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Defendants.
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
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.
2
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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
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.
3
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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
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
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
4
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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
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
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
5
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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
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
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
6
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the oath of office to a member-elect possessing the necessary certification. For the same reasons,
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
7
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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: