UNITED STATES OF AMERICA,
Civil Action No. 3:06-cv-1192
STATE OF CONNECTICUT and
SUSAN BYSIEWICZ, in her official capacity
as Secretary of State of Connecticut;
COMPLAINTThe 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. The Attorney General is granted enforcement powers under UOCAVA, 42 U.S.C. § 1973ff-4, and files this complaint to ensure that UOCAVA voters who are qualified to vote in the federal primary election to be conducted on August 8, 2006 in the State of Connecticut will have an opportunity to vote in the election and have their ballots counted. The United States seeks declaratory and injunctive relief to obtain compliance with the federal law for the August 8, 2006 federal primary and 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 and 2201.
3. Defendant State of Connecticut is obligated to comply with UOCAVA and ensure that UOCAVA voters have sufficient time to receive, cast and return their absentee ballots.
4. Defendant Susan Bysiewicz is Secretary of State of Connecticut and is sued in her official capacity. The Secretary of State is the Commissioner of Elections of the State of Connecticut, 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 law. CONN. GEN. STAT. § 9-3 (2006). The Secretary's principal office is in Hartford, Connecticut.
5. In the federal primary election of August 8, 2006, eligible voters of the State of Connecticut will participate in the selection of nominees for a seat in the United States Senate or a seat in the United States House of Representatives. A federal general election will be held November 7, 2006.
6. Absentee ballots sent from UOCAVA voters must be received by the close of the polls on the day of the election to be counted for all federal and state offices, and must otherwise satisfy the requirements of Connecticut law. CONN. GEN. STAT. § 9-140b (2006). For the federal primary election of Tuesday, August 8, 2006, the deadline for receipt of absentee ballots is the close of the polls on election day, i.e., 8:00 p.m. Eastern Daylight Time on August 8, 2006. CONN. GEN. STAT. § 9-174 (2006).
7. UOCAVA provides for an official post card form, referred to as the Federal Post Card Application ("FPCA"), "for simultaneous voter registration application and absentee ballot application" by UOCAVA voters. 42 U.S.C. §§ 1973ff(b)(2), 1973ff-1(a)(4).
8. UOCAVA requires that a state provide an absentee ballot to an eligible UOCAVA voter "for each subsequent election for federal office held in the state through the next 2 regularly scheduled general elections for Federal office," if requested by the voter pursuant to the FPCA. 42 U.S.C. § 1973ff-3(a). Thus, for the August 8, 2006 federal primary election, Connecticut officials are required to provide absentee ballots to all UOCAVA voters who have filed timely applications, which include FPCA requests filed since January 1, 2004 to receive ballots for subsequent elections, and who are otherwise qualified to vote in that election ("qualified UOCAVA voters").
9. Municipal election officials in the State of Connecticut have received timely requests for absentee ballots from qualified UOCAVA voters.
10. In order to provide qualified UOCAVA voters a fair opportunity to vote by absentee ballot, election officials in Connecticut must mail the ballots to the voters sufficiently in advance of election day to allow the voters to receive, cast and return their absentee ballots by the deadline established under Connecticut law.
11. Based on data from the United States Postal Service and the United States 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.
12. In many Connecticut towns, election officials failed to mail absentee ballots to qualified UOCAVA voters who had filed timely requests for such ballots sufficiently in advance of the August 8, 2006 federal primary election to allow voters to receive the ballot, cast a vote for all federal offices, and return the ballot to election officials in time to be counted under Connecticut law. Several town clerks reported to the Department of Justice that as of July 25, 2006, they were not able to locate or had not yet located the FPCA requests submitted in 2004.
13. According to the State of Connecticut, there are approximately 6,000 UOCAVA voters who registered by FPCA in 2004. Of those, there may be as many as 1,800 - 2,100 UOCAVA voters qualified to vote in the August 8, 2006 federal primary, many of whom reside overseas. As of Friday, July 28, 2006, the state surveyed 95 of the 169 towns in Connecticut and identified 650 qualified UOCAVA voters. Municipal election officials in these 95 towns sent 290 absentee ballots by July 11th (28 days before the primary) and 360 absentee ballots after July 11th. Some of the ballots sent after July 11th were sent via expedited United States Postal Service or commercial delivery services.
14. The failure of election officials in Connecticut to mail absentee ballots to qualified UOCAVA voters sufficiently in advance of August 8, 2006, to allow the voting and return of ballots by the close of the polls on election day will deprive United States citizens of an opportunity to vote in a federal primary election contrary to the provisions of UOCAVA.
15. An order of this Court is necessary requiring the State of Connecticut to take corrective action in order to protect the rights granted by UOCAVA in the August 8, 2006 federal primary election, 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 late mailing of absentee ballots in the State of Connecticut that has already occurred for the federal primary election of August 8, 2006 violates UOCAVA; and issue injunctive relief ordering the defendants, their agents and successors in office, and all persons acting in concert with them:(1) to take such steps as are necessary to send an absentee ballot by expedited delivery to any qualified UOCAVA voter eligible to vote in the August 8, 2006 federal primary election to whom a ballot has not yet been sent and make available expedited methods, such as air express services, for qualified UOCAVA voters to return absentee ballots;
(2) to order that appropriate election officials accept for federal offices, in the August 8, 2006 federal primary election, the Federal Write-in Absentee Ballot provided for in UOCAVA, 42 U.S.C. § 1973ff-2;(3) 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, including Federal Write-in Absentee Ballots, cast by qualified UOCAVA voters as long as such ballots are executed and sent (whether by federal postal services or commercial delivery services) by August 8, 2006, and received by appropriate election officials before 8:00 p.m. on August 25, 2006 and otherwise satisfy the requirements of Connecticut law;
(4) to take such steps as are necessary to afford qualified UOCAVA voters a reasonable opportunity to learn of this Court's order;(5) to provide a report to the United States, within 45 days after the August 8, 2006 federal primary election, setting forth the number of UOCAVA ballots, including Federal Write-in Absentee Ballots, sent, received, and counted for the August 8, 2006 federal primary election; and
(6) to take such steps as are necessary to afford UOCAVA voters eligible to vote in Connecticut a fair and reasonable opportunity to participate in all future primary, general, special and runoff elections for federal office.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. ALBERTO R. GONZALES
WAN J. KIM
Assistant Attorney General
Civil Rights Division
United States Attorney
JOHN B. HUGHES
Bar No.: ct05289
Chief, Civil Division
United States Attorney Office
450 Main Street, Room 328
(860) 947 - 1101
Chief, Voting Section _______/s/_______________
REBECCA J. WERTZ
GAYE L. TENOSO
M. ERIC EVERSOLE
Civil Rights Division
U.S. Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530
(800) 253-3931 (telephone) >