Case: United States v. State of North Carolina

This case is about enforcing the rights granted by the Uniform and Overseas Citizens Absentee Voting Act (UOCAVA), 42 U.S.C. §§ 1973ff et seq., which provides that absent uniformed services voters and overseas voters shall be permitted “to use registration procedures and to vote by absentee ballot in general, special, primary, and runoff elections for Federal office.”  42 U.S.C. § 1973ff-1.  

On March 16, 2006, the United States filed this lawsuit in the United States District Court for the Eastern District of North Carolina against the State of North Carolina, the North Carolina State Board of Elections, and the Executive Director of the North Carolina State Board of Elections.  Represented by the Voting Section of the Civil Rights Division of the U.S. Department of Justice, the plaintiff sought preliminary and permanent injunctive relief as well as declaratory relief in order to protect the rights granted by UOCAVA in the 2006 primary election and in future elections.  The case was assigned to Judge Malcolm Howard.  

The plaintiff's complaint focused on the May 2, 2006 North Carolina primary election for seats in the U.S. House of Representatives, and alleged violations of UOCAVA arising from North Carolina's failure to provide uniformed services voters and overseas voters with sufficient opportunity to participate in any second primary in which candidates are running for federal office.  In particular, North Carolina’s election laws at the time the lawsuit was filed only permitted 28 days between a primary and a second primary, which was insufficient to allow UOCAVA voters an opportunity to receive, review, and cast a ballot by mail, and have that ballot timely received by an elections official in order to be counted in a second primary for federal office.  Under North Carolina law, a second primary is required if no candidate received a substantial plurality of the votes and the candidate with the second highest vote total in a race requested a second primary.  N.C. Gen. Stat. § 163-111(a)-(c).  A “substantial plurality” is defined as receiving 40% of the votes cast in an election.  N.C. Gen. Stat. § 163-111(b).  The Complaint cited the 2004 primary election as an example of a primary and second primary; that year, North Carolina had two second primary elections in the 5th and 10th Districts for the United States House of Representatives.  

The Complaint's major concern was timing. The Federal Voting Assistance Program (FVAP) of the Department of Defense determined that at a minimum, States must provide no less than 30 days for the round-trip transit of an overseas ballot, with 45 days being the recommended time for round trip travel.  With only 28 between a primary and secondary primary, UOCAVA voters would not have a fair opportunity to vote by absentee ballot.

Very shortly after the complaint was filed, the plaintiff and defendant entered into a Consent Decree that was signed by the Court on March 20, 2006. The Consent Decree provided that the State Board of Elections shall order county officials in any county where a second primary for federal office is possible to include, in conjunction with the mailing of regular absentee ballots to UOCAVA voters for the May 2, 2006 primary, a blank state authorized-special write in ballot to be used in the event of a second primary on May 30, 2006, along with reasonable information regarding the use of such ballot in the event of a second primary and appropriate instructions regarding where voters can obtain information about any possible second primary for a federal office. The Consent Decree contained further requirements about the steps the State Board of Elections must take in the event of a second primary for federal office to protect the rights of UOCAVA voters.  The Consent Decree also required the defendant to provide a report to the Court and the Voting Section of the United States Department of Justice regarding the status of any proposed legislation or administrative actions to fully remedy the potential violations for overseas citizens and other UOCAVA voters arising from the State’s second primary schedule.  Paragraph nine of the Consent Decree further provided that the parties will “seek dismissal immediately of the Consent Decree upon enactment of legislation by the North Carolina General Assembly that permanently remedies the potential UOCAVA violation” and that “[a]ll reporting obligations” of the State Board of Elections shall cease upon the enactment of such legislation.

On September 26, 2006, the defendant notified the Court and the Voting Section that on August 3, 2006, North Carolina enacted a new law, S.L. 2006-192. Sections two and six of the legislation contained changes to North Carolina election statutes to comply with UOCAVA.  Specifically, section two of the legislation extended from four to seven weeks the period between first and second primaries in order for overseas voters to have time to participate, and section 6 of the legislation amended North Carolina’s statutes to cover all citizens covered by UOCAVA.  On August 29, 2006, the legislation was submitted for preclearance under Section 5 of the Voting Rights Act of 1965, as amended, to the Voting Section of the United States Department of Justice.  On October 20, 2006, the Voting Section notified the State Board of Elections that the Attorney General did not interpose any objections to S.L. 2006-192.

On December 11, 2006, the parties filed a Proposed Order seeking dismissal of the Consent Decree.  The Court signed the Order on December 18, 2006, ending the case.