USA v. State of California, et al

Filing 7

CONSENT DECREE signed by Judge William B. Shubb on 5/29/2012. (Marciel, M)

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THOMAS E. PEREZ
Assistant Attorney General
Civil Rights Division
BENJAMIN B. WAGNER
United States Attorney

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T. CHRISTIAN HERREN, JR.
ABEL GOMEZ
JAYE ALLISON SITTON (D.C. Bar # 453655)
OLIMPIA E. MICHEL (N.Y. Bar # 4358321)
Attorneys, Voting Section
Civil Rights Division
U.S. Department of Justice
950 Pennsylvania Avenue, N.W.
NWB 7254
Washington, D.C. 20530
Telephone: [phone]
Facsimile: [phone]

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Attorneys for the United States

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IN THE UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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UNITED STATES OF AMERICA,

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Plaintiff,

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CONSENT DECREE

v.

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CASE NO. 12-CV-1427 WBS

THE STATE OF CALIFORNIA; and DEBRA
BOWEN, SECRETARY OF STATE OF
CALIFORNIA, in her official capacity,

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Defendants.

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Plaintiff United States of America (“United States”) initiated this action against the State of

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California (the “State”) and the State of California’s Secretary of State, Debra Bowen, in her official

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capacity (“Secretary of State”), to enforce the requirements of the Uniformed and Overseas Citizens

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Absentee Voting Act (“UOCAVA”), 42 U.S.C. §§ 1973ff to 1973ff-7. The United States alleges

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violations of UOCAVA arising from the failure in 11 counties—despite repeated notifications by the
Consent Decree

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Secretary of State—to transmit absentee ballots to all absent uniformed services voters and overseas

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voters by the 45th day before the June 5, 2012 Federal primary election. Absent corrective action, some

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UOCAVA voters from California will not be provided sufficient time to receive, mark, and submit their

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ballots in time to have those ballots counted in the June 5, 2012 Federal primary election. Additionally,

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the United States alleges that the State has failed to establish or implement adequate procedures that

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ensure absentee ballots are transmitted according to the preferred method designated by the voter, as

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required by the statute. 42 U.S.C. § 1973ff-1(f)(1)(A).
The United States and the Secretary of State (“the parties”), through their respective counsel, have

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conferred and agree that this action should be settled without the delay and expense of litigation. The

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parties share the goal of providing UOCAVA voters with sufficient opportunity to participate in the June

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5, 2012 Federal primary election and subsequent Federal elections. Accordingly, the parties have

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negotiated in good faith and hereby agree to the entry of this Consent Decree as an appropriate resolution

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of the UOCAVA violations alleged by the United States. Accordingly, the United States and the

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Secretary of State stipulate and agree that:

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1.

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UOCAVA, as amended by the Military and Overseas Voter Empowerment Act, Pub. L. No. 111-84,

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Subtitle H, §§ 575-589, 123 Stat. 2190, 2318-2335 (2009) (“MOVE Act”). UOCAVA provides that

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absent uniformed services voters and overseas voters shall be permitted “to use absentee registration

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procedures and to vote by absentee ballot in general, special, primary, and runoff elections for Federal

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office.” 42 U.S.C. § 1973ff-1.

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2.

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and this Court has jurisdiction of this action pursuant to 42 U.S.C. § 1973ff-4 and 28 U.S.C. §§ 1345 and

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2201.

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3.

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ensuring that validly-requested absentee ballots are transmitted to UOCAVA voters in accordance with its

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terms. 42 U.S.C. § 1973ff-1.

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4.

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The Secretary of State is California’s chief elections officer. Cal. Elec. Code § 10 (West 2012); Cal.

This action is brought by the Attorney General on behalf of the United States pursuant to

The Attorney General is authorized to enforce the provisions of UOCAVA, 42 U.S.C. § 1973ff-4,

The State of California is charged with the responsibility of complying with UOCAVA, and

Debra Bowen is sued in her official capacity as the Secretary of State of the State of California.

