United States v. State of Alabama , 778 F.3d 926 ( 2015 )

Case: 14-11298 Date Filed: 02/12/2015 Page: 1 of 34
[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 14-11298
________________________
D.C. Docket No. 2:12-cv-00179-MHT-WC
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
STATE OF ALABAMA,
SECRETARY, STATE OF ALABAMA,
Defendants - Appellants.
________________________
Appeal from the United States District Court
for the Middle District of Alabama
________________________
(February 12, 2015)
Before MARCUS, JILL PRYOR and EBEL, ∗ Circuit Judges.
MARCUS, Circuit Judge:
∗
Honorable David M. Ebel, United States Circuit Judge for the Tenth Circuit, sitting by
designation.
Case: 14-11298 Date Filed: 02/12/2015 Page: 2 of 34
In our nation’s recent history, active military personnel and their families
have faced severe difficulties exercising their fundamental right to vote. For
affected service members, the decision to serve their country was the very act that
frequently deprived them of a voice in selecting its government. Congress
responded to this real problem by passing the Uniformed and Overseas Citizens
Absentee Voting Act (“UOCAVA”), a comprehensive series of requirements
aimed at ending the widespread disenfranchisement of military voters stationed
overseas. The statute includes a variety of measures that the states are required to
adopt in order to accommodate military voters when they administer federal
elections. By passing UOCAVA, and later by strengthening its protections,
Congress unequivocally committed to eliminating procedural roadblocks, which
historically prevented thousands of service members from sharing in the most basic
of democratic rights.
Today, we are called upon to interpret a single provision in UOCAVA’s
general scheme. The parties in this case disagree about the meaning and scope of
Title 52 U.S.C. § 20302(a)(8)(A)’s requirement that, when a qualifying military or
overseas voter requests an absentee ballot for a federal election, a state must
transmit a ballot to that voter forty-five days before the federal election. Neither
this Court, nor any of our sister circuits, have opined on the scope of Congress’s
instruction. The United States commenced this suit against Alabama in the United
2
Case: 14-11298 Date Filed: 02/12/2015 Page: 3 of 34
States District Court for the Middle District of Alabama, seeking to enjoin the
State from holding federal runoff elections forty-two days after federal primary
elections. The United States argued that the Alabama schedule violated
UOCAVA’s mandate and threatened to deprive military voters of the time they
needed to receive and return their absentee ballots during runoff elections. The
district court agreed, and after thorough review, we affirm.
The obligation that Congress has placed on the states is unambiguous: they
must transmit absentee ballots to service members who validly request them forty-
five days before “an election for Federal office.” § 20302(a)(8)(A). Various other
elements of § 20302(a)(8)(A) and of the surrounding sections of the statute
confirm our understanding. As we explain in detail, Congress knew how to limit
the scope of a provision so that it applied only during certain elections. Similarly,
it knew how to create explicit exceptions to general rules, and indeed created an
undue hardship exception to the forty-five day transmission timeline.
§ 20302(a)(8)(A), (g). But by choosing not to use these tools, which it otherwise
wielded when drafting this statute, Congress gave us a clear indication that each
state must comply with the forty-five day transmission requirement for any federal
election, including a runoff election, for which it has not met the elements of undue
hardship.
3
Case: 14-11298 Date Filed: 02/12/2015 Page: 4 of 34
Alabama largely accepts these observations, but it urges us to hold that
another UOCAVA provision, § 20302(a)(9), sets up an alternative rule for federal
runoff elections. The State submits that § 20302(a)(9) directs the states to
“establish a written plan that provides absentee ballots are made available to absent
uniformed services voters and overseas voters in [a] manner that gives them
sufficient time to vote in the runoff election.” Id. (emphasis added). It urges us to
read this language as allowing each state to determine how much time would be
“sufficient” for its UOCAVA voters to return their ballots during runoff elections.
We cannot agree. When we look to the text of § 20302(a)(9), we find that it directs
states only to “establish a written plan” in preparation for runoff elections, and
makes no claim that it abrogates the mandatory forty-five day transmission
timeline. Id. (emphasis added). In light of the plain language of this substantive
command -- and Congress’s clear intent to prioritize the empowerment of military
voters through clear and accessible absentee voting procedures -- we conclude that
§ 20302(a)(9) does not alter our interpretation. We, therefore, hold that the State
must transmit validly requested absentee ballots to eligible UOCAVA voters forty-
five days before each federal election, whether that election is primary, general,
special, or runoff.
4
Case: 14-11298 Date Filed: 02/12/2015 Page: 5 of 34
I.
A.
The Uniformed and Overseas Citizens Absentee Voting Act provides
generally that states shall “permit absent uniformed services voters and overseas
voters to use absentee registration procedures and to vote by absentee ballot in
general, special, primary, and runoff elections for Federal office” and “establish
procedures for transmitting [absentee ballots] by mail and electronically” to these
voters before “general, special, primary, and runoff elections for Federal office.” 1
52 U.S.C. § 20302(a)(1), (a)(7). Beyond its baseline requirements, the statute also
requires that states extend additional protections to the UOCAVA absentee voting
process that they might not extend to other absentee voters as a matter of state law.
See, e.g., § 20302(a)(2) (requiring that states accept all UOCAVA registration
forms and ballot requests received at least thirty days before any election);
1
UOCAVA defines “absent uniformed services voter” to include: (1) “a member of a uniformed
service on active duty who, by reason of such active duty, is absent from the place of residence
where the member is otherwise qualified to vote”; (2) “a member of the merchant marine who,
by reason of service in the merchant marine, is absent from the place of residence where the
member is otherwise qualified to vote”; and (3) “a spouse or dependent of a [member of a
uniformed service or the merchant marine] who, by reason of the active duty or service of the
member, is absent from the place of residence where the spouse or dependent is otherwise
qualified to vote.” 52 U.S.C. § 20310(1). It defines “overseas voter” to include: (1) “an absent
uniformed services voter who, by reason of active duty or service is absent from the United
States on the date of the election involved”; (2) “a person who resides outside the United States
and is qualified to vote in the last place in which the person was domiciled before leaving the
United States”; and (3) “a person who resides outside the United States and (but for such
residence) would be qualified to vote in the last place in which the person was domiciled before
leaving the United States.” § 20310(5). For the sake of simplicity, we refer to these voters
cumulatively as “UOCAVA voters.”
