United States of America v. The State of Alabama et al
OPINION. Signed by Honorable Judge Myron H. Thompson on 2/11/14. (scn, )
IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION
UNITED STATES OF AMERICA
THE STATE OF ALABAMA and
JIM BENNETT, in his
official capacity as
Secretary of State of
CIVIL ACTION NO.
In this lawsuit, plaintiff United States of America
Secretary of State and asserted claims based on the
Uniformed and Overseas Citizens Absentee Voting Act of
1986 (“UOCAVA”), as amended, 42 U.S.C. § 1973ff.
United States sought to enforce the right of military
members, their families, and other United States citizens
living overseas (“UOCAVA voters”) to vote by absentee
ballot in Alabama’s federal elections.
proper under 42 U.S.C. § 1973ff-4 and 28 U.S.C. §§ 1345
This matter is now before the court on cross-motions
for summary judgment on the one remaining claim in this
case: that, with regard to runoff elections, Alabama is
transmit absentee ballots to UOCAVA voters at least 45
days before an election for federal office.
that will be discussed, the court will enter summary
holding that part of Alabama’s runoff-election statute,
1975 Ala. Code § 17-13-18, violates UOCAVA.
I. LEGAL STANDARD
“A party may move for summary judgment, identifying
each claim or defense--or the part of each claim or
defense--on which summary judgment is sought.
shall grant summary judgment if the movant shows that
there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.”
admissible evidence in the light most favorable to the
non-moving party and draw all reasonable inferences in
favor of that party.
Matsushita Elec. Indus. Co. Ltd. v.
Zenith Radio Corp., 475 U.S. 574, 587 (1986).
parties agree that, because the issues presented by the
remaining claim are legal ones, the claim is appropriate
for resolution on summary judgment.
The initial question posed by the remaining claim is
whether UOCAVA’s 45-day transmittal requirement applies
to federal runoff elections conducted by States.
the answer to this question turns on a close analysis of
UOCAVA, the court will begin with an overview of some of
the act’s relevant provisions.
The court divides this
overview into four parts with a focus on primarily four
THE GENERAL PURPOSE PROVISION: UOCAVA was passed in
1986 to protect the voting rights of military members,
their families, and other United States citizens living
overseas, that is, UOCAVA voters.
Section 1973ff-1 of 42
U.S.C. contains a number of provisions setting forth
“State responsibilities” under UOCAVA. Subsection (a)(1)
of § 1973ff-1 provides that “Each State shall-- ...
permit absent uniformed services voters and overseas
voters to use absentee registration procedures and to
vote by absentee ballot in general, special, primary, and
runoff elections for Federal office.”
This section sets
forth UOCAVA’s general purpose as to the States: to
guarantee to UOCAVA voters the right to use absentee
registration procedures and to vote by absentee ballot in
And this section (as do all the other
sections that follow
§ 1973ff-1(a)’s “Each State shall”
language) places the implementation of that guarantee on
Alabama bears full responsibility to ensure statewide
compliance with § 1973ff-1 of UOCAVA.
United States v.
Alabama, 857 F.Supp. 2d 1236, 1238-39 (M.D. Ala. 2012)
(Thompson, J.) (UOCAVA provides an “explicit statutory
directive that Alabama bears full responsibility” for
THE 45-DAY TRANSMITTAL REQUIREMENT: So as to effect
UOCAVA’s guarantee to UOCAVA voters more fully, Congress
amended § 1973ff-1 of UOCAVA in 2009 with passage of the
Military and Overseas Voter Empowerment Act, Pub. L. No.
amendment, Congress intended “a complete renovation of
UOCAVA that brings it into the twenty-first century and
streamlines the process of absentee voting for military
and overseas voters through a series of common sense,
straightforward fixes.” 156 Cong. Rec. S4517 (daily ed.
May 27, 2010) (Sen. Schumer).
Subsection (a)(8)(A), one
of the provisions the 2009 amendment added to § 1973ff-1,
sets forth the 45-day transmittal requirement at issue.
exemption in another provision, States are required to
transmit absentee ballots to UOCAVA voters at least 45
days before an election for federal office if those
voters request absentee ballots by then.
transmit a validly requested absentee ballot to an absent
uniformed services voter or overseas voter ..., except as
provided in subsection (g), in the case in which the
request is received at least 45 days before an election
for Federal office, not later than 45 days before the
(a)(8)(A)] is to allow absent uniformed services voters
and overseas voters enough time to vote in an election
for Federal office.”
