Case: Vote No On Amendment One v. Warner

2:18-cv-01406 | U.S. District Court for the Southern District of West Virginia

Filed Date: Nov. 5, 2018

Closed Date: July 24, 2019

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Case Summary

On November 5, 2018, three Plaintiffs—a non-profit organized to defeat a proposed anti-abortion amendment to the West Virginia Constitution and two individual volunteers—filed a Complaint in the US District Court for the Southern District of West Virginia against the West Virginia Secretary of State under the federal Declaratory Judgment Act and 42 U.S.C. § 1983 for declaratory and injunctive relief for constitutional violations. Plaintiffs alleged the volunteers had been prohibited by the Secretary of State himself from providing education about the amendment to voters anywhere on the property of a polling place during early voting, even though they complied with another statutory prohibition against electioneering within 100 feet of the outside entrance of an early voting polling location. The Complaint sought a declaration that the West Virginia statute invoked by the Secretary, which prohibited electioneering at any early voting location, was impermissibly vague, in violation of the First Amendment, and prospective injunctive relief against enforcement of the statute.

The Secretary moved to dismiss, arguing that the case was moot because the election was over and the amendment had passed, and Plaintiffs’ claim was not “capable of repetition but evading review” because the claim related only to electioneering activities at specific satellite voting locations during the early voting period, which locations were subject to change before the next election. Plaintiffs disagreed, arguing there was a reasonable expectation the issue would arise again because the individual plaintiffs were politically active, including at the polling place at issue, which had been a polling place since at least 2016. In a second dismissal motion, the Secretary asserted the Eleventh Amendment barred the suit and Plaintiffs lacked Article III standing, because the Secretary is not responsible for enforcing the challenged statute, and an injunction against him would not prevent county election officials from enforcing it. In opposition, Plaintiffs argued the Secretary oversees the election process throughout the state and Ex Parte Young allowed the federal court to enforce the US Constitution against him.

On July 24, 2019, the district court granted the Secretary’s motion to dismiss, finding that the action was moot because the election was over and the amendment had been approved by voters; the “capable of repetition, yet evading review” exception to mootness did not apply because the early voting locations for the next election were speculative, at best; Plaintiffs lacked standing because they failed to show how the judgment requested would redress their injury, as the Secretary did not control the conduct of other election officials; and Eleventh Amendment immunity applied, and the Ex Parte Young exception did not apply, because an injunction against the Secretary would have no effect on the ability of the officials responsible for supervising absentee voting to enforce the challenged statute against Plaintiffs in the future.

The case is closed.

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Summary Authors

LFAA (8/15/2025)

People

For PACER's information on parties and their attorneys, see: https://www.courtlistener.com/docket/8133231/parties/vote-no-on-amendment-one-inc-v-warner/

Judge(s)

Johnston, Thomas E. (West Virginia)

Attorney for Plaintiff

Majestro, Anthony J. (West Virginia)

Stark, Loree Beth (West Virginia)

Attorney for Defendant

Capehart, Curtis R. (West Virginia)

Lampman, Thomas T. (West Virginia)

Judge(s)

Johnston, Thomas E. (West Virginia)

Attorney for Plaintiff

Majestro, Anthony J. (West Virginia)

Stark, Loree Beth (West Virginia)

Attorney for Defendant

Capehart, Curtis R. (West Virginia)

Lampman, Thomas T. (West Virginia)

Attorney Contact Information via CourtListener

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Documents in the Clearinghouse