5
Case: 14-11298 Date Filed: 02/12/2015 Page: 6 of 34
§ 20302(a)(3) (requiring that states allow UOCAVA voters to use federal write-in
ballots); § 20302(i) (prohibiting states from enforcing requirements regarding
notarization, paper type, or envelope type).
At the heart of this case is one of these special protections afforded to
UOCAVA voters. Section 20302(a)(8) requires that states “transmit a validly
requested absentee ballot to an absent uniformed services voter or overseas
voter . . . in the case in which the request is received at least 45 days before an
election for Federal office, not later than 45 days before the election.” In short,
when a qualifying UOCAVA voter requests an absentee ballot from the state at
least forty-five days before “an election for Federal office,” the state is required to
transmit a ballot to the voter forty-five days in advance of that election. See id.
The text of § 20302(a)(8) also acknowledges that a later provision within
UOCAVA enumerates circumstances in which the forty-five day transmission
requirement does not apply. Subsection (g), designated in the statute as the
“[h]ardship exemption,” provides that a state that submits a detailed proposal
ninety days before a particular federal election may receive from the presidential
designee2 a waiver of the forty-five day transmission requirement for that election.
§ 20302(g). A state’s waiver application must explain the hardship preventing the
2
The President selected the Secretary of Defense as the UOCAVA presidential designee by
Executive Order. Exec. Order No. 12,642, 53 Fed. Reg. 21,975 (June 8, 1988), reprinted as
amended in 52 U.S.C. § 20301. The Secretary administers its responsibilities through The
Federal Voting Assistance Program (“FVAP”). See Federal Voting Assistance Program
(FVAP), 32 C.F.R. § 233 (2014).
6
Case: 14-11298 Date Filed: 02/12/2015 Page: 7 of 34
state from complying with the forty-five day rule and propose a substitute timeline
specifying how many days before the election UOCAVA voters will receive their
ballots. § 20302(g)(1)(B)-(C). It must also articulate a “comprehensive plan to
ensure that” UOCAVA voters receive and are able to submit their ballots in time
for the state to count their votes. § 20302(g)(1)(D). The plan must detail “the
steps the State will undertake to ensure that [UOCAVA] voters have time to
receive, mark, and submit their ballots in time,” and must include the state’s
rationale for asserting that its alternate plan will be an adequate substitute for the
forty-five day timeline, including underlying factual information. Id. A state can
obtain a waiver only if it has shown that it faces an “undue hardship” based on one
of the following conditions: (1) “[t]he State’s primary election date prohibits the
State from complying”; (2) “[t]he State has suffered a delay in generating ballots
due to a legal contest”; or (3) “[t]he State Constitution prohibits the State from
complying.” § 20302(g)(2)(B).
Also relevant to the resolution of this case are several requirements found
within the statute that are directed at particular types of federal elections. By their
very terms, they must be implemented only with respect to certain elections. Thus,
for example, for general elections, UOCAVA directs the states to “permit
[UOCAVA] voters to use Federal write-in absentee ballots,” § 20302(a)(3), and
“submit a report to the Election Assistance Commission” detailing the “combined
7
Case: 14-11298 Date Filed: 02/12/2015 Page: 8 of 34
number of absentee ballots transmitted to [UOCAVA] voters for the election and
the combined number of such ballots which were returned,” § 20302(c). Of
particular importance here is the requirement imposed exclusively on runoff
elections. § 20302(a)(9). Subsection (a)(9) requires that “if the State declares or
otherwise holds a runoff election for Federal office,” it must “establish a written
plan that provides absentee ballots are made available to [UOCAVA] voters in [a]
manner that gives them sufficient time to vote in the runoff election.” Id.
B.
The United States initiated this suit against Alabama 3 alleging that the
State’s primary election scheme was incompatible with its requirements under
UOCAVA. Under Alabama law, runoff elections are required if no candidate in a
primary election receives a majority of the votes. Ala. Code § 17-13-18. The
dates are set by statute at forty-two days after the relevant primary election. See id.
This system prevents Alabama from sending absentee ballots to UOCAVA voters
forty-five days before runoff elections.
Alabama argues that it need not comply with the forty-five day rule in
advance of federal runoff elections. According to the State, § 20302(a)(9)
demonstrates that states need not transmit ballots forty-five days before runoff
3
Shortly thereafter, the government filed a similar suit against the state of Georgia. See United
States v. Georgia, 952 F. Supp. 2d 1318 (N.D. Ga. 2014), argued, No. 13-14065 (11th Cir. June
13, 2014).
8
Case: 14-11298 Date Filed: 02/12/2015 Page: 9 of 34
elections. Alabama contends that the phrase “sufficient time to vote in the runoff
election” creates an alternate timeline for runoff elections, allowing the State to
decide how much time UOCAVA voters need to receive and submit their ballots.
See id.
The district court disagreed and granted the federal government’s motion for
final summary judgment. United States v. Alabama, 998 F. Supp. 2d 1283 (M.D.
Ala. 2014). The court based its decision primarily on the plain text of the two
provisions at issue. First, it found that the forty-five day transmission requirement
seemed by its plain language to apply during all federal elections for which a state
did not secure an undue hardship waiver. Id. at 1288-89. Moreover, it observed
that the terms of the written plan requirement did not expressly alter the
requirements of § 20302(a)(8)(A). Id. at 1291. The court concluded that, rather
than creating a discretionary exception to the forty-five day transmission
requirement, “subsection (a)(9) merely reflects that Congress wisely saw the need
to provide an additional remedy when it comes to runoffs: to require States to
develop a written plan that would help to protect further against UOCAVA
violations that will more likely occur under the time constraints of a runoff
election.” Id. at 1292.
