978).
Rather, invalidation of a potentially controlling number of the votes cast is sufficient. Id.
-5-
137705833.2
a. First Amendment and Equal Protection Clause
Under the First Amendment and the Equal Protection Clause of the Fourteenth
Amendment, a court considering a challenge to an official act relating to voting must carefully
balance the character and magnitude of the injury to First and Fourteenth Amendment rights that
the plaintiff seeks to vindicate against the justifications put forward by the State for the burdens
imposed by its actions. See Burdick v. Takushi, 504 U.S. 428, 434 (1992); Anderson v.
Celebrezze, 460 U.S. 780, 789 (1983); see also Hendon v. N. Carolina State Bd. of Elections,
710 F.2d 177, 181 (4th Cir. 1983) (A state may not, however, place an onerous burden on
voters exercise of their right to vote, and there must be a rational explanation when it is manifest
that a greater burden may be placed upon the voter depending upon the method of voting
employed in his voting place.).
Here, Virginias failure to provide the correct ballot to each Plaintiff created a severe --
indeed insurmountable -- barrier to Plaintiffs exercise of the franchise. Cf. Frank v. Walker, 819
F.3d 384, 386 (7th Cir. 2016) ([P]laintiffs contend that high hurdles for some persons eligible to
vote entitle those particular persons to relief. Plaintiffs approach is potentially sound if even a
single person eligible to vote is unable to get acceptable photo ID with reasonable effort. The
right to vote is personal and is not defeated by the fact that 99% of other people can secure the
necessary credentials easily.). [A] citizen has a constitutionally protected right to participate in
elections on an equal basis with other citizens in the jurisdiction. Dunn v. Blumstein, 405 U.S.
330, 336 (1972). Accordingly, a state cannot arbitrarily deny the franchise to citizens physically
resident within the geographic boundaries of an electoral district. See Holt Civic Club v.
Tuscaloosa, 439 U.S. 60, 66-69 (1978) (collecting cases); see also League of Women Voters of
Ohio v. Brunner, 548 F.3d 463, 477-78 (6th Cir. 2008). The arbitrary denial of voters who reside
in House District 28 to a ballot for that election violates these bedrock requirements.
-6-
137705833.2
Under the Anderson-Burdick balancing test, these severe burdens dramatically outweigh
the interests of Virginia not to provide voters the correct ballot. Indeed, it is difficult to imagine
what cognizable interest Virginia would have in the maladministration of its own elections.
Indeed, the Virginia Board of Elections itself recognizes that the election in House District 28
was plagued by serious irregularities, is seeking to investigate further the scope of the problem,
and recognizes it needs additional time to do so.
As such, it is overwhelmingly likely that the Plaintiffs will prevail under the First
Amendment and Equal Protection Clause claims in Count I of their complaint.
b. Due Process Clause
The systemic denial of ballots to qualified voters has fundamentally undermined the
legitimacy of the House District 28 election. Untold numbers of voters arrived at their proper
polling place but were denied a ballot due to the widespread errors in the polling books and
mistakes by poll workers providing the wrong ballot. This is the sort of broad-gauged
unfairness permeates an election, even if derived from apparently neutral action that triggers the
availability federal relief under the Due Process Clause. Griffin v. Burns, 570 F.2d 1065,
107778 (1st Cir. 1978); accord League of Women Voters of Ohio v. Brunner, 548 F.3d 463, 478
(6th Cir. 2008) (balloting errors sufficient to state claim for a violation of the Due Process
Clause); Ury v. Santee, 303 F.Supp. 119 (N.D. Ill. 1969) (ordering new election when failure of
defendants to provide adequate voting facilities, plaintiffs and those similarly situated were
hindered, delayed and effectively deprived of their rights to vote). Given the widespread,
systematic depravation of the qualified voters access to their literal ballots for House District 28,
Plaintiffs are likely to succeed on their due process claim.
4. The Requested Relief Will Advance The Public Interest
Courts routinely hold that the vindication of constitutional rights is in the public interest.
-7-
137705833.2
See, e.g., Giovani Carandola, Ltd. v. Bason, 303 F. 3d 507, 521 (4th Cir. 2002) (upholding
constitutional rights surely serves the public interest). By definition, [t]he public interest ...
favors permitting as many qualified voters to vote as possible. League of Women Voters of N.
Carolina v. North Carolina, 769 F.3d 224, 248 (4th Cir. 2014). Given that there is no clear need
to certify the results of the election seven weeks prior to the races eventual winner taking office,
the public interest clearly weighs in favor of injunctive relief.
C. Plaintiffs Should Be Required to Post No More Than a Nominal Bond
Federal Rule of Civil Procedure 65(c) requires that, before a temporary restraining order
is issued, that the moving party post a bond in such sum as the court deems proper, for the
payment of such costs and damages as may be incurred or suffered by any party who is found to
have been wrongfully enjoined or restrained. The bond may be nominal under appropriate
circumstances. Indeed, the Tenth Circuit construed the language of the rule as permitting a trial
court to require no bond where the nonmoving party failed to demonstrate any injury. The trial
judge has wide discretion in the manner of requiring security and if there is an absence of proof
showing the likelihood of harm, certainly no bond is necessary. Continental Oil Co. v. Frontier
Refining Co., 338 F.2d 780, 782 (10th Cir. 1964); see also West Virginia Highlands Conservancy
v. Island Creek Coal Co., 441 F.2d 232, 236 (4th Cir. 1971) (finding a nominal bond of $100
was sufficient where defendant failed to show it would suffer more than negligible harm).
Here, there is no indication that Defendants would suffer any cognizable harm during the
time that the temporary restraining order and preliminary injunction would be in effect. For this
reason, Plaintiffs should not be required to post a bond. At most a minimal bond or no more than
$1,000 would be adequate.
-8-
137705833.2
IV. CONCLUSION
For the foregoing reasons, Plaintiffs respectfully request that the Court grant their motion
for a temporary restraining order and preliminary injunction and enter an order temporarily
enjoining Defendants from certifying the results of the general election for District 28 of the
Virginia House of Delegates, pending this Courts ruling on the merits.
Dated: November 21, 2017 By: Aria C. Branch

Perkins Coie, LLP
700 13th St. N.W., Suite 600
Phone: (202) 434-1627
Fax: (202) 654-9106
Attorneys for Plaintiffs
-9-
137705833.2
Aria C. Branch
Aria C. Branch
- 10 -
137705833.2
ALEXANDRIA DIVISION
Kenneth J. Lecky; Dolores (D.D.) Lecky; and

Phillip Ridderhof
Plaintiffs,
v.
Elections; DR. CLARA BELLE WHEELER, in Civil Action No.
Elections,
Defendants.
DECLARATION OF JONATHAN S. BERKON IN SUPPORT OF PLAINTIFFS

EMERGENCY MOTION FOR A TEMPORARY RESTRAINING ORDER AND
PRELIMINARY INJUNCTION ENJOINING CERTIFICATION OF ELECTION
RESULTS
I, Jonathan S. Berkon, swear under penalty of perjury that the following is true and correct.
1. I am a partner with the law firm of Perkins Coie LLP in Washington, D.C.
2. I attended the Virginia State Board of Elections Meeting on November 20, 2017 in the
East Reading Room of the Patrick Henry Building in Richmond, Virginia at 9:30 a.m.
3. I made an audio recording of substantially all of the hearing.
4. At this meeting, Virginias Board of Elections voted to delay the certification of election
results for House Districts 28 and 88.
5. Virginia Department of Elections Commissioner Edgardo Cortes stated, as reflected in

the recording I made, that there is an issue with voters being improperly assigned.
6. Mr. Cortes stated that there are certain voters that should be assigned to the 28th District
in the House of Delegates that are incorrectly assigned to the 88th District.
7. Mr. Cortes also stated that the Department of Elections had not, in the short timeframe,
been able to assess if there are additional errors. Mr. Cortes noted that the Departments
staff had indicated that there is the potential that there are more misassigned individuals
in the 28th and 88th Districts.
8. As reflected in my recording, Mr. Cortes indicated that this was something the Boards
staff was working on as quickly as possible.
9. The attached Exhibit A is a true and accurate copy of an article from The Washington
Post dated November 20, 2017 summarizing the Virginia State Board of Elections
Meeting on that same day.
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 21st day of November, 2017,
in Washington, D.C.
DATED: November 21, 2017 /s/ Jonathan S. Berkon

