League of Women Voters of Va. v. Va. State Bd. of Elections

458 F.Supp.3d 442

LEAGUE OF WOMEN VOTERS OF VIRGINIA, et al., Plaintiffs,

v.VIRGINIA STATE BOARD OF ELECTIONS, et al., Defendants.

Case No. 6:20-CV-00024

United States District Court, W.D. Virginia, Lynchburg Division.

Signed May 5, 2020

Davin McKay Rosborough, American Civil Liberties Union Foundation, New York, NY, Vishal Mahendra Agraharkar, American Civil Liberties Union of Virginia Foundation, Richmond, VA, for Plaintiffs.

MEMORANDUM OPINION

NORMAN K. MOON, SENIOR UNITED STATES DISTRICT JUDGE

In this action, League of Women Voters of Virginia and several voters have sued the Virginia State Board of Elections, and a number of state officials, arguing that Virginia's witness signature requirement for absentee ballots is an unconstitutional burden on the right to vote as applied during the COVID-19 pandemic. The parties later reached a partial settlement, and jointly sought approval of a consent decree that would enjoin enforcement of the witness signature requirement for Virginia's primaries on June 23, 2020, for voters who believe they may not safely have a witness present while completing their ballot.

Plaintiffs' case alleges a probable violation of federal law—that is, applying the witness requirement during this pandemic would impose a serious burden on the right to vote, particularly among the elderly, immunocompromised, and other at-risk populations. Weighed against those risks, the present record reflects the likelihood that the burden would not be justified by the witness requirement's purpose as an anti-fraud measure. Thus, the Court finds that the partial settlement in the proposed consent decree is fair, adequate, and reasonable given the strength of the Plaintiffs' case, and that entering it is not against the public interest, illegal, or the product of collusion. The Court will grant the motion, approving the agreement, which has no bearing on Virginia's local elections on May 19, nor does it address future elections.

I. BACKGROUND

A. Factual Background

1. The COVID-19 Pandemic

On March 12, 2020, Virginia Governor Ralph Northam declared a state of emergency in response to the public health threat posed by COVID-19, pursuant to Executive Order 51. Dkt. 63 at ¶ 8. Approximately three weeks later, he directed all residents to remain in their homes, subject to limited exceptions, pursuant to Executive Order 53, and later extended that order's restrictions until June 10, 2020, pursuant to Executive Order 55. Dkt. 63 at ¶¶ 9-10. Executive Order 55 directs residents "to practice social-distancing by, among other things, staying at least ‘six feet’ apart." Dkt. 63 at ¶ 10; see Dkt. 1 at ¶ 3. In addition, the federal government has issued guidelines through the Centers for Disease Control and Prevention ("CDC") directing individuals to "stay home as much as possible"¹ and to "put distance between yourself and other people." Dkt. 35-1 at ¶ 6.² The CDC has also instructed individuals to "use voting methods that minimize direct contact." Id.³

On April 24, 2020, Governor Northam released his administration's plan for relaxing the restrictions Virginia has imposed in response to the COVID-19 pandemic. Dkt. 35-1 at ¶ 7.⁴ The first phase of this plan will not begin until there have been fourteen days of consistent decline in the in the percentage of positive cases reported each day. Id. As of May 5, 2020, data from the Virginia Department of Health demonstrate that this goal has not yet been met.⁵ However, on May 4, 2020, Governor Northam announced that restrictions on commercial activities may be eased starting on May 15, 2020, but he reiterated that Virginians-especially those with increased vulnerability to COVID-19-should continue to isolate at home.⁶ Regardless of these restrictions, Virginia will still permit in-person voting, along with absentee voting, for the June 23 primary election.⁷ Dkt. 63 at ¶ 12.

There is no dispute that, based on the Census Bureau's 2018 Current Population Survey, over twenty-five percent of Virginians over the age of eighteen live alone. Dkt. 1 at ¶ 78.⁸ Nor do the parties dispute that some at-risk populations are more likely to live alone, such as Virginians over the age of sixty-five. Id. While "[p]eople of every age can and have contracted COVID-19, including severe cases ... geriatric patients are at the greatest risk of severe cases, long-term impairment, and death." Dkt. 16-1 (Declaration of Dr. Arthur L. Reingold) at ¶ 7. This is also true of those "with immunologic conditions and with other pre-existing conditions, such as hypertension, certain heart conditions, lung diseases ... diabetes mellitus, obesity, and chronic kidney disease." Id.

To date, the Virginia Department of Health has calculated over 20,000 confirmed or probable cases of COVID-19, over 2,700 hospitalizations, and over 700 deaths attributed to the disease.⁹ The data likely undercount the actual number of positive cases, because of the Commonwealth's limitations with regard to testing capacity. Dkt. 64-4 (Declaration of M. Norman Oliver, Virginia Health Commissioner) at ¶ 12.

2. Virginia's Absentee Voting Scheme

Va. Code § 24.2-612 requires that absentee ballots be made available forty-five days prior to the June 23, 2020 primary election-Saturday, May 9, 2020. Dkt. 35-1 at ¶ 8; Dkt. 64-3 (Declaration of Christopher E. Piper) at ¶ 5. Or, in localities whose general registrar is closed on that day, ballots must be made available on Friday, May 8, 2020. Id.

General registrars maintain lists of voters who have requested and returned absentee ballots, and absentee ballots are only accepted from voters whose names are on that list. Dkt. 64-3 at ¶ 7. Upon receiving a valid request for an absentee ballot and confirming that the applicant is a registered voter in the jurisdiction, the registrar provides an absentee voter's package which includes the following: a sealed envelope containing the ballot and a second envelope containing printed instructions as well as a "Statement of Voter" form, which the absentee voter is required to sign, attesting to their identity, residency status, and that they "marked the ballot(s) in the presence of [a] witness, without assistance or knowledge on the part of anyone as to the manner in which [the voter] marked it" and that they the voter has "not voted and will not vote in this election at any other time or place." Va. Code § 24.2-706 ; see Dkt. 1 at ¶ 66; Dkt. 63 at ¶ 2. Pertinent here, Va. Code § 24.2-706 and Va. Code § 24.2-707 -the provision Plaintiffs challenge as unconstitutional-requires that the absentee voter "mark[ ] the ballot(s) in the presence of [a] witness, without assistance or knowledge on the part of anyone as to the manner in which [the voter] marked it" and that the voter personally attest to the ballot being so witnessed. See Dkt. 1 at ¶ 67; Dkt. 63 at ¶ 3. Individuals who make a willfully false material statement or entry on an absentee ballot are at the risk of being charged with a Class 5 felony. Va. Code § 24.2-1012. Those who would sign the name of another qualified voter are at risk of being charged with a Class 4 felony. Va. Code § 24.2-1012.

A voter's failure to obtain a witness signature on their absentee ballot is an omission that is "always material" that renders the ballot invalid. See 1 Va. Admin. Code 20-70-20(B) ; Dkt. 1 at ¶ 70. However, "[t]he illegibility of a voter's or witness's signature ... shall not be considered an omission or error." 1 Va. Admin. Code 20-70-20(C)(10) ; see Dkt. 1 at ¶ 71.

B. Procedural History

On April 17, 2020, the League of Women Voters of Virginia and three individual voters—Katherine D. Crowley, Erikka Goff, and Seijra Toogood—("Plaintiffs") sued the Virginia State Board of Elections and, in their official capacities, its Chairman (Robert H. Brink), Vice-Chair (John O'Bannon), and Secretary (Jamilah D. LeCruise), as well as the Commissioner of the Virginia Department of Elections (Christopher E. Piper) ("State Defendants"), seeking to enjoin enforcement of Va. Code § 24.2-707(A), which mandates that all absentee ballots be signed by a witness before submission. Dkt. 1. ¶¶ 1-2. Given the public health crisis spawned by the COVID-19 pandemic, Plaintiffs argue that the requirement unduly burdens their right to vote. As evidence, Plaintiffs cite Governor Ralph Northam's stay-at-home order presently in effect through June 10, 2020, as well as state and federal government social distancing guidelines. Dkt. 1 ¶¶ 2-3; see Va. Executive Order No. 2020-55. Social distancing measures are expected to remain in place until there is a treatment or vaccine for COVID-19. Dkt. 1 at ¶ 35.

On April 21, 2020, Plaintiffs moved for a preliminary injunction that: (1) prohibits State Defendants from enforcing the aforementioned witness requirement for all Virginia voters for the June 23, 2020 primaries and for any and all subsequent elections in Virginia until such time as in-person interactions required by compliance with the witness requirement no longer pose a risk to public health and personal safety; (2) orders State Defendants to issue guidance instructing city and county election officials to count otherwise validly cast absentee ballots that are missing a witness signature for Virginia's June 23 primary elections; and (3) orders State Defendants to conduct a public information campaign informing Virginia voters about the elimination of this requirement, in coordination with city and county election officials. Dkt. 16.

On April 23, 2020, two days after Plaintiffs filed their motion for a preliminary injunction, a group of three voters (Sheila DeLappe Ferguson, Sandy Burchett, and Diane Crickenberger) filed a motion to intervene in this case. Dkt. 22. The next day, the Republican Party of Virginia ("RPV") together with another three voters (Vincent E. Falter, Mildred H. Scott, and Thomas N. Turner, Jr.) also filed a motion to intervene in this case. Dkt. 28. The Court held a status conference that day with the Plaintiffs, State Def...