Petition for Writ of Certiorari — John O'Bannon, Chairman of the State Board of Elections for the Commonwealth of Virginia, et al., Petitioners v. Tati Abu King, et al.

No. 24-

In the

Supreme Court of the United States

JOHN O’BANNON, IN HIS OFFICIAL CAPACITY AS CHAIRMAN OF THE STATE BOARD OF ELECTIONS, ET AL.,

Petitioners,

v.

TATI ABU KING, ET AL.,

Respondents.

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the Fourth Circuit

APPENDIX

JASON S. MIYARES

Attorney General

of Virginia

CHARLES J. COOPER

HALEY N. PROCTOR

JOHN D. RAMER

BRADLEY L. LARSON

Cooper & Kirk, PLLC

1523 New Hampshire

Avenue, N.W.

Washington, DC 20036

(202) 220-9600

ccooper@cooperkirk.com

ERIKA L. MALEY

Solicitor General

Counsel of Record

KEVIN M. GALLAGHER

Principal Deputy

Solicitor General

THOMAS J. SANFORD

Deputy Attorney General

OFFICE OF THE VIRGINIA

ATTORNEY GENERAL

202 North Ninth Street

Richmond, Virginia 23219

(804) 786-2071

emaley@oag.state.va.us

Counsel for Petitioners

TABLE OF CONTENTS

Page(s)

Appendix A: Published Panel Opinion of the United

States Court of Appeals for the Fourth Circuit (December 5, 2024)....................................................... 1a

Appendix B: Memorandum Opinion of the United

States District Court for the Eastern District of Virginia (March 18, 2024) ......................................... 19a

1a

PUBLISHED

UNITED STATES COURT OF APPEALS FOR THE

FOURTH CIRCUIT

No. 24-1265

TATI ABU KING; TONI HEATH JOHNSON,

Plaintiffs – Appellees,

And

BRIDGING THE GAP IN VIRGINIA,

Plaintiff,

v.

GLENN YOUNGKIN, in his official capacity as Governor of the Commonwealth of Virginia; KELLY

GEE, in her official capacity as Secretary of

the Commonwealth of Virginia; JOHN O’BANNON, in his official capacity as Chairman of the

State Board of Elections for the Commonwealth of

Virginia; ROSALYN R. DANCE, in her official capacity as Vice Chair of the State Board of Elections for

the Commonwealth of Virginia; GEORGIA ALVISLONG, in her official capacity as Secretary of the

State Board of Elections for the Commonwealth of

Virginia; DONALD W. MERRICKS, in his official capacity as a member of the State Board of Elections

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for the Commonwealth of Virginia; MATTHEW

WEINSTEIN, in his official capacity as a member of

the State Board of Elections for the Commonwealth

of Virginia; SUSAN BEALS, in her official capacity

as Commissioner of the Department of Elections for

the Commonwealth of Virginia; ERIC SPICER, in his

official capacity as the General Registrar of Fairfax

County, Virginia; and SHANNON WILLIAMS, in

her official capacity as the General Registrar of

Smyth County, Virginia,

Defendants – Appellants.

Appeal from the United States District Court for

the Eastern District of Virginia, at Richmond. John

A. Gibney, Jr., Senior District Judge. (3:23-cv-00408JAG)

Argued: September 24, 2024

Decided: December 5, 2024

Before NIEMEYER, GREGORY, and HEYTENS,

Circuit Judges.

Affirmed in part and reversed in part by published

opinion. Judge Heytens wrote the opinion, which

Judge Niemeyer and Judge Gregory joined.

ARGUED: Kevin Michael Gallagher, OFFICE OF

THE ATTORNEY GENERAL OF VIRGINIA,

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Richmond, Virginia, for Appellants. Brittany Blueitt

Amadi, WILMER CUTLER PICKERING HALE

AND DORR LLP, Washington, D.C., for Appellees.

ON BRIEF: Jason S. Miyares, Attorney General,

Erika L. Maley, Solicitor General, OFFICE OF THE

ATTORNEY GENERAL OF VIRGINIA, Richmond,

Virginia; Charles J. Cooper, Haley N. Proctor, John

D. Ramer, COOPER & KIRK, PLLC, Washington,

D.C., for Appellants. Vishal Agraharkar, Eden Heilman, ACLU FOUNDATION OF VIRGINIA, Richmond, Virginia; Jared Fletcher Davidson, New Orleans, Louisiana, Benjamin L. Berwick, PROTECT DEMOCRACY PROJECT, Watertown, Massachusetts;

L. Alyssa Chen, Washington, D.C., Robert Kingsley

Smith, Jason H. Liss, Robert Donoghue, Boston, Massachusetts, Nicholas Werle, Matthew Wollin, WILMER CUTLER PICKERING HALE AND DORR

LLP, New York, New York, for Appellees.

TOBY HEYTENS, Circuit Judge:

Under Ex parte Young, 209 U.S. 123 (1908),

suits that would otherwise be barred by a State’s sovereign immunity may proceed when a plaintiff seeks

forward-looking relief to halt an ongoing violation of

federal law. The plaintiffs here claim the felon disenfranchisement provision in Virgina’s constitution conflicts with federal law, and they seek an injunction

preventing various state officials from enforcing that

provision against them. We hold that the portion of

the plaintiffs’ complaint that is before us meets the

requirements of the Ex parte Young doctrine and that

the district court correctly declined to dismiss it

based on sovereign immunity. But we also conclude

that two of the 10 defendants—the Governor of

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Virginia and the Secretary of the Commonwealth—

must be dismissed because they lack enforcement responsibility for the challenged state action. We thus

affirm the district court’s order in part and reverse it

in part.

I.

Plaintiffs Tati Abu King and Toni Heath Johnson cannot register to vote in Virginia because the

state constitution forbids them from doing so. In

2018, King was convicted of felony drug possession. In

2021, Johnson was convicted of several felonies, including drug possession, drug distribution, and child

endangerment. These convictions triggered a provision of Virginia’s constitution that says “[n]o person

who has been convicted of a felony shall be qualified

to vote unless his civil rights have been restored by

the Governor or other appropriate authority.” Va.

Const. art. II, § 1.

King and Johnson claim their inability to

register to vote violates the Virginia Readmission

Act, an 1870 federal statute that allowed the Commonwealth to regain its representation in Congress

after the Civil War. The Act begins by noting “the

people of Virginia have framed and adopted” a postCivil War constitution—the Constitution of 1869.

Pub. L. No. 41-10, 16 Stat. 62 (1870). It then imposes

various requirements and restrictions on Virginia, including limits on the Commonwealth’s ability to

change the 1869 Constitution. 16 Stat. 63. The limitation at issue states:

[T]he Constitution of Virginia shall

never be so amended or changed as to

deprive any citizen or class of citizens of

the United States of the right to vote

who are entitled to vote by the

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Constitution herein recognized, except

as a punishment for such crimes as are

now felonies at common law, whereof

they shall have been duly convicted under laws equally applicable to all the

inhabitants of said State.

Id.

In 2023, King, Johnson, and two other plaintiffs who are not before us sued eight election officials, the Governor of Virginia, and the Secretary of

the Commonwealth (collectively, defendants) in federal district court. Among other relief, the complaint

seeks an injunction barring the defendants “from enforcing” the Commonwealth’s felony disenfranchisement rule against people “convicted of crimes that

were not felonies at common law when the Virginia

Readmission Act was enacted.” JA 64–65.

The defendants moved to dismiss the complaint, asserting—as relevant here—that sovereign

immunity bars this suit. The district court dismissed

three of the complaint’s four counts for failure to state

a claim on which relief can be granted. But the court

rejected the defendants’ sovereign immunity argument, permitting one count based on the Virginia Readmission Act to go forward.

The defendants appealed the district court’s order declining to dismiss the remaining count of the

complaint on sovereign immunity grounds. We have

jurisdiction under the collateral order doctrine. See

Puerto Rico Aqueduct & Sewer Auth. v. Metcalf &

Eddy, Inc., 506 U.S. 139, 143–45 (1993). “[T]he existence of sovereign immunity is a question of law that

we review de novo.” Franks v. Ross, 313 F.3d 184, 192

(4th Cir. 2002).

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II.

The Eleventh Amendment and the broader

principles of federalism it reflects generally prevent

private parties from suing a State without its consent. See, e.g., Hans v. Louisiana, 134 U.S. 1, 10

(1890). In addition, “[s]uits against state officials in

their official capacity” are “treated as suits against

the State” and are barred by sovereign immunity to

the extent they seek monetary relief. Hafer v. Melo,

502 U.S. 21, 25 (1991). “But there is also a well-settled corollary—associated with Ex parte Young—that

allows suits for declaratory or injunctive relief

against state officers in their official capacities.” Gibbons v. Gibbs, 99 F.4th 211, 214 (4th Cir. 2024) (quotation marks removed). This appeal turns on whether

King’s and Johnson’s claim based on the Virginia Readmission Act falls within the Ex parte Young doctrine.

On first view, the answer appears easy. The Supreme Court has said: “In determining whether the

doctrine of Ex parte Young avoids an Eleventh

Amendment bar to suit, a court need only conduct a

straightforward inquiry into whether the complaint

alleges an ongoing violation of federal law and seeks

relief properly characterized as prospective.” Verizon

Md., Inc. v. Public Serv. Comm’n of Md., 535 U.S.

