Richmond Ballot Complaint

VIRGINIA:
IN THE CIRCUIT COURT OF RICHMOND CITY
Susan Swecker,
VERIFIED COMPLAINT FOR
Plaintiff-Petitioner, INJUNCTIVE RELIEF AND
PETITION FOR WRIT OF
v. MANDAMUS
J. Kirk Showalter, in her official capacity as
General Registrar for the City of Richmond, At Law No. _____________
Defendant-Respondent.
Plaintiff-Petitioner Susan Swecker (“Plaintiff”), by and through the undersigned attorneys,
brings this Verified Complaint for Injunctive Relief and Petition for Writ of Mandamus against
Defendant-Respondent J. Kirk Showalter, General Registrar for the City of Richmond (“General
Registrar” or “Defendant”), to compel Defendant’s compliance with the Virginia Freedom of
Information Act, Va. Code Ann. §§ 2.2-3700 et seq. Plaintiff alleges as follows:
INTRODUCTION
1. This lawsuit arises from the General Registrar’s failure to fully respond to a
straightforward public records request. On October 9, 2020, Plaintiff, a Virginia citizen and
Chairwoman of the Democratic Party of Virginia (“DPVA”), requested records from the General
Registrar related to absentee voters whose returned materials are identified as containing material
errors and omissions.
2. Plaintiff seeks these records so that she and the DPVA may notify and assist
eligible, registered Virginia voters in Richmond, including the DPVA’s members and constituents,
with curing any material errors and omissions in their ballots before the November 6, 2020 cure
deadline to ensure that these voters’ ballots are counted.

3. Under the Virginia Freedom of Information Act (“FOIA law” or the “Act”), Va.
Code Ann. §§ 2.2-3700 et seq., all public records “shall be presumed open” and, unless a
“narrowly construed” exception applies, all public records “shall be available” for inspection and
copying within five business days of the request. Va. Code Ann. §§ 2.2-3700(B), 2.2-3704(B),
(G).
4. Nevertheless, seventeen days after Plaintiff first made the request, the General
Registrar first denied that she had any responsive records, and then produced only limited
information, which she characterized as inaccurate; she has not yet provided a complete production
of the requested documents. And she has done so without any justifiable reason.
5. Indeed, though the General Registrar claims that these records do not exist, Virginia
law requires election officials to maintain a system for voters to track their absentee ballots’ status,
see Va. Code Ann. § 24.2-711.1, meaning that, by law the requested records must exist. And, in
fact, these same types of records have been maintained and produced to Plaintiff by registrars from
cities and counties throughout the Commonwealth.
6. Moreover, other individuals have seen the requested lists in the General Registrar’s
office and have confirmed their existence. And, most tellingly, at one point when pressed by
counsel for Plaintiff about the requested documents, the General Registrar backtracked, providing
a partial, incomplete response, and making it abundantly clear that her claims of not having the
requested information are not credible.
7. Accordingly, Plaintiff seeks a temporary injunction and writ of mandamus to
prevent irreparable harm to herself, DPVA and its members and constituents, and the Richmond
voters who have attempted to vote absentee in this election, but whose ballots will be rejected if
they are not cured. As required by Virginia’s FOIA law, the General Registrar must provide the
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requested documents to Plaintiff immediately, and timely judicial action is therefore necessary to
remedy this continued violation of the Act.
JURISDICTION AND VENUE
8. This Court has jurisdiction to grant injunctive and mandamus relief under Va. Code
Ann. § 2.2-3713, which permits “[a]ny person” denied the “rights and privileges conferred” by the
Act “to proceed to enforce such rights and privileges by filing a petition for mandamus or
injunction” in this Court.
9. Venue is appropriate under the Act because this is an action “involving a local
public body” and this Court is “the circuit court of the . . . city from which the public body has
been elected or appointed to serve and in which such rights and privileges were so denied.” Va.
Code Ann. § 2.2-3713(A)(1).
PARTIES
10. Plaintiff Susan Swecker is a resident of Monterey, Virginia and the Chairwoman of
the Democratic Party of Virginia, which is a political party as defined by Va. Code Ann. § 24.2-
101. As Chairwoman, Plaintiff leads DPVA’s mission to elect Democratic candidates in local,
county, state, and federal elections. Part of the programming she leads for DPVA involves
contacting voters whose absentee ballots have not been accepted due to deficiencies and assisting
them in correcting any deficiencies to ensure their vote is counted. In so doing, Plaintiff and DPVA
rely on timely and accurate public records identifying absentee voters, whether those voters’
ballots have been accepted, and, if not, the nature of the deficiency preventing their acceptance.
Without these lists the DPVA is not able to complete its mission and the DPVA, its members and
constituents, and Plaintiff in her role as Chairwoman are harmed.
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11. Defendant J. Kirk Showalter is the General Registrar for the City of Richmond.
One of the General Registrar’s responsibilities is to receive absentee ballots. See Va. Code Ann. §
24.2-709(A). The General Registrar also maintains an absentee voter applicant list and, upon
receiving an absentee ballot for a voter on the list, “mark[s] the date of receipt in the appropriate
column opposite the name and address of the voter” on this list. Va. Code Ann. § 24.2-710; see
also Va. Code Ann. § 24.2-709(A). Local election officials, moreover, must provide a system by
which voters can determine if their absentee ballots have been received and their ballots’ current
status, such as whether it has been accepted. Va. Code Ann. § 24.2-711.1. The General Registrar
is one such local election official, who the electoral board appoints. Va. Code Ann. § 24.2-109(A).
FACTUAL BACKGROUND
A. Virginia voters have a right to vote by mail.
12. Registered voters in Virginia are entitled to vote by “absentee ballot.” Va. Code
Ann. § 24.2-700. Printed ballots have been available since mid-September. General registrars have
been required to mail absentee ballot “materials” to each eligible voter after receiving an
application; such materials consist of (1) the ballot, (2) an envelope in which the ballot is placed
and on which the voter signs a declaration attesting to her identity and eligibility to vote (“Envelope
B”), and (3) an addressed return envelope in which the voters places the ballot and Envelope B, to
each eligible voter after receiving an application. Id. § 24.2-706(B). Voters can return these
materials to the general registrar by mail, through a “drop box,” or in person. Id.; see also S.B.
5120 § 1(B), 2020 Spec. Sess. I (Va. 2020).
13. An absentee ballot may contain material errors or omissions that will render the
ballot invalid. See generally Va. Admin. Code § 20-70-20(B). For example, a voter’s failure to
provide their last name, a signature on Envelope B, or their zip code are material omissions. Id.
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14. If the General Registrar rejects a ballot for these reasons, the General Registrar must
attempt to notify the voter via phone, email, or in writing within three days of rejecting the ballot
and inform the voter that they may “cure” that deficiency. S.B. 5120 § I(A)(2), 2020 Spec. Sess. I
(Va. 2020). If the voter “make[s] such necessary corrections before noon on the third day after the
election,”—this year, November 6—the voter’s ballot will count. Id. Otherwise, the voter is
disenfranchised.
15. DPVA’s workers and volunteers are also working to notify voters via phone, text,
or email that their absentee ballots contain material errors or omissions. They assist these voters
in timely curing these deficiencies to prevent them from being disenfranchised. In so doing,
DPVA’s workers and volunteers rely on publicly available information indicating which voters’
absentee ballots have material errors and omissions so they know who to contact and help.
B. Plaintiff properly requested records to assist voters in curing defective ballots to