42 U.S.C. § 1973ff-1(g)(1)(A).
subsection (g) of § 1973ff-1.
This provision states in
relevant part that: “If the chief State election official
requirement under subsection (a)(8)(A) with respect to an
election for Federal office due to an undue hardship ...
the chief State election officials shall request that the
Presidential designee grant a waiver to the State.”
U.S.C. § 1973ff-1(g)(1).
In other words, under the
hardship exemption, a Presidential designee is permitted
to grant a State a waiver from the 45-day transmittal
requirement in instances where undue hardships make it
impossible for the State to meet the otherwise required
advanced-transmittal deadline. Other parts of subsection
(g) set forth conditions a State must meet to establish
THE WRITTEN PLAN REQUIREMENT: In subsection (a)(9)
which was also added to § 1973ff-1 in 2009, UOCAVA places
another responsibility on the States: to establish a
written plan for federal runoff elections.
that, “Each State shall-- ... if the State declares or
otherwise holds a runoff election for Federal office,
establish a written plan that provides absentee ballots
are made available to absent uniformed services voters
sufficient time to vote in the runoff election.”
U.S.C. § 1973ff-1(a)(9).
The United States initially filed this case in 2012
transmittal requirement in federal general and primary
The State conceded that it failed to meet the
requirement in each of the last three federal elections;
remedy for these past violations; and the court approved
their joint remedial order.
United States v. Alabama,
2014 WL 200668 (M.D. Ala. 2014) (Thompson, J.).
As stated, the one remaining claim is the United
requirement that States transmit absentee ballots to
UOCAVA voters at least 45 days before an election for
Section 17-13-18 of the 1975 Alabama
Code provides that a runoff election, which is required
when no candidate receives the majority of votes in a
primary election, must occur exactly 42 days after a
Alabama has not held a federal runoff
election since Congress passed the 2009 amendment, which
Nevertheless, the United States claims that, on its face,
the State’s runoff statute, § 17-13-18, violates the 45day transmittal requirement.
Specifically, the United
States argues, the 42-day schedule for runoff elections
under state law makes it impossible for UOCAVA voters
from Alabama to receive ballots 45 days in advance of a
The State responds that UOCAVA’s 45-
day transmittal requirement does not apply to federal
runoff elections and that, in any event, the United
States’ claim is not ripe for resolution.
A stated, the initial question is whether UOCAVA’s
45-day transmittal requirement applies to federal runoff
In answering this question, this court’s
“starting point” is the plain language of the statute
itself. United States v. DBB Inc., 180 F.3d 1277, 1281
(11th Cir. 1999).
The court must “read the statute to
give full effect to each of its provisions” and interpret
words “as they are commonly and ordinarily understood.”
The court does “not look at one word or term in
isolation” and instead considers the “entire statutory
context.” Id.; see also United States v. McClemore, 28
F.3d 1160, 1162 (11th Cir. 1994).
As stated, subsection (a)(8)(A)’s 45-day transmittal
requirement requires each State to transmit a validly
requested absentee ballot to UOCAVA voters at least 45
days before “an election for Federal office.”
The issue presented is whether the
phrase “an election for Federal office” includes runoff
It does for several reasons.
Congress’s reference to “an election” indicates, on
its face, its intent to refer to “any” kind of election
for federal office.
See Black’s Law dictionary at 1 (6th
ed. 1990) (The indefinite article “a” is often used in
the sense of “any”).
Because a primary runoff election
subsection (a)(8)(A) includes runoffs.
Indeed, if the
words “an election” were read otherwise to exclude a
runoff, the phrase would be meaningless, for the phrase
also does not expressly mention “general,” “special,” or
“primary” elections either and thus the phrase would
exclude them as well, with the result that the phrase
would illogically cover no federal elections at all.
