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

Filing 52

TRANSCRIPT of Proceedings held on 10/05/09, Court ReporterGil Halasz, RMR, Telephone number 804.916.2248. Transcript may be viewed at the court public terminal or purchased through the Court Reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 11/6/2009. Redacted Transcript Deadline set for 12/7/2009. Release of Transcript Restriction set for 1/5/2010.(halasz, gil)

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

Doc. 52

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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Ri ch mo nd Division

Th e United States of America, plaintiff versus Je an Cunningham, et al., defendants 3:08 CV 709

O ct ob er 5, 2009 Ric hm on d, Virginia

b ef ore : HONORABLE RICHARD L. WILLIAMS Senior United States District Judge Mo tio n for Summary Judgment

Gi lbe rt F. Halasz, RMR Official Court Reporter U .S . Courthouse 701 East Broad Street Ric hm on d, VA 23219 [phone]

Dockets.Justia.com

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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 be rt E. Dybing Esq. for the defendants Ri cha rd Dellheim, Esq. Le ma Bashir, Esq. R ob in E. Perrin, Esquire fo r the plaintiff APPEARANCES

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TH E CLERK:

Case number 08 CV 709.

Un ite d States versus Jean Cunningham, et al. Pl ain ti ff is represented by Robin Perrin, L em a Bashir and Richard Dellheim. De fen da nt s are represented by Robert Dybing. Ar e counsel ready to proceed? MR . DYBING: MR . DELLHEIM: TH E COURT: s um ma ry judgment. t he United States? MS PERRIN: Your Honor, I would introduce We are. Yes.

We are here on cross motions for Who wants to argue on behalf

R ic ha rd Dellheim from the Department of Justice. H e will be here on behalf of the United States. MR . DELLHEIM: TH E COURT: Good morning.

Do you want to argue or submit it What is your pleasure?

o n the record as made? MR . DELLHEIM: b ri ef remarks. TH E COURT:

I would like to make a few

All right.

Fine.

MR . DELLHEIM: counsel.

Good morning, Your Honor,

And may it please The Court, my name is Along with co-counsel, Lema

R ic ha rd Dellheim.

B as hi r and Robin Perrin we represent the United S ta te s in this matter.

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Yo ur Honor, just nine months ago this court a dd re ss ed and decided the very issues presented by t he defendants' summary judgment motion. Then, as

n ow , the defendants argued that the right to vote g ua ra nt eed by UOCAVA violated by a state's late m ai li ng of absentee ballots. The Court rejected

t ha t argument then and we urge The Court to reject i t again today. r ea so ns why. Fi rst , and perhaps most importantly, if the r ig ht to vote encompassed by UOCAVA is to mean a ny th in g at all it is that states have to mail a bs en te e ballots to voters within sufficient time b ef or e the election so the voter can receive the b al lo ts , mark them, and return them in time to be counted. Timing is, therefore, critical. There are several compelling

Se con dl y, the evidence here -TH E COURT: But in this case if you counted

t he ballots that we are talking about it would not h av e impacted the election; is that correct? MR . DELLHEIM: That's correct, Your Honor.

I t will not change the results of the election; h ow ev er , it will do something -TH E COURT: f ac to r into this? But does the doctrine of mootness

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MR . DELLHEIM: TH E COURT:

No, sir, it does not.

Why? Because the right that is

MR . DELLHEIM:

e nc om pa sse d within UOCAVA is the right to vote and n ot the right to change elections. v ot e is at the heart of this case. t o be deprived of that right -TH E COURT: But it seems to me that if you The right to And for voters

e nt er a court order that guarantees in the future t ha t this won't occur prospectively, that that is o ne issue. But something that is now moot, even

i f you counted them, does that just give the voter t he satisfaction of knowing his vote was counted? MR . DELLHEIM: That is the essence of the

r ig ht to vote is that every American citizen has t he opportunity to make his or her voice heard for h is or her candidate of choice. TH E COURT: All right. That is the right that we are

MR . DELLHEIM:

f ig ht in g to vindicate here. TH E COURT: So you are saying that those

v ot es have to be counted now, even though it would n ot impact the outcome of the election? MR . DELLHEIM: Yes, sir. That is, I would

a dd , Your Honor, that is the typical remedy in

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U OC AV A cases.