ensure their votes are counted.
16. On October 9, 2020, Plaintiff, in her role as Chairwoman of the Democratic Party
of Virginia sent a request under the Virginia’s FOIA law to the General Registrar seeking:
Any documents, records, or lists of absentee voters who have returned absentee
vote-by-mail material (e.g., Envelope B and Return Letters) found to be invalid due
to material errors or omissions. Please provide the name of the absentee voter, their
9 Digit Voter Identification Number (State Voter File ID Number), as well as the
nature of the material error or omission associated with that voter. Other identifying
information on the list (e.g., voter address, date of birth, social security number, or
other information) can be redacted or omitted.
Ex. 1.A.
17. In her request, Plaintiff offered to reimburse the General Registrar for up to $500
in costs associated with the request. Plaintiff also requested that, if necessary, the General Registrar
produce the records on a rolling basis as they are located.
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18. On October 16—the fifth working day after Plaintiff sent the request and statutory
deadline for a response—the General Registrar responded stating that her office has “no documents
which meet this request.” Ex. 1.B.
19. Nevertheless, having been informed by reliable sources, including the Chairman of
the City of Richmond’s Electoral Board, James Nachman, that the records exist, on October 21,
counsel for DPVA sent the General Registrar additional correspondence seeking the documents
included in the October 5th request. Ex. 1.C.
20. Despite having first represented that the requested documents did not exist, the
General Registrar responded to this second request with a list of 26 voters whose absentee ballots
contained deficiencies. Ex. 1.D. The list identified a “date recd” for many of these voters; none of
these dates, however, were later than October 9, even though the General Registrar had stated on
October 16 that no such list existed and she produced this list on October 21.
21. The General Registrar explained that on October 16, “the only log [of deficient
absentee ballots] of which I knew at the time was unpopulated.” Id. Since then, however, the
General Registrar purportedly learned that “a staff member was starting to maintain this same log
elsewhere” and sent a screenshot of the newly discovered log. Id. The General Registrar cautioned
that the 26 names on the staff member’s log “are not current and do not reflect in any way the
activity that we have had with the few deficient ballots that we are monitoring.” Id.
22. The General Registrar also explained that her office reviews incoming absentee
ballots for deficiencies and “quickly” follows up with the voters “by the quickest means of
communication that we have available to us with them.” Id.
23. During that timeframe—October 9 to October 21—twelve days of early voting
passed, and it is extremely unlikely that every single absentee ballot received did not have a
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material error or omission. Indeed, in comparable localities such as the City of Norfolk, which has
a population of approximately 242,000 versus approximately 230,000 in the City of Richmond,
133 absentee ballots currently need to be cured. This number excludes ballots that have already
been cured.
24. If Plaintiff and, as a consequence, the DPVA do not receive the records before
November 6, 2020, they will be unable to help hundreds of eligible Virginia voters and DPVA will
be unable to carry out its organizational mission of helping thousands of eligible Virginia voters—
including its own members and constituents—cure their ballots so that their votes count. The ballot
data will lose almost all practical value if not obtained with enough time to contact eligible Virginia
voters.
25. Moreover, hundreds of eligible, registered voters will be disenfranchised because
their ballots will not be cured.
COUNT ONE
VIOLATION OF THE VIRGINIA FREEDOM OF INFORMATION ACT

