Plaintiff United States of America ("United States") initiated this action against the State of California (the "State") and the State of California's Secretary of State, Debra Bowen, in her official capacity ("Secretary of State"), to enforce the requirements of the Uniformed and Overseas Citizens Absentee Voting Act ("UOCAVA"), 42 U.S.C. §§ 1973ff to 1973ff-7. The United States alleges violations of UOCAVA arising from the failure in 11 counties-despite repeated notifications by the Secretary of State-to transmit absentee ballots to all absent uniformed services voters and overseas voters by the 45th day before the June 5, 2012 Federal primary election. Absent corrective action, some UOCAVA voters from California will not be provided sufficient time to receive, mark, and submit their ballots in time to have those ballots counted in the June 5, 2012 Federal primary election. Additionally, the United States alleges that the State has failed to establish or implement adequate procedures that ensure absentee ballots are transmitted according to the preferred method designated by the voter, as required by the statute. 42 U.S.C. § 1973ff-1(f)(1)(A).
The United States and the Secretary of State ("the parties"), through their respective counsel, have conferred and agree that this action should be settled without the delay and expense of litigation. The parties share the goal of providing UOCAVA voters with sufficient opportunity to participate in the June 5, 2012 Federal primary election and subsequent Federal elections. Accordingly, the parties have negotiated in good faith and hereby agree to the entry of this Consent Decree as an appropriate resolution of the UOCAVA violations alleged by the United States. Accordingly, the United States and the Secretary of State stipulate and agree that:
1. This action is brought by the Attorney General on behalf of the United States pursuant to UOCAVA, as amended by the Military and Overseas Voter Empowerment Act, Pub. L. No. 111-84, Subtitle H, §§ 575-589, 123 Stat. 2190, 2318-2335 (2009) ("MOVE Act"). UOCAVA provides that absent 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.
2. The Attorney General is authorized to enforce the provisions of UOCAVA, 42 U.S.C. § 1973ff-4, and this Court has jurisdiction of this action pursuant to 42 U.S.C. § 1973ff-4 and 28 U.S.C. §§ 1345 and 2201.
3. The State of California is charged with the responsibility of complying with UOCAVA, and ensuring that validly-requested absentee ballots are transmitted to UOCAVA voters in accordance with its terms. 42 U.S.C. § 1973ff-1.
4. Debra Bowen is sued in her official capacity as the Secretary of State of the State of California. The Secretary of State is California's chief elections officer. Cal. Elec. Code § 10 (West 2012); Cal. Gov't Code § 12172.5 (West 2012). The Secretary of State is, among other things, charged with administering the provisions of the Elections Code and ensuring that elections are efficiently conducted. Cal. Gov't Code § 12172.5.
5. The Secretary of State represents that each of California's 58 counties has its own chief elections official who is either independently elected or hired by an independently elected Board of Supervisors.
6. Section 102(a)(8) of UOCAVA requires that States transmit validly requested ballots to UOCAVA voters not later than 45 days before an election for Federal office when the request is received at least 45 days before the election, unless a hardship exemption is obtained pursuant to Section 102(g) of UOCAVA, 42 U.S.C. § 1973ff-1(g). 42 U.S.C. § 1973ff-1(a)(8). California did not seek or obtain a hardship exemption for the June 5, 2012 Federal primary election.
7. UOCAVA requires that States establish procedures to transmit blank absentee ballots by mail and electronically in accordance with the preferred method of transmission designated by the UOCAVA voter in Federal elections. 42 U.S.C. § 1973ff-1(f)(1)(A).
8. UOCAVA also provides that each state shall establish procedures by which UOCAVA voters can designate whether the voter prefers that such blank absentee ballot be transmitted by mail or electronically. 42 U.S.C. § 1973ff-1(f)(1)(B).
9. On June 5, 2012, the State will conduct a Federal primary election. 10. Counties of the State received timely requests for absentee ballots on or before the 45th day prior to the June 5, 2012 Federal primary election from voters who are entitled to vote pursuant to the provisions of UOCAVA.
11. The deadline for transmission of absentee ballots to UOCAVA voters who had requested them at least 45 days before the June 5, 2012 Federal primary election was April 21, 2012.
12. State law requires that ballots from all voters, including UOCAVA voters, must be received by local elections officials by the close of polls on Election Day to be counted in the election. Cal. Elec. Code §§ 3017, 3311 (West 2012). For the June 5, 2012 Federal primary election, the UOCAVA ballots must be received by 8:00 p.m. on June 5, 2012.
13. The California Secretary of State's office has provided information to the United States regarding counties that failed to send all of their UOCAVA ballots by the deadline of April 21, 2012 -- 45 ...