1. This action is brought by the Attorney General of the
United States pursuant to the Uniformed and Overseas Citizens
Absentee Voting Act of 1986, 42 U.S.C. §§ 1973ff to 1973ff-6
("UOCAVA"), which provides that absentee uniformed services
voters and overseas 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. The Attorney General is granted
enforcement powers under UOCAVA, 42 U.S.C. § 1973ff-4, and files
this complaint to ensure that United States citizens living
abroad, who are qualified to vote in the federal primary election
of April 27, 2004, in the Commonwealth of Pennsylvania, and who
have filed timely applications for absentee ballots, will have an
opportunity to vote in that election and have their ballots
counted.
2. This Court has jurisdiction of this action pursuant to
42 U.S.C. § 1973ff-4 and 28 U.S.C. §§ 1345 and 2201.
3. Defendant Commonwealth of Pennsylvania is charged with
the responsibility of assuring that Pennsylvania election laws,
as applied, comply with the provisions of the Uniformed and
Overseas Citizens Absentee Voting Act, 42 U.S.C. §§ 1973ff to
1973ff-6.
4. Defendant Edward G. Rendell is Governor of the
Commonwealth of Pennsylvania and is sued in his official
capacity. The Governor is the chief executive officer of
Pennsylvania, and is charged with the duty of taking care that
the laws be faithfully executed. Pa. Const. art. IV, § 2. The
Governor's principal office is in Harrisburg, Pennsylvania.
5. Defendant Pedro A. Cortes is Secretary of the
Commonwealth of Pennsylvania and is sued in his official
capacity. The Secretary of the Commonwealth is the chief
election officer of Pennsylvania, and as such is responsible for
the administration of state laws affecting voting, and for
assuring that elections in the Commonwealth are conducted in
accordance with law. The Secretary's principal office is in
Harrisburg, Pennsylvania.
6. In the federal primary election of April 27, 2004, the
voters of the Commonwealth of Pennsylvania will participate in
the selection of nominees for president and vice president of the
United States, for the United States Senate, and for the United
States House of Representatives.
7. County election officials in the Commonwealth of
Pennsylvania have received timely requests for absentee ballots
from overseas voters who are entitled to vote pursuant to the
provisions of UOCAVA.
8. Under Pennsylvania law, absentee ballots sent from
overseas civilian and military voters must be received by the
Friday before the date of the primary election to be counted for
all federal and state offices, and must otherwise satisfy the
requirements of Pennsylvania law. 25 Pa. Stat. Ann. § 3146.6(a).
For the federal primary election of Tuesday, April 27, 2004, the
deadline for receipt of absentee ballots is Friday, April 23, 2004.
9. In order to provide overseas citizens a fair opportunity
to vote by absentee ballot, election officials in Pennsylvania
must mail the ballots to the voters sufficiently in advance of
election day to allow the voter to receive the ballot, cast a
vote, and return the ballot to the office of the election
official by the deadline established under Pennsylvania law.
10. The United States Postal Service estimates that a
period of 10 to 17 days is a reasonable benchmark from the time
of posting to the time of delivery of international mail, and
that a period of 20 to 34 days is a reasonable benchmark for a
round trip if the addressee responds on the day the letter is
received. The United States Department of State has estimated
that 10 to 14 days is a reasonable one-way international
benchmark. The United States Military Postal Service Agency
estimates that at least 30 days are necessary for mail sent to
overseas military personnel to make a complete round trip. This
estimate takes into account the fact that some military personnel
are stationed in remote areas. The Federal Voting Assistance
Program of the Department of Defense recommends that states allow
40 to 45 days for round trip mailing time for overseas ballots.
11. A Pennsylvania statute, 25 Pa. Stat. Ann. § 3146.5(a),
provides that absentee ballots must be mailed 50 days before a
primary election to voters who have requested absentee ballots
and state with their ballot applications that they will be in
"extremely remote or isolated"; overseas locations, and 45 days
before a primary election to all other qualified voters who have
requested absentee ballots. If official absentee ballots are not
yet printed by the prescribed deadline, special write-in absentee
ballots are to be sent in their place. This statute was enacted
to ensure adequate time for overseas ballots to be received and
returned in time to be counted. It was enacted after the
Commonwealth of Pennsylvania and the United States Department of
Justice reached an informal agreement under UOCAVA for the
federal primary election of May 15, 1990, to extend the deadline
for receipt of absentee ballots from May 11 to May 25, 1990.
12. In many Pennsylvania counties, election officials
failed to mail official absentee ballots or special write-in
absentee ballots to qualified overseas citizens who had filed
timely requests for such ballots sufficiently in advance of the
April 27, 2004, federal primary election to allow voters to
receive the ballot, cast a vote for all federal offices, and
return the ballot to election officials by the deadline of April
23, 2004, established under Pennsylvania law. In so doing, these
officials also failed to comply with the absentee ballot mailing
requirements of 25 Pa. Stat. Ann. § 3146.5, which embodied
Pennsylvania's policy judgment concerning the time necessary for
the transmission of absentee ballots and their return in time to
be counted.
13. The failure of county election authorities in
Pennsylvania to mail absentee ballots to military and civilian
overseas voters sufficiently in advance of April 23, 2004, to
allow the voting and return of ballots by the deadline will
deprive United States citizens of an opportunity to vote in a
federal primary election contrary to the provisions of UOCAVA.
14. An order of this Court is necessary requiring the
Commonwealth to take corrective action in order to protect the
rights granted by the Uniformed and Overseas Citizens Absentee
Voting Act.
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 late mailing
of absentee ballots in the Commonwealth of Pennsylvania in
advance of the federal primary election of April 27, 2004,
violates UOCAVA; and issue preliminary and permanent injunctive
relief ordering the defendants, their agents and successors in
office, and all persons acting in concert with them:
- to take such steps as are necessary to require
that appropriate election officials count as
validly cast ballots, in contests relating to the
selection of nominees for federal office, those
ballots cast by persons outside the United States
who are qualified to vote in the Commonwealth of
Pennsylvania pursuant to the Uniformed and
Overseas Citizens Absentee Voting Act, 42 U.S.C.
§§ 1973ff to 1973ff-6, and who timely applied for
absentee ballots from appropriate election
officials for the April 27, 2004, federal primary
election, as long as such ballots are received by
appropriate election officials before the close of
business on May 7, 2004, and otherwise satisfy the
requirements of Pennsylvania law;
- to order that election officials throughout the
Commonwealth accept at the April 27, 2004, federal
primary election, on the same terms and for the
same offices as other valid absentee ballots, the
federal write-in absentee ballot (FWAB) provided
for in UOCAVA, 42 U.S.C. § 1973ff-2;
- to order that election officials throughout the
Commonwealth make available for the April 27,
2004, federal primary election additional methods
for sending and receiving absentee ballots to and
from overseas voters such as air express services
and facsimile and electronic mail transmission, in
addition to traditional mail service;
- to take such steps as are necessary to afford
military and civilian overseas voters eligible to
participate in the April 27, 2004, federal primary
election a reasonable opportunity to learn of this
Court's order, including notice to affected voters
and public service announcements in relevant
overseas media;
- to provide a report to the United States, within
45 days after the April 27, 2004, federal primary
election, setting forth the number of military and
other overseas ballots, including FWABs, received
and counted for the said federal primary election;
and
- to take such steps as are necessary to afford
military and civilian overseas absentee voters
eligible to vote in Pennsylvania under the
Uniformed and Overseas Citizens Absentee Voting
Act a fair and reasonable opportunity to
participate in future primary and general
elections for federal office.
The United States further prays that this Court grant such
other and further relief as the interests of justice may require.
By: _________/s/________
R. ALEXANDER ACOSTA
Assistant Attorney General
Civil Rights Division
THOMAS A. MARINO
By: _________/s/________
STEPHEN R. CERUTTI
Assistant United States Attorney
Pa. Bar No. 90744
_________/s/________
_________/s/________
REBECCA J. WERTZ
STEPHEN B. PERSHING
Attorneys, Voting Section
Civil Rights Division
U.S. Department of Justice
950 Pennsylvania Avenue, N.W.,
Room 7254-NWB
Washington, D.C. 20530
(202) 305-1238
Fax: (202) 307-3961
