Case: 3:12-cv-00745 Document #: 1 Filed: 10/12/12 Page 1 of 10
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
ROMNEY FOR PRESIDENT, INC., a CASE NO. 12-cv-745
nonprofit Massachusetts corporation,
Complaint for Declaratory and
vs. Injunctive Relief
STATE OF WISCONSIN; WISCONSIN
BOARD; DAVID G. DEININGER,
MICHAEL BRENNAN, GERALD C.
NICHOL, THOMAS BARLAND, THOMAS
CANE, and TIMOTHY VOCKE in their
official capacities as members of the
Wisconsin Government Accountability Board;
and KEVIN J. KENNEDY in his official
capacity as Director and General Counsel of
the Wisconsin Government Accountability
1. The plaintiff brings this suit to defend the voting rights of military personnel and
other United States citizens living overseas.
2. Under the Uniformed and Overseas Citizens Absentee Voter Act (“UOCAVA”),
elections officials must transmit absentee ballots to military personnel and other United States
citizens living overseas at least 45 days before a federal election. 42 U.S.C. § 1973ff-1(a)(8).
The ballot-transmission deadline for the 2012 general election was September 22, 2012.
3. The defendants in this action have violated the voting rights of military personnel
and other United States citizens living overseas, who are registered to vote in Wisconsin (the
“Jurisdiction”), by failing to ensure that absentee ballots were transmitted by the deadline
provided by federal law.
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4. Because members of the military are often stationed in remote, dangerous, front
line locations, there is a substantial likelihood that the defendants’ violations of law will prevent
military voters from receiving, completing, and returning their ballots in time to have them
counted. The defendants’ unlawful conduct therefore may effectively disenfranchise the very
men and women who make daily sacrifices to protect our system of democratic government.
5. This is not a close case. There are no de minimus exceptions to UOCAVA voting
rights; no violations of voting rights are acceptable. There is, moreover, a long history of the
government and private parties bringing suit to address UOCAVA voting rights violations—and
the plaintiff is aware of no case in which such a suit did not result in either the violating
jurisdiction taking action to correct the violations or the court entering judgment or a decree
against the violating jurisdiction. See generally U.S. Department of Justice, Cases Raising
Claims Under the Uniformed and Overseas Citizen Absentee Voting Act, available at
http://www.justice.gov/crt/about/vot/litigation/recent_uocava.php (summarizing recent
government enforcement actions); United States v. Cunningham, 2009 U.S. Dist. LEXIS 98010,
5-6 (E.D. Va. 2009) (lawsuit initiated by the McCain-Palin campaign committee); Reitz v.
Rendell, 2004 U.S. Dist. LEXIS 21813 (M.D. Pa. 2004) (lawsuit initiated by two members of
the armed forces serving overseas).
JURISDICTION AND VENUE
6. This Court has subject-matter jurisdiction over this case under Article III, Section
2 of the U.S. Constitution and 28 U.S.C. § 1331 because the plaintiff’s claims arise under
federal laws, namely, 42 U.S.C. §§ 1973ff-1 and 1983.
7. This Court is the proper venue for this case under 28 U.S.C. § 1391(b)(2) because
a substantial part of the events or omissions giving rise to the claim occurred in this district.
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LITIGANTS AND RELATED PARTIES
8. Governor Mitt Romney is the Republican nominee for President of the United
States in the November 6, 2012 general election (the “2012 General Election”).
9. Representative Paul Ryan is the Republican nominee for Vice President of the
United States in the 2012 General Election.
10. Romney for President, Inc. (the “Campaign Committee”) is the principal
campaign committee for Governor Romney and Representative Ryan. The Campaign
Committee has a direct, personal, and substantial interest in this litigation because many
members of the military and other overseas voters will vote for Governor Romney and
Representative Ryan in the 2012 General Election and if, in violation of federal law, members
of the military and other overseas voters are deprived of their right to vote in the 2012 General
Election, votes cast for Governor Romney and Representative Ryan by military personnel and
other overseas voters will not be counted. Additionally, the voting rights of individual military
and overseas voters are inextricably bound up with the activity the Campaign Committee wishes
to pursue (namely, a 2012 General Election that is free and open to all qualified electors), the
Campaign Committee is an effective proponent of the voters’ rights, and there is a genuine
obstacle to the military and overseas voters advancing their own claims, on an expedited basis,
while living overseas.
11. The State of Wisconsin is responsible for ensuring that absentee ballots are
transmitted to military and overseas voters at least 45 days before the 2012 General Election.
42 U.S.C. § 1973ff-1.
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12. The Wisconsin Government Accountability Board (the “GAB”) is “responsib[le]
for the administration of . . . laws relating to elections and election campaigns” in Wisconsin.
Wis. Stat. § 5.05(1).
13. David G. Deininger, Michael Brennan, Gerald C. Nichol, Thomas Barland,
Thomas Cane, and Timothy Vocke are the members of the GAB. Deininger serves as the
Chairman, Brennan serves as the Vice Chair, and Nichol serves as the Secretary of the GAB.
14. Kevin J. Kennedy is the Director and General Counsel of the GAB. His duties
include assisting the GAB and its members with the performance of their functions. Id. §
MOVE ACT REQUIREMENTS
15. UOCAVA, as amended by the Military and Overseas Voter Empowerment Act,
Pub. L. No. 111-84, § 579, 123 Stat. 2190, 2322 (2009) (the “MOVE Act”), requires state and
local election officials to transmit absentee ballots to military and overseas voters who timely
request such ballots, no later than 45 days before a federal election. 42 U.S.C. § 1973ff-
16. State law similarly requires elections officials to transmit absentee ballots to
military and overseas voters at least 47 days before an election—two days earlier than the
UOCAVA deadline. Wis. Stat. § 7.15(1)(cm).
17. The Jurisdiction has not obtained a hardship exemption, pursuant to 42 U.S.C. §
1973ff-1(g), from the 45-day transmittal deadline under the UOCAVA statute.
18. Furthermore, the deadline for seeking an exemption in the absence of a legal
contest regarding ballot access has long passed, see 42 U.S.C. § 1973ff-1(g)(3)(A), and there
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was no legal contest in the Jurisdiction necessitating the delayed transmission of the UOCAVA
ballots for the 2012 General Election.
VIOLATION OF THE 45-DAY DEADLINE
19. The 45-day deadline for the transmission of UOCAVA ballots for the 2012
General Election was September 22, 2012.
20. Prior to September 22, 2012, the Jurisdiction received multiple valid requests for
absentee ballots from military and overseas voters.
21. Thirty municipalities in the Jurisdiction, and under the defendants’ supervision,
failed to transmit absentee ballots to military or overseas voters who had submitted timely and
valid requests for them on or before the September 22, 2012 deadline.
22. The thirty municipalities did, however, transmit absentee ballots to military and
overseas voters between September 24, 2012 and October 1, 2012—2 to 9 days after the
23. Under Wisconsin statutes, an absentee ballot from a military or overseas voter
must be postmarked on or before November 6, 2012, and received by the municipal clerk no
later than 4:00 in the afternoon on November 9, 2012, in order to be counted. Wis. Stat. §
24. As a result of the defendants’ delay in transmitting absentee ballots to military
and overseas voters, those voters will not have the full statutory period to receive, complete, and
return their absentee ballots.
PREJUDICE TO THE PLAINTIFF
25. Preserving the full statutory period is essential to the voting rights of military and
overseas voters and right of federal campaigns to a fair and open election.
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26. Military voters especially need the full statutory period for receiving, completing,
and returning their ballots. Men and women in the armed forces often:
a. are in specialized training programs where they are unavailable to receive mail;
b. are forward deployed overseas, where mail service takes additional time to reach
the service member;
c. are transferred between bases, so that mail has to “catch up” to them; and/or
d. conduct missions in the field for extended periods of time, during which time they
have no access to mail.
27. The bipartisan U.S. Election Assistance Commission, which “serves as a national
clearinghouse and resource for the compilation of information and review of procedures with
respect to the administration of Federal elections,” id. § 15322, issued a report in 2004
concluding that the 45-day statutory period was necessary to ensure that military and overseas
voters would have an adequate opportunity to receive, complete, and return their absentee
ballots. See U.S. Election Assistance Comm’n, Report on Best Practices for Facilitating by
U.S. Citizens Covered by the Uniformed and Overseas Citizens Absentee Voting Act at 2 (Sept.
2004), available at http://www.eac.gov/assets/1/AssetManager/Best%20Practices%20for%20
28. The Military Postal Service Agency reaffirmed these conclusions during the 2010
election cycle, stating that the MOVE Act’s “requirement for the states to send out ballots a
minimum of 45 days in advance of the election ensures military and overseas voters will receive
them in time to cast their vote.” See Military Postal Service Agency, 2010 Analysis of the
Military Postal System Compliance with the MOVE Act at 2-1, available at
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29. Congress has recognized that, when a state sends an absentee ballot overseas too
late for the recipient to complete and return it, the voter is “clearly and effectively
disenfranchised.” H.R. Rep. 99-765, at 12, 1986 U.S.C.C.A.N. at 2016.
30. Political campaigns have a strong interest in fair and open elections, and
unlawfully disenfranchising a group of voters prevents political campaigns from seeking and
obtaining the electoral support of the disenfranchised voters.
