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Election Litigation: Absentee and Early Voting

An Opportunity to Cure Absentee Ballot Signatures That Do Not Match Voter Registration Records
Florida Democratic Party v. Detzner (Mark E. Walker, N.D. Fla. 4:16-cv-607)
A little over one month in advance of a general election, a political party filed a federal complaint seeking opportunities to cure mismatches between absentee ballot signatures and voter registration signatures, noting an existing opportunity to cure signature omissions. After taking testimony from the local county supervisor of elections, the district judge issued a preliminary injunction requiring an opportunity to cure signature mismatches.
Topics: Absentee ballots; equal protection; news media.

Counting Federal Overseas Votes on Ballots with State-Election Errors
United States v. West Virginia (John T. Copenhaver, Jr., S.D. W. Va. 2:14-cv-27456)
A state supreme court ordered a replacement candidate for a state legislative election, granting a writ of mandamus that also requested the nullification of absentee ballots already sent out that included the withdrawn candidate’s name. The Justice Department sought an injunction requiring that votes for federal offices be counted in the otherwise voided absentee ballots for overseas voters if the overseas voters did not cast corrected ballots. Although the district judge denied the Justice Department preliminary relief, on full briefing the judge ordered federal votes counted for the four ballots at issue.
Topics: Uniformed and Overseas Citizens Absentee Voting Act (UOCAVA); absentee ballots; matters for state courts.

Accommodating a Disabled Voter
Mooneyhan v. Husted (Walter H. Rice, S.D. Ohio 3:12-cv-379)
When a hospitalized voter’s absentee ballot did not arrive in time, she asked election officials to deliver it by hand to her, but they refused. Ten days following a federal complaint filed shortly after the polls closed on election day, the district judge ordered that the absentee ballot be counted as a remedy for election officials’ failing to accommodate the voter’s disability.
Topics: Absentee ballots; attorney fees; provisional ballots; laches.

Last-Minute Absentee Voting by Last-Minute Prisoners
Fair Elections Ohio v. Husted (Susan J. Dlott and S. Arthur Spiegel, S.D. Ohio 1:12-cv-797)
Prisoner-rights organizations filed a federal complaint seeking provisions ensuring the ability to vote by voters detained during the days immediately preceding the 2012 general election. The district judge denied the plaintiffs immediate relief because they had not presented compelling evidence of disenfranchisement. The state’s accommodations for persons with medical emergencies on election day did not create an equal protection violation because of the different burdens placed on election officials. After the case was transferred to another judge in 2014, and after additional discovery, the second judge granted the plaintiffs summary judgment on a showing that the burden on disenfranchised voters outweighed the burden on accommodating late-jailed voters. The court of appeals determined, over a dissent, however, that the plaintiff organizations did not have standing.
Topics: Prisoner voters; equal protection; absentee ballots.

Extension for Overseas Voters in Wisconsin
Romney for President, Inc. v. Wisconsin (William M. Conley, W.D. Wis. 3:12-cv-745)
A presidential campaign sought an extension for absentee ballots because they were not mailed on time as required by the Uniformed and Overseas Citizens Absentee Voting Act of 1986 (UOCAVA). The matter settled.
Topics: Uniformed and Overseas Citizens Absentee Voting Act (UOCAVA); absentee ballots.

Early Voting on Indian Reservations
Wandering Medicine v. McCulloch (Richard F. Cebull and Donald W. Molloy, D. Mont. 1:12-cv-135)
Members of three Indian tribes sought the establishment of satellite county clerk and recorder offices for voter registration and in-person absentee voting. The first judge assigned to the case denied relief for lack of discriminatory intent and because reservation residents have successfully elected candidates of their choice. After the first judge retired, a second judge determined that the plaintiffs had alleged plausible equal protection and voting rights claims.
Topics: Poll locations; equal protection; section 2 discrimination; early voting; absentee ballots.

Overseas Absentee Ballot Consent Decree in the Virgin Islands
United States v. Virgin Islands (Curtis V. Gómez, D.V.I. 3:12-cv-69)
Eight days in advance of a primary election, the government sought a consent decree on overseas absentee ballots, which had not been sent to overseas voters in time.
Topics: Uniformed and Overseas Citizens Absentee Voting Act (UOCAVA); absentee ballots.

