United States of America v. The State of West Virginia et al
MEMORANDUM OPINION & ORDER: Denying 6 MOTION by United States of America for Emergency Supplemental Injunctive Relief; a final hearing on the merits of this action be held on 12/1/2014 @ 01:30 PM in Charleston before Judge John T. Copenhaver, Jr.;Pretrial Conference set for 11/25/2014 01:30 PM in Charleston before Judge John T. Copenhaver, Jr. Signed by Judge John T. Copenhaver, Jr. on 11/18/2014. (cc: attys; any unrepresented party) (tmr)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
UNITED STATES OF AMERICA,
Civil Action No. 2:14-27456
THE STATE OF WEST VIRGINIA
and NATALIE E. TENNANT,
Secretary of State of West Virginia,
in her official capacity,
MEMORANDUM OPINION & ORDER
Pending is the plaintiff’s motion for emergency
supplemental injunctive relief, filed November 6, 2014.
defendants responded on November 7, 2014.
The Uniformed and Overseas Citizens Absentee Voting
Act (“UOCAVA”), 52 U.S.C.A. §§ 20301-20311 (2012), requires
states to permit uniformed service voters and overseas citizens
to “vote by absentee ballot in general, special, primary, and
runoff elections for Federal office[.]”
52 U.S.C.A. §
There are two federal offices at stake here,
namely, United States Senate and United States House of
States are specifically responsible for transmitting
absentee ballots to “absent uniformed service voter[s] or
overseas voter[s] . . . not later than 45 days before the
election,” provided that the voter requests the ballot at least
45 days before the election.
Id. § 20302(a)(8)(A).
of the forty-five day requirement is to ensure that those voters
have enough time to “receive, mark, and return” their ballots.
See id. § 20302(g).
Under the statutory framework, the deadline
for transmitting absentee ballots to absent uniformed service
members and overseas citizens (the “UOCAVA voters”) who
requested them at least 45 days before the recently held
November 4, 2014 election was September 20, 2014.
See Compl. ¶
The parties agree that the defendants initially
transmitted ballots to UOCAVA voters in a timely manner on or
before September 20, 2014 (the “original ballots”).
Decree ¶ 8.
Two days after that deadline, however, the Kanawha
County Republican Executive Committee (“KREC”) and Marie McDavid
filed a petition for a writ of mandamus with the Supreme Court
of Appeals of West Virginia, seeking to require the West
Virginia Secretary of State and the State Election Committee to
substitute McDavid as the Republican candidate in the race for
the House of Delegates in the State’s 35th House District
following the withdrawal of the party’s original candidate.
State ex rel. McDavid v. Tennant, No. 14-939, slip op. at 1-2
(W. Va. Oct. 1, 2014).
Specifically, the petition prayed that
the Supreme Court of Appeals would compel the Secretary of State
to certify McDavid and add her to the ballot, and -- critically
-- instruct the Kanawha County Clerk to “mail valid ballots to
all absentee voters with instructions that the invalid ballot
that is incomplete shall be void.”
On October 1, 2014, the
Supreme Court of Appeals ruled in favor of McDavid and the KREC,
granted the writ of mandamus, ordered McDavid’s name to be added
to the ballot, and ordered the Secretary of State to issue
Id. at 10.
The court’s opinion did not
specifically address whether the original ballots were to be
considered void but, as noted, the writ was granted.
On October 3, 2014, revised ballots listing McDavid as
a candidate (the “corrected ballots”) were transmitted to UOCAVA
voters in the 35th House District.