Va. Code Ann. §§ 2.2-3700 et seq.
26. Plaintiff incorporates by reference each of the allegations contained in the foregoing
paragraphs of this Verified Complaint as though set forth fully herein.
27. Virginia’s FOIA law “ensures the people of the Commonwealth ready access to
public records in the custody of a public body or its officers and employees.” Va. Code Ann. § 2.2-
3700(B). Absent an exemption, all public records “shall be available for inspection and copying
upon request.” Id. (emphasis added). “All public records . . . shall be presumed open.” Id.
28. The Act requires that public records on electronic data processing systems,
computer databases, or other electronic sources “shall be made available to a requester at a
reasonable cost.” Va. Code Ann. § 2.2-3704(G); see also id. (“Public bodies shall produce
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nonexempt records maintained in an electronic database in any tangible medium identified by the
requester.”).
29. It also requires custodians of public records to “take all necessary precautions” for
the “preservation and safekeeping” of these records. Va. Code Ann. § 2.2-3704(A).
30. A public body’s response to a request under the Act must either provide the
requested records or state one of the following: (1) the requested records are being withheld and
why; (2) the requested records are being withheld in part and why; (3) the requested records “could
not be found or do not exist” and provide the contact information of any public body that it knows
has the requested information; or (4) “[i]t is not practically possible to provide the requested
records or determine whether they are available within the five-work-day period.” Va. Code Ann.
§ 2.2-3704(B).
31. When “any person” is “denied the rights and privileges” of the Act, that person can
seek to enforce those rights and privileges in the general district court or circuit court where the
public body has been elected or appointed to serve and where the rights and privileges were denied.
Va. Code Ann. § 2.2-3712(A).
32. A single instance of denial of the rights and privileges conferred by the Act shall
be sufficient to invoke the remedies provided in the Act. Va. Code Ann. § 2.2-3713(D).
33. Here, the General Registrar has failed to provide the requested public records in
full. Instead, on the last possible day to respond to Ms. Swecker’s request, the General Registrar
claimed to have no responsive records. After being subsequently pressed by counsel, the General
Registrar provided a screenshot of an incomplete record containing information regarding 26 vote-
by-mail ballots that were determined to contain material errors or omissions. The General Registrar
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admitted the screenshot was “not current” and did not “in any way” reflect her office’s efforts in
reaching voters with deficient absentee ballots.
34. On information and belief, and according to the Chairman of the City of
Richmond’s Electoral Board, the number of vote-by-mail ballots that the General Registrar has
determined to contain a material error or omission is far greater than 26.
35. Likewise, the General Registrar has admitted that her office “quickly” follows up
with such voters “by the quickest means of communication that we have available to us with them.”
Ex. 1.D.
36. And Virginia law requires that election officials must provide a system by which
voters can determine if their absentee ballots have been received and their ballots’ current status,
such as whether it has been accepted. Va. Code Ann. § 24.2-711.1.
37. As a result, there must be complete records in the General Registrar’s possession
that are responsive to Plaintiff’s request, but the General Registrar is refusing to provide to
Plaintiff.
38. In short, the General Registrar has violated the Virginia Freedom of Information
Act.
PRAYER FOR RELIEF
WHEREFORE, Plaintiff respectfully requests that the Court issue the following relief:
a. An order ordering the General Registrar to provide to Plaintiff all documents in her
possession containing information relating to absentee ballots deemed to contain
material errors or omissions and/or the comprehensive log of ballots that her office has
determined to contain material errors or omissions on or before October 28, 2020;
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b. Issuance of a writ of mandamus ordering the General Registrar to, in compliance with
the Act, Va. Code Ann. § 2.2-3700 et seq., provide responsive records to Plaintiff on
or before October 28, 2020.
c. An order ordering the General Registrar to provide Plaintiff with all reasonable costs,
including attorney fees, as detailed in Va. Code Ann. § 2.2-3713(D);
d. Any such further relief as this Court deems just and necessary.
PETITION FOR WRIT OF MANDAMUS
In addition, Plaintiff, by and through the undersigned attorneys, and pursuant to Va. Code
Ann. §§ 2.2-3713, 17.1-513, hereby petitions this Court for the issuance of a writ of mandamus
directed to the General Registrar, and in support thereof states:
39. Plaintiff incorporates by reference each of the allegations contained in the foregoing
paragraphs of this Verified Complaint as though set fully herein.
40. Plaintiff has a clear right to the relief it seeks. The General Registrar has a clear
legal duty to provide public records requested under the Act. See, e.g., Va. Code Ann. § 2.2-3700
(“[A]ll public records shall be available for inspection and copying upon request. All public
records . . . shall be presumed open.”); see also Va. Code Ann. § 2.2-3704 (“Public records
maintained by a public body in an electronic data processing system, computer database, or any
other structured collection of data shall be made available to a requester at a reasonable cost.”).
41. Plaintiff has no adequate remedy at law. And, in any event, Plaintiff need not
demonstrate the absence of an adequate remedy at law to obtain mandamus relief under the Act.
Catwright v. Commonwealth Transp. Comm’r of Va., 270 Va. 58, 66-67 (2005).
PRAYER FOR RELIEF
WHEREFORE, Plaintiff respectfully requests that this Court hear this action pursuant to
Va. Code Ann. §§ § 2.2-3713, 17.1-513 and grant a writ of mandamus ordering the General
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Registrar to, in compliance with the Act, Va. Code Ann. § 2.2-3700 et seq., provide responsive
records to Plaintiff on or before October 28, 2020.
Dated this 26th day of October, 2020
Respectfully submitted,
/s/ Amanda R. Callais

Amanda R. Callais (VA Bar No. 85891)
Aria Branch (VA Bar No. 83682)
PERKINS COIE LLP
700 Thirteenth St., N.W., Suite 800
Washington, D.C. 20005-3960
Telephone: (202) 654-6200
Facsimile: (202) 654-9959
[email protected]
[email protected]
Jeffrey A. Breit (VA Bar No. 18876)

