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IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
UNITED STATES OF AMERICA,
Civil Action No. _2:06-cv-0025-CSC___
STATE OF ALABAMA; BOB RILEY,
GOVERNOR OF THE STATE OF ALABAMA;
TROY KING, ATTORNEY GENERAL
OF THE STATE OF ALABAMA; NANCY L.
WORLEY, SECRETARY OF STATE OF THE
STATE OF ALABAMA,
The United States of America alleges:
1. This action is brought by the Attorney General on behalf of the
United States pursuant to the Uniformed and Overseas Citizens Absentee Voting
Act ("UOCAVA"), 42 U.S.C. §§ 1973ff et seq., which provides, inter alia,
that absent uniformed services voters and overseas voters ("UOCAVA voters") shall be
permitted "to use absentee registration procedures and to vote by absentee ballot in
general, special, primary, and runoff elections for Federal office." 42 U.S.C. § 1973ff-1.
This action is brought to ensure that UOCAVA voters, who are otherwise qualified to
vote in Alabama's federal primary run-off elections, will have an opportunity to vote
in those elections and have their ballots counted. The United States seeks both a
preliminary injunction to obtain compliance with the federal law at the June 27, 2006
run-off election, and permanent relief to ensure future compliance with UOCAVA.
2. This Court has jurisdiction pursuant to 42 U.S.C. § 1973ff-4 and
28 U.S.C. §1345.
3. The Defendant State of Alabama is charged with the responsibility of assuring
that State election laws, as applied, comply with the provisions of UOCAVA.
4. Defendant Bob Riley is sued in his official capacity as Governor of the State of
Alabama. Defendant Troy King is sued in his official capacity as Attorney General of the State
of Alabama. Defendant Nancy L. Worley is sued in her official capacity as the Secretary of State
of the State of Alabama. The Secretary of State is charged with receiving the results of federal
elections from the officials of each county. Ala. Code §§ 17-20-3, 17-19-4. The Governor, in
the presence of the Secretary of State and the Attorney General, or either of them in the absence
of the other, is charged with ascertaining which candidates or electors are elected and notifying
them by proclamation. Ala. Code §§ 17-20-4, 17-19-5.
5. On June 6, 2006, the State of Alabama will conduct a federal primary election in
which voters will select their respective parties' candidates for seven seats in the United States
House of Representatives. A run-off election will be held on June 27, 2006, if necessary, if no
candidate receives a majority of votes in the primary. Alabama has conducted three run-off
elections for Congressional seats in recent years. Specifically, in 2004 there was one run-off
election for a seat in the United States House of Representatives, and in 2002 there were two
run-off elections for seats in the United States House of Representatives.
6. County election officials of Alabama have received timely requests for absentee
ballots from voters who are entitled to vote pursuant to the provisions of UOCAVA.
7. Under Alabama law, only those absentee ballots postmarked by the day before the
election, and received by noon on the day of election, are counted. Ala. Code § 17-10-23. If a
primary run-off election is required in 2006, the absentee ballots must be received by election
officials by noon on June 27, 2006. The county executive committee must certify and return the
results of the primary election to the state executive committee no later than June 14, 2006, and
the results of the primary election must be publicly declared no later than June 16, 2006. Ala.
Code § 17-16-35.
8. In order to allow UOCAVA voters a fair opportunity to vote by absentee ballot,
election officials in Alabama must mail the ballots to the voters sufficiently in advance of the
election so that voters can receive, cast and return their absentee ballots by the deadline
established under Alabama law.
9. Based on data from the United States Postal Service and the Military Postal
Service Agency, the Federal Voting Assistance Program ("FVAP") of the Department of Defense
and the United States Election Assistance Commission recommend that States allow 45 days for
the round-trip transit of an overseas ballot. At a minimum, FVAP has determined that States
must provide no less than 30 days for the round-trip transit of a ballot to overseas locations.
10. Because of the compressed period of time between the primary and run-off
elections in Alabama, absentee ballots will not be mailed sufficiently before the June 27, 2006
federal run-off election, if one is necessary, to afford UOCAVA voters an opportunity to vote.
Election officials will mail absentee ballots for any run-off election no earlier than several days
after the June 6 primary election, and likely after the certification and public declaration of the
results of the primary election on June 14 and 16, respectively, allowing no more than 13 days for
round-trip transmission of ballots.
