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IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

United States of America, 

Plaintiff, 

v. 

State of Arizona, et al., 

Defendants. 

No. CV-18-00505-PHX-DLR 

CONSENT DECREE 

 Before the Court is the parties’ Joint Motion Requesting Expedited Entry of 

Consent Decree. (Doc. 2.) 

 Plaintiff United States of America initiated this action against the State of Arizona 

(“State”); and Michele Reagan, the Secretary of State of Arizona, in her official capacity 

(collectively “Defendants”), to enforce the requirements of the Uniformed and Overseas 

Citizens Absentee Voting Act (“UOCAVA”), 52 U.S.C. § 20301 et seq. The United 

States’ Complaint alleges a violation of UOCAVA arising from the Defendants’ inability 

to transmit final or corrected absentee ballots to some of Arizona’s absent uniformed 

services voters and overseas voters (“UOCAVA voters”) by the 45th day before the 

February 27, 2018 special primary election for the United States House of 

Representatives, as required by Section 102(a)(8)(A) of UOCAVA, 52 U.S.C. § 

20302(a)(8). 

 The United States and Defendants, through their respective counsel, have 

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conferred and agree that this action should be settled without the delay and expense of 

litigation. The parties share the goal of providing eligible UOCAVA voters with 

sufficient opportunity under Federal law to receive, cast and have their absentee ballots 

counted in the February 27, 2018 special primary election for Arizona’s Eighth 

Congressional District. The parties recognize that the Defendants’ inability to transmit 

final or corrected absentee ballots to the UOCAVA voters at least 45 days before the 

special primary election resulted from the truncated special election schedule established 

by state law, specifically the application of deadlines for challenges to candidates’ 

nominating signature petitions, and did not result from willful or unintentional negligence 

by the state and local election officials responsible for implementing federal and state 

election laws. The parties have negotiated in good faith and agree to the entry of this 

Consent Decree as an appropriate resolution of the UOCAVA violation asserted by the 

United States. Accordingly, the United States and Defendants stipulate and agree that: 

1. This action is brought by the Attorney General on behalf of the United States 

of America under UOCAVA. 52 U.S.C. § 20301 et seq. UOCAVA provides that 

UOCAVA voters shall be permitted “to use absentee registration procedures and to vote 

by absentee ballot in general, special, primary, and runoff elections for Federal office.” 

52 U.S.C. § 20302. 

2. The Attorney General is authorized to enforce the provisions of UOCAVA, 52 

U.S.C. § 20307, and this Court has jurisdiction of this action pursuant to 52 U.S.C. 

§ 20307 and 28 U.S.C. §§ 1345 and 2201. 

3. Defendant State of Arizona is responsible for complying with UOCAVA and 

ensuring that validly requested absentee ballots are transmitted to UOCAVA voters in 

accordance with the statute’s terms. 52 U.S.C. § 20302. 

4. Defendant Michele Reagan is the Arizona Secretary of State and is sued in her 

official capacity. The Arizona Secretary of State is the chief state election officer and 

responsible for the coordination of state responsibilities under UOCAVA. Ariz. Rev. 

Stat. § 16-142. 

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5. Section 102(a)(8)(A) of UOCAVA 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). 

6. Pursuant to the Arizona election code, when a vacancy occurs in the office of a 

representative in Congress more than six months prior to the next general election, the 

governor shall call a special primary election and special general election for at least 80 

and no more than 90 days from the date of the occurrence of the vacancy. Ariz. Rev. 

Stat. § 16-222(B). On December 8, 2017, Representative Trent Franks resigned from 

Congress. Representative Franks represented the Eighth Congressional District, which is 

located entirely within Maricopa County. The governor set February 27, 2018 as the date 

for the special primary election and April 24, 2018 as the date for the special general 

election. 

7. Under Arizona’s election code, candidates were required to file nominating 

petitions for the special primary election by January 10, 2018, and the deadline to file 

challenges to such nominating petitions was January 18, 2018. Ariz. Rev. Stat. § 16-

222(B). 

8. The deadline for transmission of absentee ballots to UOCAVA voters who 

requested them at least 45 days before the special primary election was January 13, 2018. 

The deadline for transmission of absentee ballots to UOCAVA voters who requested 

them at least 45 days before the special general election is March 10, 2018. 

9. On or about January 8, 2018, recognizing that petition challenges might occur 

after the deadline to transmit UOCAVA ballots, the Defendants contacted the Department 

of Defense and inquired about the possibility of obtaining a waiver of UOCAVA’s 45-

day transmission requirement under 52 U.S.C. § 20302(g). On or about January 10, 

2018, the Department of Defense contacted the Defendants and explained that the state 

was not eligible to seek a UOCAVA waiver under the circumstances presented. 