I am unaware of any UOCAVA case in

w hi ch the votes that have been deprived would have c ha ng ed the result of any election. But what is

t he heartland of what we are talking about here is A me ri ca n citizens' right to have his or her voice h ea rd and his or her vote counted. TH E COURT: All right. Your Honor, the evidence here

MR . DELLHEIM:

i s undisputed that Virginia deprived as many as 2 ,0 00 , or over 2,000 of its citizens that right to v ot e by sending ballots out too late for them to b e counted. Th at late mailing violated UOCAVA. c on cl us ion is supported by unanimous case a ut ho ri ty spanning many decades from many j ur is di cti on s throughout the country. Also, And that

s up po rt ed by this Court's December 8, 2008 order i n which it found based upon the full record b ef or e it that if Virginia in fact did mail b al lo ts late, then it did clearly "violate UOCAVA." Th at well-reasoned conclusion of this court s ho ul d continue to govern disposition of the i ss ue s before it now. Bu t that is not all, Your Honor.

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S tr ai gh t-f or wa rd application of precedence, the u nd is pu ted facts, lead to the same conclusion. a legal matter, Your Honor, and as a matter of c om mo n sense the defendants' arguments here must fail. Their basic argument is simple. It is that As

b ec au se UOCAVA does not contain a deadline by w hi ch states must mail their ballots the d ef en da nts conclude that UOCAVA -- or the mailing o f late ballots cannot violate UOCAVA. This In

s we ep in g defense would, of course, gut UOCAVA. s o doing it opened door to wholesale voting d ep ri va tio ns throughout the Eastern District of V ir gi ni a and elsewhere. In dee d, were the defendants' arguments to s uc ce ed here election officials in the Eastern D is tr ic t and elsewhere could reasonably and r ig ht ly conclude that they could not merely mail b al lo ts late, but not mail ballots at all. They

c ou ld consider themselves free of any obligation t o mail ballots to military and overseas voters. T ha t simply cannot happen. As courts have recognized -TH E COURT: Well, mailing of late isn't

f un ct io nal ly the same thing as not mailing them a ll , is it?

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MR . DELLHEIM:

As I understand the

d ef en da nts ' argument, Your Honor, their argument i s UOCAVA can never be violated by late mailing or n on existent mailing given the facts that there is n o deadlines. TH E COURT: But the functional equivalency is You know they

t he same if you mail them late. w on 't have any effect. MR . DELLHEIM: TH E COURT:

That is absolutely correct.

All right. As courts have recognized,

MR . DELLHEIM:

i nh er en t in UOCAVA's core obligation is to mail b al lo ts out in time to be counted; otherwise, the r ig ht to vote, as The Court just noted, would be illusory. Th e compliance standard that Congress adopted w he n it passed UOCAVA is simply one of reasonableness. States must give overseas voters

a reasonable opportunity to receive their ballots, m ar k them, and return them in time for counting. Wh at constitutes reasonableness is, of c ou rs e, a fact matter. Here, in this case, the

e vi de nc e is undisputed, the factual evidence is u nd is pu ted that it takes on average 30 days for m ai l to go overseas and be returned.

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Th is evidence is not merely opinion evidence, i t is based upon facts provided by federal mailing o f federal authorities that are responsible for c ar ry in g and delivering mail. Thus Virginia's

f ai lu re here to insure overseas voters have at l ea st 30 days to receive their ballots and return t he m violates UOCAVA. It did not give them a

r ea so na ble opportunity to vote. Yo ur Honor, a few words about the defendants' o th er arguments in this case. First, the

d ef en da nts avow there is no harm flowing from the l at e mailing, or even the non-existent mailing, of a bs en te e ballots because Congress provided a b ac k- up emergency provision in UOCAVA. I am

t al ki ng about the Federal Write In Absentee b al lo t, or FWAB, F-W-A-B. Th at argument has to fail for a couple reasons. Number one, it is utterly inconsistent Moreover, it

w it h UOCAVA's structure and purpose.

i mp ro pe rly restricts this court's jurisdiction to c ra ft a complete remedy to a federal law violation. And perhaps most importantly it would Here

u nd ul y and improperly burden UOCAVA voters. i s why. UO CAV A voters would have to know of the

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e xi st en ce of FWAB. t o it.