Jonathan S. Berkon
-2-
Exhibit A
Virginia Politics
By Laura Vozzella
RICHMOND Virginias Board of Elections voted unanimously Monday to delay certification of two House
races, amid new claims that dozens of voters got the wrong ballot in a tight contest that could determine
control of the legislatures lower chamber.
The board called a time out after state Elections Commissioner Edgardo Corts announced that in April
2016, Fredericksburg registrar Juanita Pitchford erroneously assigned 83 voters from the 28th House
District to the 88th.
It was not clear how many of the 83 voters actually cast ballots on Nov. 7, but the 28th District race is tight.
Republican Robert Thomas leads Democrat Joshua Cole by 82 votes in the contest to fill the seat held by
retiring Speaker William J. Howell (R-Stafford).
Jonathan A. Gerlach, a lawyer for Cole who lives in Fredericksburg, told the board that he had found
evidence that more than 100 Fredericksburg voters had been mis-classified.
Noting the closeness of the race and legal action threatened by Democratic attorneys, the board decided to
certify only the states 98 other House races and the contests for governor, lieutenant governor and attorney
general. Monday was the state deadline to certify the election under state law, but the code allows the board
up to three more days if it is unable to ascertain the results.
Lets just take a time out, said board chairman James Alcorn. Our goal is to make sure voters trust the
election results.
The delay drew sharp criticism from John Findlay, executive director of the Republican Party of Virginia.
Welcome to Venezuela, Findlay said afterward. This is how elections happen in Venezuela, Soviet Russia
and now the commonwealth of Virginia. We dont like the winners, were gonna have a new election.
The District 28 race is one of three likely headed for a state-funded recount after the Nov. 7 election, in
which Democrats made huge gains in the House and swept statewide offices for governor, lieutenant
governor and attorney general.
Before the election, Republicans boasted a 66-to-34 majority in the House of Delegates. Now the count is 49
Democrats and 51 Republicans, putting Democrats within striking distance of taking control. They need one
more victory to force a power-sharing deal with Republicans and two more to take the reins of the chamber
for the first time since 2000.
Republicans hold narrow leads in all three of the close races. In the other two, Del. Timothy D. Hugo
(R-Fairfax) has a 106-vote lead over Democrat Donte Tanner, while Del. David E. Yancey (R-Newport
News) is up just 10 votes over Democrat Shelly Simonds.
Lawyers for Cole and the NAACP Legal Defense and Education Fund last week tried unsuccessfully to
challenge the results in court. One lawsuit sought to have 55 late-arriving absentee ballots counted. The
other asserted that voters who cast provisional ballots on Election Day had been given conflicting and
misleading instructions. Both complaints were dismissed.
Marc Elias, one of the lawyers for Cole, also complained last week in a letter to the state board that 668
Fredericksburg voters had been given the wrong ballots, causing them to vote in the District 88 that Del.
Mark Cole (R-Fredericksburg) won handily, rather than in the District 28 squeaker. Elias asserted that
Fredericksburg officials had improperly split two precincts that are entirely within District 28, giving some
voters ballots for that House race and others ballots for the District 88 contest.
But on Monday, Corts confirmed that the precincts were properly split.
Yet a new question arose over the weekend, which Elias spelled out in a letter emailed to the board Monday
ahead of the meeting. Elias was no longer contending that the precincts should not have been split, but that
some voters within those precincts received the wrong ballot. He said that was because elections records
assign some voters to the wrong district.
Clara Belle Wheeler, the lone Republican on the three-member board, seemed initially reluctant to go along
with a delay. But after Corts explained that Pitchford appeared to have mis-assigned some voters in 2016,
Wheeler agreed to hold off on certification. Pitchford died in April.
Im confused, I guess, as everyone, Wheeler said.
Del. Kirk Cox (R-Colonial Heights), who will become speaker if Republicans hold onto the majority, said the
83 voters would not likely swing the race even they should have voted in District 28.
Each and every one of the 83 registered voters in question, if they did in fact vote in the wrong district,
would have to have participated in this election, voted in the wrong district, and voted for Delegate-elect
Thomas opponent in order to change the outcome, all of which are unlikely, Cox said in a written
statement. The Department of Elections knows right now how many of these registrants actually cast
ballots and they should make that information available right away. Doing so will reveal that Bob Thomas is
the rightful winner of this election, under any scenario.
Corts said it was not yet clear how many of the 83 residents voted.
The State Board of Elections today acknowledged that at least 83 people were mis-assigned in the system
and thus possibly disenfranchised from voting in their appropriate house district, Virginia House
Democratic Caucus, which hired Elias to represent Cole, said in written statement. The State Board of
Elections made a judicious decision by delaying certification. We are currently assessing our legal options
and will release another statement should we take further action.
120 Comments
ALEXANDRIA DIVISION
Kenneth J. Lecky; Dolores ("D.D.") Lecky; and