635, 645 (2002) (alterations and quotation marks

removed). The relevant count alleges that the defendants are violating federal law by preventing

King and Johnson from registering to vote and seeks

an injunction to prevent the defendants from continuing to do so. This case thus appears to satisfy the

Supreme Court’s “straightforward inquiry.” Id.

The defendants insist matters are not so simple, offering three reasons why they are all immune

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from suit. Like the district court, we are unpersuaded.

A.

The defendants’ lead argument is that the Ex

parte Young doctrine is inapplicable because King

and Johnson have not brought a type of suit to which

that doctrine applies. The defendants maintain that

an Ex parte Young action is permitted in two and only

two circumstances: those where plaintiffs seek either

(1) “to enjoin state officials from violating their individual federal rights” or (2) “an anti-suit injunction to

prevent the state officials from bringing an action to

enforce a preempted state law against them.” Appellants’ Br. 17. The defendants argue this case falls

within neither bucket because “the Virginia Readmission Act does not create any individual federal

rights” and “the State is not threatening to sue anyone.” Id. at 17, 20 (quotation marks removed).

We disagree. As the defendants conceded at

oral argument, neither the Supreme Court nor this

one has ever held that the Ex parte Young doctrine is

so limited. See Oral Arg. 2:13–:49; see also Antrican

v. Odom, 290 F.3d 178, 185–86, 190–91 (4th Cir.

2002) (permitting an action seeking to require defendants to comply with a provision of the Medicaid

Act to proceed under Ex parte Young without asking

whether the defendants were violating any of the

plaintiffs’ individual rights).

Instead, the defendants quote Virginia Office

for Protection & Advocacy v. Stewart, 563 U.S. 247

(2011), for the proposition that relief under Ex parte

Young is available only in a “precise situation.” See,

e.g., Appellants’ Br. 16, 21 (quoting Stewart, 563 U.S.

at 255). But the Stewart Court did not hold that Ex

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parte Young was limited to the two scenarios the defendants identify, nor is there any conflict between

this case and Stewart. Instead, Stewart instructs that

there is no sovereign immunity problem so long as “a

federal court commands a state official to do nothing

more than refrain from violating federal law.” 563

U.S. at 255. That is precisely what King and Johnson

seek here. 1

Even if the defendants were right about the

limits of Ex parte Young, King and Johnson also seek

protection from a threatened enforcement action. The

complaint alleges they wish to vote and would register and vote in future elections if permitted to do so.

1 The defendants also cite Michigan Corrections Organization v.

Michigan Department of Corrections, 774 F.3d 895 (6th Cir.

2014), for the proposition that the Ex parte Young action is limited to the two circumstances they identify, but that decision is

neither binding nor especially helpful to them. In that case, the

Sixth Circuit held private plaintiffs could not use the Ex parte

Young doctrine to evade statutory limits on their right to sue under the federal Fair Labor Standards Act. See id. at 899 (describing the FLSA as “preclud[ing]” the plaintiffs “from seeking injunctive or declaratory relief against” the state official they tried

to sue under Ex parte Young). As the Sixth Circuit explained,

that conclusion follows directly from the principle (discussed below in Part II(C)) that when Congress supplies its own express

remedial regime for violating a federal statute, courts may—in

appropriate cases—infer that Congress meant to bar resort to the

Ex parte Young doctrine. See id. at 904–05. In addition, Michigan

Corrections was decided before Armstrong v. Exceptional Child

Center, Inc., 575 U.S. 320 (2015), which provides important guidance about this strand of the doctrine. For example, although the

Sixth Circuit remarked that “Ex parte Young provides a path

around sovereign immunity if the plaintiff already has a cause of

action from somewhere else,” Michigan Corrections, 774 F.3d at

905, the Supreme Court has since clarified that Ex parte Young

is a “judge-made remedy” that stems from courts’ power to grant

equitable relief, Armstrong, 575 U.S. at 326–27.

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But because article II, section 1 of Virginia’s constitution prevents King and Johnson from being “qualified

to vote,” the defendants would have to deny any voter

registration applications that King or Johnson submit. See Va. Code § 24.2-417 (permitting registration

only for prospective voters who have “the qualifications required by the Constitution of Virginia”). And

if King or Johnson somehow managed to register and

cast a ballot, they would—absent the relief they seek

in this lawsuit—be subject to criminal prosecution for

illegal voting. See § 24.2-1004(B)(iii) (making it a

Class 6 felony to vote despite “knowing that [one] is

not qualified to vote”).

The defendants respond that any threatened

enforcement of state law against King or Johnson is

insufficiently “imminent” to support an Ex parte

Young action. Appellants’ Br. 13; see Oral Arg. 4:46–

6:10. That argument sounds more in justiciability

(whether ripeness or standing) than sovereign immunity. See generally City of Los Angeles v. Lyons,

461 U.S. 95 (1983); Poe v. Ullman, 367 U.S. 497

(1961). What is more, this Court has repeatedly rejected the claim that the Ex parte Young doctrine contains its own imminency requirement. Rather, “[t]he

requirement that the violation of federal law be ongoing is satisfied when a state officer’s enforcement of

an allegedly unconstitutional state law is threatened,

even if the threat is not yet imminent.” McBurney v.

Cuccinelli, 616 F.3d 393, 399 (4th Cir. 2010) (quotation marks removed; emphasis added). Where, as

here, “an individual claims federal law immunizes

him from state regulation, the court may issue an injunction upon finding the state regulatory actions

preempted.” Armstrong v. Exceptional Child Ctr., 575

U.S. 320, 326 (2015). No more is required.

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B.

The defendants also argue they are protected

by sovereign immunity because King and Johnson

seek to enforce Virginia’s 1869 constitution rather

than federal law. Once again, we disagree.

The defendants are right that Ex parte Young

is “inapplicable in a suit against state officials on the

basis of state law.” Pennhurst State Sch. & Hosp. v.

Halderman, 465 U.S. 89, 106 (1984). The Ex parte

Young doctrine springs from the need “to permit federal courts to vindicate federal rights and hold state

officials responsible to the supreme authority of the

United States.” Id. at 105 (quotation marks removed).

For that reason, “the entire basis for” allowing suit

“disappears” when a plaintiff seeks to have a federal

court “instruct[ ] state officials on how to conform

their conduct to state law” rather than federal law.

Id. at 106.

But we conclude King and Johnson are seeking

to enforce federal law, not state law. The legal rule

they ask the district court to vindicate is that the defendants may not bar them from registering to vote

based on convictions for “crimes that were not felonies at common law when the Virginia Readmission

Act was enacted.” JA 59. If that rule exists, it comes

from federal law—not state law.

The defendants assert that Virginia’s 1869 constitution already “disenfranchised all felons,” and

thus insist King and Johnson fall outside the “class

of citizens of the United States . . . who [were] entitled

to vote” under that constitution within the meaning

of the Virginia Readmission Act. Appellants’ Br. 9.

But that is an argument about the merits of King’s

and Johnson’s claim, not sovereign immunity. And

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just as it is important not to “confuse[ ] weakness on

the merits with absence of Article III standing,” Davis v. United States, 564 U.S. 229, 249 n.10 (2011),

the same is true when applying the Ex parte Young

doctrine. See Verizon, 535 U.S. at 646 (“[T]he inquiry

into whether suit lies under Ex parte Young does not

include any analysis of the merits of the claim”; instead, “[a]n allegation of an ongoing violation of federal law is ordinarily sufficient.” (alterations and

quotation marks removed)).

The possibility that the district court may (or

may not) need to resolve certain questions about the

history of Virginia state law to resolve King’s and

Johnson’s claim does not change matters. Many

sources of federal law—including the Due Process

Clause, the Takings Clause, and 42 U.S.C. § 1983 to

name just a few—build on, incorporate, or even borrow from state law without changing their essentially

federal nature. See, e.g., Board of Regents of State

Colls. v. Roth, 408 U.S. 564, 577 (1972) (“Property interests, of course, are not created by the [federal]

Constitution.”); Wilson v. Garcia, 471 U.S. 261, 266–

80 (1985) (discussing state law borrowing under Section 1983). Determining which “classes of citizens”

could vote in Virginia in 1869 and whether those

groups “match” the enfranchised population under

the current constitution falls well within the district

court’s purview. Oral Arg. 31:45–:55; see Meredith v.

City of Winter Haven, 320 U.S. 228, 234 (1943) (explaining it is “the duty of the federal courts, if their

jurisdiction is properly invoked, to decide questions

of state law whenever necessary to the rendition of a

judgment”).

We also could not accept the defendants’

Pennhurst argument without creating a circuit split.

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In Williams v. Reeves, the Fifth Circuit confronted a

similar challenge to a state constitutional provision

alleged to violate the Mississippi Readmission Act.

954 F.3d 729 (5th Cir. 2020). The court rejected the

argument that Pennhurst barred that suit because

resolution of the plaintiffs’ claims would “necessarily

require the court to determine the meaning of” certain terms in the 1868 Mississippi constitution. Id. at

739–40. The Fifth Circuit explained that Pennhurst

did not apply because the suit did not “ask the court

to compel compliance with state law qua state law”

but “to interpret the meaning of a federal law—the

Mississippi Readmission Act—by reference to a related state law.” Id. at 740. So too here.

C.

The defendants’ last argument for why they

are all immune from suit is that Congress has foreclosed equitable enforcement of the Virginia Readmission Act and thus relief under the Ex parte Young

doctrine. As defendants correctly point out, “[t]he

power of federal courts of equity to enjoin unlawful

executive action is subject to express and implied

statutory limitations.” Armstrong, 575 U.S. at 328.

