United States of America v. The State of West Virginia et al
Filing
22
MEMORANDUM OPINION & ORDER the defendants are directed to take such steps as are necessary to ensure that: (1) the votes in the 11/4/2014 election for United States Senate and United States House of Representatives on otherwise conforming original ballots cast by the four UOCAVA voters in the 35th House District who did not return a corrected ballot are counted; and (2) the results in those two races are amended to reflect the inclusion of those votes; further, the defendants are directed to notify the court and counsel for the United States within 40 days of the entry of this order that those votes in those two races have been counted. Signed by Judge John T. Copenhaver, Jr. on 12/22/2014. (cc: counsel of record) (taq)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
AT CHARLESTON
UNITED STATES OF AMERICA,
Plaintiff,
v.
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,
Defendants.
MEMORANDUM OPINION & ORDER
The dispute in this case arises out of the
administration of the November 4, 2014 election, and in
particular the provision of absentee ballots to certain overseas
citizens and uniformed service members.
For reasons that are
more fully described below, thirty absentee voters in the 35th
House of Delegates District were provided with two separate
absentee ballots -- an original ballot, and, later, a corrected
ballot -- in the run up to the election.
Four of those voters
returned only original ballots.
Those four ballots are the only
ones now at issue in this case.
The West Virginia Secretary of
State, Natalie Tennant, has ordered that those original ballots
may not be counted.
The United States maintains that they must
be counted in the races for United States Senate and United
States House of Representatives.
On November 25, 2014, the parties presented their
Integrated Pretrial Order.
On the same date, the parties
entered into a joint stipulation of facts and informed the court
that no material fact remained in dispute between them. 1
The
United States submitted its brief on the merits on December 5,
2014.
The defendants responded on December 12, 2014, and the
plaintiff replied on December 18, 2014.
The court now makes the
following findings of fact and conclusions of law.
I.
The Uniformed and Overseas Citizens Absentee Voting
Act (“UOCAVA”), 52 U.S.C.A. §§ 20301-20311 (2014), is a federal
law that 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. § 20302(a)(1).
States are specifically responsible
for transmitting absentee ballots to “absent uniformed service
1
The joint stipulation also includes a number of documentary
exhibits. The parties have stipulated that those documents are
admissible, and agree “not to impose evidentiary objections to
those documents on the basis of authenticity, foundation,
hearsay, or relevancy.” Joint Stipulation of Undisputed Facts
and Law (“Joint Stip.”) at 8.
2
voter[s] or overseas voter[s] . . . not later than [forty-five]
days before the election,” provided that the voter requests the
ballot at least forty-five days before the election.
§ 20302(a)(8)(A).
Id.
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 forty-five days before the November 4,
2014 election was September 20, 2014.
See Joint Stip. ¶ 7.
The parties agree that the defendants initially
transmitted ballots to UOCAVA voters in a timely manner on
September 19, 2014 (the “original ballots”).
¶ 9.
See Joint Stip.
Three 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 Secretary
Tennant 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.
Joint Stip. ¶ 10;
see also 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, add her to the ballot, and --
3
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 corrected ballots.
¶ 11; McDavid, No. 14-0939, slip op. at 10.
Joint Stip.
The court’s opinion
did not specifically address whether the original ballots were
to be considered void but, as noted, the writ was granted.
That
same day, Vera J. McCormick, the Clerk of the Kanawha County
Commission, wrote to the thirty UOCAVA voters in the 35th House
District who previously received the original ballots, informed
them of the Supreme Court of Appeals’ decision, and advised that
new ballots would be forthcoming in due course.
Ex. 2.
Joint Stip.,
The letter asked the UOCAVA voters to “return [the]
original ballot in addition to th[e] new ballot,” but did not
indicate whether the original ballot remained valid.
Id.
On October 3, 2014, just thirty-two (rather than
forty-five) days prior to the election, revised ballots listing
McDavid as a candidate (the “corrected ballots”) were
transmitted to the UOCAVA voters in the 35th House District.