Consent Decree

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Gov’t Code § 12172.5 (West 2012). The Secretary of State is, among other things, charged with

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administering the provisions of the Elections Code and ensuring that elections are efficiently conducted.

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Cal. Gov’t Code § 12172.5.

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official who is either independently elected or hired by an independently elected Board of Supervisors.

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6.

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UOCAVA voters not later than 45 days before an election for Federal office when the request is received

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at least 45 days before the election, unless a hardship exemption is obtained pursuant to Section 102(g) of

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UOCAVA, 42 U.S.C. § 1973ff-1(g). 42 U.S.C. § 1973ff-1(a)(8). California did not seek or obtain a

The Secretary of State represents that each of California's 58 counties has its own chief elections

Section 102(a)(8) of UOCAVA requires that States transmit validly requested ballots to

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hardship exemption for the June 5, 2012 Federal primary election.

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electronically in accordance with the preferred method of transmission designated by the UOCAVA voter

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in Federal elections. 42 U.S.C. § 1973ff-1(f)(1)(A).

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designate whether the voter prefers that such blank absentee ballot be transmitted by mail or

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electronically. 42 U.S.C. § 1973ff-1(f)(1)(B).

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9.

On June 5, 2012, the State will conduct a Federal primary election.

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10.

Counties of the State received timely requests for absentee ballots on or before the 45th day prior

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to the June 5, 2012 Federal primary election from voters who are entitled to vote pursuant to the

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provisions of UOCAVA.

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least 45 days before the June 5, 2012 Federal primary election was April 21, 2012.

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12.

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local elections officials by the close of polls on Election Day to be counted in the election. Cal. Elec.

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Code §§ 3017, 3311 (West 2012). For the June 5, 2012 Federal primary election, the UOCAVA ballots

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must be received by 8:00 p.m. on June 5, 2012.

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counties that failed to send all of their UOCAVA ballots by the deadline of April 21, 2012 – 45 days

UOCAVA requires that States establish procedures to transmit blank absentee ballots by mail and

UOCAVA also provides that each state shall establish procedures by which UOCAVA voters can

The deadline for transmission of absentee ballots to UOCAVA voters who had requested them at

State law requires that ballots from all voters, including UOCAVA voters, must be received by

The California Secretary of State’s office has provided information to the United States regarding

Consent Decree

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before the June 5, 2012 Federal primary election.

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Modoc, San Diego, San Francisco, San Mateo, Shasta, Sierra, Tehama, Trinity, and Ventura) failed to

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transmit ballots by the 45-day deadline of April 21, 2012, to some or all UOCAVA voters who had

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requested ballots by that date. The number of UOCAVA ballots transmitted late in each county ranges

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from one to 5,565. In all, California transmitted a total of 8,249 ballots after the 45-day deadline. After

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the deadline, eight of the 11 late-transmitting counties (Contra Costa, Modoc, San Diego, San Francisco,

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San Mateo, Sierra, Trinity, and Ventura) took some remedial steps by sending or resending some or all of

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their UOCAVA ballots by express mail, and three of the 11 counties (Contra Costa, San Diego, and

According to the Secretary of State’s reports, 11 of California’s 58 counties (Contra Costa, Fresno,

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Ventura) also offered their voters the option to return their ballot by Federal Express at county expense.

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15.

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two days after the deadline. A total of 5,456 ballots were transmitted by Fresno, San Francisco, and

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Shasta Counties by the 43rd day before the June 5, 2012 Federal Primary Election. 517 ballots were

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transmitted by Modoc, Sierra, San Francisco, Tehama, and Ventura Counties by the 41st day. 739 ballots

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were transmitted by San Mateo County on the 39th day. Forty-one ballots were transmitted after the 39th

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day before the June 5, 2012 Federal Primary Election (Trinity with 28 and San Diego with 13). Contra

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Costa initially sent 1,496 ballots via email on the 43rd and 42nd day before the June 5, 2012 Federal

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Primary Election to all voters for whom they had an email address, but later re-transmitted all its ballots

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according to the voters’ preferences.

