VIA FACSIMILE

The Honorable Alan S. Gold
United States District Court
Southern District of Florida
301 North Miami Avenue, 10^th Floor
Miami, Florida 33128

     Re: Friedman v. Snipes et al., Case No. 04-22787-CIV-Gold/Brown

Dear Judge Gold:

The United States submits this letter brief to provide the district court with its views regarding the Uniformed and Overseas Citizens Absentee Voting Act ("UOCAVA"). The United States is the primary enforcer of UOCAVA. See 42 U.S.C. 1973ff-4. In addition, the administrative rule in question in this matter was promulgated by Florida pursuant to a consent decree secured by the Department of Justice. See United States v. State of Florida et al., TCA-80-1055 (N.D. Fla. Apr. 2, 1982). For these reasons, the United States has a substantial interest in the litigation currently before the court.

Plaintiffs in this matter, a class of registered voters residing within the United States who applied for absentee ballots to be cast in the November 2, 2004, general election, assert that applying Administrative Rule 1S-2.013, which has been in effect since 1984, only to the class of eligible voters covered by UOCAVA violates, inter alia, the Equal Protection Clause of the United States Constitution. ⁽¹⁾ We disagree and provide the following for your consideration.

Background

In 1980, the United States brought suit against the State of Florida to enforce the Overseas Citizens Voting Rights Act, 42 U.S.C. 1973dd et seq., and the Federal Voting Assistance Act, 42 U.S.C. 1973cc et seq., the predecessors to UOCAVA, ⁽²⁾ in the Northern District of Florida. These sections guaranteed to United States citizens who were living abroad, both military and civilian, the right to register and vote absentee in any federal election conducted by the State in which they last resided. The complaint alleged that Florida had mailed absentee ballots to overseas citizens on a date too late to permit sufficient time for the ballots to be transmitted, received, voted, and returned by U.S. mail before the deadline, 7 p.m. on election day, November 4, 1980. In numerous instances, county supervisors of elections had mailed absentee ballots to overseas voters less than 20 days prior to election day. ⁽³⁾

The United States filed suit on November 6, 1980. The same day, the district court entered a temporary restraining order, requiring that absentee ballots cast by overseas voters signed and dated on or before election day, November 4, 1980, and received on or before November 14, 1980, be counted as valid votes to the extent that they otherwise complied with the law. This 10-day extension of the deadline for receipt of voted ballots was ordered so that overseas voters whose ballots had been mailed late would have a reasonable opportunity to have their ballots counted.

On April 5, 1982, the Court entered a consent decree that created interim procedures for the 1982 federal elections, and required Florida elections officials to develop a remedial plan for future federal elections. For purposes of the 1982 federal elections only, the Court required the State to mail absentee ballots to those qualified overseas voters who had timely requested a ballot for the primary election at least 35 days prior to the primary, and to extend the deadline for receipt of ballots from overseas voters for the general election by ten days.

With respect to future federal elections, the Court ordered the defendants to submit a Plan of Compliance within 60 days of the close of the 1983 regular session of the Florida legislature. The Plan was required to "effect such measures as are necessary and appropriate to permit American citizens located abroad a reasonable opportunity to return their ballots for federal primary * * * and general elections prior to the deadline for receipt of such ballots." Consent Decree, United States v. Florida, No. 80-1055 (N.D. Fla. Apr. 2, 1982).

The State of Florida subsequently submitted a Plan of Compliance which authorized the Florida Department of State to issue a rule regarding mailing procedures for absentee ballots to overseas voters, and the rule itself, Florida Administrative Code Rule 1C-7.13 (1984) (later re-designated as 1S-2.013). See 1983 Fla. Laws ch. 83-251. The Administrative Rule required county supervisors of election to: (1) mail overseas ballots that listed the names of all candidates for federal offices in the first primary not later than 35 days before the first primary election; (2) mail overseas ballots for the second primary that included the names of all candidates for the first primary where three or more candidates had qualified not less than 35 days prior to the second primary election; (3) mail supplemental ballots to overseas voters for the second primary when available; (4) mail presidential preference primary ballots not less than 35 days before the presidential preference election, and extend the deadline for receipt of such ballots to 10 days after the election as long as the ballot was postmarked or signed and dated on or before election day and was otherwise proper; (5) mail general election ballots not less than 30 days prior to the general election, and extend the deadline for receipt of such ballots to 10 days after the election as long as the ballot was postmarked or signed and dated on or before election day and was otherwise proper.

