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

Filing 23

OPINION. Signed by Honorable Judge Myron H. Thompson on 3/12/12. (Attachments: # 1 Civil Appeals Checklist)(djy, )

IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION

UNITED STATES OF AMERICA,
Plaintiff,
v.
THE STATE OF ALABAMA and
BETH CHAPMAN, in her
official capacity as
Secretary of State of
Alabama,
Defendants.

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

OPINION
On February 24, 2012, plaintiff United States of
America (“the United States”) filed this lawsuit against
defendants State of Alabama and Alabama Secretary of
State

Beth

Chapman

(collectively

“Alabama”

or

“the

State”).

Relying on the Uniformed and Overseas Citizens

Absentee

Voting

Act

of

1986

(“UOCAVA”),

42

U.S.C.

§ 1973ff et seq., as amended by the Military and Overseas
Voter Empowerment Act, Pub. L. No. 111-84, Subtitle H, §§
575-589, 123 Stat. 2190, 2318-2335 (2009) (“MOVE Act”),
the United States seeks to enforce the right of absent

uniformed services and overseas voters (“UOCAVA voters”)
to vote by absentee ballot in the State of Alabama’s
federal primary election scheduled for March 13, 2012.
The jurisdiction of this court is invoked pursuant to 42
U.S.C. § 1973ff-4(a) and 28 U.S.C. § 1345.

On March 7,

2012, the court issued a preliminary injunction requiring
the State to take a number of steps to comply with
UOCAVA; this is why.

I.
On February 28, 2012, following a hearing, the court
granted

the

United

States’

motion

for

a

temporary

restraining order and preliminary injunction.

The court

required the State to compile and submit evidence related
to UOCAVA ballot transmission at the county level and
that the parties meet and confer and then submit a report
on how to proceed.

United States v. State of Alabama,

2012 WL 642312 (M.D. Ala. 2012).

As stated, on March 7,

2012, the court issued another preliminary injunction,

2

this time requiring the State to take a number of steps
to comply with UOCAVA.

The court promised that an

opinion explaining the basis for the March 7 injunction
would follow on March 9, but the court extended that
deadline to March 12.

This is promised opinion.

II.
The

court

considers

four

factors

in

determining

whether to issue a preliminary injunction: (1) whether
there is a substantial likelihood of success on the
merits; (2) whether irreparable injury will result unless
the injunction is issued; (3) whether the threatened
injury outweighs whatever damage the proposed injunction
may cause the opposing party; and (4) whether granting
the injunction is in the public interest. Delta Air
Lines, Inc. v. Air Line Pilots Ass’n, Int’l, 238 F.3d
1300, 1308 (11th Cir. 2001); Siegel v. Lepore, 234 F.3d
1163, 1176 (11th Cir. 2000) (en banc) (per curiam).1
1. The parties agreed that an evidentiary hearing
was not necessary to resolve the pending motion.
3

There is a substantial likelihood that the United
States will prevail on the merits.

UOCAVA guarantees

military and overseas voters the right “to use absentee
registration procedures and to vote by absentee ballot in
general,

special,

Federal office.”

primary,

and

runoff

elections

42 U.S.C. § 1973ff-1.

for

In 2009, the

MOVE Act amended UOCAVA to require that States transmit
absentee ballots to UOCAVA voters at least 45 days before
an

election

for

federal

office

to

provide

voters

sufficient time to receive, mark, and return absentee
ballots.

42 U.S.C. § 1973ff-1(a)(8)(A).

Alabama’s
responsibility

contention

that

to

compliance

ensure

it

is
with

not

its

UOCAVA,

especially where local county officials transmit ballots
and administer an election, is meritless.

Subject to an

exception not applicable here, the statutory language is
explicit: “Each State shall-- ... transmit a validly
requested absentee ballot to an absent uniformed services

4

voter or overseas voter ... not later than 45 days before
the election.”

42 U.S.C. § 1973ff-1(a)(8).

Indeed, the

heading to this section is “State responsibilities.”