We conclude, however, that the Virginia Readmission

Act creates no such limitations. 2

The defendants rely almost exclusively on the

Supreme Court’s decision in Armstrong v. Exceptional Child Center, Inc., 575 U.S. 320 (2015). In that

2 King and Johnson err in asserting this question is not within

the scope of this interlocutory appeal. Both the Supreme Court

and this one have considered whether Congress has foreclosed

equitable enforcement in previous interlocutory appeals from denials of sovereign immunity. See Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 52, 73–76 (1996); Antrican, 290 F.3d at 184,

190. We do the same here.

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case, the Court held private plaintiffs could not use

Ex parte Young to seek an injunction requiring Idaho

officials to comply with Section 30(A) of the Medicaid

Act. See id. at 323–34.

The Armstrong Court gave two reasons for its

conclusion. First, Section 30(A) contained its own

“remedy . . . for a State’s failure to comply with” the

relevant requirements—specifically, “withholding of

Medicaid funds by the Secretary of Health and Human

Services.” Armstrong, 575 U.S. at 328. As the Court

explained, the “express provision of one method of enforcing” Section 30(A) “suggest[ed] that Congress intended to preclude others.” Id. (quotation marks removed).

Second, even though “[t]he provision for the

Secretary’s enforcement by withholding funds might

not, by itself ” have “preclude[d] the availability of equitable relief,” the Court concluded it did so “when

combined with the judicially unadministrable nature

of § 30(A)’s text.” Armstrong, 575 U.S. at 328. The

Court found it “difficult to imagine a requirement

broader and less specific than § 30(A)’s mandate that

state plans provide for payments” that are “consistent

with efficiency, economy, and quality of care,” while

“safeguarding against unnecessary utilization of care

and services.” Id. (alterations and quotation marks

removed). In the Court’s view, “[e]xplicitly conferring

enforcement of th[at] judgment-laden standard upon

the Secretary alone” showed “Congress wanted to

make the agency remedy that it provided exclusive.”

Id. (quotation marks removed).

This situation differs in every material respect. For one thing, the Virginia Readmission Act

has no clear enforcement mechanism—much less a

“sole” or “express” one. Armstrong, 575 U.S. at 328

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(quotation marks removed). The defendants insist the

Act implicitly provides for enforcement by expulsion

of Virginia’s delegation from Congress because it conditioned Virginia’s readmission to Congress on compliance with the Act’s terms. See 16 Stat. 63 (providing “[t]hat the State of Virginia is admitted to representation in Congress as one of the States of the Union

upon the following fundamental conditions”). But

such an inference—even if it is a permissible one—is a

far cry from the sort of “express provision of one

method of enforcing a substantive rule” that “suggests that Congress intended to preclude others.”

Armstrong, 575 U.S. at 328; see also Seminole Tribe,

517 U.S. at 74 (citing the Indian Gaming Regulatory

Act’s “detailed remedial scheme” as evidence that

Congress intended to preclude reliance on the Ex

parte Young doctrine to enforce the Act’s requirements).

We also see no basis for concluding the Virginia Readmission Act lacks judicially manageable

standards. The Act forbids the Commonwealth from

amending its state constitution “to deprive any citizen or class of citizens of the United States of the

right to vote who are entitled to vote by the Constitution herein recognized, except as a punishment for

such crimes as are now felonies at common law.” 16

Stat. 63. To be sure, interpreting and applying this

statute may not always be easy. But “resolving

whether a particular interpretation of a statute”—

even an old one—“is correct represents a familiar judicial exercise, one for which there is a superabundance of tools that federal judges employ every day.”

Cawthorn v. Amalfi, 35 F.4th 245, 256 (4th Cir. 2022)

(alterations and quotation marks removed). And even

if the Virginia Readmission Act, properly construed,

will require the district court to decide whether

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people with certain convictions would have been “entitled to vote” under Virginia’s 1869 constitution or if

a particular crime was a “felon[y] at common law,”

such questions also fall within the heartland of what

federal courts do every day. See, e.g., New York State

Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1 (2022);

Mathis v. United States, 579 U.S. 500 (2016) (discussing the “categorical approach” for determining

whether state law crimes constitute a “violent felony”

under the federal Armed Career Criminal Act);

Mertens v. Hewitt Assocs., 508 U.S. 248, 256 (1993)

(interpreting ERISA as requiring courts to decide

whether particular “categories of relief . . . were typically available in equity”).

The defendants protest that “[n]o court could

resolve [King’s and Johnson’s] claims without expressing a lack of respect due to Congress’s eligibility

judgment.” Appellants’ Reply Br. 20. But that argument is simply a bootstrap because it rests on the assumption that the defendants are right that Congress

has reserved for itself the primary (or even sole)

power to monitor the Commonwealth’s ongoing compliance with the Virginia Readmission Act. And “it

goes without saying that interpreting congressional

legislation is a recurring and accepted task for the

federal courts.” Japan Whaling Ass’n v. American Cetacean Soc’y, 478 U.S. 221, 230 (1986). We thus conclude the district court did not err in declining to dismiss the complaint’s remaining count as barred by

sovereign immunity.

III.

We reach a different conclusion, however,

about two defendants—the Governor of Virginia and

the Secretary of the Commonwealth. As explained

above, the point of the Ex parte Young doctrine is to

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permit federal courts to vindicate the supremacy of

federal law by ordering state officials to stop participating in ongoing violations of that law. The ongoing

violation King and Johnson allege is the refusal to

permit them to register to vote. But under Virginia

law, the governor and the secretary do not administer the rules restricting voter eligibility—the

other defendants do. See Va. Code §§ 24.2-409, 24.2417, 24.2-427. And that, in turn, means the governor

and the secretary are not proper defendants here.

For a state officer to be sued under the Ex parte

Young doctrine, “[g]eneral authority to enforce the

laws of the state is not sufficient.” Waste Mgmt. Holdings, Inc. v. Gilmore, 252 F.3d 316, 331 (4th Cir. 2001)

(quotation marks removed). Instead, a court “must

find a special relation between the officer being sued

and the challenged” government action. McBurney v.

Cucinelli, 616 F.3d 393, 399 (4th Cir. 2010) (quotation marks removed). A “special relation” requires

both “proximity to and responsibility for the challenged state action.” Id. “Without this enforcement

duty, the officer is merely a representative of the

State who cannot be sued because allowing such a

suit would essentially make the State a party.” Doyle

v. Hogan, 1 F.4th 249, 254 (4th Cir. 2021) (quotation

marks removed).

True, the governor and the secretary have significant responsibility in deciding whether people

who have lost the right to vote because of a felony conviction should have that right restored. See Va. Const.

art. II, § 1; art. V, § 12; Va. Code § 53.1-231.2 (describing the process for restoring a person’s voting rights

and the roles of the governor and secretary in that process). But this dispute is not about restoring voting

rights that have been properly taken away. King and

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Johnson do not seek an order directing the governor

to restore their voting rights, nor do they contend the

secretary improperly denied their restoration applications. If King and Johnson are right that their disenfranchisement was unlawful from the start, they

have no need to ask the governor or the secretary to

restore their voting rights because those rights were

never validly taken away in the first place. Cf. Carolina Youth Action Project v. Wilson, 60 F.4th 770,

787–88 (4th Cir. 2023) (rejecting a state official’s insistence that the plaintiffs needed to petition for expungement of juvenile records where the challenged

“laws could not authorize or legitimize any elementary school student’s arrest, charge, or delinquency

adjudication in the first place”).

King and Johnson nonetheless contend the

governor has a special relationship with their disenfranchisement because his restoration power is mentioned in the same section of the current constitution

that renders them ineligible to vote. But this Court

has never recognized a “special relationship” via textual proximity or a related powers theory of Ex parte

Young, and we decline to do so today. The constitutional provision that King and Johnson cite makes

clear that neither the governor nor the secretary has

any role in deciding who to disenfranchise or in executing that disenfranchisement. Instead, the process

is categorical: Every person “who has been convicted

of a felony” is automatically rendered ineligible to

vote without any action from the governor or the secretary. Va. Const. art. II, § 1. Yes, the governor can

lift that disability by later restoring a person’s right

to vote. But just as the power to grant pardons does

not make the governor a proper defendant in a habeas action, the same is true here. See, e.g., Doyle, 1

F.4th at 255 (“[T]he officer sued must be able to

18a

enforce, if he so chooses, the specific law the plaintiff

challenges.” (emphasis added)).

Finally, King and Johnson assert that keeping

the governor and secretary as parties may be necessary to afford them full relief if they prevail. But King

and Johnson never explain why this is so. Indeed,

they admitted at oral argument that their alleged injuries would be addressed if the other officials sued

here ceased their current process of removing those

with felony convictions from the voter rolls and permitted them to register and vote. Oral Arg. 19:36–

21:09. We thus hold that the governor and the secretary must be dismissed on sovereign immunity

grounds. 3

*

*

*

We express no opinion about which side has the

better argument about the meaning of the Virginia

Readmission Act or whether King and Johnson will

ultimately be able to prove their case. We also express

no view about any aspects of the district court’s opinion that are not properly before us as part of this interlocutory appeal. We hold only that the district

court: (1) correctly refused to dismiss the one remaining count of King’s and Johnson’s complaint based on

sovereign immunity; but (2) should have dismissed

the Governor of Virginia and the Secretary of the

Commonwealth. The district court’s order is thus affirmed in part and reversed in part.