Phillip Ridderhof
Plaintiffs, Civil Action No.
v.
Virginia State Board of Elections, et al.

Defendants.
DECLARATION OF KENNETH LECKY IN SUPPORT OF PLAINTIFFS

RESULTS
I, Kenneth Lecky, swear under penalty of perjury that the following is true and correct.
1. I reside at 1205 Charles Street, Fredericksburg, Virginia 22401. I am registered to vote at

this address.
2. I am a U.S. citizen.
3. To the best of my knowledge, 1205 Charles Street, Fredericksburg, Virginia 22401 is

located in House District 28.
4. On the morning of November 7, 2017, my wife went to our polling place at the VFW,
located at 2701 Princess Anne Street, Fredericksburg Virginia 22401 to cast her ballot.
She informed me that when she went to vote, she was given a ballot for House District
88.
5. She informed Aaron Markel and Rene Rodriguez, members of the City of Fredericksburg
Electoral Board who were present at the polling place, that she had received the incorrect
ballot.
6. Before arriving at the polling place, I checked my House of Delegates District on the
legislatures website to confirm that I lived in House District 28. The legislatures
website confirmed House District 28 was my correct District. Attached as Exhibit A is a
true and correct copy of the page on the legislatures website that I used to confirm my
House of Delegates District.
7. I also checked my registration using the Virginia State Board of Elections website,
which listed me as registered in House District 88. Attached as Exhibit B is a true and
correct copy of the pages on the State Board of Elections website that I used to confirm
my registration.
8. On November 7, 2017, I voted at the VFW, located at 2701 Princess Anne Street,
Fredericksburg Virginia 22401, which is the polling place for my precinct 402. I
attempted to vote at approximately 3:00pm EST.
9. I gave the poll worker my name and photo identification. The poll worker then handed
me a ballot.
10. I knew did not receive a ballot for House District 28 because I had researched the
candidates in my District, House District 28, and those candidates were not listed on the
ballot I received from the poll worker. Had I received a ballot that included the House
District 28 race, I would have voted for Joshua Cole.
11. Using the ballot I received, I voted for the Democratic candidates listed on the ballot.
12. On November 12, 2017 I contacted Aaron Markel, the Vice Chairman of the City of
Fredericksburg Electoral Board, via e-mail, to notify him of the issues above. Attached
as Exhibit C is a true and correct copy of the e-mail to Aaron Markel, dated November
12, 2017.
in Virginia.
DATED: November 21, 2017 ______________

Kenneth Lecky
-2-
Exhibit A
Exhibit B
Virginia Voter Information Citizen Portal 11/21/17, 1'02 PM
Agencies | Governor Search Virginia.Gov
HOME
! Back to Search
QUICKLINKS
Voter Information
" Voter Information Lookup
Voter Name
Name:: KENNETH JAMES LECKY " Polling Place Lookup
" Local Voter Registration Oce

Voter Number
Number:: 918876893
" Voter Forms
Status
Status:: Active " Election Results
" File a Voter Complaint?