This interpretation of “an election” as covering all
four types of election (general, special, primary, and
First, the word “election” first appears in UOCAVA’s
requires each State to permit UOCAVA voters to vote by
absentee ballot in “general, special, primary, and runoff
Later, in subsection (a)(2), the act requires
each State to accept and process requests for absentee
ballots from UOCAVA voters so long as the State receives
the request 30 days before “any federal election.” 42
U.S.C. § 1973ff-1(a)(2).
Surely, it cannot be argued
that this broad-reaching provision does not cover runoff
This shows that, when Congress used the
generic term “any election,” it intended to refer to the
four explicitly listed federal elections in subsection
(a)(1), which includes runoff elections.
The same intent
would apply to the generic term “an election.”
States accept federal “write-in” absentee ballots but
limits this requirement to “general elections for federal
42 U.S.C. § 1973ff-1(a)(3) (emphasis added).
Subsection (a)(3)’s reference to one type of federal
election for write-in ballots, in contrast to subsection
acceptance and processing of absentee ballots in general,
shows that when Congress wanted to highlight or exclude
intention explicit and clear.
See United States v.
Georgia, 952 F. Supp. 2d 1318, 1327 (N.D. Ga. 2013)
(Jones, J.), appeal pending No. 13-14065 (11th Cir. Sept.
6, 2013) (stating with respect to UOCAVA that, “Where
election, it left no doubt of its intent”).
Third, and perhaps most compellingly, the crossreference between two other UOCAVA subsections clearly
reveals Congress’s intent to use the term “an election”
to encompass all federal elections, including runoffs.
procedures for transmitting ballots to UOCAVA voters in
The subsection explicitly requires
primary, and runoff elections for Federal office.” 42
U.S.C. § 1973ff-1(a)(7).
It then directs States to turn
to and follow subsection (f) for the explicit rules to be
subsection (f), rather than restate the four categories
of federal elections as listed in subsection (a)(7),
Congress instead uses the phrase “an election for Federal
obvious from the explicit connection between the two
subsections that Congress intended the generic phrase “an
election” in subsection (f) to refer to any of the four
See Georgia, 952 F. Supp. 2d 1327.
election” in subsection (f) to include runoff elections,
the identical phrase in subsection (a)(8)(A), the 45-day
requirement provision, does as well, for the “normal rule
of statutory construction” is that “identical words used
in different parts of the same act are intended to have
the same meaning.”
Gustafason v. Alloyd Co., 513 U.S.
561, 570 (1995) (internal citation omitted).
Finally, UOCAVA’s 45-day transmittal requirement has
hardship exemption, a Presidential designee is permitted
to grant a State a waiver in instances where undue
hardship makes it impossible for the State to meet the
demonstrate that it meets the listed requirements. 42
U.S.C. § 1973ff-1(g)(1).
Because the 45-day transmittal
requirement contains an explicit exception within the
language itself (“except as provided in subsection (g)”),
subsection (g) would be the only exception.
Because it is apparent from the face of UOCAVA’s 45day
structure that the requirement covers runoff elections,
the court need not turn to legislative history. See
(“extrinsic materials are only required where a statute
is ambiguous, its plain meaning renders an absurdity, or
Nevertheless, the legislative history, in particular that
support for the court’s reading of the requirement.
Congress’s only reference to an exception to the 45-day
transmittal requirement is when “a hardship exception is
approved.” H.R. No. 111-288 at 744 (2009) (Conf. Rep.).
In all other instances, the history reflects Congress’s
intent that States transmit requested absentee ballots
“at least 45 days before an election for federal office.”
For example, the history shows that through the 2009
amendment Congress sought specifically to address the
“unacceptable” situation of delayed absentee ballots to
voters. 156 Cong. Rec. S4514 (daily ed. May 27, 2010)
(Sen. Schumer statement).
The Congressional Record is
replete with references to evidence of barriers UOCAVA
voters face in voting in time for federal elections and
Congress’s desire to take steps beyond UOCAVA’s original
provisions to address this challenge. Id. (39 % of UOCAVA
election received them too late to return the ballots for
election day counting).
In light of Congress’s focus on solving what it
considered to be the particular and substantial problem
of delayed arrival of absentee ballots from military
members, their families, and other United States citizens
living overseas, it follows that, had Congress intended
to exclude runoff elections from the solution to this
there is nothing in the legislative history to undermine
in any way the congressional intent reflected in the
statute’s plain language that the 45-day requirement
applies to every kind of federal election.