	Document
2 2:18-cv-01406	Plaintiffs' Complaint for Declaratory and Injunctive Relief for Constitutional Violations	Nov. 5, 2018	Nov. 5, 2018 Complaint
9 2:18-cv-01406	Motion to Dismiss	March 5, 2019	March 5, 2019 Pleading / Motion / Brief
10 2:18-cv-01406	Memorandum of Law in Support of Motion to Dismiss	March 6, 2019	March 6, 2019 Pleading / Motion / Brief
12 2:18-cv-01406	Plaintiffs' Memorandum of Law in Response to Defendant's Motion to Dismiss	March 19, 2019	March 19, 2019 Pleading / Motion / Brief
13 2:18-cv-01406	Reply Memorandum of Law in Support of Motion to Dismiss	March 27, 2019	March 27, 2019 Pleading / Motion / Brief
16 2:18-cv-01406	Memorandum of Law in Support of Motion to DIsmiss U.S. Court of Appeals for Veterans Claims	April 1, 2019	April 1, 2019 Pleading / Motion / Brief
15 2:18-cv-01406	Motion to Dismiss	April 1, 2019	April 1, 2019 Pleading / Motion / Brief
17 2:18-cv-01406	Plaintiffs' Memorandum of Law in Response to Defendant's Motion to Dismiss	April 15, 2019	April 15, 2019 Pleading / Motion / Brief
19 2:18-cv-01406	Reply Memorandum of Law in Support of Second Motion to Dismiss	April 22, 2019	April 22, 2019 Pleading / Motion / Brief
34 2:18-cv-01406	Memorandum Opinion and Order	July 24, 2019	July 24, 2019 Order/Opinion 400 F.Supp.3d 504

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Docket

See docket on RECAP: https://www.courtlistener.com/docket/8133231/vote-no-on-amendment-one-inc-v-warner/

Last updated Aug. 15, 2025, 9:04 p.m.