Compl. ¶ 11.
occasioned by the need to comply with the Supreme Court of
Appeals’ order meant that the corrected ballots were transmitted
just 32 (rather than 45) days prior to the election.
result, on October 31, 2014, the United States initiated this
action, charging the State and the Secretary of State with
violating the UOCAVA and requesting: (1) “a declaratory judgment
under 28 U.S.C. § 2201 that the failure . . . to ensure that
absentee ballots [were] transmitted . . . at least 45 days in
advance of the November 4, 2014 [election] . . . violates 52
U.S.C. § 20302(a)(8)(A)”; and (2) an injunction ordering the
defendants to “take such steps as are necessary to ensure that
affected [overseas] voters in State Delegate District 35 have
sufficient opportunity . . . to receive, mark, and return their
See Compl. at Prayer of Relief.
The parties simultaneously filed a proposed consent
decree that would have, among other things, extended the
deadline for returning UOCAVA ballots until November 17, 2014.
That consent decree, if entered, also would have required the
Kanawha County Commission to count votes in the races for the
United States Senate and House of Representatives cast on
original ballots -- that is, those ballots not including McDavid
as a candidate -- provided that the voter did not return a
corrected ballot, and the original ballot was otherwise validly
The relief contemplated by the consent decree was,
however, “explicitly conditioned upon the entry of an order by
the West Virginia Supreme Court of Appeals . . . clarifying the
scope of the ordered relief in [McDavid], . . . and confirming
that the scope of the writ of mandamus issued in that case does
not prohibit the counting of” the original, uncorrected absentee
ballots with respect to the two federal offices, “if that ballot
is the only ballot returned[.]”
Proposed Consent Decree at 8.
Unbeknownst to the parties, the Supreme Court of Appeals had
already declined to so clarify its order on October 30, 2014,
thereby mooting the terms of the proposed consent decree.
On Monday, November 3, 2014, the parties submitted,
and the court entered, a revised proposed consent decree that
extended the deadline for returning UOCAVA ballots until
November 17, 2014, as previously contemplated.
consent decree did not direct the State to count original
ballots, but noted the court’s continuing jurisdiction to
“consider entry of any supplemental relief sought by the United
States with regard to the counting of votes . . . on an original
ballot . . . , if that ballot is the only ballot returned by
Consent Decree at 8.
The United States has now
moved for injunctive relief on precisely that point.
Based on information submitted by the United States in
support of the motion, it appears that corrected ballots were
sent to the thirty UOCAVA voters in the 35th House District who
had requested a ballot.
See Pl.’s Mot., Ex. 9 (E-mail from Tim
Leach to Spencer Fisher and Sarabeth Donovan, dated November 5,
As of November 5, 2014, seventeen of those voters had
returned a corrected ballot.
Of the remaining thirteen
voters, ten have not returned either ballot, although five of
them advised they had received the corrected ballot and “knew of
no impediment,” apparently meaning no impediment to returning
As to the remaining three, all of them had returned
the original ballot.
Two of those three indicated receipt
of the corrected ballot but did not intend to return it.
The last of those three is not shown to have responded with
respect to the corrected ballot.
The United States argues that counting the original
ballots is the only way to remedy the State’s UOCAVA violation.
The State “does not oppose the relief requested by the United
The Secretary of State “wishes to have the ballots
of overseas and military voters counted,” but interprets the
Supreme Court of Appeals’ refusal to clarify its order in
McDavid, as an “indication that no Original Ballots can be
See Response of Defendant Secretary of State to
United States’ Motion for Emergency Supplemental Injunctive
Relief (“SOS Resp.”) at 2 (emphasis in the original).
professes to be “unable to take a position as to whether the
order the United States requests here should be issued as a
matter of federal law.”
Id. at 7.
“A preliminary injunction is an extraordinary remedy
afforded prior to trial at the discretion of the district court
that grants[,] . . . . on a temporary basis, the relief that can
be granted permanently after trial[.]”
The Real Truth About
Obama, Inc. v. FEC (“Real Truth I”), 575 F.3d 342, 345 (4th Cir.
