Case: United States v. Arizona

This case is about absent uniformed service voters' and overseas voters' ability to vote in federal elections in Arizona.  On February 14, 2018, the United States filed this lawsuit in the U.S. District Court for the District of Arizona, before District Judge Douglas L. Rayes.  The United States sued Arizona and Michele Reagan (Secretary of Arizona), in her official capacity, under the Uniformed and Overseas Citizens Absentee Voting Act (UOCAVA). The United States alleged that Arizona violated Section 102(a)(8)(A) of the Act and sought an order requiring Arizona to ensure compliance with that provision for the February 27, 2018 special primary election for the House of Representatives and in future special elections for Federal office.

Section 102(a)(8)(A) 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.  52 U.S.C. § 20302(a)(8)(A).  Under Arizona law, when a vacancy occurred in the office of a representative in Congress more than six months before the next general election, the governor would call a special primary election and special general election for at least 80 and no more than 90 days after the vacancy.  Ariz. Stat. § 16-222(B).

On December 8, 2017, Arizona Representative Trent Franks resigned from Congress.  The governor set the special primary election for February 27, 2018, and the special general election for April 24, 2018.  Candidates were required to file nominating petitions for the special primary election by January 10, 2018, and any challenges to such petitions by January 18, 2018.  Ariz. Rev. Stat. § 16-222(B).  The deadlines for transmission of absentee ballots to UOCAVA voters who timely requested them was January 13, 2018, for the special primary election and March 10, 2018, for the special general election. 

On January 13, 2018, Arizona officials sent ballots to eligible UOCAVA voters.  Officials included a notice explaining that the list of candidates was not final because of potential challenges, that the final list of candidates would be confirmed January 25, 2018, and that another ballot would be sent then.  The notice stated that voters could vote on the initial ballot or wait for the updated ballot but if they voted on the initial ballot for a candidate that was later disqualified, they would not be allowed to vote on the updated ballot or change their vote. 

On January 23, 2018, a Democratic Party candidate was removed from the ballot.  That same day, Arizona officials sent corrected ballots reflecting the removal to UOCAVA voters who had requested Democratic ballots and advising that to be counted ballots had to be received by 7 p.m. on Election Day, February 27, 2018—35 days after when the corrected ballots were sent.  UOCAVA voters who received Republican Party, Libertarian Party, or Green Party ballots were never sent an "updated official ballot" because the relevant candidates were not challenged, but the notice stating as much was not sent till January 19, 2018—39 days before Election Day.  The United States alleged that the 35-day and 39-day periods violated UOCAVA's requirement that states transmit ballots to UOCAVA voters not later than 45 days before an election. 

The same day the United States filed its complaint (February 14, 2018), the United States and Arizona and Secretary Reagan filed a joint motion requesting expedited entry of a consent decree.  The motion stated that the parties had agreed to a proposed consent decree.

On February 15, 2018, the district court entered the parties' proposed consent decree.  The decree ordered in relevant part that: (1) Arizona officials count original ballots from UOCAVA voters sent on January 12, 2018; all corrected ballots from UOCAVA voters sent on January 23, 2018; and any Federal Write-In Absentee Ballots; (2) Arizona officials should inform UOCAVA voters who had not yet returned a final ballot about this consent decree and ensure that such voters know the ballot-return deadlines; and (3) Arizona officials ensure that UOCAVA voters are able to participate in future Federal elections.  The case closed upon the district court's entry of the consent decree (though the district court retained jurisdiction over this action through September 30, 2018).