United States of America v. The State of Alabama et al
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,
THE STATE OF ALABAMA and
BETH CHAPMAN, in her
official capacity as
Secretary of State of
CIVIL ACTION NO.
On February 24, 2012, plaintiff United States of
America (“the United States”) filed this lawsuit against
defendants State of Alabama and Alabama Secretary of
Relying on the Uniformed and Overseas Citizens
§ 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.
On February 28, 2012, following a hearing, the court
restraining order and preliminary injunction.
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,
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.
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.
There is a substantial likelihood that the United
States will prevail on the merits.
military and overseas voters the right “to use absentee
registration procedures and to vote by absentee ballot in
42 U.S.C. § 1973ff-1.
In 2009, the
MOVE Act amended UOCAVA to require that States transmit
absentee ballots to UOCAVA voters at least 45 days before
sufficient time to receive, mark, and return absentee
42 U.S.C. § 1973ff-1(a)(8)(A).
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
voter or overseas voter ... not later than 45 days before
42 U.S.C. § 1973ff-1(a)(8).
heading to this section is “State responsibilities.”
at § 1973ff-1.
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-- ...
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
requests a ballot but does not “designate a preference”
for the type of ballot, “the State shall transmit the
accordance with applicable State law.”
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
hardship ..., the chief State election official shall
request that the Presidential designee grant a waiver to
the State of the application of such subsection.”
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
responsible for carrying out the State’s duties under
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
§ 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
Id. at 1973ff-1(c).
That Alabama bears full responsibility for compliance
legislative history and in the caselaw.
In a section
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
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.”
and Overseas Empowerment (MOVE) Act of 2009, 156 Cong.
Rec. S4513, S4517 (daily ed. May 27, 2010).
focused on the obligations of States, as States, not
local government units.
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
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
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
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
counties failed to transmit the ballots by the January 28
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
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
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
As to irreparable harm, the State disputes whether
any voters will be disenfranchised and thus harmed by its
“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
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
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.
First, the remedy already adopted
amended certification for ballots returning late) is
insufficient on its face to ensure enfranchisement of
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.
That is, instead of
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
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.
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
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
obligation to ensure statewide UOCAVA compliance is a
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
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
affirmatively, as opposed to responsively, to ensure that
Alabama failed to comply with UOCAVA for the 2010 federal
general election as well.
In 2010, the State adopted the
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.
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.
eight-day extension will not cover voters who validly
transmitted after February 5, which is at least 260
The State even admits that it knew of these
nothing to guarantee voters whose ballots were sent more
than 10 days late were fully enfranchised.
far from the tailoring required to remedy undisputed
inclusive and unresponsive to the facts of 2012 election.
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
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
injunctive relief to issue are satisfied as well.
court again finds that the potential harm caused to
UOCAVA voters far outweighs the burden placed upon the
overseas constituents to vote in federal elections.
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.
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.).
be doubted, “‘[f]or our citizens overseas, voting by
exercise [the right to vote].
For the members of our
military, the absentee ballot is a cherished mechanism to
voice their political opinion.’”
Cunningham, 2009 WL
Canvassing Bd., 123 F. Supp.2d 1305, 1307 (N.D. Fla.
Indeed, “[n]othing is more critical to a vibrant
democratic society than citizen participation in the act
It is unconscionable to send men and women
overseas to preserve our democracy while simultaneously
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.
the court does not enjoin the State’s election scheme
lightly, or without considering the role comity plays
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.”
The court is also well-aware that injunctive relief
confronts; a one-size-fits-all approach is inappropriate.
See Osmose, Inc. v. Viance, LLC, 612 F.3d 1298 (11th Cir.
injunctions to the harm that they address.’” (quoting
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
provision of the injunction issued here to be
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
possibility of a run-off election; and (5) relief for
other federal elections in 2012.
The court extended the ballot-receipt deadline
for UOCAVA ballots to March 31, 2012, to afford relief to
February 5, and as late as February 18.
which is based upon the information filed pursuant to the
court’s initial injunction, gives these voters the same
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
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
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.
election results in any election where the number of
outstanding UOCAVA ballots cannot mathematically alter
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
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
resolving any instance where a voter, though intending to
vote once, sends in two ballots.
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
deadline, or agreeing to accept ballots after the State’s
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.
crucial part of the court’s injunction in that they seek
to ensure the relief afforded is meaningful.
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
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
notice to issue might be appropriate.
In this case,
perhaps effective under other circumstances) notice.
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
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.
determining the propriety of an injunction and whether
one should issue at all, information is key.
information on how many UOCAVA voters were ultimately
transmission requirements, and it will provide evidence
of the effectiveness of the injunctive relief already in
Indeed, another section of UOCAVA, which
requires similar reports for general elections, indicates
this remedial step is a necessary part of how Congress
contemplated the statute would work.
42 U.S.C. § 1973ff-
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.
The court also has ordered that
official, certified ballots be sent once they have been
Notably, the State indicated its willingness
to comply with this provision of the order before it was
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
election satisfies the statute regardless.
States to establish a “written plan” for runoffs that
gives UOCAVA voters “sufficient time to vote in the
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
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
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,
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
See also, e.g., United States
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
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