Justin M. Sheldon (VA Bar No. 82632)
Breit Cantor Grana Buckner, PLLC
Towne Pavilion Center II
600 22nd Street, Suite 402
Virginia Beach, VA 23451
[email protected]
[email protected]
Counsel for the Plaintiff-Petitioner
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Exhibit 1
VIRGINIA:
IN THE CIRCUIT COURT OF RICHMOND CITY
Susan Swecker,
AFFIDAVIT OF SUSAN SWECKER
Plaintiff-Petitioner, IN SUPPORT OF INJUNCTIVE
RELIEF AND PETITION FOR WRIT
v. OF MANDAMUS
J. Kirk Showalter, in her official capacity as
General Registrar for the City of Richmond, At Law No. _____________
Defendant-Respondent.
I, Susan Swecker, have personal knowledge of the facts contained in this affidavit and
declare as follows:
1. I am a citizen of Virginia and the Chairwoman of the Democratic Party of Virginia.
Through my role as Chairwoman, I have personal knowledge of the Democratic Party of Virginia’s
efforts to ensure voters’ ballots are counted in the November 2020 election and related efforts by
the Democratic Party of Virginia to obtain public election records.
2. I and the Democratic Party of Virginia are dedicated to electing candidates of the
Democratic Party to public office throughout the Commonwealth of Virginia, including to the
offices of the President of the United States and the United States Senate. To advance its mission,
the Democratic Party of Virginia is also dedicated to ensuring that all ballots cast for Democratic
Party candidates are counted. I help advance that mission as a citizen and as the Chairwoman of
the Democratic Party of Virginia.
3. As part of its strategy to ensure all Virginia votes are counted, and as a service to
its members and constituents to ensure that they are fully enfranchised, the Democratic Party of
Virginia, under my direction, contacts absentee voters whose returned absentee materials have
been identified by general registrars as containing material errors or omissions. We inform such
voters of that finding and provide them with information about how to cure their materials to make
sure their votes are counted.
4. Specifically, volunteers for the Democratic Party of Virginia call voters, clearly
identify themselves, ask if the voter has already been made aware of the need to cure a deficiency,
and then provide information on steps the voter can take to cure the deficiency. Volunteers work
carefully to provide accurate information to voters about how they can cure their ballots.
5. The only way the Democratic Party of Virginia can reach out to such voters whose
returned materials have been identified by general registrars as containing material errors or
omissions is by obtaining timely and accurate public records identifying absentee voters who have
returned absentee vote-by-mail material (e.g., Envelope B and Return Letters) that are determined
to be invalid due to material errors or omissions, and the nature of the material error or omission
associated with each voter.
6. To that end, I sent a request for public information to the General Registrar for the
City of Richmond on October 9, 2020. A true and accurate copy of that request is attached as
Exhibit 1.A. As Exhibit 1.A shows, I requested the following public information on a rolling basis
and offered to reimburse the General Registrar for up to $500 in costs associated with providing
it:
vote-by-mail material (e.g., Envelope B and Return Letters) found to be invalid due
to material errors or omissions. Please provide the name of the absentee vote, their
9 Digit Voter Identification Number (State Voter File ID Number), as well as the
nature of the material error or omission associated with that voter. Other identifying
information on the list (e.g., voter address, date of birth, social security number, or
other information) can be redacted or omitted.
7. I provided the General Registrar with this public records request on October 9,
2020, to give the General Registrar sufficient notice and to ensure that I, and the Democratic Party
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of Virginia, would receive the requested information with sufficient time to both inform voters
that they need to cure their ballots (particularly those who may need to cure their ballots on a short
timeline), and to reduce any potential production burden on the General Registrar by giving them
ample time to respond.
8. On October 16, 2020, the General Registrar responded to me via email. A true and
correct copy of that email is attached as Exhibit 1.B. As shown in Exhibit 1.B, The General
Registrar stated that her office has “no documents which meet this request.”
9. As part of my duties and responsibilities as Chairwoman of the Democratic Party of
Virginia, I am aware of likely voter turnout patterns, processes for accepting and counting absentee
ballots, and other issues that may help ensure all Virginia votes are counted. Given my position
and prior work, I am generally familiar with the usual processes used to accept and process
absentee ballots. As a citizen and as the Chairwoman of the Democratic Party of Virginia, I have
come to understand, including by reports from the Chairman of the City of Richmond’s Electoral
Board, James Nachman, that during this election the General Registrar is maintaining a cure log,
which is a list of absentee voters who have returned absentee vote-by-mail material found to be
invalid due to material errors or omissions. This practice is consistent with the Virginia Department
of Elections’ official guidance, which instructs general registrars to keep a cure log.
10. Moreover, according to the publicly available information, around 7,000 absentee
votes were cast in the City of Richmond during the 2016 general election.1 Analyses by the
nonprofit Virginia Public Access Project estimate that over 14,000 mail-in ballots have already
been cast this year for the City of Richmond (as of October 24, 2020).2 Given my understanding
1
See https://apps.elections.virginia.gov/SBE_CSV/ELECTIONS/ELECTIONTURNOUT/ (Turnout-2016
November General.csv at H2127); see also https://www.vpap.org/elections/early-voting/richmond-city-va/.
2
https://www.vpap.org/elections/early-voting/richmond-city-va/ (last visited October 25, 2020).
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of expected turnout in this year’s general election, especially from voters mailing in ballots, and
my understanding that the General Registrar maintains a cure log, I decided to follow up on the
General Registrar’s representation that she had no documents meeting my request for information.
11. Therefore, on the morning of October 21, 2020, Jonathan S. Berkon, a lawyer
writing on my behalf as the Chairwoman of the Democratic Party of Virginia and on behalf of the
Democratic Party of Virginia, sent the General Registrar a letter following up on my request for
information. Attached as Exhibit 1.C is a true and accurate copy of the letter Mr. Berkon sent to
the General Registrar. Later that day, on October 21, 2020, the General Registrar responded in an
email. Attached as Exhibit 1.D is a true and accurate copy of The General Registrar’s October 21,
2020 email.
12. As shown in Exhibit 1.D, the General Registrar responded with a screenshot of a
cure log of 26 voters whose absentee ballots were determined by the General Registrar to contain
deficiencies. The General Registrar wrote: “Please be advised that these contents are not current
and do not reflect in any way the activity that we have had with the few deficient ballots that we
are monitoring.” The General Registrar explained that when she responded to me on October 16,
“the only log [of deficient absentee ballots] of which I knew at the time was unpopulated.” The
General Registrar further claimed that she did not include this screenshot in her October 16
response because “it ha[d] since come to [her] attention that a staff member was starting to
maintain this same log elsewhere.”
13. Given the General Registrar’s original mistaken response to my request, the
General Registrar’s statement that the cure log of 26 voters she sent via email was “not current,”
my understanding of voter turnout and mail-in voting in this year’s general election, and in light
of knowledge I have obtained as part of my responsibilities as Chairwoman of the Democratic
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Party of Virginia—including an eyewitness account by Richmond Electoral Board Chair Nachman
that a list does, in fact, exist and contains more than 100 voters—it is highly likely that the General
Registrar has identified more than 26 voters who have returned absentee vote-by-mail material
found to be invalid due to material errors or omissions.
14. Data we have received from other cities further supports the high likelihood that
the General Registrar has invalidated far more than 26 absentee ballots. For example, the City of
Norfolk—which has roughly the same population as the City of Richmond—reports having 133
ballots currently flagged as defective and in need of curing, which does not even include ballot
that have already been cured.3 It is highly unlikely that the City of Norfolk has flagged more than
133 ballots as defective, yet during the same period the City of Richmond has flagged just 26
ballots as defective.
15. Likewise, it is highly unlikely that, given the number of voters who are voting by
absentee ballot this year, coupled with the General Registrars responsibilities under the recently
enacted S.B. 5120 which requires election officials to track absentee ballots and notify voters when
their ballots are rejected, that the General Registrar (or her office) is not keeping a cure log, or
some other equivalent record, reflecting that information. Indeed, it is precisely because her office
is maintaining such a list that she provided me with the list of 26 voters referenced above.
16. Obtaining immediate access to the information I requested on October 9, 2020, is
critical to my efforts, and to the Democratic Party of Virginia’s efforts, to help ensure that all
Virginia votes are counted, and that the Democratic Party of Virginia’s members and constituents
are fully enfranchised.
3
As of July 2019, the U.S. Census Bureau estimated that the City of Richmond had a population of 230,436, and
that the City of Norfolk had a population of 242,742.
https://www.census.gov/quickfacts/fact/table/richmondcityvirginia,norfolkcityvirginia/PST045219.
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17. The deadline for correcting ballots is noon on the third day after the election,
November 6, 2020. Voters who do not cure by this date are disenfranchised.
18. Aside from normal logistical issues, given the expected voter turnout, especially
by voters who decide to mail their ballots in to be counted, there is no guarantee that a voter will
actually receive notice from the General Registrar regarding the rejection of his or her ballot before
that deadline. Likewise, in my experience as someone who has worked directly with voters for
years through my work with the Democratic Party of Virginia, many voters often need multiple
contact attempts before they can be informed that their ballots require follow-up action to be
counted.
19. Immediate access to the up-to-date and accurate information that I requested is
necessary so that absentee voters can be contacted and informed that the General Registrar has
found a material error or omission with their returned materials, and provided with information
about how to timely cure their materials to make sure their votes are counted.
I declare under penalty of perjury that the foregoing is true and correct.
EXECUTED this 26th day of October, 2020.
___________________________
Susan Swecker
Sworn to before me this ___ day of _______________, 2020.
See attached Notarize.com certificate

