McCain-Palin 2008, Inc. v. Cunningham et al

Filing 47

Cross MOTION for Summary Judgment and Memorandum in Support and Opposition to Defendants' Motion for Summary Judgment by UNITED STATES OF AMERICA. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M, # 14 Exhibit N, # 15 Exhibit O, # 16 Exhibit P, # 17 Exhibit Q, # 18 Exhibit R, # 19 Exhibit S, # 20 Exhibit T, # 21 Exhibit U, # 22 Exhibit V, # 23 Exhibit W, # 24 Exhibit X, # 25 Exhibit Y)(Perrin, Robin)

Exhibit A

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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Ric hm on d Division

Th e United States of America, Plaintiff versus 3:08 CR 709

Je an Cunningham, Harold Pyon An d Nancy Rodriguez, Defendants

Before:

HONORABLE RICHARD L. WILLIAMS

Se nio r District Court Judge

De ce mb er 8, 2008. Ric hm on d, Virginia

GI LBE RT F. HALASZ, RMR Official Court Reporter U. S. Courthouse [phone] Ric hm on d, VA 23219

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Ro ber t A. Dybing, Esq. F or the defendants. R obi n Elaine Perrin, Esq. R eb ec ca Wertz, Esq. Alb er to Ruisanche, Esq. Fo r the United States. Appearances

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TH E CLERK:

Case number 3:08 CV 709.

Un ite d States of America versus Jean C un ni ng ham and others. Ro bin E. Perrin, Alberto Ruisanchez and R eb ec ca Wertz represent the plaintiff. Mr . Robert A. Dybing represents the defendant. Ar e counsel ready to proceed? MR . DYBING: TH E COURT: Ready. I believe we are here on your

m ot io n to dismiss. Do you care to address it? MR . DYBING: TH E COURT: MR . DYBING: T he Court. Yes, Your Honor. All right. Good afternoon. May it please

When we were last here, Your Honor, And among

T he Court denied the request for a TRO.

T he Court's comments was that when Congress has p re sc ri bed a remedial scheme, that is a strong i nd ic at ion that Congress did what it wanted to do, a nd it is not for The Court to substitute their o wn judgment for a different remedial scheme, as i s proposed in this case. Th e complaint alleges a violation of the s ta tu te called UOCAVA. The complaint, however,

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u nd er st and ab ly does not point to any provision a bo ut the UOCAVA that is allegedly violated. I ns te ad they point to a "determination" made by an o rg an iz ati on within the Defense Department. We ll, that determination, however reasonable, i s not law. It is not under force of law. And we

k no w that because in the UOCAVA statute Congress a ss ig ne d federal responsibilities. None of those

r es po ns ibi li ti es includes preparing regulations, s et ti ng deadlines for states to mail out absentee ballots. Instead, UOCAVA also prescribed state And among those

responsibilities.

r es po ns ibi li ti es, conspicuously, is not the o bl ig at ion to mail out absentee ballots by a c er ta in deadline before the election. Co ngr es s knows how to set deadlines. In

f ac t, the UOCAVA statute in many places refers to deadlines. that. 30 days to do this, 90 days to do

Therefore, the absence of a state deadline

t o mail out absentee ballots is clearly Congress' a dv er te nt decision and not an inadvertent omission c re at in g a vacuum that courts should fill in. Wi th regard to the particular concerns of the i nt er ve nor , the defendants understand those concerns. In fact, those concerns are what led to

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t he adoption UOCAVA and the federal write-in in 1 97 3 FF-2. And that statute says that there shall

b e a process for dealing with UOCAVA voters who m ak e application for but do not receive state a bs en te e ballots. That is precisely the situation

T he Court is addressing today, and we submit that w he re Congress, as here, prescribed a remedy for p re ci se ly the concern addressed by the intervenor i n his suit papers, The Court's resolution should b e guided by what Congress did and not, as i nt er ve nor suggests, to graft an ad hoc and s ta tu to ril y unauthorized remedy on top of the r em ed y that Congress expressly adopted. Fo r those reasons, Your Honor, we r es pe ct ful ly move The Court to dismiss the complaint. TH E COURT: All right. Thank you.

Wh o is going to respond on behalf of the government? MR . RUISANCHEZ: TH E COURT: I, am Your Honor.

All right. May it please The Court, the

MR . RUISANCHEZ:

r ig ht to vote under UOCAVA means the right to r ec ei ve a timely absentee ballot. Section 102 (a)

1 requires that states permit military and

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o ve rs ea s voters to vote by absentee ballot.