Id.

at § 1973ff-1.
Moreover,

this

explicit

statutory

directive

that

Alabama bears full responsibility is reinforced by the
rest of the statute.

For instance, the statute further

provides that, “Each State shall-- ... in addition to any
other method of transmitting blank absentee ballots in
the State, establish procedures for transmitting by mail
and electronically blank absentee ballots” to UOCAVA
voters, id. at § 1973ff-1(a)(7); “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”
UOCAVA voters, id. at § 1973ff-1(a)(9); “Each State shall
designate a single office which shall be responsible for
providing

information

procedures,”

id.

at

§

regarding

voter

1973ff-1(b);

5

and,

registration
if

a

voter

requests a ballot but does not “designate a preference”
for the type of ballot, “the State shall transmit the
voter

registration

application

by

any

application
delivery

or

method

accordance with applicable State law.”
1(e)(5).2

absentee

ballot

allowable

in

Id. at § 1973ff-

The statute also provides for a hardship

exemption, but at the state, not local, level: “If the
chief State election official determines that the State
is unable to meet the requirement [to transmit ballots
not later than 45 days before the election] with respect
to

an

election

for

Federal

office

due

to

an

undue

hardship ..., the chief State election official shall
request that the Presidential designee grant a waiver to
the State of the application of such subsection.”

Id. at

2. Subsection (b) of § 1973ff-1 (which requires that
a single state office be designated for providing
information regarding voter-registration and absenteeballot procedures) “recommends” that the state office
designated
for
informational
purposes
also
“be
responsible for carrying out the State’s duties under
[UOCAVA].”
42 U.S.C. § 1973ff-1(b).
Thus, even in
making this “recommendation,” the text of the statute is
clear that the duties under UOCAVA are the “State’s
duties.”
6

§ 1973ff-1(g)(1) (emphasis added). Finally, as evidenced
by how compliance with UOCAVA is to be reported, the
statute imposes obligations on the States, as States,
even when they delegate some duties (as they are free to
do) to local government officials: “Not later than 90
days after the date of each regularly scheduled general
election for Federal office, each State and unit of local
government which administered the election shall (through
the State, in the case of a unit of local government)
submit a report to the Election Assistance Commission ...
on the combined number of absentee ballots transmitted to
absent uniformed services voters and overseas voters for
the election and the combined number of such ballots
which were returned by such voters and cast in the
election, and shall make such report available to the
general public.”

Id. at 1973ff-1(c).

That Alabama bears full responsibility for compliance
with

UOCAVA

is

further

confirmed

by

legislative history and in the caselaw.

7

the

statute’s

In a section

meant

to

clarify

the

“delegation

of

State

responsibilities to local jurisdictions,” the legislative
history explains: “[W]hile the MOVE Act contains a number
of mandates on the States ..., States remain free to
delegate

those

Compliance

with

responsibilities
MOVE’s

to

mandates,

local

officials.

however,

ultimately

remains a State responsibility, and States will continue
to be the main entity against which the provisions of
MOVE and UOCAVA will be enforced should enforcement by
the Department of Justice become necessary.”

Military

and Overseas Empowerment (MOVE) Act of 2009, 156 Cong.
Rec. S4513, S4517 (daily ed. May 27, 2010).
every

case

addressing

obligations

under

Similarly,
UOCAVA

has

focused on the obligations of States, as States, not
local government units.

See, e.g.,

United States v. New

York, 2012 WL 254263, at *1 (N.D.N.Y. Jan. 27, 2012)
(Sharpe, C.J.) (“New York is responsible for complying
with UOCAVA and ensuring that validly-requested absentee
ballots are sent to UOCAVA voters in accordance with its

8

terms.”); United States v. Cunningham, 2009 WL 3350028,
at *7 (E.D. Va. Oct. 15, 2009) (Williams, J.) (rejecting
the argument that local election officials are necessary
parties to the litigation because the “Commonwealth of
Virginia

...

is

directed

by

UOCAVA

[to]

ensure

its

compliance by the local election boards”); see also,
e.g., Doe v. Miller, 2010 WL 4340804 (D. Nev. Oct. 27,
2010) (Navarro, J.) (considering the State of Nevada’s
obligations where a single county missed the deadline
required by UOCAVA).
For the 2012 federal primary, Alabama’s election is
March 13, which means that validly requested ballots were
required

to

be

sent

by

January

28,

2012.