ECF Number	Description	Date	Link Date / Link
1	INCORRECT ENTRY; IMAGE REMOVED. (Modified on 11/6/2018 to remove image filed using incorrect event) (kp).	Nov. 5, 2018	Nov. 5, 2018 RECAP
2	COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF FOR CONSTITUTIONAL VIOLATIONS. Filing Fee $400.00. Receipt # AWVSDC-6929228. (Attachment: # 1 Civil Cover Sheet) (ts) 1 Civil Cover Sheet View on PACER	Nov. 5, 2018	Nov. 5, 2018 Clearinghouse
3	SUMMONS SUBMITTED by Stacy North, Katherine Lewis, Vote No on Amendment One, Inc. for Mac Warner re: 2 Complaint for Declaratory and Injunctive Relief. (ts)	Nov. 5, 2018	Nov. 5, 2018 PACER
4	ELECTRONIC SUMMONS ISSUED as to Mac Warner re: 2 Complaint for Declaratory and Injunctive Relief. Summons returnable 21 days. Instructions to Counsel: This is your electronic summons. Please print as many copies of the Summons and Complaint as are necessary to effectuate service under Fed. R. Civ. P. 4. See Proof of Service page of this Summons form for filing a return of service if required by Fed. R. Civ. P. 4(l). (ts)	Nov. 5, 2018	Nov. 5, 2018 PACER
5	STANDING ORDER IN RE: ASSIGNMENT AND REFERRAL OF CIVIL ACTIONS AND MATTERS TO MAGISTRATE JUDGES ENTERED JANUARY 4, 2016. Discovery referred to Magistrate Judge Tinsley. (cc: attys; any unrepresented party) (ts)	Nov. 5, 2018	Nov. 5, 2018 PACER
6	STATEMENT OF VISITING ATTORNEY for Loree Stark on behalf of Stacy North, Katherine Lewis, Vote No on Amendment One, Inc. Local counsel: Anthony J. Majestro. Fee $50.00. Receipt # AWVSDC-6931133. (Majestro, Anthony)	Nov. 5, 2018	Nov. 5, 2018 PACER
	CASE assigned to Chief Judge Thomas E. Johnston. (klc)	Nov. 5, 2018	Nov. 5, 2018 PACER
	NOTICE OF DOCKET CORRECTION re: #1 Notice. ERROR: Image filed using incorrect event; image refiled at entry #6. CORRECTION: Incorrect entry removed. (kp)	Nov. 5, 2018	Nov. 5, 2018 PACER
7	SUMMONS RETURNED EXECUTED for Mac Warner, re: 2 Complaint for Declaratory Judgment, date served 2/12/2019; date answer Ddue 3/5/2019. (Stark, Loree) (Modified on 2/12/2019 to add link to #2 complaint) (kp).	Feb. 12, 2019	Feb. 12, 2019 PACER
8	NOTICE OF APPEARANCE by Thomas Theodore Lampman on behalf of Mac Warner. (Lampman, Thomas)	Feb. 26, 2019	Feb. 26, 2019 PACER
9	MOTION by Mac Warner to Dismiss 2 Complaint. (Lampman, Thomas) (Modified on 3/6/2019 to add link to #2 complaint and to remove memorandum attached to motion and file at entry #10) (kp).	March 5, 2019	March 5, 2019 Clearinghouse
10	MEMORANDUM OF LAW by Mac Warner in support of 9 MOTION by Mac Warner to Dismiss 2 Complaint. (kp)	March 6, 2019	March 6, 2019 Clearinghouse
	Notice Of Docket Correction	March 6, 2019	March 6, 2019 PACER
	NOTICE OF DOCKET CORRECTION re: 9 MOTION by Mac Warner to Dismiss 2 Complaint. ERROR: Memorandum in support attached to motion. CORRECTION: Memorandum removed and filed at entry #10. (kp)	March 6, 2019	March 6, 2019 PACER
11	ORDER AND NOTICE: Rule 12(b) Motions 4/1/2019. Rule 26(f) Meeting 4/15/2019. Last day to file report of Rule 26(f) Meeting 4/22/2019. Telephonic Scheduling Conference at 2:00 p.m. on 4/26/2019. Entry of Scheduling Order 5/1/2019. Last Day to make Rule 26(a)(1) disclosures 5/10/2019. Signed by Judge Thomas E. Johnston on 3/6/2019. (cc: counsel of record; any unrepresented party) (taq)	March 6, 2019	March 6, 2019 PACER
12	MEMORANDUM OF LAW by Katherine Lewis, Stacy North, Vote No on Amendment One, Inc. in opposition to 9 MOTION by Mac Warner to Dismiss 2 Complaint (Stark, Loree) (Modified on 3/20/2019 to remove link to #10 memorandum) (kp).	March 19, 2019	March 19, 2019 Clearinghouse
13	REPLY MEMORANDUM OF LAW by Mac Warner to 12 Response In Opposition. (Lampman, Thomas)	March 27, 2019	March 27, 2019 Clearinghouse
14	NOTICE OF APPEARANCE by Curtis R. Capehart on behalf of Mac Warner. (Capehart, Curtis)	March 28, 2019	March 28, 2019 PACER
15	MOTION by Mac Warner to Dismiss 2 Complaint. (Lampman, Thomas) (Modified on 4/2/2019 to add link to #2 complaint) (kew).	April 1, 2019	April 1, 2019 Clearinghouse
16	MEMORANDUM OF LAW by Mac Warner in support of 15 MOTION by Mac Warner to Dismiss 2 Complaint. (Lampman, Thomas)	April 1, 2019	April 1, 2019 Clearinghouse
17	MEMORANDUM OF LAW by Katherine Lewis, Stacy North, Vote No on Amendment One, Inc. in opposition to 15 MOTION by Mac Warner to Dismiss 2 Complaint (Stark, Loree)	April 15, 2019	April 15, 2019 Clearinghouse