ALLEGATIONS FOR INJUNCTIVE RELIEF
31. The plaintiff has a strong likelihood of success on the merits because the
defendants violated 42 U.S.C. § 1973ff-1(a)(8)(A) by failing to transmit absentee ballots to
military and overseas voters registered to vote in the Jurisdiction who validly requested them by
September 22, 2012.
32. The plaintiff, as well as military and overseas voters who did not timely receive
their absentee ballots, will suffer irreparable injury if this Court does not extend the deadline for
military and overseas voters to mail their ballots to election officials in the Jurisdiction, and for
election officials in the Jurisdiction to receive the ballots of military and overseas voters.
Without such relief, it is unlikely that state officials will receive those individuals’ completed
absentee ballots in time to be counted.
33. The balance of hardships concerning an injunction tilts sharply in favor of the
plaintiff. Although an extension of the deadline for returning ballots may delay the state in
certifying the results of the election, the state does not have a valid interest in certifying election
results that do not include the votes of individuals who have lawfully requested an absentee
ballot, but who have unlawfully been prevented by the Jurisdiction’s actions from returning that
ballot by the deadline. There is a strong public interest in protecting voting rights.
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FAILURE TO TRANSMIT ABSENTEE BALLOTS TO VOTERS
SUBMITTING REQUESTS BY THE 45-DAY DEADLINE
42 U.S.C. § 1973ff-1(a)(8)(A)
34. The plaintiff incorporates the foregoing allegations by this reference.
35. “Each State [must] . . . transmit a validly requested absentee ballot to an absent
uniformed services voter or overseas voter . . . in the case where the request is received at least
45 days before an election for Federal office, not later than 45 days before the election.” 42
U.S.C. § 1973ff-1(a)(8)(A).
36. The defendants, who bear responsibility for administration of elections and
enforcement of election-related laws in Wisconsin, failed to ensure that absentee ballots were
sent to military and overseas voters who validly requested them from the Jurisdiction by
September 22, 2012.
37. The Jurisdiction failed to transmit, by September 22, 2012, absentee ballots to
military and overseas voters registered to vote in the Jurisdiction who timely submitted valid
requests for such ballots.
38. The defendants therefore violated their obligations under 42 U.S.C. § 1973ff-
DEPRIVATION OF FEDERAL RIGHTS UNDER COLOR OF STATE LAW
42 U.S.C. § 1983
39. The plaintiff incorporates the foregoing allegations by this reference.
40. Any person acting under color of state law who subjects any person “to the
deprivation of any rights, privileges, or immunities secured by the Constitution [or] laws” of the
United States is liable in a suit in equity. Id. § 1983.
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41. In administering and executing state and federal election laws, including absentee
voting for the 2012 General Election, the defendants act under color of state law.
42. In administering and executing state and federal election laws, including absentee
voting for the 2012 General Election, the defendants have violated:
a. the MOVE Act, 42 U.S.C. § 1973ff-1(a)(8)(A)-(B), and
b. the fundamental right to vote of military and overseas voters under the Due
Process Clause of the Fourteenth Amendment to the U.S. Constitution.
PRAYER FOR RELIEF
43. Wherefore, the plaintiff respectfully prays that this Court enter judgment in their
a. declare pursuant to 28 U.S.C. § 2201(a) that the defendants violated 42 U.S.C.
§ 1973ff-1(a)(8)(A) by not transmitting, on or before September 22, 2012,
absentee ballots to military and overseas voters registered to vote in the
Jurisdiction who submitted valid requests for them on or before that date;
b. enter a temporary restraining order, preliminary injunction, and permanent
injunction pursuant to Federal Rule of Civil Procedure 65 requiring the
i. extend the deadlines by which UOCAVA voters must mail completed
absentee ballots to election officials in the Jurisdiction, and by which
election officials in the Jurisdiction must receive completed absentee
ballots, by a number of days that is the greater of (i) five and (ii) the
number of days by which the transmission of such absentee ballots by the
Jurisdiction postdated the MOVE Act deadline for such transmission; and
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ii. notify each military and overseas voter to whom the Jurisdiction has
transmitted or will transmit an absentee ballot of the extended deadline for
returning completed absentee ballots; and
c. grant such other relief as this Court deems appropriate.
Dated: October 12, 2012 Respectfully Submitted,
TROUPIS LAW OFFICE, LLC
By: s/ Sarah E. Troupis
James R. Troupis, SBN 1005341
Sarah E. Troupis, SBN 1061515
8500 Greenway Blvd., Suite 200
Middleton, Wisconsin 53562
Attorneys for Plaintiff