Joint Stip. ¶ 16.
The October 3, 2014 transmission also
4
included instructions to the UOCAVA voters on how to return
their ballots.
Joint Stip. ¶ 37.
Those instructions directed
voters to, among other things, read and sign an enclosed “Oath
of Voter” that contained the following attestation:
I understand that I may only cast one ballot in any
election.
I further understand that anyone who votes
more than once in the same election; or knowingly
votes or attempts to vote more than one ballot for the
same office . . . shall be guilty of a misdemeanor,
and, on conviction thereof, shall for each offense be
fined not more than one thousand dollars or confined
in the county jail for not more than one year, or
both[.]
Joint Stip., Ex. 3 at 4.
The instructions did not otherwise
explain whether the original ballots remained valid, or whether
the UOCAVA voters were required to return a corrected ballot.
Joint Stip. ¶ 37.
Five days later, on October 8, 2014, Secretary
Tennant’s office sent a follow up e-mail to the UOCAVA voters in
the 35th House District that read, in pertinent part, as
follows:
As you may be aware, a change was made to the ballot
after the original absentee ballot was mailed to you.
The County Clerk[’s office] . . . continue[s] their
efforts to make sure you have an opportunity to vote
the corrected ballot.
. . . .
The Department of
Justice has requested that this office . . . reach out
to you to verify that you have received the corrected
ballot and that you have enough time to return it to
be counted.
5
Joint Stip., Ex. 5.
The e-mail “did not address whether
original ballots cast by UOCAVA voters would be counted and did
not address the validity of any votes cast for the Federal
offices on the original ballot.”
Joint Stip. ¶ 39.
In the weeks that followed, most of the UOCAVA voters
in the 35th House District responded to the Secretary’s outreach
efforts and confirmed that they received the corrected ballot;
many also indicated that they foresaw no barrier to returning
the corrected ballot in time to be counted.
responded at all.
Some voters never
Two of the four voters at issue (Voter A and
Voter B) called the Kanawha County Commission and explained that
they had already returned the original ballot and shredded their
corrected ballots.
Joint Stip. ¶ 40.
They indicated that they
did not intend to return corrected ballots, id., and later
clarified that they received the corrected ballot after
submitting their original ballots and were “afraid to send back
two ballots,” Joint Stip. ¶ 56.
On October 14, 2014, Secretary Tennant’s office emailed Voter A and Voter B, and advised them that it was “not
certain that the first (pre-correction) ballot w[ould] be
counted.”
Joint Stip., Ex. 6.
The e-mail explained that “[a]ny
decision on whether to count the [original] ballot w[ould] be
made by the Kanawha County [Commission’s] board of canvassers,”
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and warned that “[t]he only way to be certain that your vote
will count is to vote and submit the corrected ballot[.]”
Id.
It appears, however, that Voter A and Voter B did not receive
the Secretary’s e-mail until possibly as late as November 10,
2014. 2
As the Secretary’s e-mail to Voter A and Voter B
demonstrates, there was a prevailing sense of uncertainty about
the validity of the original ballots throughout the month of
October.
In a letter to federal officials dated October 3,
2014, the Secretary’s office stated that it had “received
assurance that if the second ballot . . . [wa]s not returned in
time to be counted, but the initial ballot ha[d] been returned,
[Kanawha County would] count the initial ballot.”
15.
Joint Stip. ¶
Based on other correspondence in the record, it appears
that the Kanawha County board of canvassers in fact “voted to
accept all [original] ballots” at some point before October 21,
2014.
See Joint Stip., Ex. 1.
Nevertheless, perhaps hoping to
remove any doubt, Secretary Tennant filed a motion, on October
27, 2014, with the Supreme Court of Appeals, requesting
clarification that the decision in McDavid did not prohibit
2
Voter A and Voter B are identified in the record as a mother
and son living together in Canada. Joint Stip. ¶¶ 51, 55. An email from Voter A to the Secretary of State’s office, dated
November 10, 2014, stated that “she could not reply until [then]
because her computer broke.” See Joint Stip. ¶ 56.