The State timely appealed.
9
Case: 14-11298 Date Filed: 02/12/2015 Page: 10 of 34
II.
We review a district court’s grant of summary judgment de novo. Durr v.
Shinseki, 638 F.3d 1342, 1346 (11th Cir. 2011). A district court may grant
summary judgment when all “pleadings, depositions, answers to interrogatories,
and admissions on file, together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party is entitled to a
judgment as a matter of law.” Stewart v. Booker T. Washington Ins., 232 F.3d
844, 848 (11th Cir. 2000) (quotation omitted). “In assessing whether there is any
‘genuine issue’ for trial, the court ‘must view all the evidence and all factual
inferences reasonably drawn from the evidence in the light most favorable to the
nonmoving party.’” Id. (quoting Stewart v. Happy Herman’s Cheshire Bridge,
Inc., 117 F.3d 1278, 1285 (11th Cir. 1997)). We also review questions of law,
including statutory interpretation questions, de novo. Silva-Hernandez v. U.S.
Bureau of Citizenship & Immigration Servs., 701 F.3d 356, 361 (11th Cir. 2012);
Commodity Futures Trading Comm’n v. Levy, 541 F.3d 1102, 1110 (11th Cir.
2008).
A.
In conducting our analysis of § 20302(a)(8)(A), we find three elements of
the statutory text to be particularly instructive. First, the plain language of the
provision strongly suggests that it applies before any federal election. Second,
10
Case: 14-11298 Date Filed: 02/12/2015 Page: 11 of 34
Congress’s demonstrated ability to limit a provision, so that it applies only in a
subset of elections, convinces us that it could easily have cabined the scope of the
forty-five day transmission requirement if that were its intent. Lastly, Congress’s
clear use of an express exemption within § 20302(a)(8)(A) tells us that, if it had
sought to remove runoff elections from the provision’s scope, it would have done
so directly. We discuss each in turn.
As “in any statutory construction case,” we begin with the ordinary meaning
of the text, Sebelius v. Cloer, 133 S. Ct. 1886, 1893 (2013), and assume that
Congress intended each word to have its ordinary meaning. Consol. Bank, N.A.,
Hialeah, Fla. v. U.S. Dep’t of Treasury, 118 F.3d 1461, 1463 (11th Cir. 1997).
“Our ‘inquiry ceases [in a statutory construction case] if the statutory language is
unambiguous and the statutory scheme is coherent and consistent.’” Cloer, 133 S.
Ct. at 1895 (alteration in original) (quoting Barnhart v. Sigmon Coal Co., 534 U.S.
438, 450 (2002)).
Here, the directive of § 20302(a)(8)(A) is clear. The forty-five day
transmission provision mandates that states “transmit” absentee ballots to
UOCAVA voters forty-five days before “an election for Federal office.”
§ 20302(a)(8)(A). The plain meaning of the term “an election” is “any election.”
In common terms, when “a” or “an” is followed by a restrictive clause or modifier,
this typically signals that the article is being used as a synonym for either “any” or
11
Case: 14-11298 Date Filed: 02/12/2015 Page: 12 of 34
“one.” See Webster’s Third New Int’l Dictionary 1 (2002) (explaining that the
indefinite article means “any” or “each” when used with a restrictive modifier, and
that it may be used to indicate one “example of (a named class)”); see also Black’s
Law Dictionary 1 (6th ed. 1990) (noting that the word “an” commonly means
“one” or “any”). In this context, the more restrictive meaning of the indefinite
article (“one”) makes little sense: we presume Congress did not pass the statute in
order to affect transmission of ballots to UOCAVA voters during one, unspecified
election within the class of federal elections. See Consol. Bank, 118 F.3d at 1463-
64 (“We are required to look beyond the plain language of the statute . . . when
absurd results would ensue from adopting the plain language interpretation.”).
And in fact, Alabama concedes this point, writing that, if § 20302(a)(8)(A) is “all
there is” on the subject of how long states have to send ballots to UOCAVA voters,
then by its ordinary meaning, § 20302(a)(8)(A) “would govern federal runoff
elections.”
Notably, the phrase “an election” is followed by the qualifier “for Federal
office.” UOCAVA defines precisely which elections are elections for “Federal
office” -- namely those elections for “the office of President or Vice President, or
of Senator or Representative in, or Delegate or Resident Commissioner to, the
Congress.” § 20310(3). Absent another statutory definition narrowing the term
election, we read the phrase “an election for Federal office” to refer to all elections
12
Case: 14-11298 Date Filed: 02/12/2015 Page: 13 of 34
for “the office of President or Vice President, or of Senator or Representative in, or
Delegate or Resident Commissioner to, the Congress” -- without distinction among
primary, general, special, and runoff elections. See id. Similarly, the statute’s
most basic requirements apply broadly and without distinguishing between
primary, general, special, or runoff elections. Thus, by example, § 20302(a)(1)
provides that “[e]ach state shall . . . permit [UOCAVA] voters to use absentee
registration procedures and to vote by absentee ballot in general, special, primary,
and runoff elections for Federal office,” and § 20302(a)(7) requires that states
“establish procedures for transmitting [absentee ballots] by mail and
electronically” to UOCAVA voters before “general, special, primary, and runoff
elections for Federal office.” These provisions also suggest that a state’s core
UOCAVA obligations are in full force during each federal election, regardless of
its posture in the election calendar. Thus, we read the forty-five day transmission
requirement to be clear by its own terms.
