U.S. Department
of Justice
Stipulation And Order Of Dismissal
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IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
UNITED STATES OF AMERICA,
PlaintiffCIVIL ACTION NO. 1:CV-04-830
v.
(Judge Yvette Kane)
THE COMMONWEALTH OF
PENNSYLVANIA,
EDWARD G. RENDELL, Governor
of the Commonwealth of Pennsylvania;
and PEDRO A. CORTES, Secretary
of the Commonwealth of Pennsylvania, Defendants Filed Electronically ________________________________________________________________________________________
This is a civil action under the Uniformed and Overseas Citizens Absentee Voting Act, 42 U.S.C. 1973ff et seq. ("UOCAVA"), to protect the right of United States citizens, both military and civilians living overseas (collectively, "UOCAVA voters"), to vote by absentee ballot in elections for federal office. On April 15, 2004, the United States filed this action, seeking preliminary and permanent injunctive relief. The complaint alleged several instances between 1988 and 2004 in which absentee ballots were mailed without sufficient time for UOCAVA voters to receive, cast and return them by the deadline under Pennsylvania law, and sought emergency relief for the delayed mailing of ballots to UOCAVA voters for the April 27, 2004 federal primary election.
To preserve Pennsylvania overseas voters' right to vote in the federal primary election of April 27, 2004, the Court issued a temporary restraining order and preliminary injunction with regard to that election. See Order of April 16, 2004. The Court denied preliminary relief sought prior to the November 2004 general election. See Memorandum and Order of October 20, 2004. Since February 2005, the proceedings have been stayed by agreement of the parties to permit the Pennsylvania General Assembly to enact legislation to ensure long-term compliance with UOCAVA by the Commonwealth and its counties. The parties have agreed to interim measures for reporting and oversight of compliance with UOCAVA by the Commonwealth and its subdivisions. See Joint Motion to Stay the Action of February 15, 2005; Interim Agreement and Joint Motion to Extend Stay of February 7, 2006.
On May 3, 2006, the General Assembly of Pennsylvania passed Senate Bill 999, which was signed into law by Governor Rendell on May 12, 2006 and became effective July 1, 2006. This law, now referred to as Act 45, amends several provisions of Pennsylvania's Election Code, including the deadline for UOCAVA voters to return their absentee ballots. Specifically, Section 12 of Act 45 amends Section 1308 of the Pennsylvania Election Code to provide that absentee ballots cast by qualified absentee electors defined under Section 1301 (a)-(h) of the Pennsylvania Election Code, which includes UOCAVA voters, will be canvassed if they are received in the office of the county board of elections no later than 5:00 p.m. on the seventh day following an election, and postmarked no later than the day immediately preceding the election.
In light of the passage of the relevant provisions of Act 45, the parties desire to settle this action without the need for costly and protracted litigation. As part of this agreement, the parties have negotiated a Memorandum of Understanding ("MOU") pursuant to which the Commonwealth will monitor each county's compliance with UOCAVA during the next two federal election cycles and provide reports to the United States regarding those efforts. These obligations are set forth more fully in the MOU annexed to this Stipulation and are incorporated herein.
Accordingly, it is hereby ORDERED, STIPULATED, AND AGREED that:
- All claims by the United States in this action up to and including the date of this agreement shall be dismissed under Fed. R. Civ. P. 41(a)(2);
- This Order of Dismissal expressly incorporates the terms of the annexed MOU; and
- This Court expressly retains jurisdiction for the purpose of enforcing the terms of the annexed MOU for the term of the MOU, or for any extended duration pursuant to a written agreement by the parties.
Dated this 27th day of July, 2006.
For the Plaintiff For the Defendants Commonwealth of
United States of America: Pennsylvania, Governor of Pennsylvania
and Secretary of the Commonwealth of
WAN J. KIM Pennsylvania:
Assistant Attorney General
Civil Rights Division
______/s/_____________________
SUSAN J. FORNEY
THOMAS A. MARINO PA 27744
United States Attorney for the Middle Chief Deputy Attorney General
District of Pennsylvania Strawberry Square, 15th Floor
Harrisburg, PA 17120
(717) 787-9831
(717)772-4526 (facsimile)
_________/s/______________ sforney@attorneygeneral.doj
JOHN K. TANNER
REBECCA J. WERTZ
M. ERIC EVERSOLE
IN 21190-49 _________/s/______________
EMILY B. SMITH ALBERT MASLAND
Attorneys, Voting Section PA 36511
Civil Rights Division Chief Counsel
U.S. Department of Justice Pennsylvania Department of State
(NWB) Room No. 7254 302 North Office Building
950 Pennsylvania Avenue, N.W. Harrisburg, PA 17120
Washington, DC 20530 (717)787-6458
(202) 307-2767 (717) 787-1734 (facsimile)
(202) 307-3961 (facsimile) amasland@state.pa.us
eric.eversole@usdoj.gov
________/s/___________
GREGORY E. DUNLAP
PA 38785
Deputy General Counsel
333 Market Street, 17th Floor
Harrisburg, PA 17101
(717)783-6563
(717) 787-1788 (facsimile)
gdunlap@state.pa.us
IT IS SO ORDERED:
Dated: 7/31/06
_______/s/________________
Hon. Yvette Kane
United States District Court for the
Middle District of Pennsylvania