United States of America v. The State of Alabama et al

Filing 120

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

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Plaintiff,
v.
THE STATE OF ALABAMA and
JIM BENNETT, in his
official capacity as
Secretary of State of
Alabama,
Defendants.

CIVIL ACTION NO.
2:12cv179-MHT
(WO)

OPINION
In this lawsuit, plaintiff United States of America
named

as

defendants

the

State

of

Alabama

and

its

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.

The

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.

Jurisdiction is

proper under 42 U.S.C. § 1973ff-4 and 28 U.S.C. §§ 1345
and 2001.
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
in

violation

of

UOCAVA’s

requirement

that

States

transmit absentee ballots to UOCAVA voters at least 45
days before an election for federal office.

For reasons

that will be discussed, the court will enter summary
judgment

finding

in

favor

of

the

United

States

and

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.

The court

shall grant summary judgment if the movant shows that
there is no genuine dispute as to any material fact and

2

the movant is entitled to judgment as a matter of law.”
Fed.

R.

Civ.

P.

56(a).

The

court

must

view

the

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).

Here, the

parties agree that, because the issues presented by the
remaining claim are legal ones, the claim is appropriate
for resolution on summary judgment.

I.

BACKGROUND
A.

The initial question posed by the remaining claim is
whether UOCAVA’s 45-day transmittal requirement applies
to federal runoff elections conducted by States.

Because

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.

3

The court divides this

overview into four parts with a focus on primarily four
UOCAVA provisions.
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
federal elections.

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

4

the

States.

Accordingly,

this

court

has

held

that

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
statutory compliance).
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.
111-84,

123

Stat.

2190,

2318-35

(2009).

With

this

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,

5

sets forth the 45-day transmittal requirement at issue.
The

subsection

provides

that,

subject

to

a

hardship

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.
states

in

relevant

part:

“Each

The subsection

State

shall--

...

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
election.”

42

U.S.C.

explicitly

states

that

§

1973ff-1(a)(8)(A).

“the

purpose

of

UOCAVA

[subsection

(a)(8)(A)] is to allow absent uniformed services voters
and overseas voters enough time to vote in an election
for Federal office.”
THE
exemption

HARDSHIP

42 U.S.C. § 1973ff-1(g)(1)(A).

EXEMPTION

mentioned

in

PROVISION:

subsection

6

The

hardship

(a)(8)(A)’s

45-day

transmittal

requirement

is,

subsection (g) of § 1973ff-1.

as

stated,

found

in

This provision states in

relevant part that: “If the chief State election official
determines

that

the

State

is

unable

to

meet

the

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).

42

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
such

hardship

and

be

granted

a

waiver.

42

U.S.C.

§ 1973ff-1(g).
THE WRITTEN PLAN REQUIREMENT: In subsection (a)(9)
which was also added to § 1973ff-1 in 2009, UOCAVA places

7

another responsibility on the States: to establish a
written plan for federal runoff elections.

It provides

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
and

overseas

voters

in

[a]

manner

that

gives

sufficient time to vote in the runoff election.”

them
42

U.S.C. § 1973ff-1(a)(9).

B.
The United States initially filed this case in 2012
because

Alabama

had

failed

to

meet

UOCAVA’s

45-day

transmittal requirement in federal general and primary
elections.

The State conceded that it failed to meet the

requirement in each of the last three federal elections;
the

parties

reached

an

agreement

on

the

appropriate

remedy for these past violations; and the court approved

8

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
States’

claim

elections,

that,

Alabama

with
is

regard

in

to

violation

federal
of

runoff

UOCAVA’s

requirement that States transmit absentee ballots to
UOCAVA voters at least 45 days before an election for
federal office.

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
primary election.

Alabama has not held a federal runoff

election since Congress passed the 2009 amendment, which
added

the

45-day

transmittal

requirement

to

UOCAVA.

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

9

from Alabama to receive ballots 45 days in advance of a
federal election.

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.

III.

DISCUSSION
A.

A stated, the initial question is whether UOCAVA’s
45-day transmittal requirement applies to federal runoff
elections.

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.”
Id.

The court does “not look at one word or term in

isolation” and instead considers the “entire statutory

10

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.”
§ 1973ff-1(a)(8)(A).

42 U.S.C.

The issue presented is whether the

phrase “an election for Federal office” includes runoff
elections.

It does for several reasons.

1.
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”).
falls

within

the

Because a primary runoff election
reach

of

any

kind

subsection (a)(8)(A) includes runoffs.

of

election,

Indeed, if the

words “an election” were read otherwise to exclude a

11

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.

