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IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
UNITED STATES OF AMERICA,
P1aintiff,
CIVIL ACTION
v.
NO. 1 :04-CV-2040-CAP
THE STATE OF GEORGIA and
CATHY COX, Secretary of State
of Georgia,
Defendants,
STIPULATION AND ORDER OF DISMISSAL
This is an action for relief under the Uniformed and Overseas Citizens
Absentee Voting Act of 1986 ("UOCAVA" or "the Act"), 42 U.S.C. §§ 1973ff to
1973ff-6, to protect the right of U.S. citizens, both military and civilians living
overseas, to vote by absentee ballot in elections for federal office. The United
States filed its original complaint on July 13, 2004, together with a motion for
temporary restraining order and preliminary injunction, alleging that UOCAVA-protected
overseas voters in a substantial number of Georgia's 159 counties had
not had absentee ballots mailed to them in time to receive and return them by U.S.
postal mail for the July 20, 2004, federal primary election, or for its runoff on
August 10, 2004.
On July 16, 2004, the Court entered an order granting the United States'
motion for temporary restraining order and preliminary injunction. The order
provided relief in several forms for the 2004 federal primary and runoff elections:
a three-day extension of the deadline for receipt of absentee ballots from
UOCAVA-protected voters; accelerated means for the transmission and return of
these voters' absentee ballots, including facsimile, e-mail, and express mail at
public expense. The order also provided for the use of the uniform federal write-in
absentee ballot for the July 20 primary and its runoff, and required election
officials to work to notify affected voters individually, wherever they were in the
world, of the relief directed by the Court. The United States' claims for permanent
injunctive relief remain before the Court; the litigation has not been stayed or
dismissed, although no further proceedings have taken place since July 16, 2004.
On March 30, 2005, the Georgia General Assembly passed, and on April 22,
2005, Governor Sonny Perdue signed into law Act No. 53 (H.B. 244 of the 2005
Regular Session), which amends a number of sections of Georgia's Election Code.
This Act included, inter alia, provisions contained in Sections 51, 52, 53, 54, and
63 of the bill ("relevant provisions") designed to ensure long-term compliance
with UOCAVA by the state and its subdivisions. These relevant provisions, as
well as a severability provision, are described in the Memorandum of
Understanding ("MOU") between the parties that is annexed to this Stipulation
and incorporated herein.
In light of the passage of the relevant provisions of Act No. 53, the parties
desire to settle this action, both to avoid further litigation and to facilitate
immediate and lasting compliance with UOCAVA on behalf of all voters in
Georgia who are covered by its protections.
The parties understand that for any voting change contained in Act No. 53
to take effect, it must be submitted for preclearance review under Section 5 of the
Voting Rights Act of 1965, 42 U.S.C. § 1973c, and must receive the
administrative or judicial preclearance required by that Section; that nothing in
this Stipulation or the annexed MOU is intended to prejudge or comment on the
merits of any administrative or judicial determination that may hereafter be made
under Section 5; and that the failure of the relevant provisions to obtain the
required Section 5 preclearance will void this Stipulation and the annexed MOU.
In view of the foregoing, IT IS HEREBY STIPULATED AND AGREED,
by and between the United States, the State of Georgia, and Cathy Cox, Secretary
of State of Georgia, through their undersigned counsel, that:
1. All claims by the United States in this action up to and including the date
of this agreement shall be dismissed under Fed. R. Civ. P. 41(a)(2);
2. This Order of Dismissal expressly incorporates the terms of the annexed
MOU; and
3. This Court expressly retains jurisdiction for the purpose of enforcing the
terms of the annexed MOU for the term of the MOU, or for any extended duration
pursuant to a written agreement by the parties.
Dated this _25th__ day of __July_____, 2005.
For the Plaintiff
For Defendants
United States of America:
State of Georgia and
Secretary of State of Georgia:
BRADLEY J. SCHLOZMAN
THURBERT E. BAKER
Acting Assistant Attorney General
Attorney General
________/s/_____________________
__________/s/_______________________
JOHN K. TANNER
DENNIS R. DUNN
REBECCA J. WERTZ
Georgia Bar No. 234098
AMY H. ZUBRENSKY
Attorneys, Voting Section
Deputy Attorney General
Civil Rights Division--NWB
Georgia Department of Law
U.S. Department of Justice
40 Capitol Square, S.W.
950 Pennsylvania Avenue, N.W.
Washington, DC 20530
(202) 514-3232
(404) 656-5614
(202) 307-3961 (Facsimile)
(404) 657-9932 (Facsimile)
DAVID E. NAHIMAS
United States Attorney
__________/s/_______________________
AMY BERNE
Georgia Bar No. 006670
Assistant U.S. Attorney
600 United States Courthouse
75 Spring Street, S.W.
Atlanta, GA 30303
(404) 581-6000
(404) 581-6181 (facsimile)
SO ORDERED.