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2012, the 45th day before the June 5, 2012 Federal primary election, constitutes a violation of Section

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102(a)(8)(A) of UOCAVA, 42 U.S.C. § 1973ff-1(a)(8)(A).

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electronically in accordance with the preferred method of transmission designated by the voter constitutes

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a violation of Section 102(f)(1)(A) of UOCAVA, 42 U.S.C. § 1973ff-1(f)(1)(A). For the June 5, 2012

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Federal primary election, Contra Costa County election officials transmitted ballots electronically to all

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UOCAVA voters for whom they had an e-mail address, regardless of the method of delivery requested by

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the voter. Although the county later transmitted ballots according to the voters’ preferences, that

Of the 8,249 ballots transmitted after the 45-day deadline, the majority were transmitted within

The failure to transmit absentee ballots to UOCAVA voters who requested them by April 21,

The failure to establish or implement adequate procedures to transmit absentee ballots by mail and

Consent Decree

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transmission occurred after the 45-day deadline had passed. Further, information provided to the United

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States by the Secretary of State’s office shows that at least 11 counties (including Butte, Contra Costa,

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Fresno, Imperial, Kern, Kings, Modoc, Nevada, Siskiyou, Sonoma, and Yuba) have a stated practice that

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fails to ensure that a UOCAVA voter’s preferred method for receiving a blank absentee ballot is honored.

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Officials in Kern, Kings, and Nevada counties admit that they have no systematic way to track the method

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of transmission designated by the voter and consequently these counties are unable to confirm whether the

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application of their stated practice resulted in all UOCAVA voters receiving ballots by the method they

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chose.

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The Secretary of State’s office confirmed with Butte Fresno, Imperial, Modoc, Siskiyou, Sonoma,

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and Yuba counties that these counties did in fact transmit their UOCAVA ballots via the voter’s preferred

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method.

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transmitted according to the preferred method designated by the voter constitutes a violation of Section

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102(f)(1)(A) of UOCAVA, 42 U.S.C. § 1973ff-1(f)(1)(A).

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expeditiously promote the parties’ shared goal of ensuring that California’s UOCAVA voters will have

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sufficient opportunity to receive absentee ballots they have requested and submit marked absentee ballots

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in time for them to count for the June 5, 2012 Federal primary election, the parties agree that this Court

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should enter an order that certain counties that transmitted UOCAVA ballots late shall, at no expense to

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UOCAVA voters, provide for express mail service for the return of completed ballots by affected

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UOCAVA voters. This remedy takes into account the extent to which some of the 11 counties have

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remediated to a sufficient degree their late transmission through express delivery or electronic

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transmission of the ballots and requires that four additional counties (San Francisco, San Mateo, Shasta,

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and Trinity) offer an express delivery return option to all of its UOCAVA voters whose ballots were

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transmitted late. The parties also agree that the Secretary of State shall establish for implementation by

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the counties adequate procedures to ensure that the counties transmit absentee ballots by mail and

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electronically in accordance with the preferred method of transmission designated by UOCAVA voters.

The failure to establish or implement adequate procedures that ensure that absentee ballots are

In order to avoid the burdens, delays, and uncertainties of litigation and to efficiently and

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Consent Decree

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WHEREFORE, the parties having freely given their consent, and the terms of the Decree being fair,

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reasonable, and consistent with the requirements of UOCAVA, it is hereby ORDERED, ADJUDGED,

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AND DECREED that:

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(1)

The Secretary of State shall issue a directive instructing the elections officials in the

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counties of San Francisco, San Mateo, Shasta, and Trinity, at no expense to UOCAVA

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voters, to provide an option for express delivery service for the return of marked ballots for