18	RULE 26(f) REPORT OF PLANNING MEETING by Mac Warner, Vote No on Amendment One, Inc., Katherine Lewis, Stacy North. (Lampman, Thomas) (Modified on 4/23/2019 to correct signatures and replace image and to add party filers) (kew).	April 22, 2019	April 22, 2019 PACER
19	REPLY MEMORANDUM OF LAW by Mac Warner to 17 Memorandum In Opposition. (Lampman, Thomas)	April 22, 2019	April 22, 2019 Clearinghouse
	Notice Of Docket Correction	April 23, 2019	April 23, 2019 PACER
	NOTICE OF DOCKET CORRECTION re: 18 Rule 26(f) Report of Planning Meeting. ERROR: Incorrect signatures for counsel. CORRECTION: Signatures corrected and image replaced. (kew)	April 23, 2019	April 23, 2019 PACER
20	SCHEDULING ORDER: The Scheduling Conference scheduled for 4/26/2019 is CANCELED; this case shall proceed as follows: Joinder of Parties, amended pleadings due by 5/28/2019. Discovery requests to be completed by 5/28/2019; and all depositions by 7/10/2019. Expert Witness List by parties bearing the burden of proof due by 5/13/2019, by party not bearing burden of proof due by 6/10/2019, and to solely contradict or rebut evidence due by 6/26/2019. Discovery to close by 7/10/2019. Dispositive Motions except those filed under Rule 12(b) due by 7/30/2019, with responses due by 8/13/2019 and replies due by 8/20/2019. Settlement Meeting to be held by 9/30/2019. Motions in Limine to be filed by 10/7/2019, with responses due by 10/15/2019. Plaintiff's portion of proposed Pretrial Order to defendants due by 10/4/2019, and Proposed Integrated Pretrial Order due by 10/11/2019. Pretrial Conference set for 11/7/2019 at 2:00 p.m. in Charleston. Proposed Findings of Fact and Conclusions of Law due by 11/12/2019. Bench Trial set for 11/19/2019 at 9:00 a.m. in Charleston before Judge Thomas E. Johnston. Signed by Judge Thomas E. Johnston on 4/23/2019. (cc: counsel of record; any unrepresented party) (taq)	April 23, 2019	April 23, 2019 PACER
21	NOTICE OF DEPOSITION by Katherine Lewis, Stacy North, Vote No on Amendment One, Inc. of Mac Warner on July 2, 2019 at 10:30 a.m. (Stark, Loree)	May 28, 2019	May 28, 2019 PACER
22	CERTIFICATE OF SERVICE by Katherine Lewis, Stacy North, Vote No on Amendment One, Inc. for First Set of Interrogatories, Requests for Production, and Requests for Admission. (Stark, Loree)	May 28, 2019	May 28, 2019 PACER
23	NOTICE TO TAKE DEPOSITION by Mac Warner of Katherine Lewis on July 9, 2019 at 10:00 AM (Lampman, Thomas)	June 10, 2019	June 10, 2019 PACER
24	NOTICE TO TAKE DEPOSITION by Mac Warner of Stacy North on July 9, 2019 at 11:00 AM (Lampman, Thomas)	June 10, 2019	June 10, 2019 PACER
25	CERTIFICATE OF SERVICE by Mac Warner for First Set of Interrogatories, Requests for Production, and Requests for Admission. (Lampman, Thomas)	June 28, 2019	June 28, 2019 PACER
26	JOINT STIPULATION TO EXTEND DISCOVERY COMPLETION DEADLINE to 7/26/2019 by Katherine Lewis, Stacy North, Vote No on Amendment One, Inc., Mac Warner. (Stark, Loree) (Modified on 7/11/2019 to add party filer) (kew).	July 10, 2019	July 10, 2019 PACER
27	AMENDED NOTICE OF DEPOSITION by Katherine Lewis, Stacy North, Vote No on Amendment One, Inc. of Mac Warner, Secretary of State on 7/16/2019 at 10:30 a.m. (Stark, Loree)	July 12, 2019	July 12, 2019 PACER
28	SECOND AMENDED NOTICE OF DEPOSITION by Katherine Lewis, Stacy North, Vote No on Amendment One, Inc. of Mac Warner, Secretary of State on 7/16/2019 at 9:00 a.m. (Stark, Loree)	July 12, 2019	July 12, 2019 PACER
29	NOTICE OF DEPOSITION by Katherine Lewis, Stacy North, Vote No on Amendment One, Inc. of Donald Kersey on 7/18/2019 at 9:00 a.m. (Stark, Loree)	July 12, 2019	July 12, 2019 PACER
30	NOTICE OF DEPOSITION by Mac Warner of Stacy North on 07/25/2019 at 1:00 p.m. (Lampman, Thomas)	July 18, 2019	July 18, 2019 PACER
31	NOTICE OF DEPOSITION by Mac Warner of Katherine Lewis on 07/25/2019 at 9:00 a.m. (Lampman, Thomas)	July 18, 2019	July 18, 2019 PACER
32	JOINT MOTION by Katherine Lewis, Stacy North, Vote No on Amendment One, Inc., Mac Warner to Amend 20 Scheduling Order. (Stark, Loree) (Modified on 7/19/2019 to correct link and to add party filer) (kew).	July 19, 2019	July 19, 2019 PACER
33	PROPOSED ORDER Amended Scheduling Order by Katherine Lewis, Stacy North, Vote No on Amendment One, Inc. (Stark, Loree)	July 19, 2019	July 19, 2019 PACER
34	MEMORANDUM OPINION AND ORDER The 9 and 15 Motions to Dismiss are GRANTED; this action is DISMISSED. Signed by Judge Thomas E. Johnston on 7/24/2019. (cc: counsel of record; any unrepresented party) (kew)	July 24, 2019	July 24, 2019 RECAP