Binding precedent from this Circuit affirms our approach to analyzing
Congress’s word choice. We have repeatedly found in prior cases that an
indefinite article was purposefully used as a synonym for the word “any,”
determining that the context of a statute required us to read “a” or “an” to mean
“any” rather than “one.” Cmty. State Bank v. Strong, 651 F.3d 1241, 1256 (11th
Cir. 2011) (observing that “the indefinite article ‘a’ suggests the court may
13
Case: 14-11298 Date Filed: 02/12/2015 Page: 14 of 34
consider any possible suit”); Mixon v. One Newco, Inc., 863 F.2d 846, 850 (11th
Cir. 1989) (holding that the legislature’s use of the term “a period of seven years”
as opposed to “the period” refers to any seven-year period, not the “seven-year
period immediately preceding” (emphasis omitted)); Comm’r of Internal Revenue
v. Kelley, 293 F.2d 904, 911-12 (5th Cir. 1961) (“The weakness in the
Commissioner’s argument is the assumption that there can be only one substantial
part of a whole. . . . [The statute] requires only that ‘a substantial part’ be realized.
The indefinite article ‘a’ says in plain language that there may be two or more
substantial parts.”); 4 see also Lee v. Weisman, 505 U.S. 577, 614 n.2 (1992)
(Souter, J., concurring) (“[T]he indefinite article before the word ‘establishment’
[in the First Amendment] is better seen as evidence that the Clause forbids any
kind of establishment . . . .”).
We also find compelling in this analysis that Congress evinced the clear
ability to circumscribe the scope of a provision when it chose to do so. In sharp
contrast to § 20302(a)(8)(A)’s broad language, many of the surrounding provisions
in UOCAVA are expressly limited. These provisions serve as persuasive evidence
that Congress knew how to limit the scope of a provision to foreclose its operation
during certain elections but chose not to do so when framing the forty-five day
transmission requirement. As a general rule, we have explained that when
4
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), we adopted as
binding precedent all Fifth Circuit decisions issued before October 1, 1981.
14
Case: 14-11298 Date Filed: 02/12/2015 Page: 15 of 34
“Congress includes particular language in one section of a statute but omits it in
another section of the same Act, it is generally presumed that Congress acts
intentionally and purposely” in its exclusion. CBS Inc. v. PrimeTime 24 Joint
Venture, 245 F.3d 1217, 1225-26 (11th Cir. 2001) (quoting Russello v. United
States, 464 U.S. 16, 23 (1983)); accord. Pugliese v. Pukka Dev., Inc., 550 F.3d
1299, 1303 (11th Cir. 2008). Because we find ample evidence in UOCAVA of
“Congress’ clear ability to modify the term” election “to indicate the type thereof,”
we conclude that its failure to include qualifying language in § 20302(a)(8)(A)
“indicates that it had no intention to so limit the term” election in the forty-five day
transmission requirement. Cf. Consol. Bank, 118 F.3d at 1465.
Thus, Congress required that states allow UOCAVA voters to vote using
“Federal write-in absentee ballots,” but only in “general elections for Federal
Office.” § 20302(a)(3) (emphasis added). Similarly, Congress included a
requirement that states report on the number of ballots sent to and returned by
UOCAVA voters, and specified that the requirement applies only after “regularly
scheduled general election[s] for Federal office.” § 20302(c) (emphasis added).
Finally, Congress decided that a state may obtain an undue hardship waiver if the
state’s primary election date prevents it from complying with the forty-five day
transmission rule. § 20302(g)(2)(B) (emphasis added). These election-specific
provisions each suggest that Congress knew how to limit the scope of a UOCAVA
15
Case: 14-11298 Date Filed: 02/12/2015 Page: 16 of 34
requirement, and lead us to the conclusion that its decision to use broad and
inclusive language in § 20302(a)(8)(A) was intentional.
One additional element of the text counsels our conclusion. As we see it,
Congress demonstrated its ability to create specific exceptions to otherwise general
prescriptions, but chose not to draft such a carve-out for runoff elections. Indeed,
Congress explicitly designated one exemption to § 20302(a)(8)(A)’s mandate,
providing that the requirement is in force “except as provided in subsection (g).”
§ 20302(a)(8)(A). If Congress also intended to create a runoff exception, we
would have expected that it employ the tools at its disposal -- such as direct
language or a cross reference -- to articulate this intent. However,
§ 20302(a)(8)(A) by its own terms acknowledges only one exception to its clear
command. Specifically, it provides that states must comply with the forty-five day
transmission requirement whenever they are administering “an election for Federal
office” unless they meet the requirements set out “in subsection (g).” Id. Section
20302(g) in turn explains that, if a state can demonstrate that it would face “undue
hardship” if forced to meet the forty-five day transmission deadline,
§ 20302(g)(2)(B), it may receive a waiver for that election and that election only,
§ 20302(g)(3)-(4). A state’s ability to obtain a waiver, however, is expressly
contingent on both a showing of hardship and a proposal detailing an alternate
16
Case: 14-11298 Date Filed: 02/12/2015 Page: 17 of 34
timeline which still gives UOCAVA voters “sufficient time to vote as a substitute
for the requirements” set out in § 20302(a)(8)(A). § 20302(g)(1).
Thus, Congress has explicitly enumerated a discrete exception to a general
rule, and we will not imply additional exceptions absent a clear direction to the
contrary. Andrus v. Glover Constr. Co., 446 U.S. 608, 616-17 (1980); see also
United States v. Brockamp, 519 U.S. 347, 352 (1997) (finding that attributes of the
statute, including its “explicit listing of exceptions . . . indicate to us that Congress
did not intend courts to read other unmentioned, open-ended . . . exceptions into
the statute that it wrote”). Indeed, in order for us to give the most natural meaning
to Congress’s direction that states transmit absentee ballots to UOCAVA voters “at
least 45 days before an election for Federal office” “except as provided in
subsection (g),” § 20302(a)(8)(A), we must conclude that “by explicitly including
a . . . limited” hardship exemption, Congress “implicitly excluded” all other
possible exceptions. Cf. TRW Inc. v. Andrews, 534 U.S. 19, 28 (2001). Here,
Congress easily could have worded the statute to require forty-five day ballot
transmission “except as provided in subsections (a)(9) and (g)” if it had intended
both clauses to constitute exceptions to the general rule. “We are not, however,
authorized to revise statutory provisions” under the pretense of interpreting them,
and accordingly are unwilling to read in a runoff exception to § 20302(a)(8)(A). In
17
Case: 14-11298 Date Filed: 02/12/2015 Page: 18 of 34
re Hedrick, 524 F.3d 1175, 1187 (11th Cir.), amended on reh’g in part, 529 F.3d
1026 (11th Cir. 2008); accord. Pugliese, 550 F.3d at 1304.