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counting votes cast on validly executed original ballots in the
federal races, provided that no corrected ballot was received.
See Joint Stip. ¶ 23.
Three days later, on October 30, 2014,
the Supreme Court of Appeals refused the request for
clarification without comment, Joint Stip. ¶ 25, and the
Secretary interpreted that refusal as “an affirmative indication
that the writ of mandamus” granted in McDavid “prohibits the
counting of any votes cast on any original ballot,” Joint Stip.
¶ 26.
The following day, the Friday before Election Day, 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 UOCAVA voters in State Delegate District 35
have sufficient opportunity . . . to receive, mark, and return
their ballots.”
See Compl. at Prayer of Relief.
On Monday, November 3, 2014, the parties submitted,
and the court entered, a consent decree that extended the
receipt deadline for corrected ballots returned by mail until
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November 17, 2014; the consent decree also required the
Secretary of State to inform the UOCAVA voters in the 35th House
District -- for the first time -- that “they had to return the
corrected ballot . . . if they wished to have their vote counted
in the election.”
Joint Stip. ¶¶ 29, 45-46, 48.
Notwithstanding the deadline extension, the United States
reserved the right to move for “supplemental relief . . .
with
regard to the counting of votes . . . on an original ballot . .
., if that ballot [wa]s the only ballot returned by that
voter[.]”
Consent Decree at 8; see also Joint Stip. ¶ 29.
Election Day came and went, and eighteen of the thirty
UOCAVA voters in the 35th House District returned corrected
ballots.
Joint Stip. ¶ 49.
Joint Stip. ¶ 50.
Eight more returned no ballot.
The remaining four voters returned original
ballots on or before November 4, 2014, but did not return a
corrected ballot.
Joint Stip. ¶ 51.
Those four included Voter
A and Voter B, plus two others -- Voter C and Voter D 3 -- who
both previously informed Secretary Tennant’s office that they
received the corrected ballot and foresaw no obstacle to
returning it, but nevertheless returned only the original
ballot.
3
“According to information on file with the State, [Voter C and
Voter D] reside[] domestically in North Carolina[.]” Joint
Stip. ¶ 51.
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Finally, on November 6, 2014, prior to the start of
canvassing, Secretary Tennant issued an order directing “the
Kanawha County board of canvassers to NOT count any [original]
ballot in any federal, state or county election on the
ballot[.]”
As a result, no votes cast on original ballots were
counted in the canvass for the two federal races.
II.
All that remains to be determined in this case is the
fate of the votes cast on original ballots by Voters A, B, C,
and D in the races for United States Senate and United States
House of Representatives (the “contested votes”).
The United
States has requested an injunction ordering the defendants to
count those votes and include them in the tally for the House
and Senate elections.
The Secretary “believe[s] that all voters
who cast only [o]riginal [b]allots should have their votes
counted,” but also maintains that the Supreme Court of Appeals’
decision in McDavid prohibits her from ordering the contested
votes to be counted.
See Secretary of State’s Response to the
United States’ Brief on the Merits (“Secretary’s Resp.”) at 1-2.
She has declined to take a position on whether the relief
requested by the United States is appropriate.
Id. at 4.
The
State of West Virginia responds that it “does not oppose the
10
relief requested by the United States in its brief on the
merits.”
West Virginia’s Response to the United States’ Brief
on the Merits (“State’s Resp.”) at 1.
The UOCAVA empowers the Attorney General to seek
“declaratory or injunctive relief as may be necessary to carry
out” the statute’s requirements.
See 52 U.S.C.A. § 20307(a).
As noted, the United States’ complaint in this case sought both
forms of relief -- a declaration that the defendants violated 52
U.S.C. § 20302(a)(8)(A), and an injunction ordering the
defendants to “take such steps as are necessary to ensure that
affected UOCAVA voters in State Delegate District 35 have
sufficient opportunity . . . to receive, mark, and return their
ballots.”
