CASE STUDIES IN EMERGENCY ELECTION LITIGATION

Federal Judicial Center 11/1/2023 1

Timely Overseas Ballots in Alabama 

United States v. Alabama 

(Myron H. Thompson, M.D. Ala. 2:12-cv-179) 

The U.S. Department of Justice alleged violations by Alabama of the 

Uniformed and Overseas Citizens Absentee Voting Act of 1986 

(UOCAVA), as amended by the Military and Overseas Voter Empowerment Act of 2009 (MOVE Act), respecting timely distribution of absentee ballots for a March 2012 primary election. A weekend and two court days later, the district judge ordered the parties 

to submit a remedy plan within four days. A few days before the 

election, the judge extended the deadline for casting overseas ballots 

and ordered publication of the revised overseas absentee-voting 

procedures. The judge ordered permanent changes to the election 

timetable in 2014 and closed the case in 2017. 

Subject: Absentee and early voting. Topics: Absentee ballots; 

Uniformed and Overseas Citizens Absentee Voting Act 

(UOCAVA); primary election; instant runoff. 

The U.S. Department of Justice filed a federal complaint in the Middle District of Alabama on Friday, February 24, 2012, alleging violations of the Uniformed and Overseas Citizens Absentee Voting Act of 1986 (UOCAVA),1

 as 

amended by the Military and Overseas Voter Empowerment Act of 2009 

(MOVE Act),2

 respecting timely distribution of absentee ballots for the 

March 13 primary election.3

 On Monday, the department filed a motion for a 

temporary restraining order and a preliminary injunction.4 Judge Myron H. 

Thompson scheduled a telephone conference for 7:00 the following morning.5

At a hearing on Tuesday, Judge Thompson concluded that Alabama had 

failed to meet the requirement of sending absentee ballots overseas at least 

forty-five days before a federal election.6 He ordered the parties to submit to 

the court within four days a remedy plan.7 On March 7, he issued a prelimi1. Pub. L. No. 99-410, 100 Stat. 924, as amended, 52 U.S.C. §§ 20301–20311. See generally

Robert Timothy Reagan, Overseas Voting: The Uniformed and Overseas Citizens Absentee 

Voting Act (Federal Judicial Center 2016). 

2. National Defense Authorization Act for Fiscal Year 2010, Pub. L. No. 111-84, 123 Stat. 

2190, 2318–35. 

3. Complaint, United States v. Alabama, No. 2:12-cv-179 (M.D. Ala. Feb. 24, 2012), D.E. 

1; United States v. Alabama, 778 F. 3d 926, 928, 930–31 (11th Cir. 2015); United States v. 

Alabama, 998 F. Supp. 2d 1283, 1287 (M.D. Ala. 2014); United States v. Alabama, 857 F. 

Supp. 2d 1236, 1237–38 (M.D. Ala. 2012); see Feds Sue Alabama Over Absentee Ballot Issues, 

Mobile Press-Register, Feb. 25, 2012, at A6; Scott Johnson, US Sues Ala. Over Military, Overseas Ballots Sent Late, Montgomery Advertiser, Feb. 27, 2012. 

4. Motion, United States v. Alabama, No. 2:12-cv-179 (M.D. Ala. Feb. 27, 2012), D.E. 5. 

5. Docket Sheet, id. (Feb. 24, 2012); see Transcript, id. (Feb. 28, 2012, filed Feb. 11, 2013), 

D.E. 56.

6. Opinion, id. (Feb. 28, 2012), D.E. 8, 2012 WL 642312. 

7. Id. at 11; United States v. Alabama, 857 F. Supp. 2d at 1238; see Jeremy Gran, Judge 
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2 Federal Judicial Center 11/1/2023 

nary injunction extending the deadline for submission of overseas absentee 

ballots, requiring Alabama to issue a press release notifying overseas voters 

about ways of receiving absentee ballots other than through the mail—

including electronically—and requiring from Alabama an accounting of 

when and how many absentee ballots would be received from overseas voters.8

 He issued a published opinion five days later.9 Among his legal rulings, 

Judge Thompson concluded, “Alabama’s contention that it is not its responsibility to ensure compliance with UOCAVA, especially where local county 

officials transmit ballots and administer an election, is meritless.”10

Because of a resignation from Congress effective August 2, 2013, Alabama strove to establish a special-election schedule to fill the seat that would 

have the replacement seated by January 2014.11 The dates set for the special 

election—September 24 for a primary election, November 5 for a runoff primary election, and December 17 for the general election—were separated by 

only forty-two days, intervals not long enough to send overseas voters their 

ballots forty-five days before each election without judicial modification of 

procedures.12 Judge Thompson resolved the difficulty by ordering instantrunoff ballots.13 He also ordered Alabama’s secretary of state to assume the 

counties’ responsibilities for transmitting, receiving, and counting overseas 

ballots.14

(1) Overseas voters would receive for the primary election ballots that 

permitted them to rank-order their choices so that their preferences for any 

runoff elections would be known.15 (2) Overseas voters would also receive 

standard runoff ballots, although not as timely as otherwise required by law, 

which they could use to override their instant-runoff ballots or use if they did 

not vote in the initial primary election.16 Alabama would provide for express 

Orders State to Report Details on Overseas Ballots, Birmingham News, Feb. 29, 2012, at 2; 

Judge Issues Restraining Order Over Late Ballots, Montgomery Advertiser, Feb. 29, 2012. 

8. Preliminary Injunction, United States v. Alabama, No. 2:12-cv-179 (M.D. Ala. Mar. 7, 

2012), D.E. 21; United States v. Alabama, 857 F. Supp. 2d at 1238; see Scott Johnson, Judge 

Extends Absentee Ballot Deadline, Montgomery Advertiser, Mar. 8, 2012. 

9. United States v. Alabama, 857 F. Supp. 2d 1236; Order, United States v. Alabama, No. 

2:12-cv-179 (M.D. Ala. Mar. 9, 2012), D.E. 22 (announcing forthcoming opinion). 

10. United States v. Alabama, 857 F. Supp. 2d at 1238; see United States v. Alabama, 998 

F. Supp. 2d 1283, 1286 (M.D. Ala. 2014); see also Scott Johnson, State, County Officials 

Blame Each Other for Absentee Ballot Fiasco, Montgomery Advertiser, Mar. 1, 2012. 

11. Opinion at 1–6, United States v. Alabama, No. 2:12-cv-179 (M.D. Ala. July 26, 2013), 

D.E. 71 [hereinafter July 26, 2013, Opinion]; see George Talbot, Bonner Moves Up Resignation to Aug. 2, Mobile Press-Register, July 24, 2013, at A8. 

12. July 26, 2013, Opinion, supra note 11, at 1–3. 

13. Id. at 2, 6. 

14. Id. at 5–6, 8–12. 

15. Id. at 6. 

It turned out that only two candidates ran for the Democratic nomination, so a runoff 

election for the Democratic primary election would not be necessary. Notice, United States v. 

Alabama, No. 2:12-cv-179 (M.D. Ala. Aug. 6, 2013), D.E. 72; see Order, id. (Aug. 8, 2013), 

D.E. 74. 

16. July 26, 2013, Opinion, supra note 11, at 6–7. 
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delivery.17 (3) Overseas voters would receive timely absentee ballots for the 

general election, but the ballots would contain all candidates certified for the 

general election as well as all candidates certified for the runoff primary election; for parties with more than one candidate in the runoff election, voters 

could vote by party.18 (4) In addition, overseas voters would receive standard 

absentee ballots, although not as timely as otherwise required by law.19

On Friday, January 14, 2014, not quite five months in advance of the June 

3 primary election, the parties submitted to Judge Thompson a negotiated 

proposed order permanently establishing deadlines consistent with 

UOCAVA.20 The proposed order moved the ballot-qualifying deadline from 

April 4 to February 7, three weeks after the filing of the proposed order.21

Although Judge Thompson was “deeply troubled by the last-minute nature 

of this proposed remedy,” he was “firmly convinced that, absent the proposed remedial changes, including the qualifying-date change, the rights of 

UOCAVA voters would almost certainly be seriously and substantially compromised.”22 He signed the remedial order on Monday, January 17.23

On February 11, Judge Thompson resolved the case’s one remaining 

claim by holding that Alabama’s provision for runoff elections forty-two 

days after a primary election violated UOCAVA, because the schedule did 

not allow for absentee ballots to be sent to overseas voters at least forty-five 

days in advance of the election.24 On March 14, Judge Thompson ordered 

that beginning with the 2016 election cycle primary elections for federal offices must allow for runoff elections nine weeks later.25 For 2014, because 

election officials had not yet provided for that timing, overseas voters in the 

one federal primary election that might require a runoff would receive instant-runoff ballots, in which voters rank order their preferences.26 The court 

of appeals affirmed Judge Thompson’s summary judgment on February 12, 

2015.27

On October 5, 2015, Judge Thompson granted Alabama a partial modification of injunctive requirements in light of a statute signed on August 14 

17. Id.

18. Id. at 7–8. 

19. Id. at 8. 

20. Joint Motion, United States v. Alabama, No. 2:12-cv-179 (M.D. Ala. Jan. 14, 2014), 

D.E. 110; see Transcript, id. (Jan. 15, 2014, filed Apr. 24, 2014), D.E. 136. 

21. Opinion at 4, id. (Jan. 17, 2014), D.E. 117, 2014 WL 200668. 

22. Id. at 7. 

23. Order, United States v. Alabama, No. 2:12-cv-179 (M.D. Ala. Jan. 17, 2014), D.E. 119; 

United States v. Alabama, 998 F. Supp. 2d 1283, 1287 (M.D. Ala. 2014); see Order, United 

States v. Alabama, No. 2:12-cv-179 (M.D. Ala. Nov. 25, 2015), D.E. 168 (modifying deadlines to accommodate Martin Luther King’s birthday holiday in 2016). 

24. United States v. Alabama, 998 F. Supp. 2d 1283; United States v. Alabama, 778 F. 3d 

926, 931 (11th Cir. 2015). 

25. Consent Order, United States v. Alabama, No. 2:12-cv-179 (M.D. Ala. Mar. 14, 2014), 

D.E. 127. 

26. Id. 

27. United States v. Alabama, 778 F. 3d 926. 
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providing for ranked voting, also known as instant runoffs, in federal primary elections for overseas voters.28 Upon the parties’ notice that no dispute 

remained, Judge Thompson closed the case on February 21, 2017.29

28. Judgment, United States v. Alabama, No. 2:12-cv-179 (M.D. Ala. Oct. 5, 2015), D.E. 

164; see Ala. Code 1975 § 17-13-8.1 (codifying Ala. Act No. 2015-518). 

29. Judgment, United States v. Alabama, No. 2:12-cv-179 (M.D. Ala. Feb. 21, 2017), D.E. 

183; see Notice, id. (Feb. 27, 2017), D.E. 182.