Case 3:22-cv-00427-DJN Document 22 Filed 06/27/22 Page 1 of 10 PageID# 120

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA
Richmond Division

Jeffrey Thomas,Jr.

Michelle C.Thomas iim

Phillip E. Thompson

Plaintiffs,

V. Civil No. 3:22-cv-427-DJN

Susan Deals

Robert Brink

Virginia Department of Elections

Defendants.

MOTION FOR SANCTIONS

Pursuant to Local Civil Rule 7(a), Plaintiff Jeffrey Thomas,Jr. hereby files Motion for

Sanctions arising from Defendants' violation of paragraph 1 ofthe Court's Jrme 16,2022 Order

(ECF 16II1). The Court instructed:'T need you to work in good faith. It's the only way the

expedited briefing works."(June 13,2022 Hearing Tr. 19:13-14). The Court ordered:"Plaintiffs

and Defendants shall meet and confer and file a joint stipulation ofthe facts relevant to

Defendants' Motion [to Dismiss] no later than June 24,2022. All parties, including the newly

added parties, shall participate in good faith in the meet and confer to maximize the facts to

which the parties will stipulate."

Defendants, through their counsel, refused to stipulate to forty-seven verifiable, relevant

facts taken verbatim from the Amended Complaint (Appendix 1). Among these. Defendants
 Case 3:22-cv-00427-DJN Document 22 Filed 06/27/22 Page 2 of 10 PageID# 121

refused to stipulate to: elementary math (e.g.,11. This 130,192/67,404 ratio between largest and

smallest 2021 House of Delegates district populations represents a 93.2% disparity.); quotations

of Virginia law (e.g.,^ 22."Districts shall be so constituted as to give, as nearly as is practicable,

representation in proportion to the population of the district. A deviation of no more than five

percent shall be permitted for state legislative districts." Va. Code Ann. § 24.2-304.04(1).);

quotations from this Court (e.g., H 31. Defendants "facilitate the state's elections, even if they do

not draw the legislative district maps or set elections themselves." Goldman v. Brink, ECF 49, p.

22, Granting in Part and Denying in Part Defendants' Motion to Dismiss); quotations from

Defendant the Virginia Department of Elections' own social media account announcing a special

election for the House of Delegates conducted in less than one month pursuant to a writ of

elections (H 44. According to a December 8, 2020 announcement reposted on the Virginia

Department of Elections' official Twitter account,"Gov. Ralph Northam today issued a writ of

election declaring a special election in the 2"*^ House of Delegates District for Jan. 5,2021:[link].
The last day for candidates to file to appear on the ballot is December 14,2020."^); and the dates
of state primary elections as published by the Department ofDefense(^ 47).

Clearly these facts are relevant to this case: as noted, they are copied from the Amended

Complaint. Defendants did not dispute their veracity. In response to Plaintiffs repeated good

faith attempts at conferral. Defendants could not provide any evidence oftheir falsehood (Exhibit

1).^ It seems that Defendants refused to stipulate to facts that they felt did not support their case.

This is particularly apparent in regard to the facts surrounding special House of Delegates

elections that were conducted in less than one month pursuant to a writ of elections, which goes

to Defendants purported claims of mootness they intend to raise (June 13, 2022 Hearing Tr.

* https://twitter.com/vaelect/status/1336419044673589249.Accessed and screenshotted June 14,2022.

^ Note to Exhibit 1: A photograph of Plaintiffs driver's license containing identifying information has been redacted
from this filing under F.R.Cv.P. Rule 5.2(a).
 Case 3:22-cv-00427-DJN Document 22 Filed 06/27/22 Page 3 of 10 PageID# 122

5:15-19). Refusing to stipulate to facts that are facts is textbook bad faith that defeats the purpose

ofthe Court's conferral order.

The Court ordered the parties to "maximize the facts to which the parties will stipulate."

Defendants did not do so.

