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

Filing 8

OPINION and ORDER granting 5 Motion for TRO, as further set out. Signed by Honorable Judge Myron H. Thompson on 2/28/12. (scn, )

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 AND ORDER
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

State”).

Chapman

(collectively

“Alabama”

or

“the

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.
UOCAVA guarantees military and overseas voters the
right “to use absentee registration procedures and to
vote by absentee ballot in general, special, primary, and
runoff

elections

§ 1973ff-1.

for

Federal

office.”

42

U.S.C.

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) (“Each state shall ... transmit a
validly requested absentee ballot to an absent uniformed
services voter or overseas voter ... not later than 45
days

before

the

election...”).

The

United

States

Attorney General is authorized to bring a civil action as
necessary to enforce UOCAVA.

2

42 U.S.C. § 1973ff-4.

On February 27, 2012, the United States moved for
temporary-

and

preliminary-injunctive

relief

against

Alabama, asserting that emergency relief is necessary to
remedy imminent disenfranchisement of many Alabama UOCAVA
voters caused by the State’s alleged failure to ensure
transmission of absentee ballots to these voters at least
45 days before the State’s March 13 federal primary
election, as required by UOCAVA.
The court considers four factors in determining the
propriety of granting temporary or preliminary relief:
(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).

3

Taking into account the record as it stands now as a
whole, the court concludes that the United States has met
its

burden

temporary

of
and

establishing
preliminary

each

factor

injunction

and

that

should

a

issue.

Specifically, the court finds it substantially likely the
United States will prevail on its claim that Alabama has
failed to ensure that timely requested UOCAVA ballots
were transmitted to qualified UOCAVA voters as of the
45-day advance transmission deadline; indeed, during an
on-the-record hearing with counsel for both sides today,
the

State

conceded

that

some

transmitted after the deadline.

UOCAVA

ballots

were

Accordingly, the United

States has demonstrated a high likelihood of success on
the merits of its UOCAVA claim.

Regarding injury, UOCAVA

voters affected by the State’s alleged failure to ensure
UOCAVA compliance face imminent disenfranchisement, and
thus irreparable harm, if immediate injunctive relief is
not granted; each day that passes contributes to that
harm, and the looming March 13 deadline makes swift,

4

deliberate action necessary to counteract this harm.
addition,

the

relative

harm

to

the

State

In

from

effectuating the proposed relief is slight when compared
with the potential harm to Alabama’s UOCAVA voters, many
of whom are deployed abroad serving in the United States
military.

Finally, the public interest strongly favors

enforcement of those rights by injunction under present,
time-exigent circumstances.
With regard to all four factors, the court emphasizes
that the United States has not requested substantive
relief at this time, as it might have done.

Instead, the

United States is initially pursuing a much less-intrusive
means for effectuating compliance with the UOCAVA by,
first, seeking the information necessary to determine
precisely what the substantive remedy should be and,
second,

asking

for

the

opportunity

for

the

parties

themselves to work together in good faith and jointly
craft a remedy that vindicates the rights of UOCAVA
voters in Alabama.

Because this quite-limited initial

5

remedy leaves substantive resolution of this case up to
the parties in the first instance and thus, hopefully,
may require no further intervention from the court, it
well

serves

counsels

the

federal

interest
courts

of
to

comity

that

“refrain

embroiled in state election schemes.”

generally

from

becoming

United States v.

New York, 2012 WL 254263, at *1 (N.D.N.Y. Jan. 27, 2012)
(Sharpe, C.J.).
Succinctly

put,

the

court

finds

issuance

of

injunctive relief appropriate because:
A.

UOCAVA guarantees active duty members of the

uniformed

services

(along

with

their

spouses

and

dependents) and United States citizens residing overseas
the

right

“to

vote

by

special,

primary,

office.”

runoff

ballot

elections

in

general,

for

Federal

42 U.S.C. § 1973ff-1.

B.

and

absentee

Alabama is responsible for complying with UOCAVA

and ensuring that all validly requested absentee ballots
are sent to UOCAVA voters in accordance with its terms,

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ncluding UOCAVA’s 45-day advance transmission deadline.
42 U.S.C. §§ 1973ff-l & 1973ff-6(6); New York, 2012 WL
254263, at *1.
C.

There is substantial evidence that Alabama has

failed to transmit all UOCAVA ballots in accordance with
UOCAVA

for

the

2012

federal

primary

election

and,

specifically, that Alabama has failed to ensure that all
timely

requested

UOCAVA

ballots

were

transmitted

to

qualified UOCAVA voters no later than January 28, the
45th day before the March 13 federal primary election.
D.