If a

d ef en da nt fails to mail absentee ballots in time f or them to be received, executed, and returned by t he counting deadline, then the statute has failed t o permit those voters to vote by absentee ballot. T ha t is a clear and unambiguous violation of s ec ti on 102 (a) 1. Moreover, the federal voting

a ss is ta nce program which administers UOCAVA, the D ep ar tm ent of Justice, which enforces UOCAVA, and c ou rt rulings for the past 20 years all contradict d ef en da nts ' position. Th ey all state that UOCAVA is violated when a s ta te fails to mail timely absentee ballots. C on ve rs ely , the defendants have failed to cite a s in gl e case, and the United States has not found o ne , in which a court has ruled that a state can m ai l untimely absentee ballots without violating UOCAVA. In addition, Congress amended UOCAVA several t im es since its enactment, most recently in 2004. S o Congress was aware of how the federal voting a ss is ta nce program was administering UOCAVA, was a wa re of how the Department of Justice was e nf or ci ng UOCAVA, and was aware of how courts were i nt er pr eti ng UOCAVA. Congress had the opportunity

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t o amended that uniform interpretation of UOCAVA, a nd it chose not to do so. De fen da nt s argue that the failure to send t im el y absentee ballots does not violate UOCAVA b ec au se these voters can cast a federal write-in a bs en te e ballot. The federal write-in absentee

b al lo t; however, does not discharge a state of its o bl ig at ion under section 102 (a) 1 to permit m il it ar y and overseas voters to vote by absentee ballot. As noted, section 102 (a) 1 requires the

s ta te permit military and overseas voters to vote b y absentee ballot. And section 102 (a) 3

r eq ui re s that states permit military and overseas v ot er s to vote using the federal write-in absentee ballot. So it is clear that UOCAVA requires It requires states to both

s ta te s to do both.

p er mi t military and overseas voters to vote by a bs en te e ballot and to permit military and o ve rs ea s voters to vote using the federal write-in a bs en te e ballot. So the statutory language of

U OC AV A is clear that the federal write-in ballot i s in addition to, not instead of, the obligation t ha t states have to permit military and overseas v ot er s to vote by sending them an absentee ballot i n a timely manner.

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Mo reo ve r, Congress in its legislative history i s clear the federal write-in absentee ballot was i nt en de d to be an emergency back-up measure. w as not intended to be a replacement for the r eg ul ar state absentee ballot. Th e defendants also argue that UOCAVA makes t he federal write-in absentee ballot the exclusive r em ed y for late mailing. Nothing in statutory It

l an gu ag e, however, states that the federal w ri te -i n absentee ballot is the exclusive, the s ol e, or the only authorized remedy for late mailing. To the contrary, section 105 of UOCAVA

g iv es the Attorney General broad enforcement a ut ho ri ty to bring lawsuits for such declaratory a nd injunctive relief as is necessary to carry out t hi s title. In this case the United States submits the o nl y relief that is necessary, or part of the r el ie f that is necessary in order to make sure t ha t these military and overseas voters are not d is en fr anc hi se d is an order from this court to c ou nt the disputed absentee ballots that would h av e arrived on time had it not been for the local e le ct io n officials' untimely mailing of the a bs en te e ballot.

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Fi nal ly , the federal write-in absentee ballot i s not an equivalent to the opportunity to vote by r eg ul ar absentee ballot. For many reasons. The

f ir st is, unlike a regular absentee ballot, the f ed er al write-in absentee ballot is not mailed or s en t directly to the military and overseas voter. T he military and overseas voter must seek that f ed er al write-in absentee ballot out. And for

s om e military and overseas voters, especially t ho se in combat areas, or those overseas citizens w ho are far away from where the federal write-in a bs en te e ballot is made available, it may be very d if fi cu lt for them to get a hold of the federal w ri te -i n absentee ballot. In addition, the

f ed er al absentee write-in ballot, unlike the r eg ul ar absentee ballot, does not contain the n am es of the candidates who are running, the p ar ti es that they are affiliated with, or the p os it io ns that they are running for. So military

a nd overseas voters may have to do some additional r es ea rc h when they vote with the federal write-in a bs en te e ballot to determine exactly who they want t o vote for. Fi nal ly , the federal write-in absentee ballot d oe s not contain the state instructions that are

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n ee de d to make sure that the federal write-in a bs en te e ballot of the voter complies with that s ta te 's laws and is counted under those state's laws. So that, in addition, is another

r eq ui re men t that the military and overseas voter h as to do to make sure that the federal write-in a bs en te e ballot is counted under that voter's s ta te law. It is clear that the federal write-in a bs en te e ballot is better than altogether d is en fr anc hi si ng, but Congress did not intend it t o be a replacement for the regular ballot and U OC AV A does not discharge a state of its o bl ig at ion to mail timely absentee ballots simply b ec au se the federal write-in ballot is available. T he united States has stated an avowed claim for r el ie f here and requests this court deny the d ef en da nts ' motion to dismiss. TH E COURT: Mr . Dybing. MR . RUISANCHEZ: MR . DYBING: Thank you Your Honor. Thank you.

Your Honor, two points to make.

O ne is that the authority conferred on THE A tt or ne y General to enforce UOCAVA says that he m ay seek relief as may be necessary to carry OUT

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t hi s subchapter.

It does not say as necessary to

c ar ry out the determinations of people within the D ep ar tm ent of Defense. Se con dl y, with regard to the alleged flaws in t he UOCAVA statute, we understand their position, t ho se points are better addressed toward Congress r at he r than the federal judiciary. TH E COURT: Thank you.

Th e defendants argue that the United States' c om pl ai nt should be dismissed for failure to state a claim upon which relief can be granted. This

a rg um en t is premised on the absence of a specific d ea dl in e in UOCAVA for the mailing of state a bs en te e ballots. The defendants also make an

a rg um en t that the case is now moot because the r es ul ts have been certified; and, two, the United S ta te s lacks standing to bring claims based on s pe ci al , primary, or run-off elections. These

l at er arguments can be dispensed with quickly. Ce rti fi ca tio n of the election results does n ot hi ng to change The Court's earlier d et er mi nat io n that this is a case capable of r ep et it ion , yet evading review. Moreover, the

U ni te d States is advancing an argument about c an on s of statutory construction, not actual

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i nj ur y, in its discussions of special, primary, a nd run-off elections. Therefore, the defendants'

s ta nd in g argument must fail. In evaluating the defendants' primary claim T he Court is mindful of the admonition that; A, r ul e 12(b)(6) motion should be granted only in v er y limited circumstances, such as when the c om pl ai nt fails to allege enough facts to state a c la im to relief that is plausible on its face. t hi s case the United States is alleging that the d ef en da nts violated their obligations under UOCAVA t o permit eligible voters to vote by absentee b al lo t in the November 4, 2008 general election. T he United States asserts that the defendants f ai le d to mail ballots to some eligible UOCAVA v ot er s until within a fortnight of the election. C la im in g this late mailing violates UOCAVA, the U ni te d States seeks an expansion of the deadline f or receiving absentee ballots. It also requests In

t ha t the defendants be ordered to take such steps a s are necessary to insure that eligible UOCAVA v ot er s are afforded "a fair and reasonable o pp or tu nit y to participate in future federal elections." Under 42 United States Code section

1 97 3 ff-4 the United States Attorney General has

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t he power to bring civil actions for declaratory a nd injunctive relieve to enforce UOCAVA. In

s ho rt , therefore, the party charged with enforcing U OC AV A has brought a claim that Virginia violated t he statute by its alleged tardiness in mailing a bs en te e ballots, a facially plausible claim. G iv en this, The Court denies the defendants' m ot io n to dismiss. No w, having read the copious filings in this c as e, and becoming ever more convinced that this s it ua ti on cries out for a solution created by the p ar ti es rather than crafted by The Court, I want t o provide you with some guidance. Ev en if all these allegations are true, I am u nl ik el y to order the counting of the late r ec ei ve d ballots because, one, they will not alter t he election outcomes; and in some ways, more i mp or ta ntl y, two, under the United States' own r ea so ni ng that a minimum of 30 days is required f or successful mailing, receipt, and execution of a n absentee ballot a ten-day extension will not h el p those most harmed by Virginia's inexplicable d el ay in mailing absentee ballots, namely, the 125 i nd iv id ual s whose ballots were mailed in the last f or tn ig ht before the election.

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Mo reo ve r, a 30-day deadline cannot be r ig or ou sly enforced or justified under UOCAVA s in ce the statute itself requires states to honor b al lo t applications received by the later of, one, t he state's deadline for receiving them; or two, 3 0 days before the election. Given this, Congress

o bv io us ly envisioned some situations in which a s ta te 's absentee ballot would be mailed within 30 d ay s of the election. However, Congress also

e vi de nt ly thinks that 60 days is the necessary b uf fe r between an election and the provisions of a s ta te 's ballot to obviate the need for the p ro te ct ion of a federal write-in absentee ballot. S ee section 1973 ff-2 (e). If it is indeed true

t ha t some ballots were not mailed until within 14 d ay s of the election, it seems clear that Virginia d id indeed violate you UOCAVA and does need to t ak e steps to insure the ballots are made a va il ab le either through mailing, faxing, e -m ai li ng, or some other method to UOCAVA voters i n a better manner in future elections. O bv io us ly, the parties have the best understanding o f what steps must be taken to insure that such a t ro ub li ng situation does not arise again. T he re fo re, I encourage you to seriously talk among

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y ou rs el ves to see if you can reach a mutually a gr ee ab le solution for future elections. I want

y ou -- I am going to adjourn court, but I want you t o contact my law clerk to set a hearing on the m er it s, on the merits of your case. In the

m ea nt im e, I will enter an order referring this c as e to a magistrate judge for a settlement conference. Ad jou rn court until tomorrow morning, at what time? TH E CLERK: TH E COURT: 10:0010. At 10:00 o'clock.

HE AR IN G ADJOURNED The foregoing is a true and correct transcript.

G ilb er t Frank Halasz, RMR Off ic ia l Court Reporter