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10. On January 12, 2018, the day before the UOCAVA transmission deadline, 

Maricopa County election officials transmitted ballots (the “original ballots”) to all 

eligible UOCAVA voters who had requested them by that date. 

11. Because of the possibility that changes to the ballot could result from 

challenges to a candidate’s nominating petition, Maricopa County election officials 

included a notice with the original ballots explaining that the list of candidates was not 

yet final due to potential candidate nomination petition challenges, and the final list of 

candidates would not be confirmed until January 25, 2018. The notice advised that an 

updated official ballot would be sent on that date. It further advised that voters could 

choose to vote the enclosed ballot, or wait for the updated ballot; but, if they voted the 

enclosed ballot and cast their vote for a candidate who was subsequently disqualified, 

they would not be able to vote a second ballot or change their vote. A copy of this notice 

is attached as Exhibit 1. 

12. Some of the UOCAVA voters to whom original ballots were sent on January 

12, 2018 received Republican Party, Libertarian Party, or Green Party ballots. No 

challenges were ultimately filed by the January 18, 2018 deadline to the candidates on the 

Republican Party, Libertarian Party, or Green Party ballots. Accordingly, on January 19, 

2018, Maricopa County election officials sent a second notice to those voters explaining 

that no candidate petition challenge had been filed for the Republican, Libertarian or 

Green Party nomination. Therefore, eligible UOCAVA voters were notified that the 

ballot transmitted on January 12, 2018 had not changed and voters should cast that 

original ballot. The notice further advised that the UOCAVA voters should return their 

voted ballot so that it is received no later than 7:00 p.m. on election day, February 27, 

2018. A copy of this notice is attached as Exhibit 2. 

13. Some of the UOCAVA voters to whom original ballots were sent on January 

12, 2018 received Democratic Party ballots. These ballots (the “original Democratic 

ballots”) included the names of three candidates who had filed timely nominating 

petitions. Challenges were ultimately filed by January 18, 2018 to two of these three 

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candidates. On January 23, 2018, a challenge to one of the Democratic Party candidates 

was sustained by a state court, and the candidate was ordered removed from the ballot. 

On January 23, 2018, Maricopa County election officials sent corrected ballots reflecting 

this change (the “corrected Democratic ballots”) to UOCAVA voters who had received 

original Democratic ballots. Along with the corrected Democratic ballots, election 

officials included a notice explaining that one of the candidates listed on the ballot mailed 

on January 12, 2018 had been removed pursuant to a court order. Therefore, the notice 

explained that the voter should cast a corrected ballot for the Democratic Party nominee, 

which was enclosed with the notice. The notice further advised the UOCAVA voters to 

vote the corrected ballot included with the notice and to return it so that it is received by 

7:00 p.m. on Election Day, February 27, 2018. A copy of this notice is attached as 

Exhibit 3. 

14. The corrected Democratic ballots were transmitted either electronically or by 

postal mail based on the voters’ preferred transmittal method. All UOCAVA voters have 

the option to return their ballots by electronic upload, facsimile, or mail, regardless of 

their previously requested transmittal method. 

15. Under Arizona law, ballots returned by UOCAVA voters must be received by 

7:00 p.m. on Election Day to be counted. See Ariz. Rev. Stat. §§ 16-547(C) and 

16-551(C). Accordingly, in order to be counted, the corrected Democratic ballots must 

be received by 7:00 p.m. on February 27, 2018, which is 35 days after the date of 

transmittal of the corrected ballots. 

16. The truncated special election schedule established by Arizona law precluded 

the Defendants from transmitting final or corrected ballots to UOCAVA voters receiving 

a Democratic Party ballot by the 45th day before the February 27, 2018 special primary 

election for the House of Representatives, as required by Section 102(a)(8)(A) of 

UOCAVA, 52 U.S.C. § 20302(a)(8). 

17. Furthermore, the notice sent to all UOCAVA voters for all parties on January 

12 along with the original ballots encouraged voters to await further notice to submit their 

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ballots, and to await receipt of an “updated official ballot.” However, UOCAVA voters 

who received Republican Party, Libertarian Party, or Green Party ballots were never sent 

an “updated official ballot,” and a second notice advising that there was no change to the 

ballot was not transmitted until January 19, 2018. To be counted, these original ballots 

must be received by February 27, 2018, which is 39 days after the date of transmittal of 

the second notice. As a result, the Defendants were unable to provide these UOCAVA 

voters the meaningful opportunity to cast a ballot that UOCAVA’s 45-day transmission 

deadline seeks to ensure. 52 U.S.C. § 20302(a)(8). 