SO ORDERED

3 Any argument that the district court should have dismissed

other defendants as well is forfeited because it was not presented

in the defendants’ opening brief. See, e.g., Grayson O Co. v. Agadir Int’l LLC, 856 F.3d 307, 316 (4th Cir. 2017).

19a

IN THE UNITED STATES DISTRICT COURT FOR

THE EASTERN DISTRICT OF VIRGINIA

Richmond Division

TATI ABU KING, et al.,

Plaintiffs,

v.

Civil Action No. 3:23cv408

GLENN YOUNGKIN, in his official capacity as Governor of the Commonwealth of Virginia, et al.,

Defendants.

OPINION

Article II, Section 1 of the Virginia Constitution automatically disqualifies all persons convicted

of any felony from voting. Felons, including the individual plaintiffs, Tati Abu King and Toni Heath

Johnson, may not vote unless and until their “civil

rights have been restored by the Governor or other

appropriate authority.” See Va. Const. art. II, § 1

(1971). In their Amended Complaint, the plaintiffs

assert that Article II, Section 1 of the Virginia Constitution violates both a federal statute–the Virginia

Readmission Act (“VRA”) of 1870–and the Eighth

Amendment of the United States Constitution.

They have sued several state and local officials, including Governor Glenn Youngkin and Secretary of

the Commonwealth Kelly Gee. The plaintiffs ask

the Court to issue a declaratory judgment in their

favor and to enjoin the defendants from enforcing

Article II, Section 1 against individuals convicted of

crimes that were not felonies at common law in

1870.

The defendants have moved to dismiss the

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plaintiffs’ Amended Complaint pursuant to Federal

Rules of Civil Procedure 12(b)(l) and 12(b)(6). (ECF

No. 76.) For the reasons discussed below, the Court

will grant in part and deny in part the defendants’

motion. First, because Bridging the Gap, Inc.

(“Bridging the Gap”) has not alleged an injury-infact, it lacks standing to sue, so the Court will

dismiss it from this case. Next, because Ex

parte Young permits the plaintiffs to pursue their

sought-after relief, none of the defendants may successfully assert their Eleventh Amendment immunity. Third, because the VRA does not create a private right enforceable under § 1983, the Court will

dismiss Count One. But because the plaintiffs need

not assert a private right in pursuing equitable relief, and the Amended Complaint plausibly presents

an Ex parte Young action, the Court will not dismiss

Count Two. Finally, because felon disenfranchisement is not a punishment under the Eighth Amendment, the Court will dismiss Counts Three and

Four.

I. BACKGROUND

A. Virginia’s Constitution and the VRA

Following the Civil War, Congress passed the

VRA, which admitted Virginia

to representation in Congress as one

of the States of the Union upon the

following fundamental condition[]:

. . . That the Constitution of Virginia

shall never be so amended or changed

as to deprive any citizen or class of

citizens of the United States of the

right to vote who are entitled to vote

by the [Virginia] Constitution herein

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recognized, except as a punishment

for such crimes as are now felonies at

common law ....

An Act to Admit the State of Virginia to Representation in the Congress of the United States, ch. 10,

16 Stat. 62 (1870). The VRA thus readmitted Virginia’s representatives to Congress on the “fundamental condition” that Virginia never alter its Constitution to disenfranchise citizens who could vote

under Virginia’s then-controlling Constitution. See

id. This condition came with one exception: the Virginia Constitution could be amended to disenfranchise those convicted of crimes that, in 1870, were

common law felonies. 1

When Congress enacted the VRA, Virginia’s

Constitution disenfranchised specific “persons”:

those “convicted of bribery in any election, embezzlement of public funds, treason or felony.” Va.

Const. art. Ill, § 1 (1869). In 1902, Virginia amended

its Constitution, disenfranchising “persons who,

prior to the adoption of this Constitution, were disqualified from voting, by conviction of crime . . .

whose disabilities shall not have been removed” and

“persons convicted after the adoption of this Constitution . . . of treason, or of any felony, bribery, petit

larceny, obtaining money or property under false

preten[s]es, embezzlement, forgery, or perjury.” Va.

Const. art. II, § 23 (1902). Virginia’s current Constitution, last amended in 1971, no longer specifies

certain felony convictions that disqualify a prospective voter. Instead, it disenfranchises all persons

1 “[A]t common law[,] murder, manslaughter, arson, burglary,

robbery, rape, sodomy, mayhem and larceny were felonies.” Jerome v. United States, 318 U.S. 101, 108 n.6 (1943) (citing Wharton, Criminal Law § 26 (12th ed.)).

22a

“convicted of a felony” from voting; convicted felons

may vote only if their “civil rights have been restored by the Governor.” Va. Const. art. II, § 1

(1971).

B. The Defendants’ Role in Felon Disenfranchisement

The plaintiffs sue several state actors involved in the disenfranchisement process in their official capacity: Governor Youngkin; Secretary Gee;

Chairman of the State Board of Elections John

O’Bannon; Vice Chair of the State Board of Elections Rosalyn R. Dance; Secretary of the State

Board of Elections Georgia Alvis-Long; Board of

Elections member Donald Merricks; Board of Elections member Matthew Weinstein; Commissioner of

the Department of Elections Susan Beals; General

Registrar of Fairfax County, Virginia, Eric Spicer;

and General Registrar of Smyth County, Virginia,

Shannon Williams.

Virginia’s Constitution proscribes those with

felony convictions from voting unless and until Governor Youngkin or another “appropriate authority”

restores their voting rights. See id. “The Secretary

of the Commonwealth administers the process for

the restoration of civil rights, including the right to

vote.” (ECF No. 58 ¶ 26.) “Individuals who have

had their civil rights taken away due to a felony

conviction may apply to have their rights restored

by the Governor,” and Governor Youngkin uses discretion in assessing voting rights restoration applications. (Id. ¶ 24.) Governor Youngkin either

grants or denies those applications, and Secretary

Gee’s office communicates with applicants once

Governor Youngkin has reached a decision. If Governor Youngkin denies “an application to restore

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voting rights, [he] ensures that individuals who

have been disenfranchised pursuant to Article II,

Section 1 of the Virginia Constitution remain permanently disenfranchised.” (Id.)

The Board of Elections “is authorized to prescribe standard forms for voter registration and elections, and to supervise, coordinate, and adopt regulations governing the work of local electoral boards,

registrars, and officers of election.” (Id. ¶ 28.) The

Department of Elections “conducts the Board of Elections’ administrative and programmatic operations

and discharges the Board’s duties consistent with

delegated authority.” (Id. ¶ 34.) In doing so, “[t]he

Department of Elections is authorized to establish

and maintain a statewide automated voter registration system to include procedures . . . to require cancellation of records for registrants no longer qualified.” (Id.) The Department of Elections “requires the

general registrars to delete from the record of registered voters the name of any voter who has been convicted of a felony.” (Id. ¶ 35.) General registrars

“process voter registration applications for residents in their particular locality . . . determining

whether an applicant has ever been convicted of a felony, and if so, under what circumstances the applicant’s right to vote has been restored.” (Id. ¶ 37.)

Within thirty days of learning that a registered voter

has a felony conviction and has not had their voting

rights restored, the general registrar must delete that

voter from the record.

C. The Plaintiffs’ Injuries

Two individuals, King and Johnson, and a

nonprofit organization, Bridging the Gap, allege

that Virginia’s Constitution unlawfully disenfranchises those convicted of felonies that were not

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common law felonies in 1870.

In 2018, King was convicted of a felony drugpossession offense and lost his voting rights. (ECF

No. 58 ¶¶ 15–16.) After King completed his sentence, he submitted a voting rights restoration application to Secretary Gee’s office. That application

remains pending. In 2021, “Johnson was convicted

of drug possession and distribution crimes, as well

as child endangerment,” and she, too, lost her right

to vote. (Id. ¶¶ 20–21.) While on probation, Johnson

submitted her voting rights restoration application.

“Johnson learned in June 2023 that her restoration

application ha[d] been denied.” (Id. ¶ 21.)

Bridging the Gap’s “mission is to empower

formerly incarcerated persons and to help these

individuals overcome barriers that hinder their effective transition into mainstream society following

incarceration.” (Id. ¶ 23.) The organization “focus[es] on three main areas: career training, civil

rights/criminal justice advocacy, and housing resources.” (Id. ¶ 82.) “As a central component of that

work, Bridging the Gap assists previously incarcerated Virginians who have been disenfranchised–including Virginians disenfranchised because of convictions for crimes that were not felonies at common law in 1870 . . . [and] felonies more generallyin having their voting rights restored.” (Id. ¶ 23.)

“Due to the time and effort it has expended supporting thousands of individuals with rights restoration as a result of Defendants’ conduct, Bridging

the Gap has forgone investment into other core areas of its organizational goals and services, and

even delayed or suspended other projects and programs vitally important to its mission.” (Id. ¶ 186.)

Specifically, the organization has reduced the

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frequency of its trainings for formerly incarcerated

individuals to learn how to install solar panels, and

it “has substantially reduced the time and resources it puts toward connecting people leaving

incarceration with transitional housing.” (Id.

¶¶ 86–87.) Additionally, Bridging the Gap has forgone applying for “at least three grants . . . because

of the time the organization has needed to spend

countering Virginia’s unlawful disenfranchisement

regime.” (Id. ¶ 88.)