Furthermore, the legislative history particularly
emphasizes Congress’s “compelling interest to protect the
voting rights of American citizens ... when those very
individuals who are sworn to defend that freedom are
unable to exercise their right to vote.” Id. at S4515.
substantial problem Congress recognized that overseas
faced, where nothing in the statutory language
or legislative record supports such an exception, would
be contrary to Congress’s expressed intent to protect
vigorously the voting rights of these persons. See 155
Cong. Rec. S7965 (July, 23, 2009) (Sen. Schumer and Sen.
Chambliss joint statements) (“They can risk their lives
for us, we can at least allow them to vote.”).
nothing in the legislation to indicate that, for our
military, solving the problem of delayed transmittal of
ballots from overseas military is any less worthy of
remedy in runoffs than in general, special, and primary
Indeed, because runoff elections are so compressed
and because, as a result, the likelihood of delayed
transmittal is greater than in other elections, it would
seem to follow that, for our military, the need for the
45-day remedy is actually greater in runoffs than in
runoffs therefore need, and UOCAVA provides, more, not
less, protection than for other elections.
Finally, this court finds noteworthy that Alabama
criticizes any reliance on legislative history with this
quote from Justice Scalia:
“Judge Harold Leventhal used
looking over the heads of the guests for one’s friends.”
Conroy v. Aniskoff, 507 U.S. 511, 519 (1993) (Scalia, J.,
concurring in judgment).
True though this may be, it is
ironic that Alabama relies on it, for, with regard to
plumbed to no avail if one were looking for even one
“friend” among the guests confirming Alabama’s view that
Nevertheless, Alabama argues that the phrase “an
election for Federal office” in subsection (a)(8)(A) of
distinguish federal elections from state ones and that
elections (general, primary, special, and runoff) are
covered by the provision.
The court rejects this argument for several
First, it is true that the phrase is aimed at only
signals out only one word (“federal”) and fails to reach
the full breadth of the phrase, which has five words,
including in particular, as discussed previously, the two
words “an election.”
If the entire phrase (including its
use of the word “an,” which, as stated, is commonly
understood to mean “any”) is considered, it is clear
that, while the phrase does limit itself to “federal”
elections, the phrase also reaches “any” kind of federal
elections, which includes a federal runoff election.
subchapter in which the act is codified is
Overseas Voters in Elections for Federal Office,” 42
U.S.C. Chapter 20, Subchapter 1-G (emphasis added), and
the word “federal” modifies the term “election” in many
phrases throughout § 1973ff-1, not just in subsection
Alabama does not contend that the word, when
elections from state ones.
Absent a universal limitation
for every time the word is used in other phrases, the
State has not explained why subsection (a)(8)(A) should
be singled out for that limitation.
Finally, as stated, the “normal rule of statutory
construction” is that “identical words used in different
parts of the same act are intended to have the same
Gustafason, 513 U.S. at 570 (internal citation
Therefore, because, as demonstrated above,
Congress intended the phrase “an election” in subsection
(f) (which sets forth the rules States must follow in
carrying out the transmittal procedures placed on them by
subsection (a)(7)) to include “federal” runoff elections,
its use of the identical phrase in subsection (a)(8)(A)
(the 45-day requirement provision) does as well.
The State further argues that subsection (a)(9) of
“Each State shall--- ... if the State
declares or otherwise holds a runoff
election for Federal office, establish
a written plan that provides absentee
ballots are made available to absent
uniformed services voters and overseas
voters in [a] manner that gives them
sufficient time to vote in runoff
42 U.S.C. § 1973ff-1(a)(9).
The State argues that the
phrase “sufficient time to vote” creates an alternative
time requirement for transmitting ballots in the instance
of a federal runoff election. It further argues that,
because subsection (a)(9) creates this supposed new or
subsection (a)(8)(A)’s 45-day requirement cannot also
apply to runoffs.