Late Overseas Ballots in Michigan
United States v. Michigan (Robert J. Jonker, W.D. Mich. 1:12-cv-788)
One week in advance of Michigan’s 2012 federal primary election, upon learning that a substantial number of election jurisdictions were not in compliance, the Justice Department filed a complaint to enforce a requirement that absentee ballots be sent to overseas voters at least 45 days in advance of an election. Four days before the election, the court approved a stipulated order extending the deadline for receipt of cast overseas ballots by the number of days that they were sent late.
Topics: Uniformed and Overseas Citizens Absentee Voting Act (UOCAVA); absentee ballots.

Mailing Overseas Absentee Ballots on Time in Georgia in 2012
United States v. Georgia (Steve C. Jones, N.D. Ga. 1:12-cv-2230)
The Justice Department filed a federal complaint against Georgia on June 27, 2012, because a planned primary runoff election would not allow enough time after the initial primary election to mail absentee ballots overseas. The district judge extended the deadline for return of absentee runoff ballots and ordered Georgia to pay for their express delivery. The court retained jurisdiction over absentee voting in Georgia in 2013 and 2014. In 2014, Georgia amended its election laws to comply with the Uniformed and Overseas Absentee Voting Act, so the lawsuit was dismissed.
Topics: Absentee ballots; Uniformed and Overseas Citizens Absentee Voting Act (UOCAVA); recusal.

Timely Overseas Ballots in Alabama
United States v. Alabama (Myron H. Thompson, M.D. Ala. 2:12-cv-179)
The U.S. Department of Justice alleged violations by Alabama of the Uniformed and Overseas Citizens Absentee Voting Act of 1986 (UOCAVA), as amended by the Military and Overseas Voter Empowerment Act of 2009 (MOVE Act), respecting timely distribution of absentee ballots for a March 2012 primary election. A weekend and two court days later, the district judge ordered the parties to submit a remedy plan within four days. A few days before the election, the judge extended the deadline for casting overseas ballots and ordered publication of the revised overseas absentee voting procedures. The judge ordered permanent changes to the election timetable in 2014 and closed the case in 2017.
Topics: Absentee ballots; Uniformed and Overseas Citizens Absentee Voting Act (UOCAVA); primary election.

Mailing Nevada’s Overseas Ballots on Time
Doe v. Miller (Gloria M. Navarro, D. Nev. 2:10-cv-1753)
On October 8, 2010, the Republican candidate for secretary of state filed a pro se federal complaint seeking relief from a county’s failure to mail absentee ballots to some overseas voters on time. The district judge dismissed the complaint as moot because of efforts election officials had already undertaken to remedy the error.
Topics: Absentee ballots; Uniformed and Overseas Citizens Absentee Voting Act (UOCAVA); pro se party.

Prompt Delivery of Absentee Ballots by Guam
United States v. Guam (Frances M. Tydingco-Gatewood, D. Guam 1:10-cv-25)
On October 6, 2010, the Justice Department filed a federal action to enforce Guam’s compliance with the Uniformed and Overseas Citizens Absentee Voting Act (UOCAVA). Guam filed a notice that it would not oppose the action, and after an October 13 hearing the district court ordered compliance. For elections in 2012, the district court issued a stipulated order of compliance, because Guam had not yet achieved compliance legislatively.
Topics: Absentee ballots; Uniformed and Overseas Citizens Absentee Voting Act (UOCAVA).

Timely Overseas Ballots for State Elections in Maryland
Doe v. Walker (Roger W. Titus, D. Md. 8:10-cv-2646)
A federal complaint filed 40 days in advance of the 2010 general election complained that absentee ballots had not been sent to overseas voters in time. It turned out that ballots listing only federal offices had already been sent out. The district judge extended the deadline for the state to receive ballots for state offices by ten days to preserve overseas voters’ fundamental rights to vote.
Topics: Absentee ballots; military ballots; Uniformed and Overseas Citizens Absentee Voting Act (UOCAVA).

County Differences in Providing Absentee Ballots
Vanzant v. Brunner (Susan J. Dlott, S.D. Ohio 1:10-cv-596)
A federal complaint filed two months before the 2010 general election alleged an equal protection violation because some counties were more generous than others in facilitating absentee voting. The district court denied relief.
Topics: Absentee ballots; equal protection.