It

is

undisputed that the State has not complied with UOCAVA’s
mandate; numerous Alabama counties failed to transmit
UOCAVA absentee ballots at least 45 days prior to the
federal primary election.

Specifically, the undisputed

evidence indicates that 47 Alabama counties received
valid UOCAVA ballot requests, and that all 47 of these

9

counties failed to transmit the ballots by the January 28
deadline.
The Alabama Secretary of State Chapman exercised her
authority to extend the UOCAVA ballot deadline by eight
days, and a notice to that effect was placed upon her
website.

In pertinent part, this notice provided:
“The Secretary of State has received
information indicating that transmission
of some UOCAVA ballots for the March 13,
2012 primary election has been delayed.
Your ballot may be one of these. As a
remedial action, the Secretary of State
has extended the statewide deadline for
receiving all UOCAVA ballots by eight
(8) days to March 21, 2012, to ensure
that all military and overseas voters
have a full and fair opportunity to have
their votes counted.”

Chapman Affidavit 8 (Doc. No. 14-1, at 9).
It is also undisputed that the eight-day extension
does not fully cover the UOCAVA violation here because at
least 16 counties, representing at least 260 ballots,
sent UOCAVA absentee ballots after February 5, more than

10

eight days late.3

Indeed, some timely requested ballots

were sent as late as February 15, 18 days after the
transmission deadline and ten days more than the eightday extension.

The eight-day extension, therefore, did

not provide these voters with the statutorily mandated
45-day window.
As to irreparable harm, the State disputes whether
any voters will be disenfranchised and thus harmed by its
UOCAVA

violations.

Secretary

Chapman

says

that

she

“intends to do everything in her power to ensure that
UOCAVA voters can vote and that their vote is counted.”
State Br. 4 (Doc. No. 14, at 4) (internal quotes and
alterations omitted).

Specifically, Secretary Chapman

says that ballots received beyond the eight-day extension
will be counted if received within 45 days of their
transmission and are otherwise valid and that she is
prepared to delay or amend the vote’s certification if

3. The record is unclear as to the number of
ballots, if any, sent after February 5 in seven
additional counties.
11

this step proves necessary.

Thus, Secretary Chapman’s

planned remedy is to keep the eight-day extension in
place but be willing to accept otherwise valid ballots
received after the extended March 21 deadline.
For a number of reasons, when viewed in light of the
State’s response thus far, this plan and well-meaning
intent are not enough.
by

the

State

(the

First, the remedy already adopted

eight-day

extension

and

potential

amended certification for ballots returning late) is
insufficient on its face to ensure enfranchisement of
UOCAVA voters.

Alabama has not sought to provide UOCAVA

voters with the full 45-day ex ante window required by
law; its remedy relies upon an ex post, ad-hoc acceptance
of ballots received after March 21.
providing

a

further

extension

That is, instead of

and

then

notice

on

Secretary Chapman’s website (and circulated elsewhere)
that ballots transmitted even beyond the eight-day mark
will be accepted, the State is content to have these
ballots sent late and under the expectation that they

12

must be returned in less than 45 days (on March 21).
This sort of ex post remedy is plainly inadequate: It
does nothing to put voters on notice that their ballots
will be counted even if received after the eight-dayextension period has passed.

Without such a notice, a

military voter has no idea that his or her late-arriving
ballot is even worth submitting, with the effect that
this voter will likely simply not vote.

Thus, the

Secretary’s

in

suppression.

remedy

would

likely

result

voter

As Secretary Chapman recognized in her

initial notice, an extended deadline and notice thereof
are necessary “to ensure that all military and overseas
voters have a full and fair opportunity to have their
votes counted.”
9).

Chapman Affidavit 8 (Doc. No. 14-1, at

There is no reason why voters whose timely requested

ballots were sent after February 5 are not entitled to
the same “full and fair opportunity” as other UOCAVA
voters.