As a final matter, despite the apparent clarity of § 20302(a)(8)(A), we
remain mindful that “[s]tatutory construction is a ‘holistic endeavor.’” Koons
Buick Pontiac GMC, Inc. v. Nigh, 543 U.S. 50, 60 (2004) (quoting United Sav.
Ass’n of Tex. v. Timbers of Inwood Forest Assocs., Ltd., 484 U.S. 365, 371
(1988)). The Supreme Court has instructed us to look to surrounding provisions
when defining statutory terms, explaining that particular language is “often
clarified by the remainder of the statutory scheme -- because the same terminology
is used elsewhere in a context that makes its meaning [more] clear.” Timbers of
Inwood Forest Assocs., 484 U.S. at 371. Where Congress has used “identical
words . . . in different parts of the same act,” we presume that in each instance the
phrase is “intended to have the same meaning.” See Sullivan v. Stroop, 496 U.S.
478, 484 (1990) (quoting Sorenson v. Sec’y of Treasury, 475 U.S. 851, 860
(1986)) (internal quotation marks omitted). Thus, we pause to consider whether
other uses of the phrase “an election for Federal office” within UOCAVA shed
light on our inquiry. Here, we need look no further than the other provisions
defining the states’ obligations to find a clear cross-reference confirming that
Congress intended the phrase “an election for Federal office” to be afforded its
plain and broad meaning.
18
Case: 14-11298 Date Filed: 02/12/2015 Page: 19 of 34
Subsection 20302(a)(7) requires that states “establish procedures for
transmitting by mail and electronically blank absentee ballots to [UOCAVA]
voters with respect to general, special, primary, and runoff elections for Federal
office,” and directs that its mandate must be carried out “in accordance with
subsection (f).” Each subsection within § 20302(f) elaborates on the specifics of
§ 20302(a)(7)’s general requirement, and thus, by virtue of the cross-reference,
applies fully in “general, special, primary, and runoff elections for Federal office.”
See § 20302(a)(7). Importantly, § 20302(f)(1)(A) requires states to “establish
procedures” to transmit by mail or electronic mail, depending on an individual
voter’s preference, “blank absentee ballots . . . to [UOCAVA] voters for an
election for Federal office.” Because § 20302(a)(7) already establishes that this
subsection applies to “general, special, primary, and runoff elections for Federal
office,” there can be little question that “an election for federal office” as used in
§ 20302(f)(1)(A) encompasses all types of federal elections.
Quite simply, we find that both the content of § 20302(a)(8)(A) itself and
inferences drawn from language found in surrounding UOCAVA provisions
demonstrate that Congress intended the forty-five day transmission requirement to
apply to any election for Federal office for which the state has not received an
undue hardship waiver.
19
Case: 14-11298 Date Filed: 02/12/2015 Page: 20 of 34
B.
Although we find the obligation in § 20302(a)(8)(A) to be unambiguous on
its own terms, Alabama urges us to examine whether § 20302(a)(9) alters our
analysis because it requires that, “if the State declares or otherwise holds a runoff
election for Federal office, [the State shall] establish a written plan that provides
absentee ballots are made available to [UOCAVA] voters in [a] manner that gives
them sufficient time to vote in the runoff election.” After careful consideration, we
conclude that it does not. If we read this subsection in accordance with its ordinary
meaning, we are compelled to find that it governs the states’ establishment of a
written plan, not the procedures or timing by which they transmit absentee ballots.
We begin with the language of the provision. Importantly, § 20302(a)(9)
does not by its terms purport to (1) affect the substantive process by which states
must transmit ballots, or (2) establish an exception to § 20302(a)(8)(A). Rather,
this section sets out a simple requirement: states must establish a written plan
detailing how they will transmit ballots in compliance with UOCAVA in the event
of a runoff election. See § 20302(a)(9). Alabama can identify no language or
cross-reference within § 20302(a)(9) suggesting it creates an exception to the forty-
five day transmission requirement. Indeed, the differences in the actual commands
in each sentence -- namely “transmit ballots” as opposed to “establish a plan” --
demonstrate that each provision places a different and specific requirement on the
20
Case: 14-11298 Date Filed: 02/12/2015 Page: 21 of 34
states’ administration of federal elections. See Nat’l Cable & Telecomms. Ass’n,
Inc. v. Gulf Power Co., 534 U.S. 327, 335-36 (2002) (“It is true that specific
statutory language should control more general language when there is a conflict
between the two. Here, however, there is no conflict. The specific controls but
only within its self-described scope.”); see also RadLAX Gateway Hotel, LLC v.
Amalgamated Bank, 132 S. Ct. 2065, 2071 (2012) (noting that “[t]he
general/specific canon is perhaps most frequently applied to statutes in which a
general permission or prohibition is contradicted by a specific prohibition or
permission” but that it may also be applied to avoid “the superfluity of a specific
provision that is swallowed by the general one”).
Additionally, nothing in either provision creates an inherent conflict with the
other; states can easily comply with both requirements by sending ballots to
qualifying UOCAVA voters forty-five days before all elections and also
establishing a written plan describing procedures to be used in runoff elections.
While Alabama urges us to read § 20302(a)(9) as requiring states to transmit
ballots in “sufficient time” for UOCAVA voters to cast their votes, we simply
cannot draw that inference when the only active direction in the provision reads,
“each state shall . . . establish a written plan.”
Moreover, although Alabama argues that there is “no . . . reason to have a
written plan concerning UOCAVA compliance specific to the runoff election,” we
21
Case: 14-11298 Date Filed: 02/12/2015 Page: 22 of 34
agree with the district courts that have considered this issue: Congress could
reasonably have included § 20302(a)(9) within UOCAVA without any intention of
altering the ballot transmission timeline for runoff elections. Georgia, 952 F.
