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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA
Alexandria Division

Kenneth J. Lecky, et al.,

Plaintiffs, Civil Action No. 1:17-cv-01336

v. Judge T.S. Ellis, III

Virginia State Board of Elections, et al.,

Defendants.

DEFENDANT G. PAUL NARDO’S MEMORANDUM OF LAW IN OPPOSITION

TO PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION

Defendant G. Paul Nardo, in his official capacity as Clerk of the Virginia House of

Delegates (“Defendant” or “Mr. Nardo”), hereby submits his opposition to the Motion for

Preliminary Injunction filed by Plaintiffs Kenneth J. Lecky, et al. in this matter on December 6,

2017. Plaintiffs ask the Court to prohibit Mr. Nardo from administering the oath of office to the

winner of the District 28 House election. Because such a prohibition will be either (1)

unnecessary (in the event this Court vacates the election) or (2) an undue federal interference in

Virginia constitutional and statutory mechanisms for resolving election disputes (in the event this

Court does not vacate the election), Mr. Nardo asks the Court to deny Plaintiffs’ Request for

Relief against him.

BACKGROUND

Plaintiffs are Virginia House District 28 voters. They complain of errors in the

administration of the November 7, 2017, election for the House of Delegates. On November 27,

2017, the Virginia Board of Elections certified election returns showing the Republican
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candidate, Robert Thomas, Jr., as the winner. 1 Plaintiffs contend that the asserted errors are so

grave that they necessitate federal judicial intervention, and they seek an injunction ordering,

inter alia, (1) the Virginia Board of Elections to vacate its certification of the District 28 results;

(2) an order prohibiting Mr. Nardo from administering the House of Delegates oath of office to

the winning candidate, Robert Thomas, Jr.; and (3) an order requiring Virginia Governor

McAuliffe to issue a writ of election for House of Delegates District 28 pursuant to Virginia

Annotated Code Section 24.2-216 and Article IV, Section 7 of the Virginia Constitution.

Defendant Nardo is the Clerk of the House of Delegates. By Virginia House of Delegates

practice and custom, on the first day of the legislative session the Clerk occupies the chair of the

House of Delegates until a new Speaker of the House is elected. The Clerk is an officer of that

body and is typically elected by the body on the first day of the new term. See 2016-2017 Rules

of the House of Delegates Rule 6, at 3 (adopted January 13, 2016) (“A Clerk shall be elected by

the House in even-numbered years . . . .”). Pursuant to the 2016-2017 Rules of the House of

Delegates, the Clerk “shall be deemed to continue in office until another is chosen.” Id. Mr.

Nardo will therefore occupy the office of Clerk when the 2018-2019 Session opens on January

10, 2018.

The Virginia Constitution provides that “[e]ach house shall judge the election,

qualification, and returns of its members.” Va. Const. Art. 4, § 7. Virginia has also enacted a

body of statutory law governing recounts and contested elections. Va. Code Ann. §§ 24.2-800 to

24.2-814. The code specifies procedures to be followed in the event of a recount. See Va. Code

Ann. §§ 24.2-800 to 24.2-802. It also articulates procedures to be followed in the event a losing

1
According to press accounts, a recount in the District 28 race is set for December 21, 2017.

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candidate for election to the General Assembly chooses to contest the election. See Va. Code

Ann. § 24.2-803.

The procedure for contesting a House of Delegates election provides (1) that the

contestant give written notice to the winning candidate and to the Clerk of the relevant body of

an intention to contest the election; (2) for response and the posting of bond with the Clerk; (3)

for the taking of depositions and for the filing of supporting affidavits relating to the matter with

the Clerk; (4) for a written petition and reply to be filed with the Clerk; (5) and for the referral of

all the foregoing filed materials by the Clerk to the House of Delegates Committee on Privileges

and Elections (“CPE”). Id. The Virginia Code provides that the CPE shall hear the contest and

conduct such investigation as has been directed by resolution of the House. Thereafter, the CPE

reports its findings and recommendations to the House for action. Id. After which, “[t]he house,

in its judgment, may find for the contestant and declare him elected, find for the contestee and

confirm his election, or declare the election void and order a writ of election as in other cases of

vacancy.” Va. Code Ann. § 24.2-803(H).

On the first day of the legislative session, the historic custom and practice of the Clerk of

the House of Delegates has been to administer the oath of office to all members-elect who

possess the relevant certification from the Board of Elections. 2 In so doing, the Clerk, acting as

the agent of the House, and unless directed otherwise by the House, relies on the results of the

general election as certified by the Virginia Department of Elections, to confirm that each

member is duly elected and ready to be seated and sworn. Mr. Nardo intends to perform the

ministerial act of administering the oath on January 10, 2018 to all members-elect possessing the

2
Section 24.2-680 of the Virginia Code provides that “[t]he names of members elected to the
General Assembly shall be certified by the State Board to the clerk of the House of Delegates.”
Va. Code Ann. § 24.2-680.