Memorandum of Authorities

The Court has already admonished the Office of Attorney General for engaging in "stall

tactics" that were "appalling" to delay resolution ofthe related case, Goldman v. Brink(June 13,

2022 Hearing Tr. 9:14-15).^ Failure to sanction Defendants will only burden Plaintiffs and
encourage Defendants'"appalling...stall tactics."

The Court's order was clear and reasonably specific. In addition to sanctions available

under the Federal Rules of Civil Procedure,the Court possesses its own inherent authority to

issue a show cause order and to hold a party in contempt. Atkins Nuclear Secured, LLC v. Aptim

Federal Services, LLC, 18-cv-l 112,2019 WL 1793137(E.D. Va. Apr. 24, 2019). An order to

show cause would further delay this case and thereby reward Defendants' violation. The

expedited schedule ofthis case and the easily verifiable facts at issue lend themselves to the

sanction ofcontempt. A sanction to coerce Defendants into compliance with this Court's orders

is proper, while further disobedience may warrant a defaultjudgment{See also. Federal Rules of

Civil Procedure Rules 11(b)(4) and 11(c)(4), mandating that "the denials offactual contentions

are warranted on the evidence or, if specifically so identified, are reasonable based on belief or a

lack ofinformation" and permitting sanctions "limited to what sufficies to deter repetition ofthe

conduct by others similarly situated.")

'"I'm worried and disturbed by the fact that if you're going to raise the Purcell principle now,I'm not so sure you
have clean hands doing that, because the reason we're so late in the game is the stall tactics that Attorney General
Herring and his subordinates engaged in, which 1 find to be appalling what they did." June 13,2022 Hearing Tr.
9:10-16.
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Plaintiff respectfully suggests that the Court consider Defendants' failure to admit to facts

harmful to their case as tantamoimt to a discovery violation under Federal Rules of Civil

Procedure Rule 37(b)(2). {See also Local Civil Rule 37(H), permitting sanctions against parties

that "fail or refuse to meet and confer in good faith in an effort to narrow the areas of

disagreement concerning discovery.") There are no facts in dispute in this case. There is no fact-

finding in which Defendants would "discover" that, e.g., 130,192/67,404 is a 93.2% difference,

or that they held a special election for the House of Delegates earlier this year. Plaintifftherefore

requests the following sanctions:

1. The facts in Appendix 1 are considered admitted by Defendants. See Fed. R. Civ. P.

Rule 37(b)(2)(A)(i).

2. Defendants will not be able to raise the defense of mootness in their Motion to

Dismiss. See Fed. R. Civ. P. Rule 37(b)(2)(A)(ii).

3. Defendants shall pay Plaintiffs cost in filing this Motion. See Fed. R. Civ. P. Rule

37(b)(2)(C). Plaintiffs cost for printing this Motion is$3^7^ . The

receipt for Plaintiffs costs is attached below.

Respectfully^b^itt^
Dated: June 27,2022 Plaintiff Jeffrey Thomas, Jr.
301 Virginia St. Unit 1514
Richmond, VA 23219

Certificate of Service

I hereby certify that on June 27,2022,1 caused to be served on counsel for Defendants, Steven
Popps, [email protected]. and Andrew Ferguson, [email protected]. this
 Case 3:22-cv-00427-DJN Document 22 Filed 06/27/22 Page 5 of 10 PageID# 124

Opposition.

/
u//
^ i/u
Dated: June 27,2022 Plaintiff Jef&ey Thomas, Jr.
301 Virginia St. Unit 1514
Richmond, VA 23219
(804)418-0252
[email protected]

Local Civil Rule 83.1 Pro Se Certification

I declare under penalty ofpeijury that:

1. No attorney has prepared or assisted in the preparation ofthis document.

Plaintiff Jef&ey Thomas, Jr.

Signed: (mI'L

Executed on: "3-^ , JooX (date)

Appendix 1; List offacts to which Defendants refused to stipulate or disprove

Case 3:22-cv-00427-DJN Document 22 Filed 06/27/22 Page 6 of 10 PageID# 125

1. This 130,192/67,404 ratio between largest and smallest 2021 House of Delegates district

populations represents a 93.2% disparity.

