VIRGINIA:

IN THE CIRCUIT COURT OF PETERSBURG

11 JUDICIAL CIRCUIT OF VIRGINIA
CHIOMA ADAKU-GRIFFIN

PLAINTIFF, VERIFIED COMPLAINT FOR

DECLARATORY AND
INJUNCTIVE RELIEF AND
v. PETITION FOR WRIT OF
MANDAMUS

At Law No. ________________

Christopher E. Piper, in his official

capacity as the Commissioner of the
Department of Elections; the Department
of Elections; the Virginia State Board of
Elections, Robert H. Brink in his official
capacity as member of the State Board
of Elections; John O’ Bannon in his
official capacity as member of the
State Board of Elections; and Jamilah
D. LeCruise, in her official capacity as
member of the State Board of Elections,

DEFENDANTS

Plaintiff Chioma Adaku-Griffin (the “Plaintiff”), the undersigned registered

voter, for its Verified Complaint for Declaratory and Injunctive Relief and Petition for

Writ of Mandamus, alleges as follows:

INTRODUCTION

1. Article 1, Section 6 of the Virginia Constitution provides that, in the Commonwealth,

“all men . . . have the right of suffrage.” The affirmative guarantee of the right to vote,

however, means nothing if a candidate can qualify for the ballot based on Virginia’s

prohibition, and injured members of the electorate (and the political parties that they

form and with which they associate) are denied any meaningful recourse. As the

Supreme Court of Virginia has long recognized, “the perpetuity of our institutions

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and the preservation of the liberty of the people depend upon honest and fair elections;

and the highest public policy requires that the laws should be so framed and administered

as to secure fair elections.” Booker v. Donohoe, 95 Va. 359, 367-68 (1897).

2. The Plaintiff brings this case to ensure that the promise of honest and fair elections

in Virginia is properly enforced, and that the integrity of elections in the Commonwealth

is maintained and voter trust in the system bolstered rather than seriously eroded. The

Plaintiff seeks to protect its rights from the serious, irreparable harm that would occur

if Defendants—the Commonwealth’s chief election authorities—do not immediately

act to address evidence of Virginia’s one-term limit for governor in the candidate

qualification process for the upcoming election for the Office of Governor in Virginia.

3. This case involves the declaration of candidacy, petitions containing the required

number of signatures of registered voters and certificate of candidate qualification of

former governor Terry R. McAuliffe (D), as a candidate for Governor in the upcoming

election, in which voters will have to decide whether to elect Lietenant Governor Justin

Fairfax, a Democrat, or one of his challengers. Under Virginia’s ballot qualification

laws, before a party candidate may be listed on the ballot, he or she must be qualified

by the Virginia State Board of Elections (the “Board”). The Board’s decision to qualify

McAuliffe as a candidate was based on a improper qualification (the “Qualify”) that

was prohibited under Virginia’s Constitution in 1851, re-election and non-consecutive

terms in the commonwealth’s founding of the American Revolution dates back to 1776.

4. Defendants are gatekeepers of the Commonwealth’s democratic process, and have a

plain duty to ensure that the only candidates who appear on Virginia’s ballots are those

who have met minimum ballot access qualifications under Virginia law.

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Furthermore, in this case, they have a clear duty to revisit and reverse their decision to

qualify McAuliffe’s candidacy and to take all appropriate action to ensure that the ban

that prohibits the declaration of his candidacy does not taint the primary election in June

for Virginia. Because local jurisdictions are currently free to begin printing ballots for

that election at any time, and because the deadline for printing ballots on June 8 is fast

approaching, immediate injunctive relief is appropriate and necessary to protect the

Plaintiffs, and the voters from serious, irreparable harm.

5. To this end, the Plaintiff seeks declaratory and injunctive relief and a writ of

mandamus. Specifically, the Plaintiffs asks the Court to ensure the integrity of the

democratic process and prevent serious and irreparable injury to the Plaintiff and the

fundamental rights of voters by: (i) declaring that the notice of qualification issued by

the Department of Elections to McAuliffe on February26, 2021, is contrary to Virginia

law, and is therefore, invalid; (ii) declaring that the declaration and signatures on the

Petition may not be counted towards the statutorily required minimum to qualify the

Petition; (iii) protecting the Plaintiff and voters from further irreparable harm and

requiring Defendants to fulfill their duty of safeguarding the integrity of Virginia

elections by (a) ordering Defendants to strike the declaration and signatures from the

Petition to qualify McAuliffe; (b) enjoining Defendants from qualifying McAuliffe’s

Petition on the basis of Virginia’s prohibition act or otherwise one or non-consecutive

term limit; (c) enjoining the Board and their agents, officers, and employees, and any

person who acts in concert therewith, from printing McAuliffe’s name on ballots for

the November 2021 general election unless and until the Court establishes that he has

met constitutional or minimum statutory requirements to appear on the ballot.