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required certification. That process will include administering the oath to the member-elect from

District 28 (unless, of course, this Court has vacated the District 28 certification before the

January 10, 2018 date, see discussion infra at pp. 5–6).

If the losing candidate elects to pursue the statutory contestation mechanism provided by

the Virginia General Assembly, as set forth in Section 24.2-803, the Clerk for the 2018 to 2019

term (Mr. Nardo if he is re-elected, or his successor if he is not) is required to perform the

ministerial act of referring the relevant matter to the Committee on Privileges and Elections in

accordance with the statutory process established by Section 24.2-803(G). The House would

then decide the question under the authority given it by section Virginia Code Annotated Section

24.2-803(H).

If no candidate presents a certification to the Clerk valid on January 10, 2018 —whether

because this Court has invalidated the election by way of an injunction directed to the Board of

Elections or otherwise— Mr. Nardo will not administer the oath to any District 28 candidate on

that date.

LEGAL STANDARDS

In Di Biase v. SPX Corporation, the Fourth Circuit Court of Appeals restated the familiar

standards for assessing preliminary injunction motions. “A preliminary injunction is an

extraordinary remedy intended to protect the status quo and prevent irreparable harm during the

pendency of a lawsuit. Pashby v. Delia, 709 F.3d [307,] 319 [4th Cir. 2013].” 872 F.3d 224, 230

(4th 2017). “A preliminary injunction shall be granted only if the moving party clearly

establishes entitlement to the relief sought. Fed. Leasing, Inc. v. Underwriters at Lloyd’s, 650

F.2d 495, 499 (4th Cir. 1981).” Id. Accordingly, “[a] plaintiff seeking a preliminary injunction

must demonstrate ‘that he is likely to succeed on the merits, that he is likely to suffer irreparable

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harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an

injunction is in the public interest.’” Id. (quoting Winter v. NRDC, 555 U.S. 7, 20 (2008)).

ARGUMENT

The Court Should Deny the Preliminary Injunction as to Mr. Nardo

in His Official Capacity as Clerk of the House of Delegates.

Defendant Nardo takes no position in the question whether the Court should issue

injunctive relief ordering the Virginia State Board of Elections to vacate its certification of the

results of House District 28 for the 2017 general election.

As to the injunctive relief sought against him in his official capacity as Clerk of the

House of Delegates, Mr. Nardo respectfully submits (1) that Plaintiffs are not likely to succeed

on the merits of that request and (2) that it would not be in the public interest to enjoin him.

If this Court were to agree with Plaintiffs that this matter is of sufficient gravity to justify

federal intervention in state law election processes, and if the Court were to conclude further that

the November 7, 2016 District 28 election should be invalidated, the Court will not need to issue

any relief against Mr. Nardo. In the event this Court were to “vacate the certification of the

results of House District 28 for the 2017 general election,” as Plaintiffs seek in the Preliminary

Injunction prayer for relief, Amended Complaint at 17, that result would obviate the need for any

federal judicial action directed toward Mr. Nardo as Clerk of the House of Delegates. If the

existing State Board certification is indeed vacated, there will be no member-elect able to present

the necessary certification to the Clerk, and consequently, no member-elect will be administered

the oath of office or be seated for District 28 until a new election is conducted and a winner

certified.

As to the other possibility: if this Court were to conclude that no injunctive relief should

lie against the State Board of Elections (that is, if this Court declines to vacate the results of the

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District 28 election), then Mr. Nardo respectfully submits that it would be highly inappropriate to

enjoin him from administering the oath of office to the member-elect, pursuant to Virginia Code

Annotated Section 49-3. A federal court injunction in that circumstance would be a substantial

intrusion into authorities and responsibilities belonging to the Commonwealth of Virginia as a

sovereign entity within our federal system. Virginia has provided a specific, detailed statutory

mechanism by which a losing candidate may contest the results of an election to the House of

Delegates. That process is spelled out in elaborate detail in Section 24.2-803 of the Virginia

Code. See discussion p. 3, supra. That process vests in the House of Delegates itself the power

to make the final decision concerning the seating of a member. Va. Code Ann. § 24.2-803(H).

This statutory scheme is of a piece with the provision of the Virginia Constitution to the effect

that “[e]ach house shall judge of the election, qualification, and returns of its members.” Va.

Const. Art. 4, § 7.