II. THE DEFENDANTS’ 12(B)(l) MOTION 2

A. Bridging the Gap Lacks Standing to Sue

The plaintiffs bear the burden of establishing that Bridging the Gap has standing. See

Lujan v. Defs. of Wildlife, 504 U.S. 555, 561

(1992). “At the pleading stage, general factual allegations of injury resulting from the defendant’s

conduct may suffice,” and courts “accept as true

[the plaintiffs’] allegations for which there is sufficient ‘factual matter’ to render them ‘plausible

on [their] face.’” Beck v. McDonald, 848 F.3d 262,

2 A motion to dismiss under Rule 12(b)(l) usually places the bur-

den on the plaintiff to prove the court has subject matter jurisdiction. Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982). A

defendant's Rule 12(b)(l) motion may challenge subject matter

jurisdiction facially, contending that the plaintiff’s complaint

fails to allege facts upon which the Court may base its subject

matter jurisdiction. Id. “[W]hen a defendant asserts that the

complaint fails to allege sufficient facts to support subject matter jurisdiction, the trial court must apply a standard patterned

on Rule 12(b)(6) and assume the truthfulness of the facts alleged.” Kerns v. United States, 585 F.3d 187, 193 (4th Cir. 2009).

If the defendant asserts that the Eleventh Amendment bars a

plaintiff’s suit, however, the defendant bears the burden of proving its immunity under that Amendment. See Hutto v. S.C. Ret.

Sys., 773 F.3d 536, 542–43 (4th Cir. 2014).

26a

270 (4th Cir. 2017) (second alteration in the original) (first quoting Lujan, 504 U.S. at 561; then

quoting Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009)). Courts “do not, however, apply the same

presumption of truth to ‘conclusory statements’

and ‘legal conclusions.’” Id. (quoting Iqbal, 556

U.S. at 678).

“[T]he irreducible constitutional minimum of

standing contains three elements.” Lujan, 504 U.S.

at 560. “First, the plaintiff must have suffered an

injury-in-fact—an invasion of a legally protected interest which is (a) concrete and particularized . . .

and (b) actual or imminent, not conjectural or hypothetical.” Id. (internal quotations omitted). “Second, there must be a causal connection between the

injury and the conduct complained of.” Id. “Third,

it must be likely, as opposed to merely speculative,

that the injury will be redressed by a favorable decision.” Id. at 561 (internal quotations omitted).

‘‘[A] plaintiff can satisfy the injury-in-fact requirement for prospective relief either by demonstrating

a sufficiently imminent injury in fact or by demonstrating an ongoing injury.” Garey v. James S. Farrin, P.C., 35 F.4th 917, 922 (2022) (alteration in

original) (internal quotations omitted) (quoting

Deal v. Mercer Cnty. Bd of Educ., 911 F.3d 183, 189

(4th Cir. 2018)).

The plaintiffs assert that automatic disenfranchisement impairs felons’ successful transition

to active citizenship and “hinders Bridging the

Gap’s mission ‘to support the successful transition

of formerly incarcerated persons to active citizenship.’” (ECF No. 78, at 12 (quoting ECF No. 58

¶ 80).) They argue that Bridging the Gap has organizational standing because the defendants’

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“enforcement of Article II, Section 1 of the Virginia

Constitution has ‘perceptibly impair[ed]’ [its] ability

to carry out its mission and ‘consequent[ly]

drain[ed] . . . [its] resources.’” (Id. (quoting N.C.

State Conf. of the NAACP v. Raymond, 981 F.3d

295, 301 (4th Cir. 2020) (alterations in original)).)

But “a mere interest in a problem, no matter how

longstanding the interest and no matter how qualified the organization is in evaluating the problem, is

not sufficient.” Sierra Club v. Morton, 405 U.S. 727,

739 (1972). And “[a]lthough a diversion of resources

might harm the organization by reducing the funds

available for other purposes, it results not from any

actions taken by [the defendant], but rather from the

[organization’s] own budgetary choices.” Lane v.

Holder, 703 F.3d 668, 675 (4th Cir. 2012) (alterations

in original) (internal citations omitted).

Bridging the Gap has simply made a budgetary choice among its focus areas. The organization

therefore lacks standing, and the Court will dismiss

Bridging the Gap it from this case.

B. Sovereign Immunity Does Not Bar the

Plaintiffs’ VRA Claims

Sovereign immunity “protects a state’s dignity and fiscal integrity from federal court judgments and acts as a limitation on the federal judiciary’s Article III powers.” Beaulieu v. Vermont, 807

F.3d 478, 483 (2d Cir. 2015) (citation omitted). Although the Eleventh Amendment provides that a

state is immune from suit in federal court brought

by “Citizens of another State, or by Citizens or Subjects of any Foreign State,” the Supreme Court has

extended its applicability to private citizens’ suits

against their own states. U.S. Const. amend. XI;

see, e.g., Bd. of Trs. of Univ. of Ala. v. Garrett, 531

28a

U.S. 356, 363 (2001).

A plaintiff may overcome a state’s Eleventh

Amendment immunity and sue a state in federal

court if: (1) the state has expressly consented to suit,

(2) Congress has abrogated the state’s immunity

from suit, or (3) the plaintiff seeks only prospective

injunctive relief against the state’s violation of federal law. See Garrett, 531 U.S. at 363; Edelman v.

Jordan, 415 U.S. 651, 672 (1974); Ex parte Young,

209 U.S. 123, 159–60 (1908). The first and second

routes around the Eleventh Amendment do not apply here, but the doctrine of Ex Parte Young does.

“In determining whether the doctrine of Ex parte

Young avoids an Eleventh Amendment bar to suit

[against a State], a court need only conduct a

straightforward inquiry into whether [the] complaint alleges an ongoing violation of federal law

and seeks relief properly characterized as prospective.” Verizon Md, Inc. v. Pub. Serv. Comm’n of Md.,

535 U.S. 635, 645 (2002) (second alteration in original) (internal quotation marks omitted). The Ex

parte Young doctrine applies only to ongoing federal

violations; it does not apply to suits in which a

plaintiff asks the court to compel a state to comply

with state law. See Pennhurst State Sch. & Hosp.

v. Halderman, 465 U.S. 89, 106 (1984).

The defendants assert that Pennhurst controls because although the plaintiffs “characterize

their claims as premised on a violation of federal

law—the Virginia Readmission Act—they are statelaw claims in substance.” (ECF No. 77, at 18.) They

contend that, “[i]n essence, Plaintiffs ask this Court

to order Defendants to comply with the 1869 Virginia Constitution.” (Id.) But the plaintiffs do not

ask for such relief. They assert that the defendants

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are enforcing Article II, Section 1 of Virginia’s Constitution. And they contend that such enforcement

is in violation of a federal law’s “fundamental condition” that Virginia never alter its Constitution to

disenfranchise citizens who could vote under Virginia’s 1869 Constitution, “except as a punishment

for such crimes as are now felonies at common law.”

(ECF No. 78, at 10, 23); see An Act to Admit the

State of Virginia to Representation in the Congress

of the United States, ch. 10, 16 Stat. 62 (1870).

The plaintiffs aim to prevent the defendants

from enforcing Article II, Section 1 of the Virginia

Constitution against those convicted of felonies that

were not felonies at common law in 1870 and request

a declaratory judgment confirming their legal allegations. Thus, their sought-after relief is “properly

characterized as prospective.” Verizon Md, Inc., 535

U.S. at 645. Accordingly, the plaintiffs’ VRA claims

fall squarely within the Ex parte Young exception to

the defendants’ Eleventh Amendment immunity,

and the Court will deny the defendants’ motion to

dismiss on Pennhurst grounds.

C. The Plaintiffs Have Alleged That Governor

Youngkin and Secretary Gee Have a “Special Relationship” to Felon Disenfranchisement

“The Ex parte Young exception is directed at

‘officers of the state [who] are clothed with some

duty in regard to the enforcement of the laws of the

state, and who threaten and are about to commence

proceedings . . . to enforce against parties affected

[by] an unconstitutional act.”‘ McBurney v. Cuccinelli, 616 F.3d 393, 399 (4th Cir. 2010) (alterations

in original) (quoting Ex parte Young, 209 U.S. at

155–56). Thus, courts must find a “‘special relation’

between the officer being sued and the challenged

30a

statute before invoking the exception.” Id. A state

actor has a “special relation” to a challenged state

action if it has ‘‘proximity to and responsibility for

the challenged state action.” Id. (quoting S.C. Wildlife Fed’n v. Limehouse, 549 F.3d 324, 333 (4th Cir.

2008)).

The defendants contend that “[n]either the

Governor nor the Secretary of the Commonwealth

play any role in enforcing Virginia’s disenfranchisement of convicted felons. Rather, as Plaintiffs’ allegations make clear, the Governor and Secretary

play a role only in the re-enfranchisement of felons.”

(ECF No. 77, at 19.) But under Virginia’s voting

rights restoration scheme, these defendants may

enforce the permanent disenfranchisement of certain individuals. Thus, on the record before the

Court, the Governor and Secretary bear a “special

relation” to the challenged law, and the Court will

not dismiss Governor Youngkin and Secretary Gee

from the case at this time.