Right to Vote Absentee
Cunningham v. Leigh (W. Allen Pepper, Jr., N.D. Miss. 1:10-cv-49)
A federal complaint, which was filed four days in advance of a meeting of voters to select trustees for a school district, sought an injunction requiring absentee ballots for the meeting. After a telephonic hearing two days after the complaint was filed, the district judge determined that voters do not have a fundamental right to absentee ballots, the plaintiffs had shown no discriminatory intent, and the plaintiffs’ evidence of discriminatory impact was weak, so the judge denied immediate relief.
Topic: Absentee ballots.

Post-Election Verification of a Disabled Voter’s Absentee Ballot
Ray v. Franklin County Board of Elections (George C. Smith, S.D. Ohio 2:08-cv-1086)
A voter bedridden and homebound because of diabetes and panic attacks filed a federal action against the county board of elections, claiming that the board had improperly required her to visit the board by the previous day to protect the validity of her absentee ballot. The district court enjoined the board to make reasonable accommodations to the plaintiff’s disabilities and awarded the plaintiff $16,139.50 in attorney fees and costs.
Topics: Absentee ballots; attorney fees; case assignment.

Military Absentee Ballots 2008
McCain-Palin 2008, Inc. v. Cunningham (Richard L. Williams, E.D. Va. 3:08-cv-709)
On the day before the 2008 presidential election, one party’s campaign filed a federal lawsuit alleging that Virginia had not sent absentee ballots to military personnel overseas in time for the voters to return the ballots in time to be counted. The district court ordered an extension of time for accepting absentee ballots from overseas so long as they were cast before the polls closed.
Topics: Uniformed and Overseas Citizens Absentee Voting Act (UOCAVA); military ballots; absentee ballots; intervention.

Accusations of Voter Fraud
Escobedo v. Rogers (William P. Johnson, D.N.M. 1:08-cv-1002)
A federal complaint alleged aggressive and harassing investigations into the plaintiffs’ rights to vote. The district judge denied the plaintiffs immediate relief because the evidence showed that both had voted in the 2008 general election. After the election, the judge dismissed the complaint because there was no imminent threat of further injury to the plaintiffs by the defendants.
Topics: Absentee ballots; recusal; case assignment; registration challenges; citizenship; primary election.

Early Voting Locations
Curley v. Lake County Board of Elections and Registration (Joseph S. Van Bokkelen, N.D. Ind. 2:08-cv-287)
The central question in this case was whether a majority vote or a unanimous vote by members of an election board was required to open satellite locations for early voting. A state court judge issued an injunction favoring the unanimity requirement shortly after the case was removed to federal court. After the parties agreed to maintain the status quo until the federal judge could rule, some of their attorneys filed a similar action in another state court and got a conflicting state court injunction. Employing the All Writs Act, the federal judge vacated the second injunction, but he later determined that his case was not removable.
Topics: Early voting; poll locations; matters for state courts; removal; enforcing orders; intervention.

Same-Day Registration and Absentee Voting
Project Vote v. Madison County Board of Elections (James S. Gwin, N.D. Ohio 1:08-cv-2266) and Ohio Republican Party v. Brunner (George C. Smith, S.D. Ohio 2:08-cv-913)
Absentee voting began in Ohio 35 days before the 2008 general election; state election law required voters to be registered at least 30 days before the election. Could new voters both register and vote on the same day if they did so after absentee voting began and before the deadline for new voter registrations? On a Wednesday, three public interest organizations and two voters filed a federal complaint in the Northern District against a county in the Southern District that interpreted the law as requiring registration 30 days before voting instead of 30 days before the election. The district judge set the matter for hearing on Monday mid-day. On Friday, the Republican Party and a voter filed a federal action in the Southern District to force Ohio’s secretary of state to require voters to be registered for 30 days before voting. Over the weekend, defendants in each case moved to transfer their case to the other district. Both judges denied these motions, and both judges moved up their Monday hearings. On Monday, the Northern District judge ruled that the statute required registration 30 days before the election, not 30 days before voting. That same day, Ohio’s supreme court reached the same result. Later that day, the Southern District judge deferred to the state court on the issue. Other issues in the Southern District case received expedited review by another district judge, the court of appeals, and the Supreme Court.
Topics: Absentee ballots; case assignment; Help America Vote Act (HAVA); registration procedures.