Date of Status
Status:: 12/12/2005 " Frequently Asked Questions
" Contact Us
Residential Address
Address:: 1205 Charles St
Fredericksburg, VA 224013705
Locality
Locality:: FREDERICKSBURG CITY
Precinct
Precinct:: 402 - PRECINCT 2 - DISTRICT FOUR
Precinct Code
Code:: 0402
I want to update my voter record

I want to apply for absentee voting " Continue
Absentee
Election Status Application Ballot Ballot

Received Issued Received
2016 November General Approved 11/07/2016 11/07/2016 11/07/2016
2016 March Democratic Presidential Approved 02/25/2016 02/25/2016 02/25/2016

Primary
Polling Place
https://vote.elections.virginia.gov/VoterInformation Page 1 of 3
Facility : VFW POST 3103
Facility Address : 2701 PRINCESS ANNE STREET

FREDERICKSBURG VA, 22401
LARGE MEETING ROOM-FIRST FLOOR
ADA Compliant : Yes
ADA Comment : 100% AS OF 7/12/2016
Accessiblity Restrictions : No Restrictions Found
My Ballot
Ballot Information Was not Found
Voter History
Election Ballot Type Locality
2017 November General Full Ballot FREDERICKSBURG CITY
2017 June Democratic Primary FREDERICKSBURG CITY
2016 November General Full Ballot FREDERICKSBURG CITY
2016 March Democratic Presidential Primary SPOTSYLVANIA COUNTY
2015 November General Full Ballot SPOTSYLVANIA COUNTY
2008 February Democratic Presidential Primary SPOTSYLVANIA COUNTY
11/7/2006 - NOVEMBER 7, 2006 GENERAL ELECTION Full Ballot SPOTSYLVANIA COUNTY
Districts
Congressional
Congressional:: 1st District
State Senate
Senate:: 17th District
House of Delegates
Delegates:: 88th District
Election
Election:: DISTRICT FOUR
General Registrar Oce Contact Information
Facility : Department of Voter Registation & Elections
Registrar : MARC HOFFMAN
Address : 601 Caroline St Ste 500A

Fredericksburg, VA 224015954
Phone : 540-372-1030
Fax : 540-373-8381
Email : mchoffman@fredericksburgva.gov
URL :
Hours : Monday : 08:30 - 16:30

Tuesday : 08:30 - 16:30
Wednesday : 08:30 - 16:30
Thursday : 08:30 - 16:30
Friday : 08:30 - 16:30
Saturday : Closed
Sunday : Closed
Electoral Board Members
Chair : RENE RODRIGUEZ
Vice Chair : AARON MARKEL
Secretary : CATHIE BRAMAN
2014-2015 Virginia Department of Elections. All rights reserved - Privacy Policy
Some documents contained on this site require Adobe Reader for viewing.
11/21/2017 1:00:09 PM - 11/21/2017 1:00:09 PM
Exhibit C
---------- Forwarded message ----------
From: Kenneth Lecky <k@lecky.org>
Date: Sun, Nov 12, 2017 at 5:28 PM
Subject: HD28 Boundaries
To: aarmar.lka@gmail.com, "D. D. Lecky" <d@lecky.org>
Hi Aaron -
We tracked down DDs voter registration and it shows the 88th. So from what I can tell, everything at the
Department of Elections agrees that were in the 88th (poll books, registration card, and website), but
everything else Ive found shows us in the 28th. It looks like the House of Delegates districts havent changed
since the 2010 redistricting, which shows the same map that Ive seen everywhere:
http://redistricting.dls.virginia.gov/2010/Data%5C2011HouseMaps%5CHB5005%20-%20House%2028.pdf.
Ive also attached the narrative description of the district
from http://redistricting.dls.virginia.gov/2010/BoundaryDescriptions.aspx. I havent been able to find anything
that supersedes that.
Long story short, Im not convinced that the Department of Elections has the right information. Ive got some
thoughts on how we could investigate further, but Im hoping you can get in touch with some folks at the state
level who should have a better idea whats going on. Let us know if we can do anything to help.
Thanks,
Kenneth
1
ALEXANDRIA DIVISION
Kenneth J. Lecky, Dolores ("D.D.") Lecky; and Phillip