13

Moreover,

the

State’s

denial

of

its

ongoing

obligation to ensure statewide UOCAVA compliance is a
compelling

reason

to

find

that

an

injunction

is

appropriate, especially given the State’s non-compliance
and its inadequate remedy.

The unequivocal and mandatory

language of the § 1973ff-1(a) (“Each State shall”) places
a clear burden on the State to ensure UOCAVA ballots are
sent lawfully.

That it denies such a responsibility,

which has been acknowledged in every other case under the
statute, suggests Secretary Chapman’s intentions, however
well-meaning, are inadequate.

As made clear above, the

statute imposes upon the State, as State, an affirmative
obligation to ensure that UOCAVA ballots are sent, even
if through local jurisdictions, in compliance with its
strictures.
The

effect

of

the

State’s

failure

to

act

affirmatively, as opposed to responsively, to ensure that
UOCAVA

is

followed

is

evident

by

its

track

record:

Alabama failed to comply with UOCAVA for the 2010 federal

14

general election as well.
eight-day

extension

In 2010, the State adopted the

repeated

here.

This

pattern

is

troubling, as the UOCAVA violations here appear far worse
now than those in 2010: All 47 counties that received
timely UOCAVA ballot requests were out of compliance, and
some ballots were sent even 18 days late.

In addition,

the fact that the eight-day extension is identical to the
remedy adopted when the State failed to comply with
UOCAVA in 2010 is further evidence that the State has
inadequately protected the rights of UOCAVA voters.

The

eight-day extension will not cover voters who validly
requested

their

ballots

but

whose

ballots

were

transmitted after February 5, which is at least 260
voters.

The State even admits that it knew of these

violations

before

this

litigation

began,

but

it

did

nothing to guarantee voters whose ballots were sent more
than 10 days late were fully enfranchised.

Accordingly,

far from the tailoring required to remedy undisputed
noncompliance,

the

State’s

rubber-stamp

is

under-

inclusive and unresponsive to the facts of 2012 election.
15

Such an approach may be consistent with, and the result
of, Alabama’s view that it is not obligated, as the
State, to ensure UOCAVA compliance, but, as explained,
that view has no basis in the law.
In short, the court concludes that it is likely
irreparable

harm

will

result

because

the

State

has

adopted an obviously inadequate remedy; has denied that
it is even obligated to comply with UOCAVA; and, in the
face of an undisputed statutory violation in 2010, failed
to take any affirmative steps to prevent further future
violations of federal voting law, which resulted in more
extensive,

systemic

violations

for

the

2012

federal

primary.
The

other

factors

necessary

for

preliminary-

injunctive relief to issue are satisfied as well.

The

court again finds that the potential harm caused to
UOCAVA voters far outweighs the burden placed upon the
State,

which

obligation

to

military

and

overseas constituents to vote in federal elections.

As

vindicate

the

has

a

legally

fundamental

mandated

right

16

of

its

to the public interest, it should go without saying that
issuing an injunction that will require ex ante relief to
prevent disenfranchisement benefits the public.

Indeed,

the justification for enforcement of the MOVE Act is
evidenced in the need for its passage: The Act was
enacted “in response to the widespread disenfranchisement
of uniformed services and overseas voters during the
November 2008 general elections.”

Doe v. Walker, 746 F.

Supp. 2d 667, 670 (D. Md. 2010) (Titus, J.).

As cannot

be doubted, “‘[f]or our citizens overseas, voting by
absentee

ballot

may

be

the

only

exercise [the right to vote].

practical

means

to

For the members of our

military, the absentee ballot is a cherished mechanism to
voice their political opinion.’”

Cunningham, 2009 WL

3350028,

Hillsborough

at

*4

(quoting

Bush

v.

County

Canvassing Bd., 123 F. Supp.2d 1305, 1307 (N.D. Fla.
2000)).

Indeed, “[n]othing is more critical to a vibrant

democratic society than citizen participation in the act
of voting.