Accommodating Overseas Voters in a Special Election
DuPage County Board of Election Commissioners v. Illinois State Board of Elections (Ruben Castillo, N.D. Ill. 1:08-cv-232)
Election officials filed a federal complaint seeking relief from the time constraints imposed by a special election to fill a seat in the U.S. House of Representatives timed to coincide with a presidential primary election, because the schedule did not give them enough time to provide overseas voters with their ballots on time. The district judge granted the officials departures from statutory deadlines to accommodate the special election dates. The judge modified time deadlines for overseas voters and authorized the use of blank absentee ballots.
Topics: Absentee ballots; Uniformed and Overseas Citizens Absentee Voting Act (UOCAVA); intervention.

Pro Se Suit to Nullify All Absentee Ballots
Freeman v. McKnight (Gary L. Sharpe, N.D.N.Y. 1:07-cv-1123)
A candidate who earned more voting-booth votes than his opponent, but who trailed after absentee ballots were counted, filed a pro se action to nullify absentee ballots because their mailing envelopes had been discarded so timely mailing could not be verified. The judge determined that the plaintiff had not provided the defendants with proper notice or shown entitlement to immediate injunctive relief.
Topics: Absentee ballots; pro se party; enjoining certification.

Adding a Weekend Day to Early Voting
LULAC v. Texas (Xavier Rodriguez, W.D. Tex. 5:06-cv-1046)
A federal complaint challenged the exclusion of weekend days from an early voting period for a special congressional runoff election, and the district judge ordered that counties that included parts of the congressional district would have the discretion to extend the early voting period by one day to include a Saturday.
Topics: Early voting; case assignment; attorney fees; malapportionment; three-judge court.

Equal Provision of Early Voting in Cook County
Gustafson v. Illinois State Board of Elections (David H. Coar, N.D. Ill. 1:06-cv-1159)
A federal complaint charged a city and its county with unequal provision of early voting. The district judge found that the inconsistencies among the jurisdictions were not so serious as to merit federal court intervention.
Topics: Early voting; poll locations; primary election.

Rejecting Absentee Ballots Without Notice and an Opportunity to Be Heard
Zessar v. Helander (David H. Coar, N.D. Ill. 1:05-cv-1917)
A 2005 federal class action filed four days in advance of a scheduled election charged that the state’s absentee voting system did not comply with due process requirements; an absentee vote cast in 2004 was not counted because of an erroneous conclusion that the ballot signature did not match the registration signature. The district judge initially heard a motion for emergency relief on election day, but set the matter for hearing two days later when defendants could participate after the plaintiff’s attorney acknowledged difficulties arising from his filing the case so close to an election. Because the plaintiff voted in person on election day, the district judge denied him immediate relief at the second hearing. After certifying both plaintiff and defendant classes, the district judge determined that state procedures violated due process.
Topics: Absentee ballots; laches; class action.

Late Absentee Ballots in Florida
Friedman v. Snipes (Patricia A. Seitz and Alan S. Gold, S.D. Fla. 1:04-cv-22787)
On the day of the 2004 general election, three voters filed a federal complaint claiming that although they requested absentee ballots on time they did not receive them in time to cast them without a risk that the ballots would not be counted. The district judge assigned to the case set a status hearing for the following morning, but on the day of the hearing she recused herself at the request of the state’s secretary of state because of her husband’s legal work for one of the major political parties. The judge to whom the case was reassigned reset the hearing for later that day. The second judge granted a temporary restraining order segregating the ballots in question, but he ultimately denied the plaintiffs a preliminary injunction after an evidentiary hearing.
Topics: Absentee ballots; ballot segregation; recusal; case assignment.

