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IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
UNITED STATES OF AMERICA,
NO. 1 :04-CV-2040-CAP
THE STATE OF GEORGIA and
CATHY COX, Secretary of State
O R D E R
This matter is now before the court on the plaintiff's motion for a temporary
restraining order and preliminary injunction. For the reasons set forth below, this
motion is GRANTED.
The United States of America filed this action
pursuant to the Uniformed and Overseas Citizens Absentee
Voting Act, 42 U.S.C. § 1973ff et seq. ("UOCAVA").
UOCAVA provides, in relevant part, that each state
shall "permit absent uniformed services voters and overseas voters to use absentee registration procedures
and to vote by absentee ballot in general, special, primary, and runoff elections for Federal office"
and shall "accept and process, with respect to any election for Federal office, any
otherwise valid voter registration application and absentee ballot application from an
absent uniformed services voter or overseas voter, if the application is received by
the appropriate State election official not less than 30 days before the election."
42 U.S.C. § 1973ff-l(a)(l)-(2). In this action, the United States seeks injunctive relief
in order to ensure that overseas voters who filed timely applications for absentee
ballots and are, therefore, protected under UOCAVA will have an opportunity to vote
and to have their ballots counted in Georgia's federal primary elections, to be held on
July 20, 2004, and in any federal primary runoff elections to be conducted on August
The State of Georgia is charged with the responsibility of assuring that the
state's election laws, as applied, comply with federal law, including the provisions of
UOCAVA. Secretary of State Cathy Cox is the chief election officer of the State of
Georgia and, as such, is responsible for the administration of state laws affecting
voting and for assuring that elections in the state are conducted in accordance with
the law. See O.C.G.A. § 21-2-50.
The parties agree on the relevant facts in
this matter. The State of Georgia is
conducting its federal and state primary elections on July 20, 2004, and will conduct
any necessary primary runoff elections on August 10, 2004. The federal and state
general elections will then be held on November 2, 2004, and any necessary runoff
elections will be held on November 23, 2004. Under Georgia law, absentee ballots
sent from overseas voters must be received by the close of the polls on the day of the
election in order to be counted for either federal or state offices.
See O.C.G.A. § 21-2-386(a)(l).
Thus, in this case, the deadline for receipt of absentee ballots in the primary elections
is 7:00 p.m. on July 20, 2004, and the deadline for receipt of absentee ballots in the
elections is 7 p.m. on August 10, 2004.
County election officials in the state
have received timely requests for absentee ballots from
a number of overseas voters who are entitled to vote for federal offices
under UOCAVA. At issue now
is the question of whether those voters have sufficient time in which to receive and cast
for federal offices and, if not, what remedial relief the court should
order to preserve their statutory rights.2
After this court struck down the state's
previous state house and senate
reapportionment plans, see Larios v. Cox,
300 F. Supp. 2d 1320 (N.D. Ga. 2004), and
subsequently adopted interim plans for use
in the upcoming elections, see Larios v.
Cox, 314 F. Supp. 2d 1357 (N.D. Ga. 2004), the court issued an order altering the
deadline provided in O.C.G.A. § 21-2-384(a), so that Georgia's counties would be
required to issue absentee ballots by 30 days prior to the July 20 primary, rather than
the 45 days provided by statute. See Larios v. Cox,
Civil Action No. 1:03-CV-693
(N.D. Ga. March 30, 2004). The Secretary of
State recently discovered that a number
of counties were unable to meet this
deadline and that absentee ballots in some
counties were sent out as late as July 8, 2004.
As a result, both the Secretary of State
and the United States have expressed concerns
that the late mailing of absentee
ballots may not leave overseas voters protected by
UOCAVA with sufficient time to
receive, execute, and return their ballots before
the July 20, 2004 deadline. The
United States has also indicated that similar
problems are likely to arise with any
necessary runoff elections, as there is only
a three-week window between the primary
elections and the primary runoff elections.
