KCNF’s Steve Pershing Represents Former Voter Registrar Before the Fourth Circuit

On March 22, KCNF attorney Steve Pershing argued before a three-judge panel of the Fourth Circuit on behalf of our client, Christine Gibbons, who was ousted from her position in June 2023 as Lynchburg’s voter registrar, or chief election administrator, following years of harassment related to false fraud claims surrounding the 2020 election. This remarkable case is an employment case, a First Amendment case, and a voting rights case all rolled into one, and it’s the first of its kind to reach the Fourth Circuit in a generation. Steve is representing Christine pro bono through the Election Official Legal Defense Network, a group of lawyers nationwide who offer their services without charge to defend non-partisan election administrators, and by extension our elections themselves, against partisan attack.

The federal Constitution forbids partisan political tests for non-partisan public officeholding. We contend Christine was removed from office because she didn’t share the new electoral board majority’s views about the 2020 election. That partisan bias, we maintain, violated her First Amendment rights. But before we could have a hearing on restoring Christine to her job while the case moved forward, the electoral board members appealed using what’s called state sovereign immunity. They basically claimed that because the board itself is a state entity immune from suit, and because they as individuals act only through the board, the courts cannot touch them, either to order them to reinstate our client or to assess money damages against them for firing her. Interestingly, the board members’ lawyers are being paid by Virginia taxpayers through the state Treasury Department’s Division of Risk Management.

We argued to the appeals judges that accepting the electoral board members’ argument would put us in a weird neverland of impunity, where multiple officials acting in concert to violate the Constitution would be untouchable purely because more than one of them concerted in the violation. We must never again accept the warped idea that guilt spread widely enough absolves everyone. Besides, as the judges themselves acknowledged, court decisions in past cases virtually identical to ours have rejected these immunity arguments and ordered board members to reinstate the non-partisan election officials they had removed.

All three judges seemed markedly skeptical of the board members’ position, but now we must wait for them to issue a written ruling. We continue to believe that extreme partisanship motivated the removal of this non-partisan official. We hope the court will rule soon, since we still have to ask the trial court to reinstate Christine as registrar for the November 2024 presidential election—the very thing these electoral board members have been trying to prevent—and that date is getting closer every day.