2009), vacated on other grounds, Citizens United v. FEC, 558
U.S. 310 (2010), and reissued as to Parts I & II, The Real Truth
About Obama, Inc. v. FEC, 607 F.3d 355 (4th Cir. 2010) (per
The party seeking the preliminary injunction must
 [T]hat he is likely to succeed on the merits, 
that he is likely to suffer irreparable harm in the
absence of preliminary relief,  that the balance of
equities tips in his favor, and  that an injunction
is in the public interest.
Id. at 346 (quoting and citing Winter v. Natural Res. Def.
Council, Inc., 555 U.S. 7, 20 (2008)).
All four elements must
be established by “a clear showing” before the injunction will
Id.; see also Winter, 555 U.S. at 22 (stating that a
preliminary injunction “may only be awarded upon a clear showing
that the plaintiff is entitled to such relief”).
The scope of the injunctive relief to be provided must
also be appropriately drawn.
“It is well established that
injunctive relief should be no more burdensome to the defendant
than necessary to provide complete relief to the plaintiffs.”
Kentuckians for Commonwealth v. Rivenburgh, 317 F.3d 425, 436
(4th Cir. 2003) (quoting Califano v. Yamasaki, 442 U.S. 682, 702
Indeed, as our court of appeals recently admonished,
an injunction is improper if it “does not carefully address only
the circumstances in the case,” or sweeps more broadly than
“necessary to provide complete relief to the plaintiff.”
Products, LLC v. Mead Johnson & Co., 639 F.3d 111, 128 (4th Cir.
2011) (internal quotation marks and citation omitted).
From all that appears at this preliminary injunction
stage, the state officials have taken such steps as necessary to
ensure that affected overseas voters in House District 35 have
sufficient opportunity to receive, mark and return ballots for
the two federal offices.
They have done so by sending out a
corrected ballot and by joining in the consent decree entered by
the court on November 3, 2014, which extended the time to
November 17, 2014, for returning by mail the corrected ballot in
keeping with the 45-day period prescribed by the UOCAVA.
thirty affected voters consist of seventeen who returned the
corrected ballot, ten who returned neither the original nor the
corrected ballot, two who returned the original ballot and
indicated receipt of the corrected ballot but declined to return
it, and one who returned the original ballot but has not been
heard from respecting the corrected ballot.
The court concludes that the United States has not, at
this juncture, made a clear showing of likelihood of success on
the merits of its claim that would have the latter three
original ballots counted for the federal offices since a
corrected ballot was not received from any of the three.
apparently informed of the consequences, two of the three have
chosen not to return a corrected ballot and the reason for the
failure of the third to return a corrected ballot is unknown.
As to the remaining factors for the issuance of a
preliminary injunction, irreparable harm will not be suffered in
the absence of preliminary relief inasmuch as a full measure of
relief may yet be afforded should it be found that a voter has
been denied the right to cast his or her vote for the two
The balance of equities tips in favor of first
fully developing the facts before compelling action that may
prove to be improvident.
Finally, a premature injunction is not
in the public interest when it may ultimately be concluded,
under the circumstances here, that the invalidation of the
original ballots for federal offices by the Supreme Court of
Appeals of West Virginia may, consistently with the UOCAVA, be
In an effort to conclude this matter prior to the
Governor’s proclamation of the federal election outcome pursuant
to W. Va. Code § 3-6-11, it is ORDERED that a final hearing on
the merits of this action be held at 1:30 p.m. on December 1,
It is further ORDERED that a pretrial conference be
conducted at 1:30 p.m. on November 25, 2014.
The defendant Secretary of State is requested to
undertake completion of, and file with the court by November 24,
2014, a comprehensive update of the report described on page 7
at paragraph (3) of the Consent Decree of November 3, 2014.
is anticipated that such additional information may provide the
basis for a stipulation of facts on which the issues in this
case may be submitted for final resolution, in which event the
December 1st final hearing on the merits may become unnecessary.
The Clerk is requested to transmit a copy of this
order to all counsel of record and any unrepresented parties.
ENTER: November 18, 2014
John T. Copenhaver, Jr.
United States District Judge
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