2.
This interpretation of “an election” as covering all
four types of election (general, special, primary, and
runoff)

is

reinforced

by

UOCAVA’s

overall

statutory

scheme.
First, the word “election” first appears in UOCAVA’s
general

purpose

provision,

subsection

(a)(1),

which

requires each State to permit UOCAVA voters to vote by
absentee ballot in “general, special, primary, and runoff
elections
1(a)(1).

for

Federal

office.”

42

U.S.C.

§

1973ff-

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

12

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
elections.

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.”
Second,

UOCAVA’s

subsection

(a)(3)

requires

that

States accept federal “write-in” absentee ballots but
limits this requirement to “general elections for federal
office.”

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
(a)(2)’s

reference

to

any

federal

election

for

the

acceptance and processing of absentee ballots in general,
shows that when Congress wanted to highlight or exclude
a

particular

kind

of

federal

intention explicit and clear.

13

election

it

made

that

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
Congress

intended

to

refer

to

a

specific

type

of

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.
Subsection

(a)(7)

requires

each

State

to

establish

procedures for transmitting ballots to UOCAVA voters in
federal elections.
these

procedures

The subsection explicitly requires
to

be

used

in

“general,

special,

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
applied

for

transmittal

procedures.

However,

in

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
14

office.”

42

U.S.C.

§

1973ff-1(f).

It

is

therefore

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
kinds

of

(a)(7).
follows

elections

explicitly

listed

in

subsection

See Georgia, 952 F. Supp. 2d 1327.
that,

if

Congress

intended

the

It then

phrase

“an

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
its

own

provided

explicit
in

limitation:

subsection

(g).

the
As

hardship
stated,

exemption
under

the

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
15

advanced-transmittal

deadline

and

the

State

can

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)”),
it

logically

follows

that

Congress

intended

that

subsection (g) would be the only exception.

3.
Because it is apparent from the face of UOCAVA’s 45day

requirement

as

well

as

from

the

act’s

overall

structure that the requirement covers runoff elections,
the court need not turn to legislative history. See
United

States

v.

Rojas-Contreras,

474

U.S.

231,

235

(“extrinsic materials are only required where a statute
is ambiguous, its plain meaning renders an absurdity, or
there

is

evidence

of

contrary

legislative

intent”).

Nevertheless, the legislative history, in particular that
for

the

recent

2009

amendment,

provides

additional

support for the court’s reading of the requirement.
16

In

the

House

Conference

Report

for

the

2009

amendment,

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
voters

who

requested

absentee

ballots

in

the

2008

election received them too late to return the ballots for
election day counting).

17

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
great

problem,

legislative

there

history

would

reflecting

be

something

that

intent.

in

the

Instead,

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.
To

imply

an

exception

to

the

45-day

remedy

to

the

substantial problem Congress recognized that overseas
soldiers

faced, where nothing in the statutory language
18

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.”).

There is

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
elections.
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
other

elections.

As

the

court

will

discuss

later,

runoffs therefore need, and UOCAVA provides, more, not
less, protection than for other elections.

19

Finally, this court finds noteworthy that Alabama
criticizes any reliance on legislative history with this
quote from Justice Scalia:
to

describe

equivalent

of

the

use

of

entering

“Judge Harold Leventhal used
legislative

a

crowded

history

cocktail

as

the

party

and

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
UOCAVA’s

legislative

history,

that

history

would

be

plumbed to no avail if one were looking for even one
“friend” among the guests confirming Alabama’s view that
the

45-day

transmittal

requirement

exempts

runoff

elections.

4.
Nevertheless, Alabama argues that the phrase “an
election for Federal office” in subsection (a)(8)(A) of
§

1973ff-1

reflects

a

congressional

attempt

to

distinguish federal elections from state ones and that
20

the

phrase

does

not

seek

to

define

“which”

federal

elections (general, primary, special, and runoff) are
covered by the provision.
at 24.

Defs.

Brief (Doc.

No.

92)

The court rejects this argument for several

reasons.
First, it is true that the phrase is aimed at only
federal

elections.

But

the

State’s

interpretation

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.
Second,
elections

that

is

an

UOCAVA
obvious

is

aimed

given:

at

the

subchapter in which the act is codified is
and

Voting

by

Absent

Uniformed
21

only
title

federal
of

the

“Registration

Services

Voters

and

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
(a)(8)(A).
used

in

phrases

Alabama does not contend that the word, when

phrases
to

only

throughout
one

§

purpose,

elections from state ones.

1973ff-1,
to

limits

distinguish

those

federal

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
meaning.”