See Compl. at Prayer of Relief.
In addition, the
pretrial order prepared by the parties raises the alternative
theory that the “State’s failure to count the votes for Federal
office cast on the four ballots at issue violates” 52 U.S.C.A. §
20302(a)(1), which generally requires each state to “permit
[UOCAVA] voters to use absentee registration procedures and to
vote by absentee ballot in” federal elections.
resolution of this case turns on two questions:
Thus, the
First, did the
defendants violate §§ 20302(a)(1) or 20302(a)(8)(A)?
Second, if
so, is the United States entitled to the injunction it seeks?
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A.
The first question is easily answered.
Section 20302
(a)(8)(A) requires States to transmit validly requested absentee
ballots to “absent uniformed service voter[s] or overseas
voter[s] . . . not later than [forty-five] days before the
election,” provided that the voter requests the ballot at least
forty-five days before the election.
Id. § 20302(a)(8)(A).
The
parties agree that all thirty of the UOCAVA voters in the 35th
House District requested an absentee ballot more than forty-five
days before the election, see Joint Stip. ¶ 9, and also agree
that corrected ballots were not transmitted to those voters
until October 3, 2014, only thirty-two days before the election,
Joint Stip. ¶ 16.
The parties have stipulated, and the court
agrees, that transmitting the corrected ballots on October 3,
2014 violated § 20302(a)(8)(A). 4
See, e.g., United States v.
Alabama, 857 F. Supp. 2d 1236, 1240-42 (M.D. Ala. 2012) (finding
high likelihood of success on the merits of a § 20302(a)(8)(A)
claim where the state issued absentee ballots less than fortyfive days before a federal election); see also, Joint Stip. ¶ 8.
4
In light of this disposition, the court need not address
whether the defendants’ conduct violated § 20302(a)(1).
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B.
The remaining question is more complex.
To obtain a
permanent injunction, the plaintiff “must demonstrate: (1) that
it has suffered an irreparable injury; (2) that remedies at law,
such as monetary damages, are inadequate to compensate for that
injury; (3) that, considering the balance of hardships between
the plaintiff and defendant, a remedy in equity is warranted;
and (4) that the public interest would not be disserved by a
permanent injunction.”
eBay Inc. v. MercExchange, L.L.C., 547
U.S. 388, 391 (2006); PBM Prods., LLC v. Mead Johnson & Co., 639
F.3d 111, 126 (4th Cir. 2011) (reciting the eBay factors).
Even
then, both the UOCAVA and the limits of the court’s equitable
powers dictate that the relief prayed for must be no more than
is necessary to carry out the statute’s requirements.
See 52
U.S.C.A. § 20307(a) (“The Attorney General may bring a civil
action in an appropriate district court for such declaratory or
injunctive relief as may be necessary to carry out this
chapter.”); Kentuckians for the Commonwealth, Inc. v.
Rivenburgh, 317 F.3d 425, 436 (4th Cir. 2003) (“It is well
established that ‘injunctive relief should be no more burdensome
to the defendant than necessary to provide complete relief to
the plaintiffs.’” (quoting Califano v. Yamasaki, 442 U.S. 682,
702 (1979))).
In other words, any injunction granted must
13
“carefully address only the circumstances in the case,” without
sweeping more broadly than “necessary to provide complete relief
to the plaintiff.”
Mead Johnson & Co., 639 F.3d at 128
(internal quotation marks and citation omitted).
1.
After considering the relevant factors, the court
concludes that injunctive relief is proper.
As it stands, four
UOCAVA voters who attempted to cast an absentee ballot would not
have their votes counted in the federal races.
“Courts
routinely deem restrictions on fundamental voting rights
irreparable injury.”
League of Women Voters of N.C. v. North
Carolina, 769 F.3d 224, 247 (4th Cir. 2014) (collecting
authority), mandate stayed North Carolina v. League of Women
Voters of N.C., 135 S. Ct. 6 (Oct. 8, 2014) (mem.).