_____________________ Notarized online using audio-video communication
Notary Public
My Commission Expires:
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JURAT
State/Commonwealth of_____________________
FLORIDA )
)
City County of ______________________
Leon )
On __________________,
10/26/2020 before me, _________________________________________
Daniel Lee ,
Date Notary Name
the foregoing instrument was subscribed and sworn (or affirmed) before me by:
________________________________________________________________________.
Susan Swecker
Name of Affiant(s)
 Personally known to me -- OR --
 Proved to me on the basis of the oath of _____________________________ -- OR --

Name of Credible Witness
 Proved to me on the basis of satisfactory evidence: ________________________________
driver_license
Type of ID Presented
WITNESS my hand and official seal.
Notary Public Signature: _________________________
Notary Name:__________________________________
Daniel Lee Electronic Notary Public
Notary Commission Number:______________________
GG 125667
Notary Commission Expires:______________________
07/18/2021
Notarized online using audio-video communication
DESCRIPTION OF ATTACHED DOCUMENT
Title or Type of Document: ____________________________________________________

Affidavit
Document Date: ________________________________

10/26/2020
Number of Pages (including notarial certificate): _____________

7
Exhibit 1.A
10/25/2020 Democratic Party of Virginia Mail - Request Under VA Freedom of Information Act
Brenner Tobe <[email protected]>
Request Under VA Freedom of Information Act

Chairwoman Swecker <[email protected]> Fri, Oct 9, 2020 at 9:00 AM
To: [email protected]
Dear Richmond City Registrar,
This email transmits a request under the Virginia Freedom of Information Act, Va. Code Ann. §2.2-3704 et seq., for electronic copies of any documents prepared
by your registrar office, listing absentee voters whose ballots you have determined to be invalid because of material errors or omissions on their submitted ballot
materials (e.g., Envelope B). The formal request is provided as a letter attachment to this email. This request is only for the names and 9 digit Voter Identification
Number of such voters and the nature of the corresponding material error or omission; all other identifying information may be redacted. Based on our
conversations with the Virginia Department of Elections, this requested information constitutes a public record that does not fall within any of the exceptions to
disclosure. We request the return of this information within five business days of the date of this email.
We are submitting this request after conversations with the Virginia Department of Elections. However, it is our hope that we can work with your office to find a
streamlined way to collect this information on a weekly basis, in lieu of submitting weekly requests under the Virginia Freedom of Information Act. We are available
to discuss this request in further detail at your earliest convenience.
Susan Swecker
Chair, Democratic Party of Virginia
Registrar email 10_8.pdf

98K
https://mail.google.com/mail/u/1?ik=b8cb9258f7&view=pt&search=all&permmsgid=msg-a%3Ar-5827650843764079376&simpl=msg-a%3Ar-5827650843764079376&mb=1 1/1
October 8, 2020
Dear Registrar:
I write pursuant to the Virginia Freedom of Information Act (the “Statute”), Va. Code
Ann. § 2.2-3704 et seq., to request public records in the possession, custody, or control of your
office, as detailed below:
vote-by-mail material (e.g., Envelope B and Return Letters) found to be invalid due to
material errors or omissions.1 Please provide the name of the absentee voter, their 9 Digit
Voter Identification Number (State Voter File ID Number) , as well as the nature of the
material error or omission associated with that voter. Other identifying information on
the list (e.g., voter address, date of birth, social security number, or other information)
can be redacted or omitted.
As required by the Statute, I certify that I am a citizen of Virginia, and reside at

. See Va. Code Ann. § 2.2-3704(A).
Also as required by the Statute, I am prepared to reimburse any costs associated with this
FOIA request, as outlined by the Statute, up to and including $500.00. See Va. Code Ann. §
2.2-3704(G). Should the cost exceed that amount, I ask that you provide an estimate in advance.
Id. See id. (“Public bodies shall produce nonexempt records maintained in an electronic database
in any tangible medium identified by the requester, including, . . . delivering the records through
an electronic mail address provided by the requester, if that medium is used by the public body in
the regular course of business.”). Alternatively, I request that the records be provided
electronically in a text-searchable, static-image format (PDF), in the best image quality in your
possession, and that the records be provided in separate, Bates-stamped files.
As you know, the Statute requires a response to this request be made within five business
days. See Va. Code Ann. § 2.2-3704(B). If access to the requested records will take longer than
five days, please contact me with information about when I might expect copies or the ability to
inspect the requested records. To the extent documents responsive to this request require longer
than five days to locate and produce, we request that you make rolling productions of responsive
documents as they are located. If, for any reason, you deny this request or withhold certain
information, I ask that you (i) provide a list of the denied or withheld materials and (ii) justify
1
Material errors or omissions are set forth in § 24.2-707 of the Code of Virginia and in
1VAC20-70-20 of the Administrative Code of Virginia. On September 4, 2020, the General
Assembly passed and the Governor signed into law additional code sections to clarify that the
lack of a witness signature is not a material omission. See Chapter 1289 of the Acts of Assembly
of 2020 [S. 5120].
919 East Main Street, Suite 2050, Richmond, VA 23219 • 804-644-1966 • vademocrats.org
PAID FOR BY THE DEMOCRATIC PARTY OF VIRGINIA
these deletions and/or withholdings by referencing a specific Code section; and (iii) produce any
reasonably segregable portions of the documents which are not exempt. See Va. Code Ann.
§ 2.2-3704(B); § 2.2-3704.01. I reserve the right to appeal a decision to withhold any
information.
Please do not hesitate to contact me if there is any additional information I can provide to
facilitate processing this request. Thank you for your prompt attention to this matter.
Very truly yours,
Susan Swecker
Chairwoman, Democratic Party of Virginia
919 East Main Street, Suite 2050, Richmond, VA 23219 • 804-644-1966 • vademocrats.org
PAID FOR BY THE DEMOCRATIC PARTY OF VIRGINIA
Exhibit 1.B
10/26/2020 Democratic Party of Virginia Mail - RE: Request Under VA Freedom of Information Act
Brenner Tobe <[email protected]>
RE: Request Under VA Freedom of Information Act

Showalter, Kirk - General Registrar <[email protected]> Fri, Oct 16, 2020 at 11:15 AM
To: Chairwoman Swecker <[email protected]>
Dear Ms. Swecker:
My apologies for not replying to your request sooner.
We have no documents which meet this request.
J. Kirk Showalter
General Registrar
City of Richmond
(804) 646-5950
CERA, VREO
“Thou canst not stir a flower without troubling of a star” Francis Thompson, 1897
From: Chairwoman Swecker [mailto:[email protected]]

Sent: Friday, October 9, 2020 9:00 AM
To: Voter Registra on <[email protected]>
Subject: Request Under VA Freedom of Informa on Act
https://mail.google.com/mail/u/1?ik=b8cb9258f7&view=pt&search=all&permmsgid=msg-f%3A1680721957440687692&simpl=msg-f%3A1680721957440687692&mb=1 1/2
10/26/2020 Democratic Party of Virginia Mail - RE: Request Under VA Freedom of Information Act
CAUTION: This message is from an external sender - Do not open attachments or click links unless you recognize the sender's address and know the content is
safe.
Dear Richmond City Registrar,
This email transmits a request under the Virginia Freedom of Information Act, Va. Code Ann. §2.2-3704 et seq., for electronic copies of any documents prepared
by your registrar office, listing absentee voters whose ballots you have determined to be invalid because of material errors or omissions on their submitted ballot
materials (e.g., Envelope B). The formal request is provided as a letter attachment to this email. This request is only for the names and 9 digit Voter Identification
Number of such voters and the nature of the corresponding material error or omission; all other identifying information may be redacted. Based on our
conversations with the Virginia Department of Elections, this requested information constitutes a public record that does not fall within any of the exceptions to
disclosure. We request the return of this information within five business days of the date of this email.
We are submitting this request after conversations with the Virginia Department of Elections. However, it is our hope that we can work with your office to find a
streamlined way to collect this information on a weekly basis, in lieu of submitting weekly requests under the Virginia Freedom of Information Act. We are available
to discuss this request in further detail at your earliest convenience.
Susan Swecker
Chair, Democratic Party of Virginia
https://mail.google.com/mail/u/1?ik=b8cb9258f7&view=pt&search=all&permmsgid=msg-f%3A1680721957440687692&simpl=msg-f%3A1680721957440687692&mb=1 2/2
Exhibit 1.C
From: Berkon, Jonathan (WDC)
To: [email protected]; [email protected]; [email protected]
Cc: [email protected]; [email protected]; [email protected];
[email protected]; [email protected]
Subject: Open Records Request: List of Deficient Mail Ballots
Date: Wednesday, October 21, 2020 10:32:00 AM
Attachments: 2020.10.21 Showalter Follow-Up Public Records Request (Final).pdf
Importance: High
Please see attached. We need these records immediately. Otherwise, voters will be disenfranchised.
Please let us know no later than 5 pm today.

Jonathan Berkon | Perkins Coie LLP
PARTNER
700 Thirteenth Street, N.W. Suite 800
Washington, DC 20005-3960
D. +1.202.434.1669
F. +1.202.654.9684
E. [email protected]

Visit our Covid-19 resource page: www.perkinscoie.com/coronavirus

October 21, 2020 Jonathan S. Berkon
[email protected]
D. +1.202.434.1669
F. +1.202.654.9684
VIA E-MAIL
J. Kirk Showalter
Office of the General Registrar
City of Richmond
2134 West Laburnum Avenue
Richmond, Virginia 23227
Re: Follow-Up Public Records Request Pursuant to Va. Code Ann. § 2.2-3704
Our firm is counsel to the Democratic Party of Virginia. We are writing regarding the public
records request that you received from Susan Swecker, Chairwoman of the Democratic Party of
Virginia, dated October 8, 2020 that included a request for records pursuant to the Virginia
Freedom of Information Act. To date, we have not received a response to our request. Further,
representatives from your office have informed callers seeking to obtain information about
opportunities to cure ballot deficiencies that your office is too busy to provide that information.
Your office cannot continue to abdicate its obligation to provide the public records requested.
Virginia law requires your office to respond within five business days of receiving a records
request, 1 which your office has failed to do. As such, we request that you send the information
requested in the previous records request by Wednesday, October 21, 2020 at 5:00 PM. If we do
not receive a response from you by that time, we will consider all available legal options to
obtain the records to which we are entitled by law.
As included in the letter dated October 8, 2020, we request that you provide any documents,
records, or lists of absentee voters who have returned absentee vote-by-mail material (e.g.,
Envelope B and Return Letters) found to be invalid due to material errors or omissions. 2 Please
provide the name of the absentee voter, their 9 Digit Voter Identification Number (State Voter
File ID Number), as well as the nature of the material error or omission associated with that
voter. Other identifying information on the list (e.g., voter address, date of birth, Social Security
number, or other information) can be redacted or omitted.
1
See Va. Code Ann. § 2.2-3704(B).
2
Material errors or omissions are set forth in Va. Code Ann. § 24.2-707 and in 1 Va. Admin. Code § 20-70-20. On
September 4, 2020, the General Assembly passed and the Governor signed into law additional code sections to
clarify that the lack of a witness signature is not a material omission. See Chapter 1289 of the Acts of Assembly
of 2020 [S. 5120].
J. Kirk Showalter
October 21, 2020
Page 2
If the requested records will not be accessible by Wednesday, October 21, 2020, please contact
me immediately with the earliest date by which we can expect copies or the ability to inspect the
records. Please make rolling productions of responsive documents as they are located.
As previously requested, if, for any reason, you deny this request or withhold certain
information, you must (i) provide a list of the denied or withheld materials and (ii) justify these
deletions and/or withholdings by referencing a specific Code section; and (iii) produce any
reasonably segregable portions of the documents which are not exempt. 3 We reserve the right to
appeal a decision to withhold any information.
If you have any further questions or would like to discuss this, please contact us at (202) 434-
1669.
Yours very truly,
Jonathan S. Berkon
Danna Seligman
Counsel to the Democratic Party of Virginia
3
See Va. Code Ann. §§ 2.2-3704(B), 2.2-3704.01.
Exhibit 1.D
From: Showalter, Kirk - General Registrar
To: Berkon, Jonathan (WDC); Voter Registration; [email protected]; [email protected]
Cc: [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; Jim Nachman; Cherllyn Stevens; Joyce Smith
([email protected])
Subject: RE: Open Records Request: List of Deficient Mail Ballots
Date: Wednesday, October 21, 2020 5:05:24 PM
Attachments: image001.png
image002.png
image003.png
Dear Mr. Berkon:

Please be advised that I responded to Ms. Swecker’s email on Friday, October 16 at 11:16 AM. See screenshot below.

My reply was based on the fact that the only log of which I knew at the time was unpopulated. See the screenshot below.

However, it has since come to my attention that a staff member was starting to maintain this same log elsewhere. Below is a screenshot of the existing contents. Please be advised that these
contents are not current and do not reflect in any way the activity that we have had with the few deficient ballots that we are monitoring. We daily review incoming ballots for deficiencies and
quickly reach out the the voters by the quickest means of communication that we have available to us with them. As such, our process would in no way disenfranchise any voter.

J. Kirk Showalter
General Registrar
City of Richmond
(804) 646-5950
CERA, VREO


From: Berkon, Jonathan (Perkins Coie) [mailto:[email protected]]
Sent: Wednesday, October 21, 2020 10:32 AM
To: Voter Registration <[email protected]>; [email protected]; [email protected]
Cc: [email protected]; [email protected]; [email protected]; [email protected]; [email protected]
Importance: High

CAUTION: This message is from an external sender - Do not open attachments or click links unless you recognize the sender's address and know the content is safe.

Please see attached. We need these records immediately. Otherwise, voters will be disenfranchised. Please let us know no later than 5 pm today.

PARTNER
D. +1.202.434.1669
F. +1.202.654.9684


NOTICE: This communication may contain privileged or other confidential information. If you have received it in error, please advise the sender by reply email and immediately delete the message and any attachments without copying or disclosing the contents. Thank you.
Exhibit 1.E
From: Berkon, Jonathan (WDC)
To: Showalter, Kirk - General Registrar; Voter Registration; [email protected]; [email protected]
([email protected])
image002.png
image003.png
Thank you. I understand that Chair Nachman – who is copied – has assured my client that there are responsive records. Please clarify.

PARTNER
D. +1.202.434.1669
F. +1.202.654.9684


From: Showalter, Kirk - General Registrar <[email protected]>
Sent: Wednesday, October 21, 2020 5:05 PM
To: Berkon, Jonathan (WDC) <[email protected]>; Voter Registration <[email protected]>; [email protected]; [email protected]
Cc: [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; Jim
Nachman <[email protected]>; Cherllyn Stevens <[email protected]>; Joyce Smith ([email protected]) <[email protected]>

Dear Mr. Berkon:




J. Kirk Showalter
General Registrar
City of Richmond
(804) 646-5950
CERA, VREO


Importance: High



PARTNER
D. +1.202.434.1669
F. +1.202.654.9684


NOTICE: This communication may contain privileged or other confidential information. If you have received it in error, please advise the sender by reply email and immediately delete the message and any attachments without copying or disclosing the contents. Thank
you.
Exhibit 1.F
From: Showalter, Kirk - General Registrar
To: Berkon, Jonathan (WDC); Voter Registration; [email protected]; [email protected]
([email protected])
image002.png
image003.png
What we have is attached below by screenshot.

J. Kirk Showalter
General Registrar
City of Richmond
(804) 646-5950
CERA, VREO


To: Showalter, Kirk - General Registrar <[email protected]>; Voter Registration <[email protected]>; [email protected]; [email protected]


Thank you. I understand that Chair Nachman – who is copied – has assured my client that there are responsive records. Please clarify.

PARTNER
D. +1.202.434.1669
F. +1.202.654.9684


From: Showalter, Kirk - General Registrar <[email protected]>
To: Berkon, Jonathan (WDC) <[email protected]>; Voter Registration <[email protected]>; [email protected]; [email protected]

Dear Mr. Berkon:




J. Kirk Showalter
General Registrar
City of Richmond
(804) 646-5950
CERA, VREO


Importance: High



PARTNER
D. +1.202.434.1669
F. +1.202.654.9684




Richmond Ballot Complaint

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VIRGINIA:

IN THE CIRCUIT COURT OF RICHMOND CITY

Plaintiff-Petitioner Susan Swecker (“Plaintiff”), by and through the undersigned attorneys,

Registrar” or “Defendant”), to compel Defendant’s compliance with the Virginia Freedom of

errors and omissions.

deadline to ensure that these voters’ ballots are counted.

cities and counties throughout the Commonwealth.

requested information are not credible.

7. Accordingly, Plaintiff seeks a temporary injunction and writ of mandamus to

remedy this continued violation of the Act.

JURISDICTION AND VENUE

injunction” in this Court.

Code Ann. § 2.2-3713(A)(1).

constituents, and Plaintiff in her role as Chairwoman are harmed.

A. Virginia voters have a right to vote by mail.

5120 § 1(B), 2020 Spec. Sess. I (Va. 2020).

B. Plaintiff properly requested records to assist voters in curing defective ballots to

produce the records on a rolling basis as they are located.

which meet this request.” Ex. 1.B.

included in the October 5th request. Ex. 1.C.

communication that we have available to us with them.” Id.

23. During that timeframe—October 9 to October 21—twelve days of early voting

a population of approximately 242,000 versus approximately 230,000 in the City of Richmond,

25. Moreover, hundreds of eligible, registered voters will be disenfranchised because

their ballots will not be cured.

VIOLATION OF THE VIRGINIA FREEDOM OF INFORMATION ACT

paragraphs of this Verified Complaint as though set forth fully herein.

computer databases, or other electronic sources “shall be made available to a requester at a

Va. Code Ann. § 2.2-3712(A).

Registrar provided a screenshot of an incomplete record containing information regarding 26 vote-

reaching voters with deficient absentee ballots.

determined to contain a material error or omission is far greater than 26.

such as whether it has been accepted. Va. Code Ann. § 24.2-711.1.

PRAYER FOR RELIEF

possession containing information relating to absentee ballots deemed to contain

determined to contain material errors or omissions on or before October 28, 2020;

or before October 28, 2020.

including attorney fees, as detailed in Va. Code Ann. § 2.2-3713(D);

PETITION FOR WRIT OF MANDAMUS

directed to the General Registrar, and in support thereof states:

paragraphs of this Verified Complaint as though set fully herein.

PRAYER FOR RELIEF

records to Plaintiff on or before October 28, 2020.

Dated this 26th day of October, 2020

/s/ Amanda R. Callais

Jeffrey A. Breit (VA Bar No. 18876)

Counsel for the Plaintiff-Petitioner

IN THE CIRCUIT COURT OF RICHMOND CITY

1. I am a citizen of Virginia and the Chairwoman of the Democratic Party of Virginia.

the Democratic Party of Virginia to obtain public election records.

the Democratic Party of Virginia.

sure their votes are counted.

associated with each voter.

ample time to respond.

9. As part of my duties and responsibilities as Chairwoman of the Democratic Party of

maintain this same log elsewhere.”

of knowledge I have obtained as part of my responsibilities as Chairwoman of the Democratic

found to be invalid due to material errors or omissions.

16. Obtaining immediate access to the information I requested on October 9, 2020, is

Sworn to before me this _ day of _____________, 2020.