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,

(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.

Stat. 62 (1870). It then imposes various requirements and

restrictions on Virginia, including limits on the Commonwealth’s ability to change the 1869

Constitution.

. 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.

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.,

, 143–45 (1993). “[T]he existence of sovereign immunity is a question of law

that we review de novo.” Franks v. Ross,

(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,

(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,

(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,

(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.,

(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.”

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,

, 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,

(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,

).

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.”

. 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,

(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

(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

at 904–05. In addition, Michigan Corrections was decided before Armstrong v. Exceptional Child Center, Inc.,

(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,

, 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,

(1983); Poe v. Ullman,

(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,

(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.,

(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,

(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.”

(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.

.

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,

, 249 n.10 (2011), the same is true when applying the Ex parte Young

doctrine. See Verizon,

(“[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

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,

(1972) (“Property interests, of course,

are not created by the [federal] Constitution.”); Wilson v. Garcia,

, 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,

(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.

(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.

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.”

. 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,

. 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.,

(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,

, 73– 76 (1996); Antrican,

. We do the same here.

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officials to comply with Section 30(A) of the Medicaid Act. See

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,

. As the Court explained, the “express

provision of one method of enforcing” Section 30(A) “suggest[ed] that Congress intended

to preclude others.”

(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,

. 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,

(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

(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,

; see also Seminole Tribe,

(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.”

. 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,

, 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,

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(2022); Mathis v. United States,

(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.,

(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,

(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,

, 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,

(4th Cir. 2010) (quotation marks removed). A

“special relation” requires both “proximity to and responsibility for the challenged state

action.”

“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,

(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,

, 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,

(“[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,

(4th Cir. 2017). 17