D. The Plaintiffs’ VRA Claims Do Not Present

a Political Question

The Court lacks jurisdiction to adjudicate political questions. See Baker v. Carr, 369 U.S. 186,

210 (1962). In Baker, the Supreme Court articulated

six circumstances in which an issue could present a

political question: (1) “a textually demonstrable constitutional commitment of the issue to a coordinate

political department”; (2) “a lack of judicially discoverable and manageable standards for resolving it”;

(3) ‘‘the impossibility of deciding without an initial

policy determination of a kind clearly for nonjudicial

discretion”; (4) “the impossibility of a court’s undertaking independent resolution without expressing

lack of the respect due coordinate branches of

31a

government”; (5) “an unusual need for unquestioning

adherence to a political decision already made”; or (6)

“the potentiality of embarrassment from multifarious

pronouncements by various departments on one

question.” Id. at 217. “Unless one of these formulations is inextricable from the case at bar, there should

be no dismissal for non­justiciability on the ground of

a political question’s presence.” Id. More recent

cases focus on the first two factors and assess

whether an issue reveals a textual commitment to a

coordinate branch or a lack of judicially manageable

standards. See Zivotofsky v. Clinton, 566 U.S. 189,

195 (2012); Nixon v. United States, 506 U.S. 224, 228

(1993).

As discussed above, the plaintiffs ask the

Court to assess whether Virginia’s Constitution violates a federal statue. Accordingly, neither a “textually demonstrable constitutional commitment of the

issue to a coordinate political department,” nor “a

lack of judicially discoverable and manageable

standards” exists. See Baker, 369 U.S. at 217. Indeed, “it goes without saying that interpreting congressional legislation is a recurring and accepted

task for the federal courts.” Japan Whaling Ass’n v.

Am. Cetacean Soc’y, 478 U.S. 221, 230 (1986).

“[U]nder the Constitution, one of the Judiciary’s

characteristic roles is to interpret statutes, and

[courts] cannot shirk this responsibility merely because [their] decision may have significant political

overtones.” Id. The Court therefore finds that the

plaintiffs’ VRA claims do not present a political

question, and it will deny the defendant’s motion to

dismiss on justiciability grounds. 3

3 The defendants also argue that the canon of constitutional

avoidance and the anticommandeering doctrine preclude the

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II. THE DEFENDANTS’ 12(B)(6) MOTION 4

A. VRA Claims

1. Section 1983 Provides No Remedy for Purported Violations of the VRA

plaintiffs’ VRA claims. (See ECF No. 77, at 26–31.) But “[t]he

canon of constitutional avoidance 'comes into play only when,

after the application of ordinary textual analysis, the statute is

found to be susceptible of more than one construction.’” Jennings v. Rodriguez, 583 U.S. 281, 296 (2018) (quoting Clark v.

Martinez, 543 U.S. 371, 385 (2005)). The defendants seem to assert that, under the plaintiffs’ theory, Congress violated the

United States Constitution when it passed the VRA. But they

have not identified any “statutory ambiguity” in the VRA necessary to trigger the Court’s consideration of the constitutional­

avoidance canon. See United States v. Palomar-Santiago, 593

U.S. 321, 329 (2021). The anticommandeering doctrine is similarly inapplicable here: the plaintiffs ask the Court to enjoin the

defendants from enforcing Article II, Section 1 of Virginia’s Constitution, and they have not asked the Court to compel the defendants’ action.

4 A Rule 12(b)(6) motion gauges the sufficiency of a complaint

without resolving any factual discrepancies or testing the evidentiary merits of the claims. Republican Party of N.C. v. Martin, 980 F.2d 943, 952 (4th Cir. 1992). In considering the motion,

a court must accept all allegations in the complaint as true and

must “draw all reasonable inferences in favor of the plaintiff.”

Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d

250, 253 (4th Cir. 2009) (citing Edwards v. City of Goldsboro,

178 F.3d 231, 244 (4th Cir. 1999)). The principle that a court

must accept all allegations as true, however, does not extend to

legal conclusions. Iqbal, 556 U.S. at 678. To survive a Rule

12(b)(6) motion to dismiss, a complaint must therefore state

facts that, when accepted as true, state a claim to relief that is

plausible on its face. Id. “A claim has facial plausibility when

the plaintiff pleads factual content that allows the court to draw

the reasonable inference that the defendant is liable for the misconduct alleged.” Id.

33a

The plaintiffs bring Count One under 42

U.S.C. § 1983, 5 asking the Court to (1) enjoin the defendants “from enforcing Article II, Section 1 of the

Virginia Constitution with respect to citizens of the

Commonwealth of Virginia convicted of crimes that

were not felonies at common law when the [VRA]

was enacted in 1870” and (2) issue a declaratory

judgment that the defendants’ enforcement of this

Section violates the VRA. (ECF No. 58, at 31.) To

seek such redress, the plaintiffs must establish

that the VRA creates a private right enforceable

under § 1983. In other words, they must “assert the

violation of a federal right, not merely a violation of

federal law.” Gonzaga Univ. v. Doe, 536 U.S. 273,

282 (2002) (quoting Blessing v. Freestone, 520 U.S.

329, 340 (2007)). Because § 1983 “is not an independent source of substantive rights, but simply a

vehicle for vindicating preexisting constitutional

and statutory rights,” the Court must begin its analysis by identifying “the specific right that has been

infringed.” Safar v. Tingle, 859 F.3d 241, 245 (4th

Cir. 2017) (citing Graham v. Connor, 490 U.S. 386,

393–94 (1989)).

To determine whether the plaintiffs have asserted a private right actionable under § 1983, the

Court must look for “rights-creating language” in

the text of the VRA. See Alexander v. Sandoval, 532

U.S. 275, 288 (2001). The Supreme Court identified

three factors that courts should consider in assessing whether a statute creates a right

5 “To state a claim under U.S.C. § 1983, a plaintiff must allege

the violation of a right secured by the Constitution and laws of

the United States and must show that the alleged deprivation

of that right was committed by a person acting under color of

state law.” West v. Atkins, 487 U.S. 42, 48 (1988).

34a

enforceable under § 1983:

First, Congress must have intended

that the provision in question benefit

the plaintiff. Second, the plaintiff

must demonstrate that the right assertedly protected by the statute is

not so “vague and amorphous” that its

enforcement would strain judicial

competence. Third, the statute must

unambiguously impose a binding obligation on the States. In other words,

the provision giving rise to the asserted right must be couched in mandatory, rather than precatory, terms.

Blessing, 520 U.S. at 340–41 (citations omitted).

The Supreme Court later clarified that, as to the

first factor, “anything short of an unambiguously

conferred right” cannot support a private remedy

under § 1983; it is not enough for plaintiffs to fall

“within the general zone of interest” of a federal

statute. See Gonzaga, 536 U.S. at 283. If all “three

factors are satisfied, there is ‘a rebuttable presumption that the right is enforceable under § 1983.’”

Planned Parenthood S. Atl. v. Baker, 941 F.3d 687,

696 (4th Cir. 2019) (quoting Blessing, 520 U.S. at

341).

Whether the VRA contains rights-creating

language is an issue of first impression, and the parties dispute only whether the VRA satisfies the first

and third Blessing factors. As to the first Blessing

factor, the plaintiffs contend that the VRA “expressly refers to individual voting rights—i.e., ‘the

Constitution of Virginia shall never be so amended

or changed as to deprive any citizen or class of citizens of the United States of the right to vote.’” (ECF

35a

No. 78, at 22 (emphasis omitted) (quoting An Act

to Admit the State of Virginia to Representation

in the Congress of the United States, ch. 10, 16 Stat.

62 (1870)).) They liken the VRA’s language to the

Medicaid Act’s free-choice-of-provider provision,

which states:

A State plan for medical assistance

must–provide that . . . any individual

eligible for medical assistance . . .

may obtain such assistance from any

institution, agency, community pharmacy, or person, qualified to perform

the service or services required . . .

who undertakes to provide him such

services . . .

42 U.S.C. § 1396a(a)(23). The Fourth Circuit found

that this provision “unambiguously gives Medicaideligible patients an individual right” because “Congress’s use of the phrase ‘any individual’ is a prime

example of the kind of ‘rights-creating’ language required to confer a personal right on a discrete class

of persons.” Baker, 941 F.3d at 696–97 (first quoting

Planned Parenthood of Ind., Inc. v. Comm’r of Ind.

State Dep’t of Health, 699 F.3d 962, 974 (7th Cir.

2012); and then citing Sandoval, 532 U.S. at 288).

The Fourth Circuit further explained that Congress

had “left no doubt that it intended to guarantee each

Medicaid recipient’s free choice of provider.” Id. at

697.

Although both the Medicaid Act’s free-choiceof-provider provision and the VRA identify those

who may benefit from the statute, the overall text

and structure of the VRA differs greatly from that

of the free-choice-of-provider provision. The VRA’s

sole purpose is clear: to readmit the

36a

Commonwealth’s representatives into Congress

upon certain fundamental conditions. The VRA, officially entitled the “Act to admit the State of Virginia to Representation in the Congress of the

United States,” first declares that Virginia’s citizens had adopted a constitution “of State government which is republican; and . . . the legislature of

Virginia elected under said constitution have ratified the fourteenth and fifteenth amendments to the

Constitution of the United States; and . . . the performance of these several acts in good faith was a

condition precedent to the representation of the

State in Congress.” An Act to Admit the State of

Virginia to Representation in the Congress of the

United States, ch. 10, 16 Stat. 62 (1870). The Act

then explains that “Virginia is entitled to representation in the Congress of the United States,” provided in part that Virginia’s Constitution “never be

so amended or changed as to deprive any citizen or

class of citizens of the United States of the right to

vote who are entitled to vote by the Constitution

herein recognized, except as a punishment for such

crimes as are now felonies at common law.” Id.

Here, the plaintiffs contend that this language is “precisely the type of ‘rights-creating’ language” necessary to pursue relief under § 1983.

