Voting Rights Act Cases

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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

         versus                                                                                        NO. 1 :04-CV-2040-CAP

THE STATE OF GEORGIA and                                     

CATHY COX, Secretary of State of                                

Georgia,                                                                           

                 Defendants,                                                     

                                                                                 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.

                                                                        Factual Background

        The United States of America filed this action pursuant to the Uniformed and Overseas Citizens Absentee

Voting Act, 42 U.S.C. ｧ 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. ｧ 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

10, 2004.¹

         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. ｧ 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. ｧ 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 primary runoff 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 their ballots 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. ｧ 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.

                                                              Legal Analysis

         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

interest.  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

statute would have time to receive them, execute them, and send them back to county

election 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

injunctive relief.

         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

enhancing all citizens' ability to vote in the November general elections, for which

a higher voter turnout is expected, requires that the primary elections be conducted

and 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.

                                                                    Conclusion

         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.

        A.     Facsimile Ballots

        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. ｧ 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. ｧ 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. ｧ 1973ff-2. The criteria for use of this form under UOCAVA are:

1. The voter must be located overseas;
2. The voter must have applied for the absentee ballot at least 30 days before the election; and
3. The voter must not have received the requested ballot.

42 U.S.C. ｧ 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

of wide 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 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

method. 

         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. ｧ 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 eligible UOCAVA-protected,

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

transmitted via 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

the 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:

1. 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.

2. 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.

3. 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.

4. 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

following information:

1. 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;

2. 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;

3. 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

   received; and

4. 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.

         5:47p.m.

                                          /s/

                                          Charles A. Pannell, Jr.
                                          United States District Judge

¹ Pursuant to ｧ 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. ｧ 1973ff.

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