A district court may grant preliminary
injunctive relief where the movant
establishes that (1) it has a substantial
likelihood of success on the merits, (2) it will
suffer irreparable harm unless
the injunction is issued, (3) the harm it will suffer in
the absence of an
injunction outweighs the possible harm suffered by the opposing
party if the
injunction is issued, and (4) an injunction will not disserve the public
Johnson & Johnson Vision Care. Inc. v. 1-800 Contacts, Inc., 299 F.3d
1242, 1246-47 (11th Cir. 2002). It is well established in the Eleventh Circuit that "a
preliminary injunction is an extraordinary and drastic remedy not to be granted unless
the movant clearly established the burden of persuasion as to all four elements."
Horton v. City of St. Augustine, 272 F.3d 1318, 1326 (1lth Cir. 2001) (citation and
quotation marks omitted).
The court does not doubt, and the parties
do not disagree, that these elements
have been satisfied in this case.
The United States is likely to prevail on its claim that
the State of Georgia
is in violation of UOCAVA, as several counties were not able
to send absentee
ballots in a timely manner so as to ensure that those protected by the
would have time to receive them, execute them, and send them back to county
officials before the election deadlines. The United States has also established
the necessary irreparable injury, in that many overseas voters will be unable to cast
their ballots in time for their votes to be counted in the federal primary elections and,
because of the short time period between the primary and the primary runoff, will
almost certainly be unable to cast their ballots in time for their votes to be counted in
the federal primary runoff elections. This threatened injury clearly outweighs the
possible injury the injunction may cause to the State of Georgia and the Secretary of
State, particularly as these parties agree that some remedies are needed in order to
protect the affected voters. Finally, the public interest favors the grant of an
injunction. Therefore, the court concludes that the United States is entitled to
However, because injunctive relief is
an extraordinary remedy, the court will
exercise its power only as necessary to remedy
the established harm. The court
recognizes the importance of preserving
citizens' fundamental right to cast their votes
in elections and to have those
votes counted. However, this concern must be
balanced against the need to
protect against voter irregularity and the recognition that
citizens' ability to vote in the November general elections, for which
voter turnout is expected, requires that the primary elections be conducted
concluded in a timely manner, leaving ample time for any ballot recounts and for
the printing of ballots to be used in the general elections.
Accordingly, the court hereby GRANTS
the plaintiff's motion for a temporary
restraining order and preliminary injunction
and ORDERS as follows:
The following relief is ordered to address the delay
in issuance of UOCAVA
covered absentee ballots3 for the July 20, 2004
Primary Election. Additionally, the
same relief provided herein shall also
be applicable as to all UOCAVA-covered
overseas voters for the August 10, 2004
Primary Runoff Election, regardless of when
the voter's application is made.
The Georgia Secretary of State
and the registrars of Georgia's 159 counties are
given the authority to send requested ballots to voters by facsimile transmission or
email and to accept the returned of voter oaths and voted ballots to a single secure
facsimile machine that is under the supervision of the Secretary of State. The
Secretary shall promptly place each ballot received via facsimile in a sealed unmarked
envelope and place that envelope within a second envelope containing the voter's
oath. The Secretary shall then immediately transmit the ballots by overnight or
personal delivery to the election superintendent in the appropriate county for
verification and counting with all other absentee ballots. Transmission of returned
voted ballots under this order may be made directly from the voter via facsimile, or
may originate as image files sent via electronic mail to the Federal Voting Assistance
Program's read-only computer facilities and then relayed to the Secretary via
facsimile. In duplicating the received facsimiles of the ballots for purposes of
permitting those ballots to be read by the appropriate counting equipment, the county
election officials shall use the duplication of ballot procedures and the vote review
panel as described in state law in order to assure the integrity of the ballot duplication
process. O.C.G.A. § 21-2-483.
Any such ballot returned via facsimile
to the Secretary prior to 7:00 p.m.
Eastern Daylight Time on July 20, 2004, shall be tabulated and incorporated into the
final certified tally of results. Ballots received by the Secretary after 7:00 p.m. on
July 20 shall be kept unopened, and preserved in the manner specified by state law.