Supp. 2d at 1328; Alabama, 998 F. Supp. 2d at 1291-92. We have little trouble
imagining that Congress believed the additional, preparatory step of writing a plan
was necessary before runoff elections, given the unique “logistical complexities”
that they entail. See Georgia, 952 F. Supp. 2d at 1328. After all, runoff elections
are unscheduled, may occur infrequently, and arise on the heels of preparations for
a substantially different election. Indeed, due to the condensed timeline and short
notice that characterize runoff elections, it is entirely plausible that Congress
created this extra requirement in hopes that states would be more likely to achieve
compliance with UOCAVA’s requirements if they prepared in advance.
Nevertheless, the State advances two arguments that merit discussion. First,
Alabama contends that this Court should look to the waiver provision, § 20302(g),
for the proposition that when Congress used the phrase “sufficient time to vote”
within UOCAVA, it intended to designate a time period for transmitting ballots
that is (1) set by the state and (2) less than forty-five days. Alabama also argues
that, if we read § 20302(a)(9) to require only preparing a plan to comply with the
forty-five day transmission requirement, we have rendered the term “sufficient
time to vote” superfluous. We address each in turn.
22
Case: 14-11298 Date Filed: 02/12/2015 Page: 23 of 34
First, Alabama notes that § 20302(g) allows states to obtain an exemption
from the forty-five day transmission requirement by demonstrating to the federal
government that the state’s alternative plan ensures absentee voters receive ballots
in “sufficient time to vote.” In other words, the phrase “sufficient time to vote,” as
it is used in the waiver provision, necessarily refers to a period of time that is less
than forty-five days, because a state only needs a waiver of the forty-five day
requirement when it seeks to implement a shorter timeline for transmitting ballots
to UOCAVA voters. Next, Alabama points out that the written plan provision uses
similar language. It requires that “if the state declares . . . a runoff election for
Federal office” it must “establish a written plan that provides absentee ballots are
made available to [UOCAVA] voters in [a] manner that gives them sufficient time
to vote in the runoff election.” § 20302(a)(9). Therefore, the State submits, we
should interpret the phrase, “sufficient time to vote in the runoff election” in
§ 20302(a)(9) to similarly entail a discretionary time period which the State may
set at less than forty-five days.
We do not deny that Congress could have been more precise in its word
choices. Nevertheless, we find that essential differences between the waiver
provision and the written plan provision foreclose Alabama’s interpretation of
§ 20302(a)(9). The hardship exemption provides that “[i]f the chief State election
official determines that the State is unable to meet the requirement under
23
Case: 14-11298 Date Filed: 02/12/2015 Page: 24 of 34
subsection (a)(8)(A),” the state may obtain a waiver of the requirement if it
establishes “a comprehensive plan” for transmitting ballots to UOCAVA voters,
§ 20302(g)(1)(D), that includes “why the plan provides [UOCAVA] voters
sufficient time to vote as a substitute for the requirements under such subsection,”
§ 20302(g)(1)(D)(ii), and “the underlying factual information which explains how
the plan provides such sufficient time to vote as a substitute for such
requirements,” § 20302(g)(1)(D)(iii). Notably for our purposes, the waiver
provision makes repeated reference to the fact that it serves as substitute for
§ 20302(a)(8)(A). By contrast, the written plan provision makes no similar claim.
Moreover, by the express terms of the waiver provision, the state must show
that its plan provides “sufficient time to vote as a substitute for [such]
requirements.” See § 20302(g)(1)(D)(ii), (iii). In other words, the substitute time
and procedures that it proposes must themselves allow UOCAVA voters sufficient
time to vote. A runoff plan is different from a waiver plan in this respect. A
runoff plan must explain how a state will make ballots available to UOCAVA
voters. We draw this conclusion from the fact that the plan need not establish that
voters have sufficient time to vote, but that “ballots are made available . . . in [a]
manner that gives [voters] sufficient time to vote in the runoff election.”
§ 20302(a)(9) (emphasis added); see also Webster’s Third New Int’l Dictionary
1376 (2002) (defining “manner” to mean “the mode or method in which something
24
Case: 14-11298 Date Filed: 02/12/2015 Page: 25 of 34
is done or happens,” “a mode of procedure or way of acting,” and “way, mode,
fashion”). Other references within UOCAVA to the manner in which ballots are
transmitted confirm that this phrase refers to the type of procedures used in, rather
than the time required for, ballot transmission. See, e.g., § 20302(i) (providing that
states may not “refuse to accept and process any otherwise valid voter registration
application or absentee ballot application . . . or marked absentee ballot submitted
in any manner by [a UOCAVA] voter” on the basis of notarization requirements,
paper restrictions, or envelope restrictions); § 20302(a)(8)(B) (providing that when
a state receives a request for a ballot less than forty-five days before an election it
should transmit the ballot “in a manner that expedites the transmission of such
absentee ballot”).
We also observe that, although the phrase “sufficient time to vote” as it is
used in § 20302(g) designates a period of less than forty-five days, the result is not
simply that the states may choose whatever time period they believe to be suitable.
Rather, states can only propose an alternate timeline, § 20302(g)(1)(C), that may
be implemented only if approved by the Secretary of Defense, § 20302(g)(2). We
have difficulty imagining that, having taken such care to establish a framework for
federal approval of any ballot transmission of less than forty-five days under
§ 20302(g), Congress intended to implicitly exempt an entire class of elections
from both compliance with the rule and all federal oversight simply because it used
25
Case: 14-11298 Date Filed: 02/12/2015 Page: 26 of 34
the phrase “sufficient time to vote” in its requirement that states “establish a
written plan” to guide their conduct during runoff elections. See § 20302(a)(9).
Alabama’s second argument -- that we ought not render the phrase
“sufficient time to vote” in § 20302(a)(9) superfluous -- also requires serious
discussion. We recognize that “a statute ought, upon the whole, to be so construed
that, if it can be prevented, no clause, sentence, or word shall be superfluous, void,
or insignificant.” TRW Inc., 534 U.S. at 31 (quoting Duncan v. Walker, 533 U.S.