Ridderhof
Plaintiffs, Civil Action No.
v.
Defendants.
DECLARATION OF DOLORES (D.D.) LECKY IN SUPPORT OF PLAINTIFFS

RESULTS
I, Dolores Lecky, swear under penalty of perjury that the following is true and correct.
1. I reside at 1205 Charles Street, Fredericksburg, Virginia 22401. I am 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 November 7, 2017, I arrived at my polling place to cast my ballot for the 2017
general election.
5. My polling place is located at the VFW at 2701 Princess Anne Street, Fredericksburg
Virginia 22401.
6. After showing the poll worker my photo identification, the poll worker handed me a
ballot for House District 88.
7. 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 in the
88th District.
8. I previously volunteered for Joshua Coles campaign, so I also expected to see Joshua
Coles name listed on my ballot.
9. 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.
10. The poll worker proceeded to explain that the poll book listed me as registered in House
District 88.
11. Despite receiving a ballot for House District 88, I still cast my ballot, voting for all of the
Democratic candidates on the ticket.
12. Next, I informed Aaron Markel and Rene Rodriguez, members of the Fredericksburg City
Electoral Board who were present at my polling place, that I had received the incorrect
ballot. They pointed me to a map hanging in the polling place which showed that I
should have received a ballot in House District 28.
13. 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.
14. Markel and Rodriguez concluded that the map must have been wrong and removed the
map from the polling place.
15. 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.
16. Upon further research when I got home, I confirmed that I should have received a ballot
for House District 28.
17. I knew that I should have received a ballot for House District 28 because the legislatures
website confirmed that I was registered to vote in House District 28.
18. 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.
in Virginia.
DATED: November 21, 2017 ___________ __

Dolores Lecky
-2-
Kenneth J. Lecky, et al.

ALEXANDRIA DIVISION

Plaintiffs,
v.

et al.,
Defendants.
NOTICE OF EMERGENCY HEARING
PLEASE TAKE NOTICE that Plaintiffs, by and through undersigned counsel, have filed
herewith their Emergency Motion for a Temporary Restraining Order and Preliminary Injunction
Enjoining Certification of Election Results and that they seek to present argument on said
Motion, as soon as counsel may be heard. 1 Counsel will contact chambers as well as Defendants
counsel to notify them of the same.
1
The State Board of Elections is set to certify the vote totals at a meeting to be held on November 22nd, 2017 at
9:30am. Plaintiffs request an emergency hearing prior to that deadline or as soon as possible thereafter. Plaintiffs
understand from counsel for Defendants that the State Board of Elections may postpone the timing of its meeting if
the court sets an emergency hearing on this motion.
1
By Aria C. Branch
Perkins Coie, LLP
700 13th St. N.W., Suite 600
Phone: (202) 434-1627
Fax: (202) 654-9106
Attorneys for Plaintiff
2
Aria C. Branch
Aria C. Branch
ALEXANDRIA DIVISION

Plaintiffs,
v.

et al.,
Defendants.
ORDER GRANTING EMERGENCY MOTION FOR A TEMPORARY RESTRAINING

ORDER AND PRELIMINARY INJUNCTION ENJOINING CERTIFICATION OF
ELECTION RESULTS
Upon consideration of Plaintiffs Motion for a Temporary Restraining Order and
Preliminary Injunction Enjoining Certification of Election Results (the Motion) filed herein,
the Court having considered the Motion, the Memorandum of Points and Authorities in support
thereof, any opposition thereto, and any oral argument thereon, and it appearing to the Court
after due deliberation that the relief requested is appropriate and will facilitate efficient
resolution of this case, it is by the Court this ___ day of ______, 2017,
ORDERED, that the Motion be, and it is hereby, granted; and it is further
ORDERED, that the Virginia State Board of Elections, et al., are temporarily restrained
from certifying the results of the Virginia House of Delegates election in the 28th District in the
above-captioned proceeding as a matter of right.
___________________________
The Honorable _______________
United States District Court Judge

VA-HD-28 Democratic Suit For TRO To Prevent Certification (Nov. 2017)

Hochgeladen von

Dokumentinformationen

Originaltitel

Copyright

Verfügbare Formate

Dieses Dokument teilen

Dokument teilen oder einbetten

Freigabeoptionen

Stufen Sie dieses Dokument als nützlich ein?