Gustafason, 513 U.S. at 570 (internal citation

omitted).

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,
22

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
§

1973ff-1

UOCAVA’s

excludes

45-day

federal

transmittal

runoff

elections

requirement.

from

Subsection

(a)(9) reads:
“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
elections.”
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
different

time

requirement

for

runoff

elections,

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
23

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.
First,

subsection

(a)(9)

does

not

create

substantive transmittal requirement at all.
subsection,

Congress

merely

requires

each

any

In this
State

to

“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
elections.

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
45-day

transmittal

mandatory

(“Each

requirement,
State

shall”)

which

is

expressly

and

is

expressly

recognized in the statute as needed “to allow absent
24

uniformed services voters and overseas voters enough time
to vote in an election for Federal office.”
§ 1973ff-1(g)(1)()A).

42 U.S.C.

It would be illogical to conceive

the precatory former as a reasonable substitute for the
mandatory latter, which is at the heart of UOCAVA.

The

only reasonable reading of subsection (a)(9) is that it
is

a

supplemental,

an

additional,

remedy,

not

a

substitute.
This conclusion is reinforced when other factors are
considered.

First, there is the fact that Congress

recognized as a particular and substantial problem the
delayed

transmittal

of

absentee

ballots

from

UOCAVA

voters.

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
[subsection

(a)(8)(A)]

is

to

allow

absent

uniformed

services voters and overseas voters enough time to vote
in an election for Federal office.”
1(g)(1)(A)”).

42 U.S.C. § 1973ff-

Third, there is nothing in the statute or

its legislative history to indicate that federal runoffs
25

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
their

UOCAVA

obligations

in

runoffs

than

in

other

elections. It follows that, when these last two facts are
considered

against

the

backdrop

of

the

first

two,

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.
while

only

congressional

a

paper

one,

recognition

This requirement,

embodies

that

runoff

an

apparent

elections

are

logistically more demanding and that States need an added
nudge to meet the 45-day transmittal requirement.
Indeed,

the

fact

that

an

additional

remedy

is

warranted is more than amply demonstrated by the very
26

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
elections.

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,

2014

Ala.

WL

200668

at

*2

(M.D.

2014).

That

an

additional requirement is needed for logistically more
demanding runoff elections is self-evident.
Therefore, subsection (a)(9) neither creates a new
substantive

transmittal

deadline

nor

dictates

an

exception to the substantive transmittal deadline in
subsection (a)(8)(A).

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

27

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
subsection (a)(9).

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.)

5.
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
adjudication

because

Alabama

has

not

held

a

runoff

election since Congress enacted the requirement with the
2009 amendment to UOCAVA.

28

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.

Nevertheless,

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
ripe.
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.”

Cheffer

v. Reno, 55 F.3d 1517, 1524 (11th Cir. 1995).

Ripeness

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).
29

The fitness

portion of the analysis focuses on “the extent to which
resolution of the challenge depends upon facts that may
not

yet

be

sufficiently

developed.”

Id.

(internal

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,
1308

(11th

Cir.

2009)

(“a

purely

legal

claim

is

presumptively ripe for judicial review because it does
not require a developed factual record”).

In other

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.
test

examines

conditions

for

the

The hardship prong of the ripeness
costs

deciding

of
a

delaying
controversy

review
are

until
further

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.
30

The

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.

Unless the

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
primary election.

Indeed, because of other related tasks

that necessarily occur between the primary and runoff
election--such

as

election

certification

and

ballot

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
31

occur, for, as the State admits, “in Alabama, runoff
elections are held as a matter of course.”
(Doc.

No.

Defs.

Brief

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
will--indeed,

must--do

in

the

absence

repeal or invalidation of that law.
litigation

there

is

no

indication

of

either

the

And other than this
that

a

repeal

or

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
to

cast

their

votes

irreparably harmed.

and

they

therefore

will

be

There is no way that the issue of

the application of the 45-day transmittal requirement to
32

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
meet

the

logistical

demands

of

implementing

the

requirement four months later, in June of this year.

B.
For the foregoing reasons, the court holds that
UOCAVA’s

45-day

transmittal

requirement

applies

to

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
33

§ 17-13-18.

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.

The court,

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
follows:

(1)

granting

the

United

States’

motion

for

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
runoff

statute,

1975

Ala.

Code

§

17-13-18,

violates

UOCAVA’s 45-day transmittal requirement to extent the
state statute requires that a federal runoff election
34

occur within 42 days of a primary; and (6) giving the
parties

14

days

to

propose

or

request

any

addition

relief.
DONE, this the 11th day of February, 2014.
/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE