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1 No Immediate Relief from Expanded Absentee Voting Opportunities during an Infectious Pandemic because of Delay in Bringing the Case 1 (2021)

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CASE STUDIES IN EMERGENCY ELECTION LITIGATION


      No   Immediate Relief from Expanded Absentee
        Voting Opportunities During an Infectious
     Pandemic Because of Delay in Bringing the Case
              Curtin  v. Virginia State Board   of Elections
              (Rossie D. Alston, Jr., E.D. Va. 1:20-cv-546)
       Because of the COVID-19 global infectious pandemic, Virginia vot-
       ers were permitted to vote absentee on account of disability. A suit
       challenging broad absentee voting rights as diluting plaintiffs' vot-
       ing rights did not result in immediate relief, because the suit was
       brought about two months after the guidelines became public. After
       the preliminary injunction decision, plaintiffs voluntarily dismissed
       the case.
           Subject: Absentee and early voting. Topics: Absentee ballots;
       COVID-19;  laches; primary election; case assignment; recusal; early
       voting.
Six voters filed a federal complaint in the Eastern District of Virginia on May
13, 2020, challenging  Virginia's election officials' decision to regard the
health risks arising from  the global infectious COVID-19 pandemic as
providing voters with a disability justifying absentee voting in a June 23 pri-
mary  election (postponed because of the pandemic from June 9).1 With their
complaint, the voters filed a motion for a preliminary injunction to curtail
absentee voting,2 a motion to expedite consideration of the motion (propos-
ing a hearing on May 22 and resolution by the court on May 26),3 and a mo-
tion to consolidate consideration of the injunction motion with resolution of
the case.4 Two days later, the voters filed notice of a May 22 hearing.'
    A day after the case was filed, it was reassigned from Judge Leonie M.
Brinkema  to Judge T.S. Ellis III, and then to Judge Rossie D. Alston, Jr.6
    Four days before the noticed hearing date, Judge Alston ordered briefing
concluded by May  22 at 5:00 p.m. and notice to the court by 5:00 p.m. on the
day of Judge Alston's order whether the parties intended to proceed with a
hearing by teleconference or videoconference.' On May  21, Judge Alston set


   1. Complaint, Curtin v. Va. State Bd. of Elections, No. 1:20-cv-546 (E.D. Va. May 13,
2020), D.E. 1; Curtin v. Va. State Bd. of Elections, 463 F. Supp. 3d 653, 656-60 (E.D. Va.
2020); see Justin Mattingly & Andrew Cain, Virginia Officials Prepare for Surge in Mail-In
Voting After Municipal Elections, Richmond Times-Dispatch, May 24, 2020, at 2A.
   2. Preliminary Injunction Motion, Curtin, No. 1:20-cv-546 (E.D. Va. May 13, 2020),
D.E. 3.
   3. Motion to Expedite, id. (May 13, 2020), D.E. 5.
   4. Consolidation Motion, id. (May 13, 2020), D.E. 6.
   5. Notice, id. (May 15, 2020), D.E. 15.
   6. Docket Sheet, id. (May 13, 2020).
   Tim Reagan interviewed Judge Alston for this report by telephone on October 20, 2020.
   7. Order, Curtin, No. 1:20-cv-546 (E.D. Va. May 17, 2020), D.E. 17; see Curtin, 463 F.
Supp. 3d at 657.


Federal Judicial Center 1/23/2021


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