167, 174 (2001)) (internal quotation marks omitted). And when we engage in
statutory interpretation, “[i]t is our duty to give effect, if possible, to every clause
and word of a statute.” United States v. Menasche, 348 U.S. 528, 538-39 (1955)
(internal quotation marks and citation omitted). Here, Alabama argues that if
states must in fact “establish a written plan that provides absentee ballots are made
available to [UOCAVA] voters in [a] manner that gives them” forty-five days to
vote, this interpretation renders Congress’s inclusion of the term “sufficient time to
vote in the runoff election” a nullity.
We cannot agree. As we have explained, the requirement in
§ 20302(a)(8)(A) is broad, but it is not absolute. States need not transmit ballots
forty-five days before an election if they apply for and are granted a waiver by the
Secretary of Defense on the basis of undue hardship. § 20302(g). Congress could
reasonably have used the phrase “sufficient time to vote in a runoff election” in
26
Case: 14-11298 Date Filed: 02/12/2015 Page: 27 of 34
§ 20302(a)(8) in recognition of the fact that, while most states will be transmitting
ballots to qualified voters forty-five days before a runoff election, some states
could be operating on a federally approved timeline pursuant to a hardship waiver.
Moreover, to the extent Alabama argues that a written plan for runoff
elections is superfluous unless the timeline is also different -- because states must
already have procedures in place that facilitate forty-five day transmittal -- we
reiterate that Congress could reasonably disagree with Alabama’s assessment. As
the district court explained, Congress could have determined that other elections
are “logistically less demanding” than runoff elections, and accordingly imposed
an additional requirement on the states to facilitate UOCAVA compliance during
those elections. Alabama, 998 F. Supp. 2d at 1292 (emphasis omitted).
This makes sense in light of the factual circumstances giving rise to the
forty-five day requirement and other UOCAVA provisions. Congress substantially
changed the states’ UOCAVA obligations in 2009 based on continued and
pervasive disenfranchisement of eligible military and overseas voters. See 156
Cong. Rec. S4513-02 (daily ed. May 27, 2010) (statement of Sen. Schumer)
(explaining that Congress relied on data suggesting that “of those overseas voters
who wanted to vote but were unable to do so . . . 34 percent [] could not vote
because of problems in the registration process” and “39 percent [] who requested
an absentee ballot in 2008 received it from local election officials in the second
27
Case: 14-11298 Date Filed: 02/12/2015 Page: 28 of 34
half of October or later[,] much too late for a ballot to be voted and mailed back in
time to be counted on election day”). Thus, it could reasonably have worried about
the states’ ability to comply with the new requirements during elections that can
occur without notice and on an abbreviated timeline.5
In short, we find that Alabama’s arguments, while carefully considered and
not without some textual support, cannot overcome the plain text of
§§ 20302(a)(8)(A) and (a)(9). By its plain language, § 20302(a)(8)(A) requires
that states submit ballots to UOCAVA voters forty-five days before an election,
and § 20302(a)(9) requires that they establish a written plan to facilitate UOCAVA
compliance if they hold runoff elections. Absent a conflict between the two
provisions or a clear direction that § 20302(a)(9) serves as an exception to the
forty-five day transmission requirement, we are unwilling to adopt Alabama’s
interpretation of the written plan provision.
C.
Because the text of § 20302(a)(8)(A) is clear, “we need not resort to
legislative history.” Harris v. Garner, 216 F.3d 970, 976 (11th Cir. 2000) (en
banc); Merritt v. Dillard Paper Co., 120 F.3d 1181, 1185 (11th Cir. 1997) (“When
5
Additionally, the record in this case reflects that, until the United States filed suit against it,
Alabama had difficulty complying with the statutory requirements even during general and
primary elections. Alabama, 998 F. Supp. 2d at 1292 (“Alabama concedes that it has failed to
meet the 45-day requirement . . . in each of the last three federal elections.”). The challenges of
complying with UOCAVA even during regular elections support our conclusion that Congress
could rationally have implemented extra protections during runoff elections.
28
Case: 14-11298 Date Filed: 02/12/2015 Page: 29 of 34
the words of a statute are unambiguous, then, this first canon [of statutory
construction] is also the last: judicial inquiry is complete.” (quoting Conn. Nat’l
Bank v. Germain, 503 U.S. 249, 254 (1992)) (alteration in original) (internal
quotation marks omitted). However, we find that Congressional records confirm
our interpretation in an important respect. The parties have not cited, nor have we
discovered, any intent on the part of Congress to carve out a runoff exception to
the forty-five day transmission requirement, much less the “clearly expressed
legislative intent to the contrary” that we would require in order to even consider
overriding the plain language of the statutory provisions. See Consol. Bank, N.A.,
118 F.3d at 1463 (quoting Gonzalez v. McNary, 980 F.2d 1418, 1420 (11th Cir.
1993)).
Congress passed UOCAVA in 1986 in response to “the problem of
involuntary absentee voter disenfranchisement” among military voters. 132 Cong.
Rec. S7183-04 (daily ed. June 10, 1986) (statement of Sen. Warner); see also
Uniformed and Overseas Citizens Absentee Voting Act of 1986, Pub. L. No. 99-
410 § 102, 100 Stat. 924. The House Report reflects that representatives were
deeply concerned about the national failure to encourage military voting and
ensure reliable processes allowing military votes to be counted. When the report
was published, the Federal Voting Assistance Program estimated that problems
with absentee voting procedures had prevented some 400,000 citizens from voting
29
Case: 14-11298 Date Filed: 02/12/2015 Page: 30 of 34
in the most recent federal election. H.R. Rep. No. 99-795, at 10 (1986), reprinted
in 1986 U.S.C.C.A.N. 2009, 2014. In particular, the Report documents: (1) that
many military personnel did not know how to obtain a ballot; (2) that a significant
number of those who were able to attain a ballot did not receive clear instructions
on how it should be filled out; and (3) that ballots often arrived at military posts
too late for voters to fulfill state law absentee voting requirements and return the
ballots in time for them to be counted. Id. at 8-10. When these problems persisted,
Congress amended UOCAVA in 2009, passing the Military and Overseas Voter
Empowerment Act (“MOVE Act”). Pub L. No. 111-84, §§ 575-89, 123 Stat. 2190,
2319-35. With the MOVE Act, Congress added more stringent protections on the
absentee voting process, including the three subsections most salient to our
analysis: the forty-five day requirement, the hardship waiver, and the written plan
provision. Id. § 579. Because the 2009 amendments enacted each of the relevant
provisions, we look to the history of the MOVE Act as the final piece of our
analysis.
