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United States v. State

March 26, 2009

UNITED STATES OF AMERICA, PLAINTIFF,
v.
STATE OF NEW YORK; DAVID A. PATERSON, GOVERNOR OF THE STATE OF NEW YORK; AND THE NEW YORK STATE BOARD OF ELECTIONS, DEFENDANTS.



CONSENT DECREE

Plaintiff United States of America ("United States") initiated this action to enforce the Uniformed and Overseas Citizens Absentee Voting Act ("UOCAVA"), 42 U.S.C. §§ 1973ff et seq., on March 24, 2009 against Defendants State of New York, David A. Paterson, Governor of the State of New York, and the New York State Board of Elections ("SBOE") (collectively referred to hereinafter as "Defendants"). The United States seeks to ensure that overseas voters qualified under UOCAVA to vote in the March 31, 2009 special election for the 20th Congressional District will have a reasonable opportunity to receive, mark, and return their absentee ballots in time for their votes to be counted. The United States also seeks permanent relief to ensure compliance with UOCAVA in future special federal elections conducted by Defendants.

The failure to mail overseas ballots in sufficient time was due in large part to factors dictated by New York law. State law requires that, in situations where the Governor opts to fill a Congressional vacancy by special election, that election occur between 30 and 40 days from the date the Governor proclaims that special election. N.Y. Pub. Officers Law §§ 42(3) and (4). Here, the proclamation date selected by the Governor fell 36 days before the election date, and county election officials mailed overseas ballots just 25 or 26 days before the deadline for their return. This time frame did not afford election officials sufficient time to certify the election ballot and mail absentee ballots to overseas voters in time to ensure that overseas voters have a reasonable opportunity to have their votes counted in the March 31, 2009 special election.

The United States and Defendants, 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 overseas military and citizen voters with sufficient opportunity to participate in the upcoming special election. The parties have negotiated in good faith and hereby agree to the entry of this Consent Decree as an appropriate resolution of the claim arising from the March 31, 2009 special election alleged in the United States' complaint. Accordingly, the United States and Defendants hereby stipulate and agree that:

1. This action is brought by the Attorney General on behalf of the United States pursuant to 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.

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 New York is charged with assuring that State election laws, as applied, comply with UOCAVA. 42 U.S.C. §§ 1973ff to 1973ff-6.

4. Defendant David A. Paterson is the Governor of the State of New York and its chief executive officer. N.Y. Const. art. IV, § 1. New York law vests Governor Paterson with the authority, under appropriate circumstances, to proclaim special elections to fill vacancies for seats in the United States House of Representatives. N.Y. Pub. Officers Law §§ 42(3) and (4). Governor Paterson is sued in his official capacity.

5. Defendant New York State Board of Elections has jurisdiction of, and is responsible for, the execution and enforcement of statutes governing elections and related procedures in New York State, 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. See N.Y. Elec. Law §§ 3-104(1), 3-100(1), 3-102(1-17). Because of its broad powers to assure that State election procedures comply with prevailing law, the State Board of Elections has been named as a Defendant solely to ensure that any relief deemed appropriate by this Court is effectuated as uniformly and efficiently as possible. See Ashe v. Board of Elections of the City of New York, 1988 WL 95427, at *3 (E.D.N.Y. Sept. 8, 1988) (finding State Board of Elections "has direct responsibility for the electoral system and would be a vital part of any remedial relief").

6. On February 23, 2009, Governor Paterson issued a Proclamation declaring a special election to be held on March 31, 2009 to fill a vacancy for the 20th Congressional District.

7. Under New York law, once the governor proclaims a special election to fill a Congressional vacancy, the election must be held not less than 30 nor more than 40 days from the date of the proclamation. N.Y. Pub. Officers Law §§ 42(3) and (4).

8. The 20th Congressional District is comprised of all or parts of ten counties in upstate New York: Columbia, Greene, Warren, Washington, Saratoga, Delaware, Otsego, Rensselaer, Dutchess and Essex.

9. Election officials in New York have received timely requests for absentee ballots from citizens entitled to vote pursuant to UOCAVA in the March 31, 2009 special election.

10. To allow qualified UOCAVA voters an opportunity to vote, New York election officials must mail ballots sufficiently in advance of the special election so that voters can receive, mark, and return their ballots by the post-marking and receipt deadlines established by State law. Based on information from the United States Military Postal Service Agency, the United States Postal Service, and the Department of State establishing reasonable benchmarks for round-trip mail delivery to overseas locales, as well as other studies and experience in administering UOCAVA, the Federal Voting Assistance Program ("FVAP") of the Department of Defense has determined that states must provide no less than 30 days for the round-trip mail transit of a ballot to overseas locations to ensure that overseas voters have a reasonable opportunity to return the ballot in time to be counted. The FVAP recommends that states allow 45 days for the round-trip transit of overseas ballots.

11. Providing a minimum of 30 days for the round-trip transit of absentee ballots to and from UOCAVA voters will ensure that overseas voters from New York have a reasonable opportunity to vote. See United States v. ...


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