18. By agreeing to this consent decree, the Defendants seek to ensure that 

UOCAVA voters are not prejudiced because of the truncated special election schedule 

required by Arizona law. 

19. To avoid the burdens, delays, and uncertainties of litigation and to efficiently 

and expeditiously promote the parties’ shared goal of ensuring that Arizona’s UOCAVA 

voters will have sufficient opportunity under Federal law to receive, mark and return their 

absentee ballots in time to be counted for the February 27, 2018 special primary election 

for the House of Representatives, the parties agree that this Court should enter an order as 

set forth below. 

20. The parties reserve the right to modify this agreement as necessary, subject to 

approval from the Court. For example, Arizona law allows for the possibility of an 

automatic recount in a close election. Ariz. Rev. Stat. § 16-661. The parties will confer 

promptly after the special primary election is held and, if necessary, seek appropriate 

modification of this decree or other relief from the Court. 

 Accordingly, the parties having freely given their consent, and the terms of the 

Decree being fair, reasonable, and consistent with the requirements of UOCAVA, 

IT IS ORDERED as follows: 

(1) To ensure that all eligible UOCAVA voters will have sufficient 

opportunity to receive absentee ballots they have requested and 

to submit marked absentee ballots in time to be counted for the 

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February 27, 2018 special primary election for the House of 

Representatives, the Defendants shall ensure that Maricopa 

County election officials count: (a) all those original ballots 

transmitted to UOCAVA voters on January 12, 2018, but only if 

that ballot is the only ballot returned by the UOCAVA voter, (b) 

all those corrected ballots transmitted to UOCAVA voters on 

January 23, 2018, and (c) any Federal Write-In Absentee Ballots. 

In order for any ballot described in sections (a) – (c) above to be 

counted, the ballot must be otherwise valid under state law and 

meet the following transmittal criteria: 

a. For ballots returned by postal or express mail: the ballot 

must be executed and sent by February 27, 2018 and be 

received by March 9, 2018 at 12:00 Noon Arizona time. 

b. For ballots returned via any electronic submittal, including 

e-mail, facsimile, or electronic upload: the ballot must be 

received by February 27, 2018 at 7:00 p.m. Arizona time. 

(2) Defendants shall take such steps as are necessary to afford those 

eligible UOCAVA voters who have not already returned a final 

ballot for this election (i.e., a Republican, Green, or Libertarian 

ballot, or a corrected Democratic ballot) an opportunity to learn 

of this Court’s order and to ensure that all such voters receive 

appropriate instructions explaining ballot return deadlines and the 

options and procedures for returning a ballot. Maricopa County 

election officials have valid email addresses for all 375 

UOCAVA voters eligible to vote in this special primary election 

and will transmit such notice by email no later than the next 

business day following entry of this Order by the Court. If any 

such emailed notice to a voter is returned as undeliverable, the 

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notice shall be sent to the voter by United States Postal Service 

Express Overnight mail or other overnight delivery method if the 

voter is overseas, or by postal mail if the voter is not overseas. 

Such notice shall, at minimum: (a) ask UOCAVA voters who 

received Democratic Party ballots to confirm that they have 

received corrected Democratic ballots and no impediments exist 

for a timely return of the corrected ballot; (b) ask UOCAVA 

voters who received Republican Party, Libertarian Party, or 

Green Party ballots to confirm that they have received their 

original ballot and the additional notice regarding its finality and 

no impediments exist for a timely return of the original ballot; (c) 

explain the relevant deadlines for executing and returning all 

original and corrected ballots by electronic upload, facsimile, and 

postal mail; (d) explain to any voter who identifies impediments 

to a timely return of the ballot that it may be returned by the 

electronic upload and facsimile return options, or by United 

States Postal Service Express Overnight mail or other overnight 

delivery method with prepaid postage; and (e) provide 

appropriate contact information for additional assistance. A copy 

of Maricopa County election officials’ planned notice is attached 

as Exhibit 4. 

(3) The Defendants shall provide a report no later than two business 

days after entry of this Order by the Court in an agreed-upon 

format to the United States Department of Justice, confirming 

that each UOCAVA voter has been provided the individualized 

notice described in paragraph (2) above. If any UOCAVA voters 

have not been contacted by that date, Defendants shall continue 

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to attempt to contact such voters and shall provide the United 

States updates on an agreed upon schedule. 