Casting a Provisional Ballot Because the Absentee Ballot Never Arrived
White v. Blackwell (David A. Katz, N.D. Ohio 3:04-cv-7689)
On the morning of a general election, a voter who never received the absentee ballot she applied for filed an action to compel the state to accept her provisional ballot cast on election day. The court determined that the Help America Vote Act compelled relief for the plaintiff, and the judge ordered that all counties in the state accept provisional ballots from voters who did not receive absentee ballots that they applied for. A year later, for a special election, the judge was called upon to provide the same relief. The judge determined that the plaintiff was entitled to attorney fees, and the parties settled on an amount of $225,000.
Topics: Absentee ballots; provisional ballots; Help America Vote Act (HAVA); 42 U.S.C. § 1983; enforcing orders; attorney fees.

Public List of Absentee Voters
Meehan v. Philadelphia County Board of Commissioners (William H. Yohn, Jr., E.D. Pa. 2:04-cv-5123)
Relying on a 1994 opinion by the U.S. Court of Appeals for the Third Circuit, Republican committees filed a federal action on election day 2004, complaining that the committees had wrongfully been denied a list of persons who had received absentee ballots so that the committees could initiate challenges to absentee votes. After proceedings late on election day and on the following morning, the district judge signed consent decrees delaying by a few days the counting of absentee ballots. At the end of the week, the plaintiffs voluntarily dismissed their action.
Topics: Absentee ballots; recusal; case assignment.

Early Voting Locations in Duval County
Jacksonville Coalition for Voter Protection v. Hood (Harvey E. Schlesinger, M.D. Fla. 3:04-cv-1123)
On a Tuesday, the day after early voting started, three voters’ rights organizations and two voters filed a federal complaint seeking to compel the county to provide more early voting locations. While the suit was pending, the county agreed to provide a few more sites, but not as many as the plaintiffs sought. The court heard the matter on Friday and issued its opinion on the following Monday. The court denied the plaintiffs immediate relief because they had not shown that the number and locations of early voting sites discriminated against African-American voters.
Topics: Poll locations; early voting.

Early Voting Locations in Volusia County
NAACP v. Lowe (G. Kendall Sharp, M.D. Fla. 6:04-cv-1469)
On October 7, 2004, African-American voters filed a federal action complaining that the county’s only early voting location was not convenient for African-American voters on the county’s east side. On the following day, the plaintiffs filed a motion for a preliminary injunction and expedited discovery, and the district judge set a hearing on the motion for 11 days later. Before the hearing occurred, however, the county agreed to open additional early voting locations, so the parties stipulated to a dismissal of the action. The judge ruled that no more than one location was legally required, but the opening of additional sites mooted the case.
Topics: Poll locations; early voting.

Mailing Overseas Absentee Ballots on Time in Georgia in 2004
United States v. Georgia (Charles A. Pannell, Jr., N.D. Ga. 1:04-cv-2040)
The Justice Department filed a federal complaint against Georgia for mailing primary ballots to overseas voters late. The district judge ordered the following: (1) Georgia will accept faxed ballots, (2) Georgia will accept Internet-based write-in absentee ballots, (3) Georgia will pay for express delivery of absentee ballots, and (4) absentee ballots will be accepted until three days after the election if mailed by election day.
Topics: Absentee ballots; Uniformed and Overseas Citizens Absentee Voting Act (UOCAVA); case assignment.

Military Absentee Ballots 2004
United States v. Pennsylvania (1:04-cv-830) and Reitz v. Rendell (1:04-cv-2360) (Yvette Kane, M.D. Pa.)
The federal government sued to require Pennsylvania to send out absentee ballots to military personnel overseas in time for them to come back and be counted for a primary election. The judge ordered an extension of the ballots’ due date. The judge also ordered an extension for military absentee ballots in the general election on a complaint by parents of two soldiers.
Topics: Absentee ballots; military ballots.

Court Supervision Over Absentee Ballot Procedures
Willingham v. County of Albany (Norman A. Mordue, 1:04-cv-369) and Hoblock v. Albany County Board of Elections (Lawrence E. Kahn, 1:04-cv-1205) (N.D.N.Y.)
A federal complaint sought an emergency injunction against absentee ballot fraud in an ongoing special election cycle, but the district judge determined that the plaintiffs did not establish a need for immediate federal relief beyond the relief being provided by the state court. At the end of approximately three years of litigation, the case was resolved by consent decrees. Meanwhile, a different federal judge in the same district resolved a dispute over the counting of some absentee ballots by overruling the state’s high court’s rejection of absentee ballots cast by voters who received them because of errors by the election board.
Topics: Absentee ballots; matters for state courts; case assignment; primary election; enjoining certification; class action; attorney fees; intervention; malapportionment.