There

officials

have

is

substantial

refused

to

evidence

cooperate

that

with

the

Alabama
United

States to help determine the scope and severity of the
harm generated by the State’s UOCAVA violations or to
help forge an appropriate remedy for that harm.
E.

There is substantial evidence that the State of

Alabama’s extension of its ballot receipt deadline is
insufficient under the circumstances and does not fully
remedy the harm occasioned by its UOCAVA violations.

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F. At present, insufficient evidence is available as
to the precise scope and severity of the harm suffered by
Alabama’s

affected

UOCAVA

voters

due

to

the

State’s

alleged failure to transmit absentee ballots before the
March

13

federal

primary

election.

Without

that

evidence, neither the parties nor the court are able to
fashion complete relief for that harm.
G.

There is substantial evidence that the State of

Alabama is poised to commit further UOCAVA violations
with

respect

to

the

State’s

federal

runoff-primary

election, should such an election be necessary.
***
Accordingly, because the time remaining before the
federal primary election at issue is short and in order
to afford relief as complete as practicable for the State
of Alabama’s alleged UOCAVA violations, it is ORDERED
that plaintiff United States of America’s motion for
temporary

restraining

order

and

for

preliminary

injunctive relief (Doc. No. 5) is granted as follows:

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(1) Within two days (including weekend days) of this
order, defendants State of Alabama and Beth Chapman shall
file with the court a county-specific report detailing
the UOCAVA ballot activity throughout the State prior to
the March 13, 2012, federal primary.

This report shall

include, by county: (a) the number of UOCAVA absentee
ballots requested as of January 28, 2012; (b) the number
of UOCAVA absentee ballots requested after January 28,
2012; (c) the number of UOCAVA ballots transmitted as of
January 28, 2012; and (d) the number of UOCAVA ballots
requested as of January 28, 2012, but transmitted after
that date and the date each ballot was transmitted.

For

each of (a)–(d) above, defendants Alabama and Chapman
shall

denote

how

many

ballots

were

transmitted

electronically and how many were sent by mail.
(2) Counsel for defendants Alabama and Chapman shall
meet and confer with counsel for plaintiff United States
of American in person or by telephone within one day
(including

weekend

days)

after

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filing

the

report

described in ¶ (1).

Based on the information contained

in that report, counsel for the parties shall discuss the
appropriate next steps, including but not limited to the
necessity

for,

and

the

duration

of,

a

court-ordered

extension to the State’s ballot-receipt deadline and
election-certification

deadline,

notice

and

publicity

efforts to ensure that affected voters can take informed
advantage

of

propriety

any

of

remedial

affording

order

affected

of

this

UOCAVA

court,

the

voters

the

possibility of returning marked ballots by express mail
at defendants Alabama and Chapman’s expense, and any
other

measures

affected

UOCAVA

necessary
voters

to

have

ensure
a

full

that

Alabama’s

opportunity

to

participate in the March 13, 2012, federal primary and
that their rights are vindicated to the greatest extent
possible.

Counsel for the parties shall also discuss

appropriate measures to ensure that UOCAVA voters are
afforded a full opportunity to participate in the State’s

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April 24, 2012, federal runoff-primary election, if that
election is held.
(3) Within four days (including weekend days) of the
court’s order, counsel for the parties shall report back
to the court their joint recommendation for providing
Alabama’s UOCAVA voters with complete relief for the
State’s March 13, 2012, federal primary election and its
April 24, 2012, federal runoff-primary election (should
such a runoff be necessary).

If the parties are unable

to agree on a joint recommendation as to appropriate
relief, then they should file separate recommendations
and the court will determine the extent of appropriate
relief, if any, based on the parties’ separate filings.
(4) Because
defendants

time

Alabama

and

is

of

the

Chapman

essence

may

not

and

have

thus

had

an

adequate opportunity to respond (both as to the law and
the

evidence)

to

the

pending

motion

for

temporary

restraining order and for preliminary injunctive relief,
the

court

will,

upon

timely

11

request

from

defendants

Alabama and Chapman, reconsider the relief afforded in
this order.
(5) The court retains jurisdiction of this action to
enter such further relief as may be necessary for the
effectuation of the terms of this order and for the entry
of

such

permanent

defendants

Alabama

relief
and

as

appropriate

Chapman’s

to

future

compliance.
DONE, this the 28th day of February, 2012.

/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE

ensure
UOCAVA