Dated: 25th July 2005
________/s/_______________________
Charles A. Pannell, Jr.
District Court Judge
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
UNITED STATES OF AMERICA,
P1aintiff,
CIVIL ACTION
v.
NO. 1 :04-CV-2040-CAP
THE STATE OF GEORGIA and
CATHY COX, Secretary of State
of Georgia,
Defendants,
MEMORANDUM OF UNDERSTANDING
BETWEEN THE STATE OF GEORGIA
AND SECRETARY OF STATE OF GEORGIA
AND THE UNITED STATES
This Memorandum of Understanding ("MOU") between the United States
Department of Justice (the "United States") and the State of Georgia and Cathy
Cox, Secretary of State of Georgia ("Georgia" or "the defendants") is an
agreement to resolve the above-captioned civil action under the Uniformed and
Overseas Citizens Absentee Voting Act of 1986, 42 U.S.C. §§ 1973ee to 1973ee-6
("UOCAVA"). This MOU is to be annexed to, incorporated in, and enforceable
under, the Stipulation and Order of Dismissal signed on this date and submitted to
the Court by counsel for the parties.
The parties set forth their mutual understanding and agreement as follows:<
1. The Georgia General Assembly, during its 2005 regular session,
passed Act No. 53 (H.B. 244 of the 2005 Regular Session) ("Act No. 53"), which
amended a number of provisions of Georgia's Election Code. The bill contains,
inter alia, provisions designed to ensure long-term compliance with
UOCAVA by Georgia and its subdivisions.
2. The relevant provisions of Act No. 53 as signed by the Governor on
April 22, 2005, are:
A. Section 51, which changes the paragraph designations of
O.C.G.A. § 21-2-381(a)(1)(G), and retains the Georgia law provisions
conforming to Section 104 of UOCAVA, 42 U.S.C. § 1973ff-3, entitling UOCAVA-protected voters
to absentee ballots for two federal election cycles with a single application.
B. Section 52, which adds a new Ga. Code § 21-2-381.2,
creating a state write-in absentee ballot for federal and statewide offices for
the use of UOCAVA-protected voters. Such a ballot is to be distributed
with the absentee ballot sent to such voters so they may fill it out and return
it in the event of a runoff. The State Election Board, which is chaired by the
Secretary of State, is to devise rules for fax-out and portable document
format ("pdf") download of the runoff ballot in blank, and is to establish a
website where voters may learn whether a runoff is being held. Runoff
ballots from UOCAVA voters are to be accepted up to three days after the
runoff election.
C. Section 53, which amends Ga. Code § 21-2-384(a) to
clarify that absentee ballots must be delivered to local registrars at least 45
days before a federal or state election (at least 21 days before municipal
elections). Registrars then have two days, as under prior law, to mail the
ballots to all voters who have requested them by that time.
D. Section 54 provides under O.C.G.A. § 21-2-386(a)(1)(G)
for a three-day extended period after each primary, runoff or general
election, federal or otherwise, for receipt of voted absentee ballots from
UOCAVA-protected voters as long as they are postmarked by the date of the election.
E. Section 63 amends O.C.G.A. § 21-2-501(a) to provide
that Georgia's run-off elections shall be held 28 days following the initial
phase of the general election, an addition of seven days from the current 21
day period for holding a run-off.
3. Section 67 of Act No. 53 severs from the rest of the bill any provision
"declared or adjudged to be invalid or unconstitutional" after its passage, and
retains in "full force and effect" all provisions of the bill other than those
invalidated.
4. For any change affecting voting contained in Act No. 53 to take
effect, it must be submitted for preclearance review under Section 5 of the Voting
Rights Act of 1965, 42 U.S.C. § 1973c, and must receive the administrative or
judicial preclearance required by that Section. Nothing in this MOU or in the
Stipulation to which it is annexed is intended to prejudge or comment on the
merits of any administrative or judicial determination that may hereafter be made
under Section 5; and the failure of Sections 51, 52, 53, 54, 63, and 67 of Act No.
53 to receive the required Section 5 preclearance will void this MOU and the
Stipulation to which it is annexed.
5. Because enforcement of the requirements of UOCAVA depends on
timely and accurate information about the extent of compliance in each of the
state's political subdivisions, Georgia will require each of its 159 counties to
report to the Georgia Secretary of State on the mailing of absentee ballots to
UOCAVA voters in the following manner:
A. Georgia and the United States will collaborate on the
production, to be completed by August 1, 2005, of a brief
questionnaire form designed to request of each of Georgia's 159
counties information necessary to determine the extent of timely
mailing of absentee ballots to UOCAVA-protected voters.
B. The form will ask for the number of absentee ballot
applications received on or before the 32nd day before the election
from stateside uniformed services voters, overseas uniformed services
voters, and overseas civilian voters entitled to vote in the county, the
date on which ballots were received in each county registar's office,
and the date on which the county completed the sending of absentee
ballots to such UOCAVA-protected voters.
C. Georgia will require each of its counties to complete a
copy of this form as of the 32nd day before each federal primary or
general election and transmit it by facsimile or other electronic means
to the Secretary of State on that day.
D. Georgia will transmit all forms received forthwith,
i.e., on the day they are received or as soon thereafter as physically
possible, by facsimile or other electronic means to the United States
Department of Justice, Civil Rights Division, Voting Section
("Voting Section"), and to the Federal Voting Assistance Program of
the United States Department of Defense ("FVAP").
E. Because time is of the essence in this reporting
arrangement, and with the understanding that the State of Georgia is
ultimately responsible for compliance with UOCAVA, the Secretary
of State, through the State Election Board, will use all reasonable
efforts to cause its subdivisions to complete their reports on the 32nd
day before each election for federal office. Pursuant to this MOU and
this Court's order, the Secretary of State in using these reasonable
efforts as noted above shall use all necessary authority including
enforcement action through the State Election Board to enforce the
reporting requirements of this paragraph. Georgia will report to the
Voting Section and FVAP by telephone, facsimile or other electronic
means, on the 32nd day before each federal election or as soon
thereafter as physically possible, the extent of its counties' non-compliance
with the reporting requirement for that election.
F. This reporting arrangement will be in effect through the
federal general election of November 4, 2008, and any runoff election
held following that election.
6. Georgia will include the reporting arrangement and the questionnaire
form described in this MOU in any training that it provides to local election
officials in the state through the general election of November 4, 2008, and
voluntarily thereafter with the understanding that this MOU encourages but does
not require it.
7. Georgia will promulgate regulations governing the form, content and
use of the special state write-in absentee ballot ("SWAB"), as authorized by new
Ga. Code § 21-2-381.2, including a provision for the transmission, use and
acceptance of the SWAB for primary and general elections in any Georgia
subdivision where preparation or mailing of regular absentee ballots to UOCAVA
voters for such elections is not completed by the deadlines specified in Ga. Code § 21-2-384(a).
Dated this _25th__ day of ___July_____________, 2005.
For the Plaintiff
For Defendants
United States of America:
State of Georgia and
Secretary of State of Georgia:
BRADLEY J. SCHLOZMAN
THURBERT E. BAKER
Acting Assistant Attorney General
Attorney General
________/s/_____________________
__________/s/_______________________
JOHN K. TANNER
DENNIS R. DUNN
REBECCA J. WERTZ
Georgia Bar No. 234098
AMY H. ZUBRENSKY
Attorneys, Voting Section
Deputy Attorney General
Civil Rights Division--NWB
Georgia Department of Law
U.S. Department of Justice
40 Capitol Square, S.W.
950 Pennsylvania Avenue, N.W.
Washington, DC 20530
(202) 514-3232
(404) 656-5614
(202) 307-3961 (Facsimile)
(404) 657-9932 (Facsimile)
DAVID E. NAHIMAS
United States Attorney
__________/s/_______________________
AMY BERNE
Georgia Bar No. 006670
Assistant U.S. Attorney
600 United States Courthouse
75 Spring Street, S.W.
Atlanta, GA 30303
(404) 581-6000
(404) 581-6181 (facsimile)
CERTIFICATE OF SERVICE
This is to certify that I have this day served or caused to be served a copy of
the within and foregoing MEMORANDUM OF UNDERSTANDING BETWEEN THE STATE OF
GEORGIA AND THE SECRETARY OF STATE OF GEORGIA AND THE UNITED STATES prior to filing
the same, by first class mail and overnight delivery, with adequate postage addressed
thereupon, properly addressed to:
AMY BERNE
Assistant United States Attorney
600 U. S. Courthouse
75 Spring Street, SW
Atlanta, GA 30303
JOHN K. TANNER
REBECCA J. WERTZ
AMY H. ZUBRENSKY
Attorneys, Voting Section
Civil Rights Division - NWB
U.S. Department of Justice
950 Pennsylvania Avenue, N.W.
Washington, D>C. 20530
This 25th day of July 2005.
_______/s/__________________
DENNIS R. DUNN
Georgia Department of Law
40 Capitol Square, S.W.
Atlanta, Georgia 30334-5614
Telephone: (404) 656-5614
FAX: (404) 657-9932
Updated July 25, 2008
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