Absentee Ballots Delivered by Third Parties
Pierce v. Allegheny County Board of Elections (Joy Flowers Conti, W.D. Pa. 2:03-cv-1677)
On the Friday before the November 2003 election, two candidates filed a federal action to enjoin the counting of absentee ballots that were delivered to the board of elections by persons other than the voters. The district judge cleared her calendar and held a hearing that afternoon, after which she ordered the ballots in question segregated. The judge conducted a day-long hearing on Monday; on Tuesday, she ruled that the ballots should remain segregated and deemed challenged under state law. State officials and state courts eventually determined that some of the ballots in question were valid and some were not.
Topics: Absentee ballots; ballot segregation; matters for state courts.

Preclearance Required for Reduction in Polling Locations
Miguel Hernandez Chapter of the American GI Forum v. Bexar County (Royal Furgeson, 5:03-cv-816) and American GI Forum v. Bexar County (Fred Biery, No. 5:04-cv-181) (W.D. Tex.)
A federal complaint challenged a reduction in early voting locations without preclearance pursuant to section 5 of the Voting Rights Act. The district judge issued a temporary restraining order requiring additional voting locations, and the county opened several more. A suit by the same plaintiff and others about seven months later respecting a primary election for political party chairs resulted in a temporary restraining order from a different district judge ordering only one polling place reopened, but preclearance arrived later that day, and the judge dismissed the action except for jurisdiction to enforce the temporary restraining order. The court of appeals stayed the temporary restraining order pending appeal, and the appeal was voluntarily dismissed after the election.
Topics: Poll locations; section 5 preclearance; early voting; primary election; ballot measure; attorney fees.

Ordering the Use of the Federal Write-In Absentee Ballot in Texas
United States v. Texas (Sam Sparks, W.D. Tex. 1:02-cv-195)
Eighteen days in advance of a federal runoff primary election, the Justice Department sought a court order requiring a state to allow overseas voters to use the federal write-in absentee ballot, as provided by the Uniformed and Overseas Citizens Absentee Voting Act of 1986, and the district court granted the requested immediate relief three days later. A little more than one year later, use of the federal write-in absentee ballot was provided for by state legislation.
Topics: Absentee ballots; Uniformed and Overseas Citizens Absentee Voting Act (UOCAVA); primary election; section 5 preclearance.

A Consent Decree on Overseas Voting in Federal Elections Trumps State Law
Harris v. Florida Elections Canvassing Commission (4:00-cv-453) and Medina v. Florida Election Canvassing Commission (4:00-cv-459) (Maurice M. Paul, N.D. Fla.)
Two removed cases challenged the validity of absentee ballots received from overseas voters after the date of a presidential election. Although one complaint had been amended before removal to omit federal claims, the district judge found that a well-pleaded complaint would have included federal issues. The judge found that a consent decree in previous federal litigation nullified the state’s requirement that overseas ballots be received by election day in federal elections. The court of appeals affirmed this decision.
Topics: Absentee ballots; enforcing orders; removal; matters for state courts; case assignment; recusal.

Counting Federal Write-In Ballots Even If Election Officials Did Not Receive Absentee Ballot Applications
Bush v. Hillsborough County Canvassing Board (Lacey A. Collier, N.D. Fla. 3:00-cv-533)
The district judge ruled that it was improper for counties to not count federal write-in ballots cast by overseas voters solely because the counties had no record of an application for an absentee ballot or solely because the ballots were not postmarked.
Topics: Uniformed and Overseas Citizens Absentee Voting Act (UOCAVA); military ballots; absentee ballots; write-in candidate; enforcing orders.

Political Party’s Mailing Absentee Ballot Applications
Republican Party of New Mexico v. New Mexico (Dee Benson, D.N.M. 1:00-cv-1307)
A federal complaint challenged a new state rule prohibiting political parties from mailing out absentee ballot applications. The case was assigned to a visiting judge after all judges on the local bench recused themselves. The presiding judge denied the plaintiffs immediate injunctive relief, and the case subsequently settled.
Topics: Absentee ballots; party procedures; recusal; case assignment.