It is unconscionable to send men and women

overseas to preserve our democracy while simultaneously
17

disenfranchising
States

v.

New

them
York,

while
2012

they
WL

are

254263,

gone.”
at

United

*1.

Thus,

ensuring that these voters, many of whom risk their lives
at the request of their government, have the opportunity
to vote is certainly in the public interest.

Finally,

the court does not enjoin the State’s election scheme
lightly, or without considering the role comity plays
here.

At

the

same

time,

deference

to

state

decision-making does not require the court to sit by idly
and watch violations of the law persist.

In some cases,

and this is one, if “federally-guaranteed voting rights
are to be protected, the court must act.”

Id.

III.
The court is also well-aware that injunctive relief
must

be

tailored

to

the

circumstances

the

court

confronts; a one-size-fits-all approach is inappropriate.
See Osmose, Inc. v. Viance, LLC, 612 F.3d 1298 (11th Cir.
2010

(“‘The

law

requires

that

courts

closely

tailor

injunctions to the harm that they address.’” (quoting
18

ALPO Petfoods, Inc. v. Ralston Purina Co., 913 F.2d 958,
972 (D.C. Cir. 1990)).

For that reason, and given the

important interests at stake--both on the side of the
voting rights of UOCAVA voters and the State’s interest
in administering its own election scheme--the court finds
it appropriate to set out, in some detail, why it finds
each

provision of the injunction issued here to be

necessary.

The relief falls into six large categories:

(1) an extension of the ballot-receipt deadline; (2)
guidance on how to resolve conflicts if multiple ballots
are returned; (3) notice provisions; (4) a post-election
report;

(5)

ballot-transmission

requirements

for

the

possibility of a run-off election; and (5) relief for
other federal elections in 2012.
1.

The court extended the ballot-receipt deadline

for UOCAVA ballots to March 31, 2012, to afford relief to
the

UOCAVA

voters

who

received

their

February 5, and as late as February 18.

ballots

after

This extension,

which is based upon the information filed pursuant to the
court’s initial injunction, gives these voters the same
19

relief provided with the eight-day extension Secretary
Chapman already adopted.

Importantly, this relief is

deferential to state law in two ways.

First, the court

did not take the further step of requiring UOCAVA ballots
sent after February 5 be accepted even if they were sent
after the date of the election, which is not permitted by
state law.

1975 Ala. Code § 17-11-18.

Given the extent

of the violations and the timing of the court’s order
(less than a week before the election), such relief might
have

been

appropriate

to

ensure,

beyond

a

doubt

whatsoever, no UOCAVA ballot went uncounted as a result
of the State’s late ballot transmission.

Taking a lesser

course and the one proposed by the United States, the
court extended the postmark date by one day, from the
“date prior to the day of the election,” to the day of
the election itself, which is what state law already does
for UOCAVA ballots in runoff elections.
court

allowed

the

State

to

certify,

Id.

Second, the

provisionally,

election results in any election where the number of
outstanding UOCAVA ballots cannot mathematically alter
20

the outcome.

This will allow the State to move quickly

if it needs to hold a runoff election and as it goes
through the process of certifying and sending out the
runoff ballots.
2.

In

the

event

that

local

election

officials

receive more than one ballot from a single qualified
voter, the State is required to ensure that any conflicts
are resolved by counting the “official State ballot.”
The parties agree that the likelihood of this provision
coming into play is low, but agree that the meaning of an
“official
directive

State

ballot”

provides

an

is

understood

and

noncontroversial

that

this

method

for

resolving any instance where a voter, though intending to
vote once, sends in two ballots.
3.

The court’s injunction requires broad notice be

provided to inform, to the greatest extent possible,
UOCAVA voters that their ballots can be received by March
31 instead of March 21, as it stood before the court’s
order.

As

explained

above,

merely

extending

the

deadline, or agreeing to accept ballots after the State’s
21

extended March 21 deadline, is ineffective if voters do
not know that ballots sent by election date and received
by March 31 will actually be counted.
the

deadline,

these

notice

provisions

After extending
are

the

most

crucial part of the court’s injunction in that they seek
to ensure the relief afforded is meaningful.