O.C.G.A. § 21-2-386 (a) (1).
B. Use of the Federal Write-In Absentee Ballot
Congress has provided for a write-in
absentee ballot form for use by
UOCAVA-protected overseas voters desiring to vote
in Federal general elections.
42 U.S.C. § 1973ff-2. The criteria for use of
this form under UOCAVA are:
- The voter must be located overseas;
- The voter must have applied for the absentee ballot at least 30
days before the election; and
- The voter must not have received the requested ballot.
42 U.S.C. § 1973ff-2(a)(l-3).
Congress has made no provision
for the use of this Federal Write-In Absentee
ballot (FWAB) in primary
elections. However, this form has the notable advantage
availability; federal law requires that it be available to UOCAVA-covered
overseas voters, and the form is on hand at U.S. military installations and diplomatic
facilities worldwide, as well as on the World Wide Web, so that UOCAVA-covered
overseas voters have access to the form regardless of their location.
This court therefore orders that the Secretary make this form available via her
agency's website, www.sos.state.ga.us, along with information about the candidates
on the July 20 primary ballot for each political party for each office, including all of
the federal offices and the statewide state-level offices. These federal write-in ballot
forms may then be used by the eligible UOCAVA-protected overseas voters to vote
in Georgia's primary election in the manner described above for other facsimile
ballots, or in the manner described below for ballots sent via express mail, and subject
to the same time restrictions applicable under this order to ballots sent by each
C. Extending the Deadline for Receipt of Mailed Absentee Ballots
Under Georgia law, in order for an absentee
ballot to be properly received and
counted, it must be received by the county voter registrar by 7:00 p.m. on Election
Day. O.C.G.A. § 21-2-386. Because of the delay in the mailing out of the requested
absentee ballots, the deadline for receipt of absentee ballots mailed back to the
various Georgia counties shall be extended by three business days, so that absentee
ballots from the eligible UOCAVA-covered overseas voters mailed on or before July
20, 2004, and received by the appropriate voter registrars in the issuing counties by
5:00 p.m. Eastern Daylight Time on July 23, 2004, will be deemed valid and will be
tabulated and incorporated into the county's final certified results. Ballots received
after that date and time will be kept unopened, and preserved in the manner specified
by state law. O.C.G.A. 21-2-386 (a) (1).
D. Other Means of Express Delivery
The Secretary shall make available to the
overseas voters an account with Federal Express and an account with United Parcel
Service (UPS) by which absentee ballots may be returned to her or to the appropriate
county election officials by 5:00 p.m. on July 23, 2004, three days after the primary
election. The Secretary and the State shall bear the cost of such transmittals,
and shall immediately convey these ballots to the appropriate county officials by overnight or
personal delivery. Information regarding access to these accounts will be made
available through the Federal Voting Assistance Program and the Office of the
Georgia Secretary of State.
E. Deadlines and Delivery Methods for the Primary Runoff Election
Georgia will conduct its runoff primary
elections on August 10, 2004. The
court directs that the same methods for
transmittal and delivery of UOCAVA-
protected overseas voters' absentee ballots shall
be utilized by the Secretary and the
registrars of Georgia's 159 counties for the
primary runoff election. As with the
primary election, the court orders that
ballots voted prior to the closing of the polls
at 7:00 p.m. Eastern Daylight Time
on August 10, 2004, may be received and counted
by the Secretary of State and the
various county registrars if they are received in
either of these offices by the
close of business at 5:00 p.m. on Friday, August 13,
2004, via U.S. Mail or
overnight delivery. As previously ordered, all ballots
facsimile to the Secretary must be received by 7:00 p.m. on the day
of the runoff election, August 10, 2004, in order to be accepted and counted.
F. Notice of Relief to Affected Voters
The defendants shall notify
the Director of the Federal Voting Assistance
Program ("FVAP") of the
United States Department of Defense as soon as this order
has been signed
and request that the FVAP take such action as is necessary to notify
eligible overseas voters of the relief afforded in this order, including the extension
of time for receipt of absentee ballots. The defendants shall assist the FVAP in
whatever way may be reasonably necessary to aid that agency in publicizing this
extension of time.
In addition to the publicity described
in the preceding paragraph, the
defendants shall take the following steps to
endeavor to give affected voters notice
of the contents of this order:
- Issue a press statement for immediate release, posted immediately on
the Georgia Secretary of State's Web site, and distributed as broadly
and immediately as practicable to national and local wire services, to
radio and television broadcast stations within the State, and to daily
newspapers of general circulation in the State, describing this order,
advising the press of its newsworthiness, and specifically giving
members of the press a way to contact senior officials of the Georgia
Elections Division for answers to questions.
- Prepare and distribute written public service announcements describing
this order for broadcast on radio and television networks, including but
not limited to the U.S. Armed Forces Network, and announcements
describing this order on World Wide Web sites of interest to military
and nonmilitary US. citizens living abroad.
- For the primary runoff election of August 10 only, publish paid
advertisements describing this order and the relief afforded therein in at
least a single day's issue of all international and domestic editions of the
International Herald Tribune, USA Today, Stars & Stripes, the Army
Times, the Navy Times, the Air Force Times and the Marine Times.
- Direct the county voter registrars and election superintendents to make
all reasonable efforts, including the use of all available public records
and personal knowledge, to locate each UOCAVA-covered overseas
voter in their jurisdiction whose absentee ballot was issued on or after
June 23, 2004; to notify each such voter individually, by electronic
mail, telephone or facsimile, of the relief contained in this order; and to
offer electronic or other means faster than traditional mail service of
transmitting or re-transmitting an absentee ballot to each such voter.
G. Report of Compliance
Within 50 days after August 10, 2004,
the defendants shall file a report with
this court with respect to the July 20
primary election and the August 10, 2004,
primary runoff election if such an
election is held, which reports sets forth the
- The dates on which each of the 159 counties in the State of Georgia
began and completed the process of mailing ballots to overseas voters,
as defined by UOCAVA, for each election;
- The number of valid absentee ballots received by each county by the
close of the polls on July 20, 2004, from such voters at that election,
and the number received by each county by the close of the polls on
August 10, 2004, from such voters at that election, and the means by
which each ballot was received;
- The number of absentee ballots, by county, received and counted after
the close of the polls on July 20, 2004, but prior to 5 p.m. on July 23,
2004, from such voters at the July 20 election, and the number of such
ballots, by county, received and counted after the close of the polls on
August 10, 2004, but prior to 5 p.m. on August 13, 2004, from such
voters at the August 10 runoff, and the means by which each ballot was
- The number of absentee ballots, by county, received from such voters
later than 5 p.m. on July 23, 2004, for the July 20 primary election, and
for that reason not counted, and the number of such ballots, by county,
received from such voters later than 5 p.m. on August 13, 2004, for the
August 10 runoff, and for that reason not counted, and the means by
which each such ballot was received.
H. Jurisdiction Retained
The court retains
jurisdiction of this action to enter such further relief as may
be necessary for the effectuation of the terms of this order, and, on a showing of good
cause or by agreement of the parties, to enter such relief as may abate, for the
November 2, 2004 federal general election and all federal primary and general
elections and runoff elections thereafter, the conditions that gave rise to the
UOCAVA violations complained of in the United States' complaint.
SO ORDERED, this 15 day of July, 2004.
Charles A. Pannell, Jr.
United States District Judge
1 Pursuant to § 1973ff-4 of the statute, "[tlhe 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 subchapter."
2 UOCAVA only pertains to federal, and not state, offices. However, in a
separate motion filed by the Secretary of State in Larios v. Cox, Civil Action No.
1:03-CV-693 (N.D. Ga.), the Secretary asks that the same protection be extended to
overseas voters casting ballots for state offices.
3 A UOCAVA-protected ballot from military personnel, their dependents or other
qualified citizens is one where such a voters' absentee ballot application was received
by the appropriate State election official not less than 30 days before the election.
42 U.S.C. § 1973ff.