According to the State, reading both
provisions to apply to federal runoff elections renders
subsection (a)(9) superfluous and results in an absurd
reading of the statute. See Durr v. Shinseki, 638 F.3d
1342, 1349 (11th Cir. 2011) (“a statute should ... be
read so as to avoid an unjust or absurd conclusion”).
The court disagrees on all counts.
substantive transmittal requirement at all.
“establish” a written plan setting forth its overall
views on how UOCAVA voters can be assured to receive
ballots in “sufficient time to vote” in federal runoff
It does not require the State to do anything
other than that, for most notably it does not even
require the State to implement the plan.
As a result,
UOCAVA sets up this statutory scheme: On the one hand,
there is subsection (a)(9), which is essentially nothing
more than precatory, and, on the other hand, there is the
recognized in the statute as needed “to allow absent
uniformed services voters and overseas voters enough time
to vote in an election for Federal office.”
It would be illogical to conceive
the precatory former as a reasonable substitute for the
mandatory latter, which is at the heart of UOCAVA.
only reasonable reading of subsection (a)(9) is that it
This conclusion is reinforced when other factors are
First, there is the fact that Congress
recognized as a particular and substantial problem the
Second, there is the fact that Congress enacted
subsection (a)(2)(8) to remedy to that problem, for, as
observed, UOCAVA explicitly states that “the purpose of
services voters and overseas voters enough time to vote
in an election for Federal office.”
42 U.S.C. § 1973ff-
Third, there is nothing in the statute or
its legislative history to indicate that federal runoffs
do not suffer from the same transmittal problem as do
other federal elections.
And, fourth, there is the
obvious fact that, because runoff elections typically
occur on a compressed time schedule, States are actually
more likely to make logistical errors and fail to meet
elections. It follows that, when these last two facts are
subsection (a)(9) merely reflects that Congress wisely
saw the need to provide an additional remedy when it
comes to runoffs: to require States to develop a written
plan that would help to protect further against UOCAVA
violations that will more likely occur under the time
constraints of a runoff election.
logistically more demanding and that States need an added
nudge to meet the 45-day transmittal requirement.
warranted is more than amply demonstrated by the very
record before this court.
Alabama concedes that it has
failed to meet the 45-day requirement and thus provide
what Congress considered to be needed for the timely
transmittal of ballots with regard to, comparatively
speaking, the logistically less demanding general and
primary elections in each of the last three federal
Moreover, this court has found that, “The
record before [it] ... amply demonstrates that the State
of Alabama has consistently and substantially violated
UOCAVA's 45–day requirement.”
United States v. Alabama,
additional requirement is needed for logistically more
demanding runoff elections is self-evident.
Therefore, subsection (a)(9) neither creates a new
exception to the substantive transmittal deadline in
Subsection (a)(9) merely reflects
the fact that States should go the extra mile to protect
the voting rights of military members, their families and
other United States citizens living overseas when it
comes to runoff elections--nothing more.
(The parties have spilt much virtual ink disputing
the meaning of the phrase “sufficient time to vote” in
Because the United States has not
asserted a separate claim that Alabama has failed to
comply with subsection (a)(9)’s requirement that the
States “establish a written plan that provides absentee
ballots are made available to absent uniformed services
voters and overseas voters in [a] manner that gives them
sufficient time to vote in the runoff election,” the
court does not address or resolve this dispute.)
Finally, the court rejects Alabama’s argument that
the issue--whether the 45-day transmittal requirement
applies to federal runoff elections--is not ripe for
election since Congress enacted the requirement with the
2009 amendment to UOCAVA.
UOCAVA authorizes the United States Attorney General
“to bring a civil action ... for such declaratory or
injunctive relief as may be necessary” to enforce UOCAVA.
42 U.S.C. § 1973ff-4(a).
Therefore, the United States is
expressly authorized, and thus has standing, to challenge
Alabama’s runoff statute on the ground that it violates
UOCAVA’s 45-day transmittal requirement.
Alabama questions the timing of the United States’ claim.