(ECF No. 78, at 22.) But the defendants’ argument—that the VRA “does not entitle any Virginian

to vote, including any Virginia felons convicted of

crimes that were not common-law felonies in

1870”—wins the day. (See ECF No. 82, at 16.) Although the VRA identifies “citizen[s]” who may benefit from the Act, the Supreme Court has explicitly

cautioned courts against “allowing plaintiffs to enforce a statute under § 1983 so long as [they] fall[]

within the general zone of interest that the statute

37a

is intended to protect.” Gonzaga, 536 U.S. at 283.

Accordingly, the Court finds that the Act functions

to impose conditions upon which Virginia legislators

could participate in Congress, and it lacks language

that explicitly confers any individual rights. See id.

at 274, 286 (“[W]here the text and structure of a

statute provide no indication that Congress intends

to create new individual rights, there is no basis for

a private suit . . . .”). Because the VRA does not “unambiguously confer” rights on individuals such as

the plaintiffs in this case, the Court need not analyze the second and third Blessing factors. The

Court concludes that the VRA does not create a private right enforceable by an individual civil litigant

under § 1983, and it will dismiss Count One.

2. The Plaintiffs May Seek Prospective Relief Under Ex parte Young

In Count Two, the plaintiffs ask the Court to,

using its equitable powers, (1) enjoin the defendants

“from enforcing Article II, Section 1 of the Virginia

Constitution with respect to citizens of the Commonwealth of Virginia convicted of crimes that were not

felonies at common law when the [VRA] was enacted

in 1870” and (2) declare that such enforcement violates the VRA. (ECF No. 58, at 34.) The defendants

assert that Counts One and Two “ultimately collapse

into one theory” and ask the Court to consider the

plaintiffs’ claims “as a single cause of action under

§ 1983 that must meet the requirements of § 1983

and Ex parte Young. (ECF No. 77, at 17 n.3.) Because

§ 1983 actions differ from equitable preemption suits,

the Court declines the defendants’ request and proceeds in analyzing Count Two.

The Supreme Court long ago recognized an

equitable exception to Eleventh Amendment

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immunity, permitting plaintiffs to seek prospective

relief against state officials who violate federal law.

Ex parte Young, 209 U.S. at 123; see supra Part

11.B. And although the defendants are correct in

asserting that the Supremacy Clause “is not the

source of any federal rights,” they incorrectly argue

that “the Readmission Act can be privately enforced, if at all, only through 42 U.S.C. § 1983.”

(ECF No. 82, at 16 & n.2 (first quoting Armstrong v.

Exceptional Child Ctr., Inc., 575 U.S. 320, 324

(2015)).) Indeed, the Supreme Court has “long recognized [that] if an individual claims federal law immunizes him from state regulation, the court may

issue an injunction upon finding the state regulatory actions preempted.” Armstrong, 575 U.S. at

326 (citing Ex parte Young, 209 U.S. at 155–56). Importantly, “the principles that [the Supreme Court]

ha[s] developed to determine whether a statute . . .

is enforceable through§ 1983[] are not transferable

to the Ex parte Young context.” Id. at 340 (Sotomayor, J., dissenting).

Rather than pointing to rights-creating statutory language, litigants pursuing relief under Ex

parte Young rely on a Court’s equitable powers that

are “subject to express and implied statutory limitations.” Id. at 327 (majority opinion). To assess

Congress’s “‘intent to foreclose’ equitable relief,”

courts should (1) consider whether Congress had

provided a “sole remedy . . . for a State’s failure to

comply with [a federal statute]” and (2) assess

whether the provision at issue has a “judicially unadministrable nature.” Id. at 328 (quoting Verizon

Md, Inc. v. Pub. Serv. Comm’n of Md., 535 U.S. 635,

647 (2002)). Thus, the plaintiffs may seek equitable

relief under Ex parte Young unless the Court determines that (1) the VRA provides a sole remedy for

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the Commonwealth’s failure to comport with federal law, and (2) it is “judicially unadministrable.”

See id. 6 The defendants have not argued the presence of, and the Court does not find, any identifiable

remedy within the text of the VRA. And unlike the

“broad and nonspecific” provision at issue in Armstrong, the VRA states that Virginia may not alter

its Constitution “to deprive any citizen . . . of the

right to vote who are entitled to vote by [Virginia’s

1869 Constitution] except as a punishment for such

crimes as are now felonies at common law.” Compare 575 U.S. at 333 (Breyer, J., concurring in part

and concurring in the judgment), with An Act to Admit the State of Virginia to Representation in the

Congress of the United States, ch. 10, 16 Stat. 62

(1870). As discussed above, Count Two falls

squarely within the doctrine of Ex parte Young. See

supra Part II.B. Applying the “straightforward inquiry into whether [the] complaint alleges an ongoing violation of federal law and seeks relief properly

characterized as prospective,” the Court concludes

that the plaintiffs appropriately seek equitable relief. See Verizon Md., 535 U.S. at 645 (alteration in

6 Before Armstrong, the Supreme Court held that courts con-

fronted with a “detailed remedial scheme” in a federal statute

“should hesitate” before exercising their equitable powers. Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 74 (1996) (“[W]here

Congress has prescribed a detailed remedial scheme for the enforcement against a State of a statutorily created right, a court

should hesitate before casting aside those limitations and permitting an action against a state officer based upon Ex parte

Young.”). It is unclear whether Armstrong supplants—or simply

clarifies—the “detailed remedial scheme” test set forth in Seminole Tribe. Here, the VRA lacks language suggesting Congress’s intent to foreclose equitable relief, as it does not present

a remedy and certainly does not reveal a “detailed remedial

scheme.” See id.

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original) (quoting Idaho v. Coeur d’Alene Tribe of

Idaho, 521 U.S. 261, 296 (1997) (O’Connor, J., concurring in part and concurring in judgment)). Specifically, the plaintiffs allege that Virginia’s Constitution has been amended to disenfranchise persons

who could have voted under the 1869 Constitution,

and that the defendants’ ongoing enforcement of

Article II, Section 1 of Virginia’s Constitution thus

violates the VRA. The Court will allow Count Two

to proceed to summary judgment.

B. Eighth Amendment Claims

1. Richardson v. Ramirez Does Not Foreclose the

Plaintiffs’ Eighth Amendment Claims

In Counts Three and Four of the Amended

Complaint, the plaintiffs contend that the defendants’ role in felon disenfranchisement violates the

Eighth Amendment. As an initial matter, the defendants argue that Richardson v. Ramirez, 418

U.S. 24 (1974), forecloses the plaintiffs’ Eighth

Amendment claims. In Richardson, the Supreme

Court ruled that “the exclusion of felons from the

vote has an affirmative sanction in § 2 of the Fourteenth Amendment.” 418 U.S. 24, 54 (1974). There,

the Court explained that § 1 of the Fourteenth

Amendment “could not have been meant to bar outright a form of disenfranchisement which was expressly exempted from the less drastic sanction of

reduced representation which § 2 [of the Fourteenth

Amendment] imposed for other forms of disenfranchisement.” Id. at 55. In other words, because § 2 of

the Fourteenth Amendment implicitly authorizes

felon disenfranchisement, § 1 could not be interpreted to prohibit it. But this holding addresses only

whether felon disenfranchisement is constitutional

in the abstract, and the Supreme Court has

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“rejected the view that the applicability of one constitutional amendment pre-empts the guarantees of

another. . . . The proper question is not which

Amendment controls but whether either Amendment is violated.” See United States v. James Daniel Good Real Prop., 510 U.S. 43, 49–50 (1993).

The Supreme Court’s subsequent decision in

Hunter v. Underwood illustrates that, following

Richardson, courts may hold unconstitutional a

felon disenfranchisement provision of a state’s constitution. 471 U.S. 222, 233 (1985). There, the Court

explained that,

[w]ithout again considering the implicit authorization of § 2 to deny the

vote to citizens ‘for participation in rebellion, or other crime,’ see Richardson v. Ramirez . . . , we are confident

that § 2 was not designed to permit

the purposeful racial discrimination

attending the enactment and operation of [the felon disenfranchisement

provision of Alabama’s 1901 Constitution] which otherwise violates § 1 of

the Fourteenth Amendment. Nothing in our opinion in Richardson v.

Ramirez, supra, suggests the contrary.

Id. Thus, Richardson does not preclude the plaintiffs’

assertion that felon disenfranchisement is cruel and

unusual punishment in violation of the Eighth

Amendment.

2. Felon Disenfranchisement Is Not a “Punishment”

The Eight Amendment provides: “[e]xcessive

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bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” U.S. Const. amend. VIII. “Because the

Clause only regulates ‘punishments,’” the Court

must first determine whether felon disenfranchisement is a “punishment.” See Doe v. Settle, 24 F.4th

932, 945 (4th Cir. 2022). “[U]nless it is a punishment, the Eighth Amendment does not apply.” Id.

“The Supreme Court has created a two-part

test for determining whether a statute [or constitutional provision] imposes punishment. First, [a

court] must ask if the legislature intended to inflict

punishment, which is a question of statutory interpretation.” Id. (citing Smith v. Doe, 538 U.S. 84, 92

(2003)). If the court finds punitive intent, “that is

the end of the inquiry.” Id. But if it finds no punitive intent, that court “must look to the effects of the

law.” Id. “If the effects are punitive, they may override the legislature’s intent, but [a court] must give

deference to the legislature on this point, and [it]

will require ‘the clearest proof’ to overturn those intentions.” Id. (citing Smith, 538 U.S. at 105).