Several
courts have therefore concluded that a state’s failure to timely
issue UOCAVA ballots clearly presents the likelihood, Alabama,
857 F. Supp. 2d at 1240-42, or reality of irreparable harm,
United States v. Georgia, 952 F. Supp. 2d 1318, 1331-32 (N.D.
Ga. 2013) (“Irreparable harm occurs when a UOCAVA voter is
denied the right to receive a sufficient absentee ballot in
accordance with the provisions of” § 20302(a)(8)(A)).
More
generally, courts also recognize that a state’s failure to count
absentee ballots protected by federal law gives rise to
14
irreparable harm.
Cf. Hoblock v. Albany Cnty. Bd. of Elections,
422 F.3d 77, 97 (2d Cir. 2005) (“The district court found that
the plaintiff voters will be irreparably harmed if the Board
certifies the election results without counting their absentee
ballots.
We agree.”); Hershcopf v. Lomenzo, 350 F. Supp. 156,
159 (E.D.N.Y. 1972) (“The fact that throughout the state at
least nineteen boards of elections apply the statute so that
absentee voters . . . will be disenfranchised is sufficient
irreparable injury[.]”).
There is no prospect that such an
injury could be remedied by money damages.
Regarding the third factor, the court finds that the
balance of the equities tips in favor of the United States.
The
potential harm to the UOCAVA voters -- the possibility that
their votes will not be counted -- far exceeds the burden to the
State caused by counting the contested votes.
See Alabama, 857
F. Supp. 2d at 1242 (noting that the State is already “legally
mandated . . . to vindicate the fundamental right of its
military and overseas constituents to vote in federal elections”
under the express terms of the UOCAVA).
Indeed, the State does
not object to the additional supplemental relief requested,
State’s Resp. at 1, and the Secretary of State has repeatedly
expressed her desire for every vote to be counted, Secretary’s
Resp. at 1-2.
15
Finally, the public interest will be served, rather
than disserved, by an injunction.
For our citizens living
abroad, and for uniformed service members, “voting by absentee
ballot may be the only practical means to exercise” their right
to vote.
Bush v. Hillsborough Cnty. Canvassing Bd., 123 F.
Supp. 2d 1305, 1307 (N.D. Fla. 2000).
“Thus, ensuring that
these voters, many of whom risk their lives at the request of
their government, have the opportunity to vote is certainly in
the public interest.”
Alabama, 857 F. Supp. 2d at 1242; see
also Doe v. Walker, 746 F. Supp. 2d 667, 670 (D. Md. 2010)
(Noting that the UOCAVA was amended “in response to the
widespread disenfranchisement of absent uniformed services and
overseas voters during the November 2008 general elections.”).
2.
The court also concludes that ordering the defendants
to count the contested votes is both necessary to carry out the
provisions of the UOCAVA, and no broader than necessary to
provide complete relief to the plaintiff.
The purpose of
§ 20302(a)(8)(A) is “to allow absent uniformed service voters
and overseas voters enough time to vote in an election for
Federal office.”
52 U.S.C.A. § 20302(g)(1)(A).
Indeed, the
United States specifically stated that it was “bringing this
enforcement action to ensure that West Virginia’s [UOCAVA voters
16
would] have sufficient opportunity . . . to receive, mark and
return their absentee ballots[.]”
Compl. ¶ 2.
To achieve that
goal, the plaintiff prayed for an injunction ordering the
defendants to “take such steps as are necessary to ensure that
affected UOCAVA voters in State Delegate District 35 have
sufficient opportunity . . . to receive, mark, and return their
ballots.”
See Compl. at Prayer of Relief.
In the usual case, that relief might well have been
provided by simply extending the state-law ballot receipt
deadline, as the parties agreed to do here.
See, e.g., Alabama,
857 F. Supp. 2d at 1240-42; see also United States v.
Cunningham, No. 08-709, 2009 WL 3350028, at *10 n.3 (E.D. Va.