(4) Defendants shall file a report with this Court no later than March 

31, 2018, in a format agreed upon by the parties, concerning the 

number of UOCAVA ballots received and counted for the 

February 27, 2018 special primary election. 

(5) If necessary to ensure compliance with UOCAVA’s 45-day 

transmission deadline of March 10 for the April 24, 2018 special 

general election, election results for the February 27, 2018 

special primary election may be formally canvassed and certified 

in accordance with state law at any time prior to March 9, 2018 if 

the number of outstanding absentee ballots from UOCAVA 

voters that have not been returned could not mathematically alter 

the outcome of the election, subject to amendment, re-canvass, or 

re-certification to later add any votes from UOCAVA ballots 

accepted in accordance with this Court’s Order. Thus, under the 

circumstances described in this paragraph, Maricopa County 

election officials may transmit UOCAVA ballots for the April 

24, 2018 special general election notwithstanding the possibility 

that the results of the special primary election may be 

subsequently re-canvassed and re-certified. These procedures are 

designed to ensure that state and county election officials can 

maintain existing canvassing and certification deadlines for the 

special primary election and can timely transmit UOCAVA 

ballots to voters by the March 10, 2018 45-day deadline before 

the April 24, 2018 special general election. 

(6) If, under the terms of paragraph (5), the results of the primary 

election are canvassed and certified before March 9, 2018 and 

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there are outstanding UOCAVA ballots that have not been 

received for a particular party’s primary, and the canvassed and 

certified results for that party’s primary show a margin 

sufficiently small so as to require an automatic recount under 

Ariz. Rev. Stat. § 16-661, the recount may proceed immediately 

under the procedures required by state law, and the results of the 

recount shall include all UOCAVA ballots required to be counted 

by this Order. 

(7) If the transmission of UOCAVA ballots for the special general 

election is delayed up to five days beyond the March 10, 2018 

deadline due to a delay in canvassing and certifying, or 

completing an automatic recount of, the results of the special 

primary election due to the extension of the ballot receipt 

deadline effected by this Order, the deadline for receipt of special 

general election ballots returned by UOCAVA voters by postal or 

express mail, and executed and sent by April 24, 2018, shall be 

extended beyond April 24, 2018 by the number of days past 

March 10, 2018 that the ballots were transmitted. No later than 

two business days following the transmission of UOCAVA 

ballots for the special general election, the Defendants shall 

provide a report to the United States Department of Justice 

specifying the date of transmission of UOCAVA ballots for the 

special general election, the number of UOCAVA ballots 

transmitted by method of transmission, and a copy of any notice 

of receipt deadline extension provided to UOCAVA voters. 

(8) In the event the ballot receipt deadline for the special general 

election is extended beyond April 24, 2018 under the terms of the 

preceding paragraph, election results for the special general 

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election may be formally canvassed and certified in accordance 

with state law at any time prior to the ballot receipt deadline if 

the number of outstanding absentee ballots from UOCAVA 

voters could not mathematically alter the outcome of the election, 

subject to amendment or re-certification to later add any votes 

from UOCAVA ballots accepted in accordance with this Court’s 

Order. 

(9) Should it at any time appear that, due to a delay in canvassing 

and certifying, or completing an automatic recount of, the results 

of the special primary election due to the extension of the ballot 

receipt deadline effected by this Order, Maricopa County election 

officials will be unable to transmit UOCAVA ballots for the 

special general election by March 15, 2018, the Defendants shall 

promptly notify the United States of the circumstances causing 

the expected delay, and the parties shall meet and confer to 

discuss appropriate modification of this Order and other 

necessary relief from this Court, such as express delivery and 

return of UOCAVA ballots, alternative transmission methods for 

UOCAVA ballots, additional notice to UOCAVA voters, and/or 

other appropriate remedial measures. 

(10)Defendants shall take such actions as are necessary to assure that 

UOCAVA voters shall have a fair and reasonable opportunity to 

participate in future Federal elections, including proposing 

legislation and taking any administrative actions needed to fully 

remedy potential UOCAVA violations arising from Arizona law 

governing the State’s special election calendar. The parties agree 

to confer on the progress of these efforts, and Defendants shall 

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provide a status report to the United States Department of Justice 

by June 30, 2018. 

The Court shall retain jurisdiction over this action through September 30, 2018, to 

enter such further relief as may be necessary for the effectuation of the terms of this 

Consent Decree, including entry of such other relief as may be necessary to abate any 

violation of UOCAVA. 

 Dated this 15th day of February, 2018. 

Douglas L. Rayes 

United States District Judge 

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