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6. Furthermore, given that the evidence compiled in just a few days makes clear that the

ban was far from isolated and instead permeates McAuliffe’s certification, declaration

of candidacy and Petition, the Board should be directed, in this particular case, to only

accept a declaration of candidacy that comports with the Constitution of Virginia the

validity of which can be demonstrated by a preponderance of the evidence. Given the

short time remaining before the democratic primary election and Virginia law requires

ballots be printed, this is the only way to ensure that a prohibited ineligible declaration

of candidacy do not form the basis for qualification.

JURISDICTION AND VENUE

7. This Court has jurisdiction to grant declaratory and injunctive relief under the Virginia

Declaratory Judgment Act, Va. Code Ann. § 8.01-184, which authorizes the Court to

declare rights, status, and other legal relations among the parties and to issue injunctive

relief as necessary to effectuate the judgment. See also Va. Code Ann. § 8.01-186

(authorizing further relief based on a declaratory judgment “whenever necessary or

proper”). The Court has jurisdiction to hear the Petition for Writ of Mandamus under Va.

Code Ann. § 17.1-131. The Court also has jurisdiction under Va. Code Ann. § 17.1-513.

8. Venue is appropriate under Va. Code § 8.01-261(2) because this is an action “against

one or more officers of the Commonwealth in an official capacity,” each of whom has

official offices in Richmond, Virginia.

PARTIES

9. Plaintiff Chioma Adaku-Griffin (the “Plaintiff”) is a registered voter as defined by

Va. Code Ann. § 24.2-400. The Plaintiffs vote for Democratic candidates in local,

county, state, and federal elections. If McAuliffe—a candidate whose place on the ballot

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pursuant Va. Code §§ 24.2-503, 24.2-522 and 24.2-524, has been obtained contrary

to Virginia law, and who otherwise cannot meet the minimum standards for ballot

qualification under Virginia law—is listed on the ballot for Virginia in June, the Plaintiff

will suffer concrete injury because the candidacy of an additional person in the contest

who, as a matter of law, should not be on the ballot, in this election cycle constitutes an

irreparable harm, that cannot, after the fact, be fairly remediated without immediate

injunctive relief.

10. The Plaintiff and the voters who associate with them, including those whose

signatures have been unlawfully added to the Petition by circulators who in concert to

ensure that McAuliffe’s name would be placed on the ballot with the purpose and hope

of sowing confusion among Democratic voters so as to diminish the prospect of the

success of the Plaintiff’s candidate in the primary election.

11. To this end, the Plaintiff’s Verified Complaint for Declaratory and Injunctive action,

the weight and impact of these voters’ meaningfully and thoughtfully cast votes for the

Democratic candidate in the 2021 Gubernatorial Election will be diluted by votes

accruing to McAuliffe due to his ill-gotten placement on the ballot.

12. Defendant Christopher E. Piper is named in his official capacity as the Commissioner

of the Department of Elections. The Commissioner is appointed by the Governor and is

responsible for employing and overseeing “the personnel required to carry out the duties

imposed by the State Board of Elections,” Va. Code Ann. § 24.2-102. The Office of the

Commissioner is located in Richmond, Virginia.

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13. Defendant Department of Elections is responsible for processing petitions for

candidacy for independent candidates for federal office. Va. Dep’t of Elections, GRE

Handbook at 16.4.6. The Department of Elections maintains a master petition and

forwards individual petition pages to the appropriate general registrars for verification

of signatures. Id. After the locality verifies the petition signatures on the petition pages

sent by the Department of Elections, the general registrars return the processed petition

pages to the Department of Elections. Id. The Department of Elections is located in

Richmond, Virginia.