11. The inability of election officials in Alabama to mail absentee ballots to
UOCAVA voters on a date sufficiently in advance of June 27, 2006, so as to allow the voting and
return of ballots by the deadline established by State law, will deprive certain specially covered
United States citizens of an opportunity to vote in the federal primary run-off election in
violation of UOCAVA.
12. An order of this Court is necessary requiring Defendants to take
corrective action in order to protect the rights granted by UOCAVA both in the 2006
elections and in future elections.
WHEREFORE, plaintiff prays that this Court hear this action pursuant to 42 U.S.C. §
1973ff-4 and 28 U.S.C. § 1345; issue a declaratory judgment under 28 U.S.C. § 2201 that the
failure of Alabama officials to send absentee ballots to UOCAVA voters in sufficient time to be
received, cast, and returned by the State's deadline in any federal run-off election violates
UOCAVA; and issue permanent injunctive relief ordering the defendants, their agents and
successors in office, and all persons acting in concert with them:
(1) to include, in conjunction with the mailing of regular absentee ballots to
UOCAVA voters for the June 6, 2006 federal primary election, a blank
state authorized special write-in ballot to be used in the event of a federal
run-off election on June 27, 2006, along with information regarding how
voters can obtain all necessary information about any possible federal run-off election
and other appropriate instructions regarding the casting of such ballot;
(2) within eight (8) days of the June 6, 2006 federal primary, to: (a) publish
prominently on the websites of the Secretary of State, as well as any County election website
where a run-off election will occur, information identifying the federal contests for which
a run-off election will be necessary under State law and the names of the candidates for
each run-off election; and (b) notify the Federal Voting Assistance Program and other
appropriate news media and websites that are focused on military and overseas voters,
regarding the federal races involved in a run-off election and the candidates participating
in that election;
(3) to count as validly cast ballots, in contests relating to the selection of
nominees for federal office, those ballots cast by voters, who are qualified to vote in
Alabama pursuant to UOCAVA, and who otherwise comply with State law for absentee voting,
provided that the ballot is executed and sent (whether by federal postal services or
commercial delivery services) or delivered in person by June 27, 2006, and received on or
before noon on Friday, July 7, 2006. Notwithstanding the above, election results may be
formally certified based on ballots received by the close of the polls in any election
in which the number of outstanding absentee ballots from UOCAVA voters could not
mathematically alter the outcome, subject to amendment or re-certification for any
election where such ballots returned by the extended receipt deadline change the total
of votes cast for any candidate;
(4) to accept for federal offices, at the June 27, 2006 primary run-off election,
the Federal Write-in Absentee Ballot provided for in UOCAVA, 42 U.S.C. § 1973ff-2, provided
that ballot is cast by a UOCAVA voter, is executed and sent (whether by federal postal
services or commercial delivery services) or delivered in person by June 27, 2006, and is
received by mail on or before noon on July 7, 2006;
(5) to accept, for the June 27, 2006 primary run-off election, any
special write-in ballot or the Federal Write-in Absentee Ballot transmitted by facsimile or
by email of a scanned completed ballot, along with any other documents required by State
law, provided that the ballot is cast by a UOCAVA voter and is received on or before noon
on June 27, 2006;
(6) to take such steps as are necessary to afford UOCAVA voters who are
eligible to participate in the June 27, 2006 federal primary run-off election a reasonable
opportunity to learn of this Court's order;
(7) to take such steps as are necessary to assure that UOCAVA voters shall
have a fair and reasonable opportunity to participate in future run-off elections for
federal office; and
(8) to provide a report to the United States concerning the number of
UOCAVA ballots, including Federal Write-in Ballots, by county, received and counted for
the June 27, 2006 federal primary run-off election within 45 days of that election
pursuant to this Court's order.
The United States of America further prays that this Court order such other relief as the
interests of justice may require, together with the costs and disbursements of this action.
Respectfully submitted this 9th day of March, 2006.
ALBERTO R. GONZALES
WAN J. KIM
Assistant Attorney General
Civil Rights Division
LEURA GARRETT CANARY
United States Attorney
JOHN K. TANNER
Chief, Voting Section
REBECCA J. WERTZ
VERONICA S. JUNG
EMILY B. SMITH
Civil Rights Division
U.S. Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530
(800) 253-3931 (telephone)