Accordingly, the Court begins its analysis by

considering the Virginia legislature’s intent behind

Article II, Section 1 of the Virginia Constitution. If

the purpose of this Section “is to designate a reasonable ground of eligibility for voting,” then it is “a

nonpenal exercise of the power to regulate the franchise.” Trop v. Dulles, 356 U.S. 86, 97 (1958) (plurality opinion). To assess the Virginia legislature’s

intent, the Court considers this Section’s “text and

its structure.” See Smith, 538 U.S. at 92. Article II

of the Virginia Constitution, entitled “Franchise and

Officers,” addresses every corner of the voting process, from voters’ and elective candidates’ necessary

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qualifications to the General Assembly’s power to establish a voter registration system and regulate

elections. Va. Const. art. II (1971). Section 1 of this

Article, entitled “Qualifications of Voters,” explains,

In elections by the people, the qualifications of voters shall be as follows:

Each voter shall be a citizen of the

United States, shall be eighteen

years of age, shall fulfill the residence requirements set forth in this

section, and shall be registered to

vote pursuant to this article. No person who has been convicted of a felony shall be qualified to vote unless

his civil rights have been restored by

the Governor or other appropriate

authority. As prescribed by law, no

person adjudicated to be mentally incompetent shall be qualified to vote

until his competency has been

reestablished.

Va. Const. art. II, § 1 (1971). The felon disenfranchisement provision of Article II, Section 1 immediately follows several nonpunitive requirements for

the franchise, including citizenship, age, residency,

and registration. And it precedes another nonpunitive provision that disqualifies all persons “adjudicated . . . mentally incompetent . . . until [their] competency has been reestablished.” Id. The plain text

of Article II, Section 1 suggests no intent to sanction

those who may not vote in Virginia. Instead, it

simply provides how a Virginian can qualify to vote.

The Court thus concludes that the Virginia legislature ratified this Section to “designate a reasonable

ground of eligibility for voting” and intended it to be

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a nonpenal regulation of the franchise. See Trop,

356 U.S. at 97. Finding no punitive intent, the

Court must next assess whether the disenfranchisement provision’s “punitive effect is so overwhelming that it negates the State’s intentions.”

See Settle, 24 F.4th at 947.

“To assess punitive effect, [courts] look to

the list of seven factors first compiled in Kennedy

v. Mendoza-Martinez, 372 U.S. [144, 168–69

(1963)] . . . . These factors have been used in a

handful of constitutional contexts – Ex Post Facto

Clause, Sixth Amendment, and Eighth Amendment – and they create a framework for a general,

constitutional theory of a ‘punishment.’” Settle,

24 F.4th at 947. The Mendoza-Martinez factors

are: (1) whether a sanction “involves an affirmative disability or restraint”; (2) “whether it has

historically been regarded as punishment”; (3)

“whether it comes into play only on a finding of

scienter”; (4) whether it operates to promote “retribution and deterrence”; (5) whether it applies to

behavior that “is already a crime”; (6) whether it

rationally relates to a nonpunitive purpose; and

(7) whether it “appears excessive” compared to

that alternative purpose. 372 U.S. at 168–69. The

Court addresses each factor in tum.

First, the plaintiffs contend that “disenfranchisement constitutes ‘an affirmative disability’ because it permanently severs individuals from

the body politic, strips them of their right to participate in governance, and precludes them from enjoying full citizenship.” (ECF No. 78, at 31.) But Article II, Section 1 does not include “an affirmative

disability or restraint as that term is normally understood.” See Thompson v. Alabama, 65 F.4th

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1288, 1306 (11th Cir. 2023) (internal quotation

marks omitted) (quoting Hudson v. United States,

522 U.S. 93, 104 (1997)). Indeed, it “imposes no

physical restraint, and so does not resemble the

punishment of imprisonment, which is the paradigmatic affirmative disability or restraint.” See

id. at 100; cf Smith, 538 U.S. at 101–02 (finding

that the affirmative duty of registration imposed

on sex offenders does not constitute an affirmative

restraint). In Thompson v. Alabama, the Eleventh

Circuit likened felon disenfranchisement to occupational disbarment because “[b]oth remove the civil

rights of individuals due to their criminal behavior

as part of the State’s regulatory power” before explaining that the Supreme Court has found occupational disbarment to be nonpunitive. 7 The Court

finds the Thompson court’s reasoning persuasive

and thus concludes that this factor weighs in favor

of finding that Article II, Section 1 is nonpunitive in

effect.

“The second factor, whether felon disenfranchisement has been historically regarded as punishment, is neutral.” Thompson, 65 F.4th at 1306.

Some courts have determined that felon disenfranchisement does not function as a penalty. E.g.,

7 Thompson, 65 F.4th at 1306; see Hudson, 522 U.S. at 95–96

(concluding that occupational disbarment does not impose an

“affirmative disability or restraint” because disbarment is “certainly nothing approaching the infamous punishment of imprisonment” (internal quotation marks omitted) (quoting Flemming

v. Nestor, 363 U.S. 603, 617 (1960)); see also Simmons v. Galvin,

575 F.3d 24, 44 (1st Cir. 2009) (“Disenfranchisement during the

period of incarceration imposes no additional term of imprisonment and is not as enduring as permanent occupational debarment, which the Court has held is nonpunitive.” (internal citations omitted)).

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Simmons v. Galvin, 515 F.3d 24, 45 (1st Cir. 2009)

(“[F]elon disenfranchisement has historically not

been regarded as punitive in the United States, as

the Supreme Court indicated in Trop v. Dulles.”).

Others have noted that “[f]elon disenfranchisement

laws are unlike other voting qualifications. These

laws are deeply rooted in this Nation’s history and

are a punitive device stemming from criminal law.”

E.g., Johnson v. Gov. of Fla., 405 F.3d 1214, 1228

(11th Cir. 2005).

The plaintiffs contend that the third factor—

whether a sanction requires a finding of scienter—

weighs in favor of finding felon disenfranchisement’s punitive effects. They argue that “in Virginia

almost all felonies require proof of criminal intent.”

(ECF No. 78, at 25.) But “[t]here is no scienter requirement for felon disenfranchisement; it is sufficient that the person be convicted of a disqualifying

felony.” Thompson, 65 F.4th at 1307., Relatedly,

“felon disenfranchisement only sanctions behavior

that is already criminal.” Id. The fifth factor thus

also weighs against a finding that felon disenfranchisement punitive because a “tie[] to criminal activity” is “insufficient to render [the provision] punitive.” See United States v. Usery, 518 U.S. 267, 292

(1996).

As to the fourth, sixth, and seventh factors,

the defendants concede that disenfranchisement

may “promote[] the traditional aims of punishment.”

(ECF No. 77, at 35 (quoting Settle, 24 F.4th at 947).)

But they assert that felon disenfranchisement nonetheless has “a strong ‘rational connection to a nonpunitive purpose,’ namely to regulate the franchise

by excluding individuals who have shown a disregard for the law—the very output of the political

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process in which they would otherwise be participating.” (Id.) And although the plaintiffs admit that

disenfranchisement of certain felons “may be rationally connected to regulating the franchise,” they argue that “automatically banishing people from the

civic body for life” following a felony conviction “is

excessive.” (ECF No. 78, at 25 n.22.) The Court

finds that Article II, Section 1 “has a rational connection to a nonpunitive purpose”—regulating the

franchise—and is not “excessive with respect to this

purpose.” See Smith, 538 U.S. at 97. “[l]t can

scarcely be deemed unreasonable for a state to decide that perpetrators of serious crimes shall not

take part in electing the legislators who make the

laws, the executives who enforce these, the prosecutors who must try them for further violations, or the

judges who are to consider their cases.” Green v. Bd.

of Elections of N.Y., 380 F.2d 445, 451 (2d Cir. 1967).

This Section excludes from the franchise certain

persons who have broken laws “sufficiently important to be classed as felonies,” see Shepherd v.

Trevino, 515 F.2d 1110, 1115 (5th Cir. 1978), until

Governor Youngkin or another “appropriate authority” restores their voting rights. See Va. Const. art.

II, § 1 (1971). Thus, these three factors reveal the

nonpunitive effect of Article II, Section 1.

Taken together, the Mendoza-Martinez factors weigh in favor of finding that the felon disenfranchisement provision within Article II, Section

1 of Virginia’s Constitution demonstrates no punitive effect, “especially considering the deference

[the Court] must give to the legislature’s intent.”

See Settle, 24 F.4th at 953. The Court thus concludes that the felon disenfranchisement provision in Article II, Section 1 of the Virginia Constitution is not a “punishment” under the Eighth

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Amendment. Accordingly, the Court will dismiss

the plaintiffs’ Eighth Amendment claims.

III. CONCLUSION

For the foregoing reasons, the Court will

grant in part and deny in part the defendants’ motion to dismiss. (ECF No. 76.) First, because

Bridging the Gap lacks standing, the Court will

dismiss it from this action. Second, because the

VRA does not contain rights-creating language,

the Court will dismiss Count One. Third, because

felon disenfranchisement is not “punishment” for

purposes of the Eighth Amendment, the Court

will dismiss Counts Three and Four. Accordingly,

Count Two, which asks the Court to use its equitable powers to review the defendants’ alleged violation of the VRA, is the sole remaining count.

The Court will issue an appropriate Order.

Let the Clerk send a copy of this Opinion to

all counsel ofrecord.

Date: 18 March 2024

Richmond, VA