“[S]tates are primarily responsible for their own elections.” Hutchinson v. Miller, 797

F.2d 1279, 1283 (4th Cir. 1986) (Wilkinson, J.) (internal quotation marks omitted). The

Constitution of the United States “does not contemplate that the federal judiciary routinely will

pass judgment on particular elections for federal, state or local office.” Id. at 1280. And “sifting

the minutiae of post-election accusations [is] better suited to the . . . administrative and

legislative level, where an awareness of the vagaries of politics informs the judgment of those

called upon to review the irregularities.” Id. at 1287.

These considerations of federalism, comity, deference and institutional competence,

combined with the fact that Virginia has its own well-established mechanisms for resolving

disputed elections to the House of Delegates, make it unlikely that Plaintiffs can succeed on the

merits of their claim to injunctive relief against the Clerk’s ministerial action of administering

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the oath of office to a member-elect possessing the necessary certification. For the same reasons,

injunctive relief against the Clerk is not in the public interest.

CONCLUSION

Mr. Nardo, in his official capacity as Clerk of the House of Delegates, takes no position

on the question whether injunctive relief should lie against the State Board of Elections. For the

foregoing reasons, Mr. Nardo asks that the Court deny Plaintiffs’ request for an order prohibiting

him from administering the oath of office on January 10, 2018, to the member-elect for District

28 possessing the certification from the State Board of Elections.

Dated: December 20, 2017 Respectfully submitted,

By: /s/ Joshua D. Tully

Emmet T. Flood (pro hac vice application pending)

Joshua D. Tully (VSB Number 88054)
WILLIAMS & CONNOLLY LLP
725 12th Street, N.W.
Washington, D.C. 20005
Telephone: (202) 434-5000
Facsimile: (202) 434-5029
eflood@wc.com
jtully@wc.com

Attorneys for Defendant G. Paul Nardo

in His Official Capacity

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CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on this 20th day of December, 2017, I electronically filed the
foregoing Defendant G. Paul Nardo’s Memorandum of Law in Opposition to Plaintiffs’ Motion
for Preliminary Injunction with the Clerk of the Court using the CM/ECF system. Additionally,
I sent the forgoing document to the following electronic email addresses as well as via overnight
mail to the following addresses:

Marc Erik Elias

Bruce V. Spiva E. Mark Braden
Brian Simmonds Marshall Patrick T. Lewis
Aria C. Branch Katherine L. McKnight
Amanda Rebecca Callais Trevor M. Stanley
PERKINS COIE, LLP Richard B. Raile
700 13th St. N.W., Suite 600 BAKER & HOSTETLER LLP
Washington, D.C. 20005-3960 1050 Connecticut Ave., NW, Suite 1100
MElias@perkinscoie.com Washington, D.C. 20036-5403
BSpiva@perkinscoie.com mbraden@bakerlaw.com
BMarshall@perkinscoie.com plewis@bakerlaw.com
ABranch@perkinscoie.com kmcknight@bakerlaw.com
acallais@perkinscoie.com tstanley@bakerlaw.com
rraile@bakerlaw.com
Attorneys for Plaintiffs
Attorneys for Intervenor-Defendants
Mark Herring
Cynthia E. Hudson Michael G. Matheson
John W. Daniel II THOMPSON MCMULLAN, P.C.
Heather Hays Lockerman 100 Shockoe Slip, 3rd Floor
Anna T. Birkenheier Richmond, Virginia 23219
OFFICE OF THE ATTORNEY GENERAL mmatheson@t-mlaw.com
202 North 9th Street
Richmond, Virginia 23219 Attorney for Marc C. Hoffman, Rene
hlockerman@oag.state.va.us Rodriguez, Cathie Fisher Braman, Marie
abirkenheier@oag.state.va.us Gozzi, Gloria Chittum, and Greg Riddlemoser

Attorney for Defendants the Honorable Aaron Markel

Terence McAuliffe in his official capacity as 1095 Winchester Street
the Governor of Virginia, the Virginia State Stafford, Virginia 22401
Board of Elections, James B. Alcorn, Clara aaronmarkel.va@gmail.com
Belle Wheeler, and Singleton B. McAllister in
their official capacities as members of the Doug Filler
Virginia State Board of Elections, the Virginia 277 Long Point Drive
Department of Elections, and Edgardo Cortés Fredericksburg, Virginia 22406
in his official capacity as the Commissioner of
the Virginia Department of Elections
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By: /s/ Joshua D. Tully

Joshua D. Tully (VSB Number 88054)

WILLIAMS & CONNOLLY LLP
725 12th Street, NW
Washington, DC 20005
Telephone: (202) 434-5000
Facsimile: (202) 434-5029
jtully@wc.com

Attorneys for Defendant G. Paul Nardo

in His Official Capacity