On August 20, 1984, with the concurrence of the United States, the Court entered an order approving Florida's remedial plan. The procedures set forth in Administrative Rule 1C-7.13 (and its successor 1S-2.013) were followed in federal elections from 1984 through 2000. See Harrisv. Florida Elections Canvassing Comm'n, 122 F. Supp. 2d 1317, 1323 (N.D. Fla.), cert. denied, 531 U.S. 1062 (2001). Since UOCAVA's enactment, the United States has obtained similar orders in other jurisdictions. See, e.g., United States v. Georgia et al., Case No. 1:04-CV-2040-CAP (N.D. Ga. July 15, 2004) (obtaining a 3-day extension of time in Georgia for the primary and primary runoff election for all federal ballots cast by UOCAVA voters); United States v. Pennsylvania et. al., C.A. No. 1:CV-04-830 (M.D. Penn. April 16, 2004) (obtaining a 21-day extension of time in Pennsylvania for the primary election for all federal ballots cast by UOCAVA voters).

Discussion

Plaintiffs allege, inter alia, that Florida's Administrative Rule 1S-2.013, which requires election officials to count as valid those ballots cast pursuant to UOCAVA if signed and dated, or postmarked, by November 2, 2004, and received on or before November 12, 2004, violates the Equal Protection Clause. Specifically, plaintiffs contend that they are "similarly situated to overseas voters whose ballots, for what ever reason, are received by a supervisor of elections within 10 days after election day." First Am. Compl. at ¶ 33. According to plaintiffs, Florida election officials are denying them the right to equal protection by rejecting their ballots if received after 7 p.m. on November 2, 2004, but on or before November 12, 2004. We write to convey two points regarding UOCAVA.

First, voters covered by UOCAVA have been identified, both by Congress and in numerous court decisions, as a unique class of voters who are routinely subjected to lengthy delays in mail transit times given their residence overseas. These same lengthy delays in delivery of mail (and thus absentee ballots) do not routinely exist for voters located within the United States, and most certainly do not exist for voters who are absent from their home counties but are still located in neighboring Florida counties.

The unique problem experienced by overseas voters has not changed in the almost 20 years since UOCAVA was passed. At that time, Congress reported:

Mail delivery is a problem for overseas voters. Members of the military may be in locations where mail service is sporadic, or they may be away for days or weeks at a time on temporary duty or on maneuvers. Among civilians overseas, missionaries and Peace Corps Volunteers in particular often work in remote areas where mail delivery is slow. Citizens working on oil rigs or on remote construction sites regularly encounter mail delays. Based on surveys of the U.S. Postal Service and of military postal authorities, ballots should be mailed to overseas addresses at least 45 days prior to an election in order to ensure adequate time for a ballot to reach a voter and be returned.

H. Rep. No. 765, 99th Cong., 2d Sess. 10-11 (1986) (House Report). A July 21, 2004, letter (attached as Exhibit "A") that was sent to all of the chief state election officials in the United States, including Secretary of State Hood, by the Department of Justice and the Department of Defense reiterates this point, noting that "it is particularly important to allow at least a 45-day transit time" from a state's mailing of absentee ballots to the state's deadline for receiving voted absentee ballots because of the "uncertain mail delivery in many parts of the world." This fact was also emphasized recently by the United States Election Assistance Commission ("EAC") in a report it released in September on the best practices for facilitating voting by overseas citizens covered by UOCAVA. The EAC's first recommendation in the Executive Summary is that states should "[m]ail absentee ballots at least 45 days prior to the deadline for receipt of voted absentee ballots." Report of the U.S. Election Assistance Commission, Best Practices for Facilitating Voting by U.S. Citizens Covered by the Uniformed and Overseas Citizens Absentee Voting Act (2004). See http://www.eac.gov/fvap.asp?format=none. Moreover, special rules for overseas voters are particularly important given that most overseas voters are members of the armed forces, many of whom are based in the war zones of Iraq and Afghanistan.

