USCA4 Appeal: 24-1265 Doc: 31 Filed: 12/05/2024 Pg: 1 of 17
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 ofElections 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 ALVIS-LONG, 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 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-00408-JAG) USCA4 Appeal: 24-1265 Doc: 31 Filed: 12/05/2024 Pg: 2 of 17
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, 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.
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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 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
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representation in Congress after the Civil War. The Act begins by noting “the people of
Virginia have framed and adopted” a post-Civil 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 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.
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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).
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
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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 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).
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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 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. But
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. 7 USCA4 Appeal: 24-1265 Doc: 31 Filed: 12/05/2024 Pg: 8 of 17
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 just as it is important not to
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“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. In Williams v. Reeves, the Fifth Circuit confronted a similar challenge to a state
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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 case, the Court
held private plaintiffs could not use Ex parte Young to seek an injunction requiring Idaho
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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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 (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
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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 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
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(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 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, 24.2-417,
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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 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
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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 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.
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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). 17