Leckey Complaint

Case 1:17-cv-01336-TSE-IDD Document 1 Filed 11/21/17 Page 1 of 10 PageID# 1
IN THE UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF VIRGINIA
ALEXANDRIA DIVISION
KENNETH J. LECKY; DOLORES (D.D.)

LECKY; and PHILLIP RIDDERHOF,
1:17cv1336 (TSE/IDD)
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
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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
Case 1:17-cv-01336-TSE-IDD Document 1-1 Filed 11/21/17 Page 1 of 2 PageID# 98
Case 1:17-cv-01336-TSE-IDD Document 1-1 Filed 11/21/17 Page 2 of 2 PageID# 99
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.)
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in one of the boxes. If there is more than one basis of jurisdiction, precedence is given in the order shown below.
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precedence, and box 1 or 2 should be marked.
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citizenship of the different parties must be checked. (See Section III below; NOTE: federal question actions take precedence over diversity
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Original Proceedings. (1) Cases which originate in the United States district courts.
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Case 1:17-cv-01336-TSE-IDD Document 1 Filed 11/21/17 Page 1 of 10 PageID# 1

IN THE UNITED STATES DISTRICT COURT

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

Dated: November 21, 2017

Attorneys for Plaintiffs

COMPLAINT - 9 Perkins Coie LLP

identified on the Notice of Electronic Filing.

Date: November 21, 2017

INSTRUCTIONS FOR ATTORNEYS COMPLETING CIVIL COVER SHEET FORM JS 44

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

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