It argues that, because a runoff election has not yet
occurred, the United States’ facial attack is not yet
The ripeness doctrine provides that, for a court to
have jurisdiction, a claim must be “sufficiently mature,
and the issues sufficiently defined and concrete, to
permit effective decisionmaking by the court.”
v. Reno, 55 F.3d 1517, 1524 (11th Cir. 1995).
depends on two factors: (1) the fitness of the issues for
judicial decision and (2) the hardship to the parties of
withholding court consideration. Harrell v. The Florida
Bar, 608 F.3d 1241, 1258 (11th Cir. 2000).
portion of the analysis focuses on “the extent to which
resolution of the challenge depends upon facts that may
citation omitted). However, where a claim presents a
purely legal issue, additional fact development is not
necessary because the claim is that the law operates
unlawfully on its face regardless of any other facts.
Harris v. Mexican Specialty Foods, Inc., 564 F.3d 1301,
presumptively ripe for judicial review because it does
not require a developed factual record”).
words, a purely legal challenge to a statute will succeed
only if the statute can never be applied in a lawful
manner. Id. at 1308.
The hardship prong of the ripeness
developed. Harrell, 608 F.3d at 1258.
The United States’ claim is ripe for review because
it is a facial challenge to the State’s runoff statute
and therefore presumptively fit for judicial review.
court does not need facts surrounding a runoff election
to determine whether the State’s statute violates UOCAVA.
As written, Alabama’s current runoff statute, 1975 Ala.
Code § 17-13-18, requires that a runoff election occur
exactly 42 days after a primary election.
State can hold a runoff election 42 days after the
primary while still transmitting ballots to UOCAVA voters
45 days in advance of that election, its runoff statute
violates UOCAVA on its face.
The State has not put
forth, and the court is unaware of, a way that the State
could meet both the 45-day requirement under UOCAVA and
still hold a primary runoff election 42 days after a
Indeed, because of other related tasks
that necessarily occur between the primary and runoff
printing--the transmittal of UOCAVA ballots would likely
occur at least a week, if not substantially longer, after
even the 45th day before the runoff election.
Moreover, although there is no guarantee of when a
runoff election will occur, it is certain that one will
occur, for, as the State admits, “in Alabama, runoff
elections are held as a matter of course.”
92) at 36.
Thus, it is all but certain that a federal runoff
election will soon occur, and it is certain that, when
that election occurs, Alabama will violate UOCAVA if it
follows state law, which the court presumes the State
repeal or invalidation of that law.
And other than this
invalidation is in works.
The United States’ claim also satisfies the hardship
requirement of the ripeness test, for, if the court waits
to assess this claim until after the State holds its next
federal runoff election in accordance with state law and
thus in violation of UOCAVA, UOCAVA voters will be denied
the 45 days UOCAVA has recognized as logistically needed
There is no way that the issue of
the application of the 45-day transmittal requirement to
federal runoff elections could be litigated between a
primary and a runoff election in time for the requirement
to be applied to that runoff.
Indeed, the State joined
the United States in asking this court, should it find in
favor of the United States, to expedite and resolve this
issue by no later than mid-February in order for State to
requirement four months later, in June of this year.
For the foregoing reasons, the court holds that
federal runoff elections.
The next issue, therefore, is whether Alabama is in
violation of UOCAVA.
As stated in the preceding section
of this opinion, the court is unaware of a way that the
State could meet both the UOCAVA’s 45-day transmittal
requirement under UOCAVA and still hold a primary runoff
election 42 days after a primary election as it is
required to do by state law, that is, 1975 Ala. Code
As further stated, it is certain that a
federal runoff election will occur in Alabama and that
when it does the State will violate UOCAVA.
therefore, further holds that Alabama’s runoff statute,
§ 17-13-18, violates UOCAVA to extent the state statute
requires that a federal runoff election occur within 42
days of a primary.
An appropriate judgment will therefore be entered as
summary judgment; (2) denying the State of Alabama and
its Secretary of State’s motion for summary judgment; (3)
entering summary judgment in favor of the United States
and against the State of Alabama and its Secretary of
State; (4) declaring that UOCAVA’s 45-day transmittal
requirement, 42 U.S.C. § 1973ff-1(a)(8)(A), applies to
federal runoff elections; (5) declaring that Alabama’s
UOCAVA’s 45-day transmittal requirement to extent the
state statute requires that a federal runoff election
occur within 42 days of a primary; and (6) giving the
DONE, this the 11th day of February, 2014.
/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE
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