Oct. 15, 2009) (collecting nine additional cases authorizing
deadline extensions ranging in length from three business days
to fourteen days.).
Indeed, at an earlier stage in this
litigation, when little was known about the content of the
defendants’ communications with the UOCAVA voters in the 35th
House District, it appeared that remedy may suffice in this case
as well.
Order herein of Nov. 18, 2014, denying preliminary
injunction.
It is now clear, however, that the ongoing
uncertainty regarding the validity of the original ballots
deprived the four affected UOCAVA voters of sufficient time to
vote in the November 4, 2014 election.
17
As discussed above, the UOCAVA voters in the 35th
House District received conflicting information about their
obligation to vote a corrected ballot.
The October 1, 2014
mailing asked voters to return both ballots, but the
instructions included with the corrected ballots on October 3,
2014 advised voters that it was a violation of State law to vote
more than one ballot in any election.
The effect of these
conflicting messages is not purely theoretical:
Voter A and
Voter B specifically stated that they shredded their corrected
ballots because they had already returned their original
ballots, and were afraid to return two ballots.
Although
Secretary Tennant’s office attempted to inform Voter A and Voter
B on October 14, 2014 that it was “not certain that the first
(pre-correction) ballot w[ould] be counted,” no UOCAVA voter in
the 35th House District was told definitively of the need to
return a corrected ballot until November 3, 2014, the night
before Election Day.
In effect, voters who had not yet done so
were left with one day to mark and return their corrected ballot
-- by any measure, that does not constitute the meaningful
opportunity to cast a ballot that § 20302(a)(8)(A) seeks to
ensure.
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III.
The defendants violated § 20302(a)(8)(A) of the UOCAVA
by failing to transmit valid absentee ballots to voters in the
35th House District forty-five days before the November 4, 2014
election.
Although they agreed to extend the ballot receipt
deadline, doing so was not sufficient to provide the plaintiff
with complete relief in light of the uncertainty concerning the
validity of the original ballots throughout the month of
October.
Absent further injunctive relief, four voters who
returned an original ballot will be disenfranchised.
The court is not unmindful that ordering the relief
requested by the plaintiff will require the defendants to count
votes that Secretary Tennant believes are invalid under State
law.
But, as noted, the Attorney General is empowered to seek
(and so the courts presumably are empowered to grant)
“injunctive relief as may be necessary to carry out” the
UOCAVA’s requirements.
See 52 U.S.C.A. § 20307(a).
Those
federal-law requirements are supreme, U.S. Const. art. VI, cl.
2, and though the State retains an important interest in the
orderly conduct of its elections, “deference to state decisionmaking does not require the court to sit by idly and watch
violations of the law persist.
In some cases, and this is one,
19
if federally-guaranteed voting rights are to be protected, the
court must act.”
Alabama, 857 F. Supp. 2d at 1242 (internal
quotation marks and citation omitted).
Here, the confusion
caused by the issuance of the corrected ballots and the ensuing
uncertainty about the validity of the original ballots deprived
UOCAVA voters in the 35th House District of a meaningful
opportunity to receive, mark, and return a ballot in the
November 4, 2014 election.
For the small number of those voters
who expressed their intent to vote on an original ballot, but
failed to return a corrected ballot, counting the original
ballot provides the only meaningful relief available.
Accordingly, it is ORDERED that the defendants be, and
they hereby are, directed to take such steps as are necessary to
ensure that: (1) the votes in the November 4, 2014 election for
United States Senate and United States House of Representatives
on otherwise conforming original ballots cast by the four UOCAVA
voters in the 35th House District who did not return a corrected
ballot are counted; and (2) the results in those two races are
amended to reflect the inclusion of those votes.
It is further
ORDERED that the defendants be, and they hereby are, directed to
notify the court and counsel for the United States within forty
days of the entry of this order that those votes in those two
races have been counted.
20
The Clerk is requested to transmit a copy of this
order to all counsel of record.
DATED: December 22, 2014
John T. Copenhaver, Jr.
United States District Judge
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