They would have to have access

They would have to have the technology to And they would have to

d ow nl oa d it and print it.

d o their own research as to the candidates, o ff ic es , and ballot propositions. They would have

t o do further research as the state law requires a bo ut when a ballot can be returned and the d ea dl in e by which they must be returned. b ur de ns are substantial. Those

The right to vote

g ua ra nt eed by section 102 of UOCAVA is simply not t he same opportunity presented by the emergency b ac k- up provision that Congress crafted in terms o f the FWAB. Th e defendants trying to shift the burdens on t o military and overseas voters simply has to be rejected. Se con d, the defendants contend that the 3 0- da y compliance standard advocated here and a do pt ed by The Court's is "absurd." They say that

b ec au se , as I understand it, it would require some e le ct io n officials to mail some absentee ballots o n the same day that a ballot request is received. N um be r one, the defendants decline to put any e vi de nc e, any fact in this record to support that argument. Number two, the United States would

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c on te nd , with respect, that it is simply not a bs ur d to expect local election officials in c er ta in instances to act with appropriate dispatch a nd haste in terms of mailing absentee ballots. Mo reo ve r, Your Honor, it is -- the 30-day c om pl ia nce standard here advocated by the United S ta te s is not incompatible with any other p ro vi si on of UOCAVA. Section 103 of UOCAVA which

d ea ls with FWAB acknowledges there are certain j ur is di cti on s where the ballot application d ea dl in es fall within 30 days of the election. t ho se circumstances the 30-day standard simply c an 't apply. It doesn't apply. UOCAVA cannot be In

v io la te d when those states because of state law c an no t reasonably get ballots to voters because b al lo t application deadlines fall within 30 days o f the election. Fi nal ly , Your Honor, we have to recall that a t stake in this case is the right to vote. It is

p er ha ps the most fundamental right of all rights o f American citizenship. Th at right has been summarily denied to up to a nd over 2,000 of Virginians overseas and military v ot er s who themselves did nothing wrong. s im pl y want their vote to count. They

This Court with,

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a ll due respect, Your Honor, must protect those v ot er s, especially those wearing a uniform, many o f whom stand in harm's way and risk their lives t o insure freedom abroad but through no fault of t he ir own have been denied the right to vote here a t home. TH E COURT: All right.

I think I understand your position. MR . DELLHEIM: Thank you, Your Honor.

Ac cor di ng ly, the United States respectfully r eq ue st s this Court safeguard their right to vote, a nd based on its prior rulings, unanimous case a ut ho ri ty, and the undisputed facts, grant summary j ud gm en t on behalf of United States. TH E COURT: All right. Thank you, Your Honor. Good morning, may it please The

MR . DELLHEIM: MR . DYBING:

C ou rt , Robert Dybing on behalf of the State Board o f Elections of the Commonwealth of Virginia. It is indeed ironic to hear the United States t al k about the federal write-in ballot as a c lu ms y, impossible, or improbable of being obeyed b y military and overseas voters. And yet that is

t he remedy that Congress crafted to address the v er y concern that exists in this law suit.

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Th e question is clear.

What happens if

s ta te s for whatever reason, or in Virginia the g en er al registrars who do the mailing, what h ap pe ns if they are late sending out absentee ballots? That is a real problem. Congress

r ec og ni zes it.

In UOCAVA, the statute dealing

w it h overseas and military voters, Congress said, l oo k, if states are late getting that ballot out y ou have the right to vote using a federal w ri te -i n ballot. No w, Congress, of course, as The Court is a wa re , enacted that federal write-in ballot p ro vi si on to address that concern. Now, the

D ep ar tm ent of Justice's position is Congress made a mistake, that that remedy is not easily exercised. That the voters overseas don't know

w hi ch candidates to vote for and might not have a cc es s to the information necessary to cast the f ed er al write-in ballot. Well, to that I think

o ne must only observe that it is for Congress to d ec id e what remedy to apply, and if Congress i mp os es a failed remedy, or a weak remedy, it is n ot the Department of Justice or the judiciary to c ra ft a substitute remedy that would address w ha te ve r failings Congress left in its statute.