2. 130,192 residents in HD 87-2011 have the same representation in the House of Delegates

as the 67,404 residents in HD 75-2011.

3. HD 75-2011 is not a majority-minority district.

4. There are 94,095/67,404, or 39.6%, more residents in Plaintiff Thomas Jr.'s district than

in the least populous district, HD 75-2011.

5. Voters and residents in Plaintiff Thomas Jr.'s district, a majority-minority district, are

94,095/67,404, or 39.6% diluted or weakened compared to voters in HD 75-2011.

6. 39.6% is approximately four times larger than 10%.

7. No current Delegate resides in the current HD 29-2022.

8. Plaintiff Thomas intends to continue residing at her current address in 2022, 2023 and

2024.

9. Plaintiff Thomas intends to vote in the 2022,2023 and 2024 general elections.

10. Plaintiff Thomas is a pastor.

11. Plaintiff Thomas is the President ofthe Loudoun County NAACP.

12. There are 101,629/67,404, or 50.8%, more residents in Plaintiff Thomas's district than in

the least populous district, HD 75-2011.

13. Voters and residents in Plaintiff Thomas's district are 101,629/67,404, or 50.8% diluted

or weakened compared to voters in HD 75-2011.

14. 50.8% is more than five times larger than 10%.

15. Plaintiff Thompson intends to continue residing at his current address in 2022, 2023 and

2024.
Case 3:22-cv-00427-DJN Document 22 Filed 06/27/22 Page 7 of 10 PageID# 126

16. Plaintiff Thompson intends to vote in the 2022,2023 and 2024 general elections.

17. PlaintiffThompson is an attorney.

18. PlaintiffThompson is the former President ofthe Loudoun County NAACP.

19. There are 104,692/67,404, or 55.3%, more residents in Plaintiff Thompson's district than

in the least populous district, HD 75-2011.

20. Voters and residents in Plaintiff Thompson's district 104,692/67,404, or 55.3%, diluted

or weakened compared to voters in HD 75-2011.

21. 55.3% is more than five-and-a-halftimes larger than 10%.

22."Districts shall be so constituted as to give, as nearly as is practicable, representation in

proportion to the population ofthe district. A deviation ofno more than five percent shall

be permitted for state legislative districts." Va. Code Ann.§ 24.2-304.04(1).

23."Districts shall be drawn in accordance with the requirements ofthe Constitution ofthe

United States, including the Equal Protection Clause ofthe Fourteenth Amendment,and

the Constitution of Virginia; federal and state laws,including the federal Voting Rights

Act of 1965,as amended; and relevantjudicial decisions relating to racial and ethnic

faimess." Va. Code Ann. § 24.2-304.04(2).

24."No district shall be drawn that results in a denial or abridgement ofthe right of any

citizen to vote on account of race or color or membership in a language minority group.

No district shall be drawn that results in a denial or abridgement ofthe rights of any

racial or language minority group to participate in the political process and to elect

representatives oftheir choice." Va. Code Ann.§ 24.2-304.04(3).

25. Regardless ofthese new lines. Plaintiff and all Virginians continue to be represented

under old district lines and politicians elected within them.

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26. Plaintiff Thomas Jr. moved to intervene in the Goldman case on October 15, 2021

pursuant to the Court's October 12, 2021 Order directing that "by October 29, 2021, any

prospective intervenors who wish to intervene in this case must file a Motion to

Intervene"{Goldman v. Brink, EOF 41, par. 5).

27. Plaintiff Thomas Jr. correctly predicted in his Motion to Intervene {Goldman v. Brink,

ECF 45-3), "Given the five percent maximum deviation under Virginia Code, after any

redistricting. Plaintiff and voters and residents in his district will inevitably gain voting

and political representation power merely equal to that now held by the majority of other

Virginians.

28. Plaintiff Thomas Jr. correctly predicted in his Motion to Intervene {Goldman v. Brink,

ECF 45-3), "Wherever the lines are drawn in redistricting, the districts cannot possibly

include any districts as large as Plaintiffs current district without being subject to "prima

facie" constitutional scrutiny and violation of Va. Code Ann.§ 24.2-304.04(1)."