Sind diese Inhalte unangemessen?

Copyright:

Verfügbare Formate

VA-HD-28 Democratic Suit For TRO To Prevent Certification (Nov. 2017)

Hochgeladen von

Copyright:

Verfügbare Formate

CM/ECF - vaed https://ecf.vaed.uscourts.gov/cgi-bin/Dispatch.pl?

U.S. District Court

Eastern District of Virginia -

Notice of Electronic Filing

No public notice (electronic or otherwise) sent because the entry is private

The following document(s) are associated with this transaction:

Document description:Main Document

KENNETH J. LECKY; DOLORES (D.D.)

VIRGINIA STATE BOARD OF ELECTIONS;

1. Plaintiffs are registered voters in Virginia and residents of Virginia House of

voters who live in House District 88.

COMPLAINT - 1 Perkins Coie LLP

JURISDICTION AND VENUE

4. This Court has jurisdiction to hear Plaintiffs claims pursuant to 28 U.S.C.

grant declaratory relief pursuant to 28 U.S.C. 2201 and 2202.

5. Venue in this district is proper under 28 U.S.C. 1391(b) because a substantial

6. Plaintiff Kenneth J. Lecky is a United States citizen registered to vote in the

on his/her voter registration. 1205 Charles St., Fredericksburg, VA 22401 is in House of

7. Plaintiff Dolores (D.D.) Lecky is a United States citizen registered to vote in

8. Plaintiff Phillip (Phil) Ridderhof is a United States citizen registered to vote in

COMPLAINT - 3 Perkins Coie LLP

11. Defendant Virginia Department of Elections is the agency responsible for

Virginia Department of Elections.

the Virginia House of Delegates.

14. House District 28 is located in Stafford County and Fredericksburg. In the

Democrat, and Robert (Bob) Thomas, Jr., a Republican.

District 88 are Steve Aycock, a Democrat, and Mark Cole, a Republican.

the Virginia House of Delegates.

17. On Election Day in November 2017, polling locations in the City of

Charles Street are actually in the House District 28.

District 88 rather than House District 28.

books to receive House District 88 ballots.

for Bob Thomas over Joshua Cole.

irregularities existed. The Board of Elections adjourned to permit additional investigation of

these irregularities. That investigation is ongoing.

COMPLAINT - 5 Perkins Coie LLP

would be heard by the House of Delegates, not a court. Id.

(Denial of the Right to Vote - Equal Protection Clause)

Complaint as though fully set forth herein.

quotation marks omitted).

future or otherwise affect Virginia law relating to the counting of ballots.

32. Plaintiffs have no adequate remedy under state law.

(Denial of the Right to Vote - Due Process Clause)

Complaint as though fully set forth herein.

COMPLAINT - 7 Perkins Coie LLP

37. Plaintiffs have no adequate remedy under state law.

PRAYER FOR RELIEF

WHEREFORE, Plaintiff requests that this Court:

B. Issue a Temporary Restraining Order barring Defendants from certifying the

results of House District 28 for the 2017 general election; and

28 for the 2017 general election; and

not limited to an award of Plaintiffs attorneys fees and reasonable costs.

COMPLAINT - 8 Perkins Coie LLP

Attorneys for Plaintiffs

COMPLAINT - 9 Perkins Coie LLP

identified on the Notice of Electronic Filing.

Date: November 21, 2017

I. (a) PLAINTIFFS DEFENDANTS

Citizen or Subject of a 3 3 Foreign Nation 6 6

FOR OFFICE USE ONLY

RECEIPT # AMOUNT APPLYING IFP JUDGE MAG. JUDGE

INSTRUCTIONS FOR ATTORNEYS COMPLETING CIVIL COVER SHEET FORM JS 44

V. Origin. Place an "X" in one of the seven boxes.