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I think it is indeed doubly ironic that had t he overseas voters who were not allowed to vote, w ho didn't vote in the November 2008 general e le ct io n, if those voters had voted using the f ed er al write-in ballot, we would not be here today. Because there would have been no Each of those voters would have voted.

violation.

B ut because those voters did not, for whatever r ea so n, exercise the remedy that Congress gave t he m the intervenor stands before this court s ay in g that Virginia violated UOCAVA. And I

s ub mi t that that presents an irreconcilable conflict. Congress can not have, A, provided a

r em ed y to address a real election procedure, n am el y the federal write-in ballot, and at the s am e time penalize states and claim that states h av e violated UOCAVA by doing the very thing that C on gr es s created the remedy for. I submit that it is internally inconsistent f or the Department of Justice to take a position t ha t UOCAVA should be respected and yet ignore the w ri te -i n ballot provision and focus only on other provisions. It is clear that the 30-day period is a number. It was created apparently by a federal

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employee. Congress.

It certainly was not created by Certainly does not command the respect

o f this court in terms of either chevron deference o r any kind of deference whatsoever. a number. An d when we repeatedly challenge the D ep ar tm ent of Justice to back up the 30-day figure t he y couldn't. All they could do is say it is an Well, Congress In It is merely

e st im at e of a reasonable time.

k no ws well how to estimate reasonable time.

f ac t, as The Court is aware, there are plenty of t im e periods in UOCAVA. d ay s to do that. 60 days to do this. 90

If Congress intended that there

b e a 30-day period as a paradigm of r ea so na ble ne ss , Congress would have said so. Ir oni ca ll y, again, at long last in the reply m em or an dum the Department of Justice for the first t im e points to a specific provision of UOCAVA that t he y claim Virginia violated. And they claim

t ha t that is section 102 A 1 of UOCAVA, which is c od if ie d at 1973 FF1A1. If it please The Court, it is a short p ro vi si on, and I would simply like to read it. s ay s, "Each state shall permit absent uniformed s er vi ce s voters and overseas voters to use It

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a bs en te e registration procedures and to vote by a bs en te e ballot in general, special, primary, and r un -o ff elections for federal office." w ha t that provision requires. Vi rgi ni a does so provide that ability in s ec ti on 24-2612 of Virginia code the State of V ir gi ni a enacted a theme to provide a means for a bs en te e voting. commanded. No w, if the United States is saying but what C on gr es s really meant to put in is a r ea so na ble ne ss standard, and in particular a 3 0- da y standard in this provision, and that is w ha t they are asking this court to enforce. I So Virginia did what UOCAVA That is

s ub mi t, Your Honor, that it would be improper. TH E COURT: You, in effect, are saying that

V ir gi ni a law for all practical purposes could d is en fr anc hi se all servicemen if they are in a r em ot e territory if you just follow state procedures. Is that your position? No, not in the least. Absentee ballots, if I am in

MR . DYBING: TH E COURT:

D en ve r vacationing or something, that is one t hi ng ; but if I am serving my country in A fg ha ni sta n it seems to me that your procedures

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b as ic al ly disenfranchise the 2,000 Virginians who a re serving overseas. MR . DYBING: Your Honor, if there is an

o ve rs ea s voter who for whatever reason does not r ec ei ve a Virginia absentee ballot in time, w ha te ve r that time might be, that voter has the r ig ht to vote using a federal write-in ballot. A nd I must reiterate that for the intervenor to s ug ge st that that remedy is insufficient, that t he re needs to be a more elaborate, or more formal r em ed y that the states have to abide by, is simply t o ignore what Congress said and craft and e nt ir el y new legislative scheme on top of UOCAVA, o ne that Congress had the opportunity to enact if i t wished, but it didn't. An d the list of state responsibility under U OC AV A in FF1 is very precise in terms of what s ta te s need to do. And, in fact, in that section

p ar ag ra ph 2 there is a reference to what happens i f applications are received within 30 days before a n election. Thus Congress knows how to say 30 And if

d ay s before an election when it wishes to.