14. Defendant Virginia State Board of Elections (the “Board”), is responsible for, among

other things, “supervis[ing] and coordinat[ing] the work of the county and city electoral

boards and of the registrars to obtain uniformity in their practices and proceedings and

legality and purity in all elections.” Va. Code Ann. § 24.2-103. The Board’s duties

include, inter alia, “approv[ing] uniform standards by which petitions filed by a candidate

for office, other than a party nominee, are reviewed to determine if the petitions contain

sufficient signatures of qualified voters,” accepting declarations of candidacy filed

by party candidates for “any office to be elected by the qualified voters of the

Commonwealth at large or of a congressional district,” qualifying candidates, and

“notify[ing] the respective secretaries of the appropriate electoral boards of the qualified

candidates who have so filed.” Va. Code Ann. § 24.2-506(B); id. At § 24.2-505(A). The

Board’s principal offices are in Richmond, Virginia.

15. Defendants Robert H. Brink, John O’ Bannon, and Jamilah D. LeCruise,

are named in their official capacities as members of the Board.

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 FACTUAL BACKGROUND

A. Submission and verification of signatures.

16. In 2009 Terry Richard McAuliff ran as the Democratic nominee for Virginian

gubernatorial election, but was unsuccessful.

17. In the 2013 gubernatorial election, Terry Richard McAuliff ran unopposed in the

Democratic primary. He defeated Republican Ken Cuccinelli and Libertarian Robert

Sarvis in the general election, collecting nearly 48% of the vote. Cuccinelli garnered

45.2% and Sarvis received 6.5%

18. In 2014, McAuliffe ran as the Democratic nominee for Virginia Governor, and won

he served as the 72nd Governor of Virginia from 2014 to 2018.

19. In 2020, McAuliffe announced he would run for Governor again in the 2021

gubernatorial election.

20. On December 9, 2021, McAuliffe submitted his certificate of candidate qualification,

for Governor, declaration of candidacy, and petitions containing the required number of

signatures of registered voters.

21. On February 26, 2021, the Department of Elections issued McAuliff’s a notice

of qualification.

22. Under Virginia law, as a prospective party candidate for Governor, McAuliff was

required to submit at least 10,000 signatures, including at least 400 valid signatures

from each congressional district in the Commonwealth to qualify to appear on the

ballot. Va. Code Ann. Va. Code §§ 24.2-506.

23. Under Virginia law, mandates a single four-year term, it’s a ban that only applies to

the governor, That prohibit particular conduct remains in place in the 1851 constitution.

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24. The Defendants novel qualification of McAullief, on February 26, 2021, based on an

unfounded non-consecutive second term limit exception, forbidden is contrary to Virginia

law, the one term limit or ban serves as an important check on the executive power: “In

1971 Virginia adopted a new constitution and eliminated many voting restrictions, but

without any change to re-lection or a non-consecutive second term governor.

Argument

A. The Plaintiffs’ is Entitled to a Temporary Injunction. While the Virginia Supreme

Court has not determined which factors a court must consider when evaluating a motion

for a temporary or preliminary injunction, circuit courts throughout Virginia have

consistently applied the four factors laid out by the Supreme Court in Winter v. Nat’l

Res. Def. Council, Inc., 129 S. Ct. 365 (2008). See Fame v. Allergy & Immunology,

P.L.C., 91 Va. Cir. 66 (2015) (noting lack of Virginia precedent and applying Winter

factors); Seniors Coal., Inc. v. Seniors Found., Inc., 39 Va. Cir. 344, 350 (1996) (noting

a lack of Virginia precedent and applying federal law). In accordance with that test,

Virginia courts considering motions for temporary or preliminary injunctions consider

whether the plaintiff has established: (1) a likelihood of success on the merits, (2)

likelihood of irreparable harm in the absence of preliminary relief, (3) that the balance

of the equities tips in favor of relief, and (4) that an injunction is in the public interest.

Winter, 555 U.S. at 20. See also Va. Code § 8.01-628 (“No temporary injunction shall

be awarded unless the court shall be satisfied of the plaintiff’s equity.”). Here, each of

these requirements is easily satisfied and the Court should issue the requested injunction.

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 1. The Plaintiff is likely to succeed on the merits.

Through her Complaint, the Plaintiff alleges four claims: inclusion on the ballot of a

candidate whose qualification is constitutionally suspect violates the right to vote of the

Plaintiff and the voters who associate with her, as set forth in Article I, Section 6 of the

Virginia Constitution (Count I); voters whose names appear on the Petition as the result

of Virginia’s prohibition have suffered (and, absent relief from this Court, will continue

to suffer) injury to their free speech and associational rights under the First and

Fourteenth Amendments to the U.S. Constitution (Count II) and Article I, Section 12

of the Virginia Constitution (Count III); and the Defendants’ qualification of McAuliffe,

upon a clearly prohibited nominating declaration that, in addition to and beyond the

forbidden qualification that the Plaintiff has been able to definitively identify in the short

time period during which they have been investigating this matter, is suspect with serious

and substantive constitutional infringement or encroachments that preclude his placement

on the ballot under Virginia law (Count IV).

The Plaintiff is likely to succeed on all of these claims, and this factor weighs heavily

in favor of granting the requested injunctive relief. See, e.g., Disney Enters., Inc. v. Vid

Angel, Inc., 869 F.3d 848, 856 (9th Cir. 2017) (“Likelihood of success on the merits “is

the most important” Winter factor.”); Aamer v. Obama, 742 F.3d 1023, 1038 (D.C. Cir.

2014) (“[T]he first and most important [Winter] factor [is] whether petitioners have

established a likelihood of success on the merits.”).

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First, Article I, Section 6 of the Virginia Constitution affirmatively protects the right

to vote; if a candidate may qualify for the ballot based on brazen disqualification, or

upon a nominating petition that is clearly unlawful as a matter of law, that right—and,

indeed, because the right to vote is “fundamental” precisely because it is “preservative

of all rights,” Yick Wo v. Hopkins, 118 U.S. 356, 370 (1886), all other rights is illusory.

See also Commonwealth v. Willcox, 111 Va. 849, 860 (1911) (“However fair the

general election may be, if at that election men have no choice but to vote for candidates

who have been nominated by fraudulent practices at primaries . . . the effect of the

election must be the consummation of a fraud and the defeat of the will of the people.”);

Booker, 95 Va. at 367 (“[T]he perpetuity of our institutions and the preservation of the

liberty of the people depend upon honest and fair elections; and the highest public policy

requires that the laws should be so framed and administered as to secure fair elections.”);

see also Burdick v. Takushi, 504 U.S. 428, 441 (1992) (“[T]he right to vote is the right to

participate in an electoral process that is necessarily structured to maintain the integrity

of the democratic system”); Wesberry v. Sanders, 376 U.S. 1, 17 (1964) (“No right is

more precious . . . than that of having a voice in the election of those who make the

laws.”).

The Virginia Constitution’s affirmative guarantee of the right to vote, moreover, is

self-executing, and gives right to a private right of action, under which its infringement

may only be justified if shown to be “necessary to promote a compelling or overriding

governmental interest.” Pulliam v. Coastal Emergency Servs. of Richmond, Inc., 257 Va.

1, 20-21 (1999); see also Lafferty v. Sch. Bd. of Fairfax Cty., 293 Va. 354, 362 (2017)

(even when a statute is silent, a private right of action may arise where “[t]he claimed

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right . . . implicate[s] [a] protected right under the Constitution of Virginia”) (citation

omitted); Robb v. Shockoe Slip Found., 228 Va. 678, 681 (1985) (explaining that, while

not all constitutional provisions are self-executing and give right to a private right of

action, those provisions contained within the Virginia Bill of Rights are typically

self-executing).

It is inconceivable that the Commonwealth could have a “compelling or overriding

governmental interest” that makes it necessary to keep a candidate on the ballot whose

nomination papers are suspect to a constitutional prohibition, no matter the injury done to

fundamental voting rights. It is inconceivable that the Commonwealth could have even a

legitimate interest in doing so. Va. Const. art. 1 § 11. Thus, even if the Court were to find

(contrary to Pulliam, cited above) that the Plaintiff’s claim under Article I, Section 6 of

the Virginia Constitution should be reviewed under some standard less demanding than

strict scrutiny, the Plaintiff would still be highly likely to succeed on this claim.

Take, for example, the analysis that would be applied under the Anderson-

Burdick test, applied to claims that a state has violated the right to vote implicit in the

federal constitution. That balancing test requires a court to “weigh ‘the character and

magnitude of the asserted injury to the rights . . . that the plaintiff seeks to vindicate’

against ‘the precise interests put forth by the State as justifications for the burden

imposed by its rule,’ taking into account the extent to which those interests make it

necessary to burden the plaintiff’s rights.’” Burdick, 504 U.S. at 434 (quoting

Anderson v. Celebrezze, 460 U.S. 780, 789 (1983)). On the one hand, the qualification

and inclusion of a candidate on the ballot—where the candidate is qualified based on a

qualification for candidacy process that is demonstrably prohibited —plainly infringes

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upon the fundamental right to vote, where the only rational conclusion is that former

Governor Terry Richard McAuliff’s associates engaged in this rampant prohibited

conduct with the goal and the hope that the inclusion of McAuliffe on the ballot would

siphon votes from McAuliff’s formidable Democratic challenger Lietenant Governor

Justin Fairfax, by presenting voters with a false “choice” between the candidate who

won the Democratic Party’s nomination, and a candidate whose name is likely to be

highly familiar to Democratic-leaning voters, if only because he was the Democratic

nominee in 2014.

If this scheme is successful, it will serve to injure Democratic voters both by

diluting the voting power of those who are not successfully misled and cast their ballots

for the legitimate Democratic nominee, see Jamerson v. Womack, 26 Va. Cir. 145, 145

(1991), aff’d 244 Va. 506 (1992) (voter suffers injury where a law “dilute[s] voting

power and diminish[es] the effectiveness of representation”), and by tricking other

voters who would otherwise support the Democratic nominee to cast their ballot for

an unqualified candidate who lacks legitimate support among the electorate, but

whose name they may recognize from the last election for Governor. It will also

seriously and directly injure the Plaintiff, and voters similarly situated.

Although it remains to be seen what interests Defendants may attempt to argue

outweigh these harms, or could otherwise negate the clear public interest in fair and

equitable elections not tainted by demonstrable prohibition, they cannot possibly provide

the basis for finding that the Plaintiff is not entitled to the injunction that it seeks under

the present (highly unusual and alarming) circumstances.

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 Thus, because each of the requirements for entitlement to an injunction under

Winter are easily met, the Plaintiff respectfully requests that the Court grant its motion

and promptly issue the requested injunctive relief.

The Plaintiff claims that Defendants’ action (or, under the current circumstances,

inaction, despite the mounting evidence of a constitutional prohibition that permeates

the Qualification) also violates the Plaintiff’s speech and associational rights of the

voters who associate with them under the First and Fourteenth Amendments to the U.S.

Constitution and Article I, Section 12 of the Virginia Constitution are similarly highly

likely to succeed on the merits. Article I, Section 12 of the Virginia Constitution, which

“is coextensive with the free speech provisions of the federal First Amendment,” Elliot

v. Commonwealth, 267 Va. 464, 473-74 (2004), provides that “the General Assembly

shall not pass any law abridging the freedom of speech or of the press, nor the right

of the people peaceably to assemble, and to petition the government for the redress

of grievances.” Like Article I, Section 6’s protection of the right to vote, this provision

is self-executing—not only does it appear in the Virginia Constitution’s bill of rights,

it is also prohibitive in nature. See Robb, 228 Va. at 682 (explaining that provisions of

the Virginia Constitution provide for a private right of action if they are “self-executing,”

which generally includes “constitutional provisions in bills of rights” and “provisions

which specifically prohibit particular conduct”). Id. at 681.

The Plaintiff’s claims under the First Amendment to the U.S. Constitution are, as

discussed, properly evaluated under the Anderson-Burdick standard. See supra at 17-18.

Further, the Plaintiff’s claims under Article I, Section 12 of the Virginia Constitution

should be subject to more exacting review, under which infringement may only be

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justified if shown to be “necessary to promote a compelling or overriding governmental

interest.” Pulliam, 257 Va. at 20-21. Indeed, the decision of whether to sign a petition

implicates “core political speech.” See Nev. Comm’n on Ethics v. Carrigan, 564 U.S.

117, 128 (2011) (citations omitted); see also Krislov v. Rednour, 226 F.3d 851, 858 (7th

Cir. 2000) (“Associating for the purpose of placing a candidate on the ballot is one of the

actions protected by the First Amendment; indeed, the circulation of petitions for ballot

access involves the type of interactive communication concerning political change that

is appropriately described as ‘core political speech.’” (quoting Meyer v. Grant, 486 U.S.

414, 421 (1988)). Here, the injury to the fundamental rights of the Plaintiff and the

voters who voluntarily associate with her is one of forced speech and association. See

Kusper v. Pontikes, 414 U.S. 51, 58 (1973) (finding state statute that limited voter’s

ability to change party registration “substantially abridged her ability to associate

effectively with the party of her choice”). This violation, too, is serious and fundamental,

and can cannot conceivably be justified by any legitimate, much less compelling state

interest in maintaining access to the ballot where a candidate’s nominating qualification

or petition has been demonstrated to be suffused with fraud. Pulliam, 257 Va. at 20-21

(noting that the Virginia Supreme Court has recognized the right to free speech as

“fundamental”).