29. Plaintiff Thomas Jr. correctly predicted in his Motion to Intervene {Goldman v. Brink,

ECF 45-3), "After any possible redistricting, Plaintiff and the voters and residents in his

district will have their votes more fairly and equally counted and be more fairly and

equally represented in the General Assembly."

30. Plaintiff Thomas Jr. correctly predicted in his Motion to Intervene(Goldman v. Brink,

ECF 45-3),"One hundred equal House of Delegates districts would each contain 86,313

or 86,314 people." The "target population" for the Virginia Supreme Court's December

2021 redistricting was 86,314.

https://www.virginiaredistricting.Org/legdistricting/comments/plan/548/l
 Case 3:22-cv-00427-DJN Document 22 Filed 06/27/22 Page 9 of 10 PageID# 128

31."In light of Federal Rules of Civil Procedure Rule I's requirement for "the just, speedy,

and inexpensive determination ofevery action and proceeding" and the Court's March 21,

2022 Hearing and Order(ECF 69)," Plaintiff Thomas Jr. filed a "Notice of Intent to File

Separate Lawsuit and Request for Joinder" on March 24,2022.{Goldman v. Brink, ECF

71-1, p. 1).

32. Defendants "facilitate the state's elections, even ifthey do not draw the legislative district

maps or set elections themselves." Goldman v. Brink,ECF 40,p. 22).

33. Defendants "oversee the execution ofthe General Assembly's enactments." Ibid.

34. Defendants "maintain the special enforcement relationship with the electoral process."

Ibid.

35. Defendants "each serve as individual state officers, and not as an arm ofthe state." Ibid.

36. Defendants do not intend to hold House of Delegates general elections until November

2023 in the absence of Court intervention.

37. The most recent House of Delegates election was a special election to fill the seat in HD

89-2011 of retiring Delegate Jay Jones. "Special election to fill Jay Jones' 89^ District
seat set for Jan. 11," Virginian-Pilot, December 17, 2021.'^
38. Delegate Jones announced his retirement on December 16,2021. Ibid.

39. Speaker Filler-Corn issued a writ ofelection on December 17,2021. Ibid.

40. The writ ofelection was issued pursuant to Virginia Code § 24.2-683.

41. The candidate filing deadline for the special election was 5:00PM on December 22,2021.

Virginian-Pilot, December 17,2021.

42. The writ of election set the date ofthe special election as January 11,2022. Ibid.

^ httDs://www.Dilotonline.com/govemment/elections/vD-nw-SDecial-election-89-20211217-
dhi2ssoxvihapfzkdwvcv2vuki-storv.html.
Case 3:22-cv-00427-DJN Document 22 Filed 06/27/22 Page 10 of 10 PageID# 129

43. The most recent special election for the House of Delegates was conducted in less than

one month following a writ ofelection. Ibid.

44. According to a December 8,2020 announcement reposted on the Virginia Department of

Elections' official Twitter account,"Gov. Ralph Northam today issued a writ of election

declaring a special election in the 2"^* House of Delegates District for Jan. 5, 2021:[link].
The last day for candidates to file to appear on the ballot is December 14,2020."^
45. The Virginia Department of Elections announced and then conducted the 2021 special

election for the House of Delegates in less than one month.

46. The Virginia Department of Elections is able to announce and conduct a special election

for the House of Delegates in less than one month after a writ ofelection is issued.

47. According to the United States Department of Defense's Federal Voting Assistance

Program (FVAP), the last date in which statewide primary elections are scheduled this

year is September 13, 2022. Three states are scheduled to hold their 2022 primary

elections on September 13, 2022. One state is scheduled to hold its 2022 primary

elections on September 6, 2022. Sixteen other states are scheduled to hold their 2022

primary elections in August 2022.^

httDs://twitter.com/vaelect/status/l336419044673589249 . Accessed and screenshotted June 14,2022.

https://www.fVap.&ov/uploads/FVAPA^AO/PrimarvElectionsCalendar.pdf.