Second, states are not precluded from treating voters covered by UOCAVA differently. In fact, there is considerable case law to support the distinctions drawn by the UOCAVA between overseas voters and voters residing within the United States and its territories. In Igartua De La Rosa v. United States, 32 F.3d 8 (1st Cir. 1994), cert. denied, 514 U.S. 1049 (1995), residents of Puerto Rico brought an action alleging that UOCAVA violated their equal protection rights because it permitted United States citizens residing outside the United States to vote via absentee ballot in United States presidential elections, but did not permit United States citizens residing in Puerto Rico to do so. The First Circuit easily dismissed this challenge, reasoning that UOCAVA merely drew a distinction between citizens living abroad and citizens who move anywhere within the United States. Id. at 10. The court further reasoned that this distinction neither affected a suspect class nor infringed a fundamental right, noting that although the distinction between the classes "affects the right to vote, [UOCAVA] does not infringe that right but rather limits a state's ability to restrict it." Id. at 10 n.2 (emphasis added). As such, the court reasoned that the distinction need only be supported by a rational basis. Id. at 10.

Similarly, the Second Circuit has also held that UOCAVA's distinctions between citizens residing abroad and citizens residing within the United States and its territories is not subject to strict scrutiny. See Romeu v. Cohen, 265 F.3d 118 (2d Cir. 2001) (holding that Congress acted in accordance with the Equal Protection Clause in requiring States and territories to extend voting rights in federal elections to former resident citizens residing outside the United States, but not to former resident citizens residing in either a State or territory of the United States).

The United States respectfully suggests that plaintiffs' Equal Protection claims be dismissed and that Rule 1S-2.013 not be changed or extended. Indeed, a contrary ruling would call into question the constitutionality of UOCAVA and a number of orders obtained by the Department of Justice throughout the country. See, e.g., United States v. Georgia et al., Case No. 1:04-CV-2040-CAP (N.D. Ga. July 15, 2004) (obtaining a 3-day extension of time in Georgia for the primary and primary runoff election for all federal ballots cast by UOCAVA voters); United States v. Pennsylvania et. al., C.A. No. 1:CV-04-830 (M.D. Penn. April 16, 2004) (obtaining a 21-day extension of time in Pennsylvania for the primary election for all federal ballots cast by UOCAVA voters). If called upon by the court, the United States will provide any other information requested concerning the prior litigation and the enforcement of UOCAVA in general.

Respectfully submitted,

Sheldon T. Bradshaw
Principal Deputy Assistant Attorney General

cc: (via facsimile)

Randal C. Marshall
Jeffrey P. Ehrlich
Susan Torres
Burnadette Norris-Weeks
JoNel Newman
Edward G. Labrador
Matthew Cohen
Juan C. Enjamio
Daniel S. Fridman

¹ We take no position on plaintiffs' other claims.

² UOCAVA was intended to "update and consolidate provisions of current law relating to absentee registration and voting in elections for Federal office by members of the uniformed services and by citizens of the United States who reside abroad." H. Rep. No. 765, 99th Cong., 2d Sess. 5 (1986).

³ The Complaint included allegations and supporting evidence indicating that 35 days was the minimum time necessary for round-trip mailing of election materials to overseas voters. This estimate was based on evidence of international mail procedures provided by the United States Postal Service, the United States Military Postal Service, and the United States Department of State.