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all affected UOCAVA voters registered to vote in their counties through the courier

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company or delivery service most suitable and accessible to those voters. The Secretary of

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State shall issue a directive instructing the elections officials to email all affected

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UOCAVA voters for whom the counties have an email address to notify them that if they

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have not yet received their ballots, they may choose to receive their ballots for the June 5,

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2012 Federal primary election by fax or email, instead of by postal mail, advise them of

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the options for returning the voted ballot by fax, and offer the voters the option to return

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the voted ballot by express delivery at no expense to UOCAVA voters. If the counties lack

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email addresses for affected voters, but do have fax numbers for such voters, the

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notification required by this paragraph shall be provided by fax. If the counties lack an

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email address or a fax number for affected voters, but do have a telephone number for such

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voters, the notification required by this paragraph shall be provided by telephone. The

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notice shall, at minimum: (a) explain that the deadline for the ballot to be executed and

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received by the county elections official is June 5, 2012 at 8:00 p.m.; (b) explain that the

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county will provide, at no expense to UOCAVA voters, for express delivery service for the

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return of marked ballots; (c) provide appropriate contact information at the Secretary of

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State’s office for assistance.

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(2)

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Contra Costa, Fresno, Modoc, San Diego, Sierra, Tehama, and Ventura counties, to email

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any voter who was mailed a ballot late by postal mail, who has not already been emailed or

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sent a second ballot by express delivery, and for whom the counties have an email address

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to notify those voters that if they have not yet received their ballots, they may choose to
Consent Decree

The Secretary of State shall issue a directive instructing the elections officials in

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receive their ballots for the June 5, 2012 Federal primary election by fax or email, instead

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of by postal mail, advise them of the options for returning the ballot by fax, and offer the

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voters the option to return the voted ballot by express delivery, at no expense to UOCAVA

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voters. If the counties lack an email address for affected voters, but do have fax numbers

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for such voters, the notification required by this paragraph shall be provided by fax. The

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notice shall, at minimum: (a) explain that the deadline for the ballot to be executed and

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received by the county elections official is June 5, 2012 at 8:00 p.m.; (b) explain that the

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county will provide, at no expense to UOCAVA voters, for express delivery service for the

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return of marked ballots; (c) explain the rules for counting the ballots referenced in

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paragraph (5); and (d) provide appropriate contact information at the Secretary of State’s

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office for assistance.

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(3)

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validly counted, the Secretary of State shall establish a procedure providing which ballot

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shall be counted if both ballots are returned, and instruct the chief elections official in each

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county to notify all other elections officials and UOCAVA voters affected by this Order of

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these rules.

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(4)

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of the Federal Voting Assistance Program of the United States Department of Defense

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(“FVAP”) and request assistance in notifying military and other eligible voters of the relief

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afforded by this agreement, and coordinate with FVAP as necessary to facilitate such

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notice.

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(5)

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following steps to endeavor to give affected voters notice of the contents of this agreement:

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issue a press statement for immediate release, posted immediately on the State’s election

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information website, and distributed as broadly and immediately as practicable to national

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and local wire services, to radio and television broadcast stations, and to daily newspapers

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of general circulation in the State. The release shall also be distributed to the Federal

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Voting Assistance Program; International Herald Tribune (http://www.iht.com); USA
Consent Decree

To ensure that UOCAVA voters who received two ballots will have their ballot

Upon entry of this Consent Decree, the Secretary of State shall notify the Director

Upon the entry of this Consent Decree, the Secretary of State shall take the

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Today International (http://www.usatoday.com); Military Times Media Group

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([e-mail]); Overseas Vote Foundation

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(http://www.overseasvotefoundation.org/intro/); Stars and Stripes (www.estripes.com), and

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any other appropriate news media in the State of California. The news release shall, at

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minimum: (a) summarize this order, including a description that the option of express

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return of marked ballots has been offered in certain counties within the State; (b) notify

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affected UOCAVA voters that they may choose to receive their ballots for the June 5, 2012

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Federal primary election by fax or email and return them by fax or express delivery as

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provided by this order; and (c) provide appropriate contact information at the Secretary of

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State’s office. The Secretary of State shall also prepare and distribute written public

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service announcements describing this Consent Decree for broadcast on radio and

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television networks, including but not limited to the media described above.

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(6)

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shall provide a report to counsel of record for the United States no later than July 13, 2012,

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concerning the number of UOCAVA absentee ballots, by county, received and counted for

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the June 5, 2012 Federal primary election. The report will set forth the following

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information, by county, categorized by absent uniformed services voters with APO/FPO

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addresses or non- U.S. street addresses; uniformed services voters at a street address within

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the U.S.; and overseas civilian voters:

For each county that transmitted its UOCAVA ballots late, the Secretary of State

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a.

The number of absentee ballots from UOCAVA voters received by the

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affected counties by 8:00 p.m. on June 5, 2012, and counted;

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b.

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8:00 p.m. on June 5, 2012 for all of the affected counties; and

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c.

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counted in the June 5, 2012 Federal primary election in the affected counties, for

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reasons other than late receipt, and the reasons such ballots were not counted.

The number of absentee ballots from UOCAVA voters received later than

The number of absentee ballots from UOCAVA voters that were not

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(7)

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adequate procedures to ensure that the counties transmit absentee ballots by mail and
Consent Decree

The Secretary of State shall establish for implementation by all 58 counties

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electronically in accordance with the preferred method of transmission designated by

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UOCAVA voters in all future Federal elections. The Secretary of State shall ensure that

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any forms, instructions, and materials used by the Secretary of State or provided by the

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Secretary of State to the State's counties reflect absentee ballot transmission procedures

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consistent with UOCAVA.

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(8)

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August 1, 2012, the Secretary of State shall conduct a training program for at least one

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elections official who is responsible for UOCAVA implementation in each California

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county on the requirements of UOCAVA, as amended by the MOVE Act, and the need to

In anticipation of the November 6, 2012 Federal general election, no later than

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send absentee ballots on time and by the voters’ requested method of transmission.

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Training materials shall be developed in consultation with and approved by counsel for the

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United States.

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(9)

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future Federal elections conducted prior to the expiration of this decree, the Secretary of

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State shall gather the following information and report it to counsel of record for the

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United States:

To ensure California’s compliance with UOCAVA for the remaining 2012 and all

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a.

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California county to determine: (1) whether each county has received a sufficient

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number of printed absentee ballots sufficiently ahead of the 45-day mailing

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deadline to transmit those ballots as required by UOCAVA; (2) whether each

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county has the technical capacity to transmit all requested ballots by the requested

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method of transmission; (3) whether any county anticipates difficulties or a

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situation that would prevent it from transmitting all requested ballots to UOCAVA

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voters by the requested method of transmission and by the appropriate deadline; (4)

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what measures any such county will implement to address any difficulties or

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obstacles to transmitting all requested ballots to UOCAVA voters by the requested

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method and by the appropriate deadline; and (5) whether any county believes it

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needs additional support to ensure that it meets the appropriate deadlines. Where
Consent Decree

Beginning the 55th day prior to each Federal election, survey each

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additional support to the counties is appropriate, the Secretary of State shall provide

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it. The Secretary of State shall provide the results of the survey to counsel for the

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United States in a format agreed to by the parties no later than 5:00 p.m. Pacific

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time on the 48th day before each Federal election.

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b.

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officials written or electronic certifications, in a format agreed to by the parties, of:

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(1) the number of absentee ballot applications received by each county on or before

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the 45th day before each Federal election from any voter entitled to vote pursuant

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to UOCAVA and the method of transmission requested; (2) the date on which the

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county began sending absentee ballots to those UOCAVA voters; (3) the date on

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which and method of transmission by which the county completed sending those

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absentee ballots; and (4) an affirmative declaration that all UOCAVA ballots

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requested by the 45th day were transmitted by the 45th day by the requested

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method of transmission;

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c.

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above into a spreadsheet format devised in consultation with the United States and

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transmit the spreadsheet electronically to counsel for the United States no later than

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5:00 p.m. Pacific time on the 42nd day before each Federal election;

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d.

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reported pursuant to paragraph (10)(b) of this Decree is accurate to the best of the

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Secretary of State’s knowledge;

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e.

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a format agreed to by the parties, of: (1) the number of absentee ballot applications

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received by each county after the 45th day and on or before the 30th day before

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each Federal election from any voter entitled to vote pursuant to UOCAVA and the

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method of transmission requested; and (2) the date on which and method of

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transmission by which the county sent the requested ballots; and (3) an affirmative

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declaration that all UOCAVA ballots requested after the 45th day and on or before
Consent Decree

By the 43rd day prior to each Federal election, obtain from county elections

Compile the data provided by the counties described in paragraph (10)(b)

Certify in writing to counsel for the United States that all of the data

Obtain written or electronic certifications from county elections officials, in

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the 30th day were transmitted promptly by the requested method of transmission;

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f.

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above into a spreadsheet format devised in consultation with the United States and

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transmit the spreadsheet electronically to counsel for the United States no later than

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5:00 p.m. Pacific time on the 29th day before each Federal election; and

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g.

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reported pursuant to paragraph (10)(e) of this Decree is accurate to the best of the

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Secretary of State’s knowledge.
(10)

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Compile the data provided by the counties described in paragraph (10)(e)

Certify in writing to counsel for the United States that all of the data

The Secretary of State shall maintain written records of all actions taken pursuant

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to this Consent Decree sufficient to document compliance with its terms. Such records

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shall be made available to the United States upon request.

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(11)

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procedures to ensure that all counties fully implement UOCAVA so that voters shall have

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the full opportunity to vote guaranteed by UOCAVA in future Federal elections, including

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determining the cause of the late mailed ballots and taking any necessary actions to prevent

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future violations arising from the State’s election calendar or practices of the Secretary of

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State or California’s counties. The parties shall confer on the progress of these efforts, and

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the Secretary of State shall provide status reports to the United States by December 1,

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2012; December 1, 2013; and December 1, 2014.

The Secretary of State shall establish for implementation by all 58 counties

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The Court shall retain jurisdiction over this action to enter such further relief as may be necessary for the

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effectuation of the terms of this Consent Decree and to ensure compliance with UOCAVA through

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December 31, 2014. For good cause shown, any party may move to extend the consent decree or to

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reopen the case.

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Consent Decree

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AGREED AND CONSENTED TO this 25th day of May, 2012.

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For the Plaintiff:

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THOMAS E. PEREZ
Assistant Attorney General
Civil Rights Division

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BENJAMIN B. WAGNER
United States Attorney

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/s/ Jaye Allison Sitton
T. CHRISTIAN HERREN, JR.
ABEL GOMEZ
JAYE ALLISON SITTON (D.C. Bar # 453655)
OLIMPIA E. MICHEL (N.Y. Bar # 4358321)
Attorneys, Voting Section
Civil Rights Division
U.S. Department of Justice
950 Pennsylvania Avenue, N.W.
NWB 7254
Washington, D.C. 20530
Telephone: [phone]
Facsimile: [phone]

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For Defendant Secretary of State:
KAMALA HARRIS
California Attorney General

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/s/ George Waters (as authorized on May 25, 2012)
GEORGE WATERS (Cal. Bar # 88295)
Deputy Attorney General
1300 I Street, Suite 125
P.O. Box 94244-2550
Sacramento, CA 94244
Telephone: [phone]
Facsimile: [phone]

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SO ORDERED this 29th day of May, 2012.

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Consent Decree

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