C on gr es s wanted to provide the states had to mail a bs en te e ballots out at least 30 days before an e le ct io n they clearly would have said so. And

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t ha t is not a part of the statute. I understand the policy considerations u nd er ly ing the intervenors' position. They would

l ik e to amend UOCAVA to provide a strict deadline f or states and to have some kind of remedial p ro gr am if states don't abide by the 30-day requirement. We ll, that is for Congress to decide if they w is h at some point to amend UOCAVA. The Court is

a wa re from the record that there is indeed a bill b ef or e Congress pending that would establish a 4 5- da y deadline for states to mail out absentee ballots. I understand the principle of

i nt er pr eta ti on that says an unenacted statute d oe sn 't count for anything. We understand that.

I merely point out that it would be indeed curious C on gr es s would feel obliged to impose a deadline i n UOCAVA when the intervenor claims that one a lr ea dy exists. I think The Court understands

w ha t Congress is doing now in trying to deal with e xa ct ly what is missing in UOCAVA right now. It

i s a mandatory deadline applicable to the states. Ac cor di ng ly, UOCAVA is not ambiguous. If it

w er e ambiguous the FDAP would not have delegated i ts rule-making authority at all to come up with a

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3 0- da y deadline. TH E COURT: MR . DYBING: All right. There is no 30-day deadline in

U OC AV A, and Virginia cannot have violated UOCAVA. A cc or di ngl y, we ask The Court to enter summary j ud gm en t for the Commonwealth. TH E COURT: MR . DYBING: TH E COURT: M r. Dellheim? MR . DELLHEIM: Honor. Yes, sir. Thank you, Your Thank you. Thank you, Judge. Any rebuttal argument,

And very briefly.

Yo ur Honor, Mr. Dybing read the provision t ha t in fact Virginia violated. Section 102 of

U OC AV A requires states provide overseas citizens w it h the right to vote. That is what has been

d en ie d Virginia's overseas voters in this case. Se con dl y, Mr. Dybing says that the FWAB, the e me rg en cy back-up write-in ballot, is essentially t he same opportunity to vote as provided by a s ta te ballot. i s inaccurate. It is simply patently untrue. Congress made no mistake. It

What

C on gr es s did is bend over backwards to try to i ns ur e overseas citizens have a reasonable o pp or tu nit y to cast a ballot.

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Th e FWAB is simply not the same opportunity t o vote as the regular state ballot, but it does c ou nt for something. It was not a mistake. But

t he opportunities are different, and it is not a pp ro pr iat e under these circumstances to blame the v ic ti m, blame overseas voters for not having a de qu at e access to the technology to download t ho se ballots and submit them. Th ird , the 30-day standard here is a matter o f fact before this court. We provided affidavits

o r declarations provided by the Military Postal S er vi ce , the U.S. Postal, or excuse me, the State D ep ar tm ent and others that outline the minimum t im e frames for delivering mail overseas and g et ti ng them back again. The 30-day standard that Those

h as been derived is based on those facts. f ac ts are undisputed in this record. TH E COURT: All right.

MR . DELLHEIM:

Finally, with respect to the

b il l that Mr. Dybing mentioned, the only thing we c an infer from the pending bill in Congress, and w e do not, of course, know whether it will pass, b ut the only thing we can infer from that proposed l eg is la tio n is that the deadline observed here in t hi s case by this state were hopelessly

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inadequate. Th ank you, Your Honor. TH E COURT: All right.

I will take the matter under advisement and w il l issue an opinion in due course. Mr . Dellheim, I believe when this case was a rg ue d before me before there was either a lawyer f ro m the Department of Justice named Gonzales, or s om eb od y, that argued it. MR . DELLHEIM: Ruiz-Sanchez. TH E COURT: Sanchez. Right. Why did you Yes, sir. Alberto

He did a very effective job. t ak e him off the case? r ew ar ds or what? MR . DELLHEIM:

He went on to richer

Sadly, for the voting section

o f the Department of Justice Mr. Ruiz-Sanchez has g on e on to another job within the Department, w hi ch was a loss to our section, and perhaps to t hi s court. TH E COURT: All right.

Re ces s 2:00 o'clock.

HE AR IN G ADJOURNED

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T HE FOREGOING IS A TRUE AND CORRECT TRANSCRIPT.

G ILB ER T FRANK HALASZ, RMR OFF IC IA L COURT REPORTER