Given the

importance of notice and the exigency required to make
the court’s order effective, the notice provisions are
broad: They require, to the extent possible, specific
notice and, in addition, general notice both online and
in the local community.

Local notice, such as that in

local newspapers, will, hopefully, reach not just the
UOCAVA voter but their at-home community, with the hope
that a family member or friend, who may have direct
contact with the voter, will inform the voter that his or
her ballot will be received and counted up until March
31.

Such broad, mandatory notice might not have been

necessary if there were more time between the court’s
order and the election; in such a case, an order giving
the State wider latitude to determine what sorts of
22

notice to issue might be appropriate.
however,

there

is

no

time

for

more

In this case,
passive

(though

perhaps effective under other circumstances) notice.
4.

The State must provide a post-election county-by-

county report, much like the one it was able to assemble
in less than 48 hours of the court’s first injunction
regarding the number of UOCAVA absentee ballots received
and counted.

The report will also indicate the number

received after the March 31 extended deadline and include
the number that were not counted for other reasons.

In

determining the propriety of an injunction and whether
one should issue at all, information is key.
will

provide

both

the

court

and

the

This report

litigants

with

information on how many UOCAVA voters were ultimately
affected

by

the

State’s

failure

to

comply

with

its

transmission requirements, and it will provide evidence
of the effectiveness of the injunctive relief already in
place,

and

particular.

of

extending

the

receipt

deadline

in

Indeed, another section of UOCAVA, which

requires similar reports for general elections, indicates
23

this remedial step is a necessary part of how Congress
contemplated the statute would work.

42 U.S.C. § 1973ff-

1(c).
5.

Because of the possibility of a runoff election

and because the transmission date is before the State
will actually know whether there will be a runoff and
before the names of the candidates can be confirmed, the
court has required the State to send blank federal writein ballots to UOCAVA voters in districts where the State
anticipates a runoff election being held.
to be two districts.

There appear

The court also has ordered that

official, certified ballots be sent once they have been
produced.

Notably, the State indicated its willingness

to comply with this provision of the order before it was
issued.

The March 10 date was selected because it is 45

days before any runoff election would be held and strikes
a compromise between the parties who disagree whether the
45-day requirement applies to runoff elections at all and
whether

the

State’s

“written

plan”

for

election satisfies the statute regardless.
24

the

run-off

Compare 42

U.S.C.

§

1973ff-1(a)(8)

election”),

with

id.

at

(requiring
§

45

days

1973ff-1(a)(9)

for

“an

(requiring

States to establish a “written plan” for runoffs that
gives UOCAVA voters “sufficient time to vote in the
runoff election”).

Thus, the solution created by the

injunction guarantees UOCAVA compliance for any potential
runoff election and that voters are enfranchised rather
than having allowing litigation itself to delay ballot
transmission.
6.

Finally, the court has ordered relief for the

remaining 2012 federal elections.

Counsel for the State

of Alabama are required to meet and confer with counsel
for the United States twice in the two weeks

leading up

to the elections and must take a number of proactive
steps to determine the level of statewide compliance
before any such election.

In particular, the State must

survey Alabama counties 55 days prior to each federal
election, report that information to the court and the
United States 48 days before the election, certify that
ballots have been sent 45 days in advance,
25

compile these

data, and further report 29 days before the election as
to whether all validly requested ballots were sent.
The court finds this prophylactic remedy, which has
been employed in other cases, necessary for many of the
same reasons an injunction had to issue in the first
place: The State denies its legal obligation to ensure
UOCAVA compliance; the State has violated the statute in
two consecutive elections; the extent of these violations
has been widespread, systemic, and worsening; and the
State has failed to establish mechanisms to avoid UOCAVA
voter disenfranchisement.
v.

New

York,

10cv1214

See also, e.g., United States
(N.D.N.Y.

Feb.

14)

(ordering

identical preventative measures for other 2012 federal
elections), available at (Doc. No. 15-1, at 3-4).
DONE, this the 12th day of March, 2012.
/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE