CASE STUDIES IN EMERGENCY ELECTION LITIGATION

Federal Judicial Center 8/2/2023 1

No Immediate Relief from Expanded AbsenteeVoting Opportunities During an Infectious 

Pandemic Because of a 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 voters 

were permitted to vote absentee on account of disability. A suit 

challenging broad absentee-voting rights as diluting plaintiffs’ voting 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 primary 

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 (proposing a 

hearing on May 22 and resolution by the court on May 26),3

 and a motion 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.5

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 his order whether the parties intended to proceed with a hearing by 

teleconference or videoconference.7 On May 21, he set the case for a video 

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 v. Va. 

State Bd. of Elections, 463 F. Supp. 3d 653, 657 (E.D. Va. 2020). 
No Immediate Relief from Expanded Absentee Voting Opportunities During an Infectious 

Pandemic Because of a Delay in Bringing the Case 

2 Federal Judicial Center 8/2/2023 

hearing on May 27.8 Some attorneys were present in the courtroom.9 They 

and the judge wore face coverings, except when speaking.10

Judge Alston’s strategies for handling the emergent case included 

promptly finding out who the lawyers were and where they were to plan for 

getting them together.11 Judge Alston’s judicial assistant did a technical rehearsal with participants on the day before the videoconference.12 Guidelines 

were presented in advance regarding who would speak and when, and participants were instructed to mute their microphones when not speaking.13

Members of the public could dial in, and they were instructed to mute their 

microphones and refrain from recording the proceeding.14 The lawyers were 

zealous and professional, and because they respected the process the proceeding was a success.15 Among the keys to success were preparation, cooperation, and professionalism.16

Judge Alston denied immediate relief because of the voters’ delay in filing 

the case.17

The limited record here supports the conclusion that Plaintiffs had an incentive to file suit as soon as [the alleged vote-dilution] injuries became apparent in order to rectify the perceived wrong prior to the actual commencement of the absentee ballot period. The disputed COVID-19 Guidance was issued to local registrars on March 16, 2020, and to the public on 

March 17, 2020, and the absentee ballot period began May 8 or 9, 2020, yet 

Plaintiffs did not file suit until May 13, 2020. Ultimately, the Court finds 

that Plaintiffs failed to demonstrate the requisite diligence.18

On June 18, Judge Alston approved the voters’ voluntary dismissal of 

their case.19

8. Order, Curtin, No. 1:20-cv-546 (E.D. Va. May 21, 2020), D.E. 27; see Curtin, 463 F. 

Supp. 3d at 655, 675; Minutes, Curtin, No. 1:20-cv-546 (E.D. Va. May 27, 2020), D.E. 44. 

9. Transcript at 1–2, Curtin, No. 1:20-cv-546 (E.D. Va. May 27, 2020, filed June 2, 2020), 

D.E. 51. 

10. Id. at 1. 

11. Interview with Hon. Rossie D. Alston, Jr., Oct. 20, 2020. 

12. Id. 

13. Id. 

14. Id. 

15. Id. 

16. Id.; see Transcript, supra note 9, at 43 (“THE COURT: . . . I also appreciate the professionalism that we have seen.”).

17. Curtin v. Va. State Bd. of Elections, 463 F. Supp. 3d 653 (E.D. Va. 2020). 

18. Id. at 659. 

19. Order, Curtin v. Va. State Bd. of Elections, No. 1:20-cv-546 (E.D. Va. June 18, 2020), 

D.E. 57.