When examining legislative history, this Court has expressed a preference
for Conference Reports, according weight to their “status as ‘the final statement of
terms agreed to by both houses.’” In re Burns, 887 F.2d 1541, 1549 (11th Cir.
1989) (quoting In re Timbers of Inwood Forest Assocs., Ltd., 793 F.2d 1380, 1399
n.33 (5th Cir. 1986), aff’d on reh’g, 808 F.2d 363 (5th Cir. 1987), aff’d sub nom.
30
Case: 14-11298 Date Filed: 02/12/2015 Page: 31 of 34
Timbers of Inwood Forest Assocs., Ltd., 484 U.S. 365) (internal quotation marks
omitted). Here, the Conference Report is of little use to us, as it simply restates the
forty-five day transmission rule and the written plan requirement in substantially
the same language. See H.R. Rep. No. 111-288, at 744 (2009) (Conf. Rep.).6
Notably, however, Congress did not use the Conference Report to include any
language that would suggest that the requirement to establish a written plan should
double as another exception to the forty-five day requirement.
Only one other piece of legislative history is available for the MOVE Act.
On May 8, 2010, Senator Charles Schumer read background and drafting history
for the MOVE Act on the floor of the Senate, before asking for unanimous consent
to print a section-by-section analysis of the Act into the Congressional Record.
156 Cong. Rec. S4513-02 (daily ed. May 27, 2010) (statement of Sen. Schumer).
Senator Schumer’s statements in the record receive limited weight in our analysis,
6
The Conference Report’s commentary on the relevant sections of UOCAVA reads, in its
entirety:
The Senate amendment contained a provision (sec. 586) that would amend section 102 of
the Uniformed and Overseas Citizens Absentee Voting Act (UOCAVA) (42 U.S.C.
1973ff–1(a)(1)) to require States to transmit a validly requested absentee ballot to an
absent uniformed services voter or overseas voter at least 45 days before an election for
federal office unless the request is received less than 45 days before the election or a
hardship exemption is approved by the Presidential designee responsible for federal
functions under UOCAVA. The provision also amends section 102(a) of UOCAVA to
require States holding a runoff election for federal office to establish a written plan that
would provide that absentee ballots are made available to absent uniformed services
voters and overseas voters in a manner that gives them sufficient time to vote in the
runoff election.
H.R. Rep. No. 111-288, at 744 (2009) (Conf. Rep.).
31
Case: 14-11298 Date Filed: 02/12/2015 Page: 32 of 34
both because “the views of a subsequent Congress form a hazardous basis for
inferring the intent of an earlier one,” Consumer Prod. Safety Comm’n v. GTE
Sylvania, Inc., 447 U.S. 102, 117 (1980) (quoting United States v. Price, 361 U.S.
304, 313 (1960)) (internal quotation marks omitted), and because “ordinarily even
the contemporaneous remarks of a single legislator who sponsors a bill are not
controlling in analyzing legislative history,” id. at 118. We mention the
Congressional Record only to point out that it makes no mention of the written
plan requirement for runoff elections, much less characterizes it as a vehicle for
exempting states from compliance with the forty-five day transmission
requirement.
We also find it useful for one additional, albeit limited, purpose. Alabama
offered various policy arguments, both at oral argument and in its briefs, about the
effect that complying with the forty-five day transmission requirement would have
on voter turnout for runoff elections in the state. Essentially Alabama argues that
if states must push their runoff elections back seven weeks to accommodate
UOCAVA’s forty-five day transmission deadline, they will face significant voter
attrition, not just for the relevant federal election, but also for any state election
that requires a runoff. This argument is based on the fact that Alabama, not
surprisingly, holds state and federal elections on the same day to increase voter
turnout. The problem for Alabama is that this Court is not the proper forum in
32
Case: 14-11298 Date Filed: 02/12/2015 Page: 33 of 34
which to raise these arguments. “We cannot override what we view as a clear
policy judgment by Congress.” In re Gurwitch, 794 F.2d 584, 586 (11th Cir.
1986). “The role of this Court is to apply the statute as it is written -- even if we
think some other approach might ‘accor[d] with good policy.’” Burrage v. United
States, 134 S. Ct. 881, 892 (2014) (quoting Comm’r of Internal Revenue v. Lundy,
516 U.S. 235, 252 (1996)) (alteration in original) (quotation marks omitted). Here,
Alabama has raised an important policy consideration and made a plausible
showing that it might face a problematic decrease in voter turnout if it schedules its
runoff elections seven weeks after its primary elections. But when we look to the
Conference Report and the Congressional Record, we can find no indication that
Congress prioritized, or even considered, Alabama’s concerns in its response to the
problem of military disenfranchisement.
Ultimately, “[t]he very difficulty of these policy considerations, and
Congress’ superior institutional competence to pursue this debate, suggest that
legislative not judicial solutions are preferable.” Patsy v. Bd. of Regents of State
of Fla., 457 U.S. 496, 513 (1982). Alabama may well be correct in its calculations
regarding lost votes from ordinary voters as compared to gained UOCAVA votes.
But Congress, not this Court, must be the branch of government to address these
issues.
33
Case: 14-11298 Date Filed: 02/12/2015 Page: 34 of 34
Accordingly, we AFFIRM the district court’s grant of final summary
judgment to the United States.
AFFIRMED.
34