That the Plaintiff is likely to succeed on her claims would necessarily be true even

absent Virginia’s prohibition or evidence of election fraud in this case. If, for example,

the Plaintiff simply brought a challenge based on the fact that the Qualification and

Petition does not meet the bare requirements of Va. Code Ann. § 24.2-506, which

required that he submit 10,000 signatures of registered, eligible voters in Virginia,

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consistent with Virginia’s statutory scheme governing nominating petitions. See Va.

Code. Ann. § 24.2-504 (specifying that “[o]nly a person fulfilling all the requirements

of a candidate shall have his name printed on the ballot for the election”). Allowing a

candidate to appear on the ballot who has not met constitutional qualifications under

Virginia law plainly undermines the integrity and fairness of the entire electoral process.

See Willcox, 111 Va. at 860 (“However fair the general election may be, if at that

election men have no choice but to vote for candidates who have been nominated by

fraudulent practices at primaries . . . the effect of the election must be the consummation

of a prohibited qualification or fraud and the defeat of the will of the people.”). However,

the case presently before the Court is plainly not simply a case where the Plaintiff

challenges the qualifications of another candidate to be placed on the ballot because

of their failure to comply (albeit) with basic requirements that govern the qualification

process under state law.

The case before the Court (and the only one that it need presently decide) is whether,

under the current circumstances, which present one of the most astounding attempts to

corrupt the nominations process in recent memory, the Plaintiff is likely to succeed on

any one of the claims that they allege. If voters are to maintain confidence in Virginia’s

elections, and if there is to be a meaningful judicial safeguard for each of the fundamental

rights discussed, the only possible answer is yes. Because the other relevant factors

(discussed below) also favor an injunction, the Plaintiff’s Motion should be granted.

2. Without Immediate, Expedited Relief, the Plaintiff and Voters Similarly

Situated Will Suffer Irreparable Harm.

As discussed, both the Plaintiff herself and the Virginia voters among who choose

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to affiliate with them will suffer serious risk of voter confusion, irreparable harm in the

form of vote dilution, and direct harm to the Plaintiff the result for which former

Governor McAuliffe’s associates clearly intended to bring about—i.e., voters unwittingly

casting ballots to support a “spoiler” candidate who lacks even a bare minimum of public

support, who otherwise would have supported the former Governor’s formidable

Democratic challenger Lietenant Governor Justin Fairfax in the hopes of bolstering

the former Governer’s election chances in the upcoming November election if the

Court does not promptly issue injunctive relief.

That these injuries are, by definition, irreparable, should be uncontroversial, as “once

the election occurs, there can be no do-over and no redress.” League of Women Voters of

N.C. v. North Carolina, 769 F. 3d 224, 247 (4th Cir. 2014); see also Thompson v. Smith,

155 Va. 367, 387 (1930) (interference with the exercise of a “common fundamental

personal right” constitutes irreparable injury, and “a suit for injunction will lie.”).

Indeed, courts regularly find the irreparable harm element met when voting rights

are at stake. See, e.g., Obama for Am. v. Husted, 697 F.3d 423, 436 (6th Cir. 2012)

(“A restriction on the fundamental right to vote . . constitutes irreparable injury.”);

N.C. State Conference of the NAACP v. N.C. State Bd. of Elections, No. 1:16CV1274,

2016 WL 6581284, at *8 (M.D.N.C. Nov. 4, 2016) (“Denying an eligible voter her

constitutional right to vote and to have that vote counted will always constitute

irreparable harm.”); Williams v. Salerno, 792 F.2d 323, 326 (2d Cir. 1986) (finding

“irreparable harm if [plaintiffs’] right to vote were impinged upon”).

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 3. The Balance of the Equities and the Public Interest Both Favor an

Injunction.

As both the U.S. Supreme Court and the Virginia Supreme Court have long recognized,

“[n]o right is more precious in a free country than that of having a voice in the election

of those who make the laws under which, as good citizens, we must live.” Wesberry

v. Sanders, 376 U.S. 1, 17 (1964); see also Willcox, 111 Va. at 860 (“However fair the

general election may be, if at that election men have no choice but to vote for candidates

who have been nominated by fraudulent practices . . . the effect of the election must

be the consummation of a fraud and the defeat of the will of the people.”); Booker, 95

Va. at 367 (“Under our form of government, the perpetuity of our institutions and the

preservation of the liberty of the people depend upon honest and fair elections; and

the highest public policy requires that the laws should be so framed and administered

as to secure fair elections.”; Boston Correll v. Herring, 212 F. Supp. 3d 584, 615 (E.D.

Va. 2016) (finding that “[t]he balance of equities . . . weighs heavily in favor” of plaintiff,

because “[d]efendants are ‘in no way harmed by issuance of an injunction that prevents

the state from” violating the Constitution) (citation omitted).

In weighing the equities, on one side of the scale are the significant injuries that will

be sustained by the Plaintiffs (and, indeed, any voter who casts their ballot in November

for the Democratic candidate, as well as any that is unwittingly tricked into casting their

ballot for a candidate who obtained access to the ballot as a result of a disqualified or

fraudulent effort by supporters of the former Democratic candidate hoping to bolster his

changes at election) the targeted victim of this scheme.

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 The Plaintiff now have to file this action to minimize the serious risk of voter

confusion that was the clear purpose of this prohibitive non-consecutive declaration

of candidacy or fraudulent scheme.

Although it remains to be seen what interests the State may attempt to argue

outweigh these harms, or could otherwise negate the clear public interest in fair and

equitable elections not tainted by demonstrable prohibitive non-consecutive terms,

they cannot possibly provide the basis for finding that the Plaintiff is not entitled to the

injunction that they seek under the present (highly unusual and alarming) circumstances.

See, e.g., HotJobs.com, Ltd. v. Digital City, Inc., 53 Va. Cir. 36, 46 (2000) (finding the

irreparable harm to defendant from issuance of preliminary injunction “would flow from

[defendant’s] own wrongdoing and therefore [defendant] can hardly complain that it will

suffer irreparable injury if a preliminary injunction is issued because it brought the harm

on itself”); see also Seniors Coal., Inc., 39 Va. Cir. at 350 (finding despite argument

defendant will be “out of business” if injunction issues, the balance of equities “tips

decidedly” in plaintiff’s favor where “[t]he likelihood of irreparable harm to the

[plaintiff] if the temporary injunction does not issue is great”). Thus, because Plaintiff

easily meets each of the requirements for entitlement to an injunction under Winter, they

respectfully request that the Court grant their motion and promptly issue the requested

injunctive relief.

B. The Court Should Issue a Writ of Mandamus.

The Board, its members, and the Commissioner have an affirmative legal duty to

prevent McAuliffe’s name from being printed on the ballot, and this Court should order

them to comply with that duty through a writ of mandamus. For a writ of mandamus to

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issue (1) the petitioner must have “a clear right in the petitioner to the relief sought,”

(2) “there must be a legal duty on the part of the respondent to perform the act which the

petitioner seeks to compel,” and (3) “there must be no adequate remedy at law.” Bd. of

Cty. Supervisors of Prince William Cty. v. Hylton Enters., Inc., 216 Va. 582, 584 (1976).

1. The Plaintiff Has a Clear Right to the Relief Sought.

The Plaintiff has indisputably demonstrated that the continued inclusion of McAuliffe

on the ballot violates numerous provisions of the Virginia Constitution, as well as settled

Virginia statutory law. As set forth above, the former Governor ballot of a candidate

whose declaration, qualification petition is indisputably banned violates the affirmative

right to vote and irreparably injures the speech and associational rights of the Plaintiff

and rights of the voters who associate with them and is in clear violation of Virginia law

regarding a governor standing for non-consecutive terms, and the standards a party

candidate must meet in order to appear on the ballot under Virginia law. Because the

continued inclusion of McAuliffe on the ballot is both unconstitutional and in violation

of Virginia law, Plaintiff has a clear right to a writ directing Defendants to discharge

their duty to prevent McAuliffe’s name from appearing on the ballot.

Such a writ would be in keeping with the historical practice of the Virginia Supreme

Court in election law case. In prior cases, the Court has granted an original petition for a

writ of mandamus, in favor of both a voter, Wilkins v. Davis, 205 Va. 803 (1965), and a

candidate for office, Brown v. Saunders, 159 Va. 28 (1932), where it found that the

challenged election law violated the Constitution of Virginia. Here too, the numerous

constitutional injuries which would flow from McAuliffe’s inclusion on the ballot compel

this remedy.

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 2. Defendants Have an Affirmative Legal Duty to Ensure that Only Candidates
Qualified Under Virginia Law Appear on the General Election Ballot.

The Board and Commissioner have affirmative duties to act here, both because of

the oaths as state officials to obey Virginia’s Constitution, and as arising from the text

of the statutes at issue themselves. Because these duties are non-discretionary, mandamus

is an appropriate remedy. See Bd. of Cty. Supervisors of Prince William Cty. , 216 Va.

at 584 (“Mandamus is the proper remedy to compel performance of a purely ministerial

duty, but it does not lie to compel the performance of a discretionary duty.”).

First, as state officials all Defendants here must swear to support the Constitution

of the United States and the Constitution of the Commonwealth of Virginia. See Va.

Code. Ann. § 49-1 (2018) (“Every person before entering upon the discharge of any

function as an officer of this Commonwealth shall take and subscribe the following oath:

‘I do solemnly swear (or affirm) that I will support the Constitution of the United States,

and the Constitution of the Commonwealth of Virginia . . . .’”). This places on each

official an affirmative duty to ensure that the Constitution is faithfully followed. As

discussed at length above, under the current circumstances, inclusion of McAuliffe on

the general election ballot would result in serious and irreparable constitutional injury to

thousands of Virginia voters, in clear violation of the oaths that the individually-named

state official Defendants have sworn.

Second, settled Virginia law places an affirmative duty on the officials named here

to ensure that only the names of candidates who have appropriately qualified under

Virginia law are placed on ballots in the state of Virginia. Va. Code Ann. § 24.2-103

requires that the Board and the Department “shall supervise and coordinate the work

of the county and city electoral boards and of the registrars to obtain uniformity in their

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practices and proceedings and legality and purity in all elections,” (emphasis added), and

that they “shall . . . promote the proper administration of election laws.” Va. Code Ann. §

24.2-504 further states that “[o]nly a person fulfilling all the requirements of a candidate

shall have his name printed on the ballot for the election,” while § 24.2-506 states that the

name of an independent candidate for the House of Representatives “shall not be printed

upon any official ballots provided for the election” unless her declaration of candidacy

includes a petition signed by a minimum of 10,000 qualified voters. Id. As the Plaintiffs

has demonstrated, thousands of the signatures submitted in support of the prohibited

qualification are unconstitutional, calling into question whether he has demonstrated

the legal qualification and support necessary under Virginia law to appear on the ballot.

In such circumstances, Defendants have an affirmative duty to ensure that

McAuliffe is not listed as a candidate on the ballot, and the Plaintiff is entitled to

a writ of mandamus compelling them to execute this duty.

In particular, the use of the words “shall” and “shall not” in all of the statutes relied

upon by the Plaintiff compel this result. The use of these terms makes mandamus relief

appropriate because the governing statutes require the relevant officials “to perform a

prospective non-discretionary act.” Town of Front Royal v. Front Royal & Warren Cty.

Indus. Park Corp., 248 Va. 581, 587 (1994). In Town of Front Royal, the Virginia

Supreme Court held that an order stating that a local government “shall” take the relevant

actions “expressly orders” the town to act, and thus “imposes a ministerial” rather than

discretionary duty. Id. at 583, 585. The statutes at issue here likewise require mandatory

action: this is not a case where the official’s duties “require[ ] the exercise of judgment

and discretion . . . .” Richlands Med. Ass’n v. Commonwealth, 230 Va. 384, 388 (1985).

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The election officials simply have no discretion to decline to follow the law and to permit

the appearance on the ballot of a candidate who has not submitted a qualified declaration

of candidacy under Virginia law.

3. The Plaintiff Has No Adequate Remedy at Law.

The alternative remedy open to the Plaintiff—an action for an injunction—is not a

remedy “at law.” The inquiry here is not whether there is any alternative remedy, but

whether there is an adequate alternative remedy “at law.” An action for an injunction is

not a remedy “at law,” as it is well settled that ““a party must establish . . . irreparable

harm and lack of an adequate remedy at law, before a request for injunctive relief will be

sustained.” Levisa Coal Co. v. Consolidation Coal Co., 276 Va. 44, 61 (2008) (quotation

marks omitted). An action for injunctive relief plainly cannot be an “adequate remedy at

law” when an injunction will not issue unless the movant establishes the “lack of an

adequate remedy at law.” Id. Accordingly, the Plaintiff has no adequate remedy at law

and is entitled to a writ of mandamus.

Conclusion

For all of the reasons set forth above in support of this Motion, the Plaintiff respectfully

requests that this Court grant the motion and issue relief substantially in the form set forth

herein in the complaint.

Dated: June 3, 2021

By:______________________
Ms. Chioma Adaku-Griffin
3131 Crater Road,
Petersburg, Virginia 23805
(804) 930-1234

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