Docstoc

001 - Complaint_1_

Document Sample
001 - Complaint_1_ Powered By Docstoc
					               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,
                                                         JUDGE
                                 Plaintiff,
                                                         Complaint for Declaratory and
                  vs.                                    Injunctive Relief

STATE OF WISCONSIN; WISCONSIN
GOVERNMENT ACCOUNTABILITY
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
Board,

                                 Defendants.

                                          INTRODUCTION

          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.

                                                    1
 
               Case: 3:12-cv-00745 Document #: 1 Filed: 10/12/12 Page 2 of 10



          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.



                                                     2
 
               Case: 3:12-cv-00745 Document #: 1 Filed: 10/12/12 Page 3 of 10



                             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.




                                                   3
 
                Case: 3:12-cv-00745 Document #: 1 Filed: 10/12/12 Page 4 of 10



          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. §

    5.054(2).

                                  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-

    1(a)(8)(A).

          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




                                                   4
 
                Case: 3:12-cv-00745 Document #: 1 Filed: 10/12/12 Page 5 of 10



    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

    UOCAVA deadline.

          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. §

    7.515(3).

          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.



                                                     5
 
               Case: 3:12-cv-00745 Document #: 1 Filed: 10/12/12 Page 6 of 10



          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

    UOCAVA%20Voters%20Report%202004.zip.

          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

    http://www.fvap.gov/reference/reports.html.



                                                    6
 
                 Case: 3:12-cv-00745 Document #: 1 Filed: 10/12/12 Page 7 of 10



           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.



                                                      7
 
              Case: 3:12-cv-00745 Document #: 1 Filed: 10/12/12 Page 8 of 10



                                        COUNT I
                  FAILURE TO TRANSMIT ABSENTEE BALLOTS TO VOTERS
                     SUBMITTING REQUESTS BY THE 45-DAY DEADLINE
                               42 U.S.C. § 1973ff-1(a)(8)(A)
                                  ALL DEFENDANTS

          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-

    1(a)(8)(A).

                                  COUNT II
          DEPRIVATION OF FEDERAL RIGHTS UNDER COLOR OF STATE LAW
                               42 U.S.C. § 1983
                              ALL DEFENDANTS

          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.

                                                      8
 
             Case: 3:12-cv-00745 Document #: 1 Filed: 10/12/12 Page 9 of 10



          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

    favor and:

                 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

                    defendants to:

                        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



                                                     9
 
        Case: 3:12-cv-00745 Document #: 1 Filed: 10/12/12 Page 10 of 10



                 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
                                                 ph. 608-807-4096
                                                 jrtroupis@troupislawoffice.com

                                                 Attorneys for Plaintiff




                                              10
 

				
DOCUMENT INFO
Shared By:
Categories:
Tags:
Stats:
views:46607
posted:10/16/2012
language:Unknown
pages:10