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October 20, 2004.

THE COMMONWEALTH OF PENNSYLVANIA, EDWARD G. RENDELL, Governor of the Commonwealth of Pennsylvania; and PEDRO A. CORTES, Secretary of the Commonwealth of Pennsylvania, Defendants.

The opinion of the court was delivered by: YVETTE KANE, District Judge


The background of this Order is as follows:

In connection with the November 2, 2004 General Election, Pennsylvania's sixty-seven counties have issued a total of 26,739 absentee ballots to overseas and military voters. The first of these was dispatched to voters in remote locations on August 24, 2004. These ballots included the names of Ralph Nader as a candidate for President and Peter Miguel Camejo, a candidate for Vice President. Thereafter, the sufficiency of Messrs. Nader and Camejo's nomination paper was the subject of a legal challenge in the Commonwealth and Supreme Courts of Pennsylvania. As the challenge was heard on appeal and remand, Nader and Camejo were ordered off the ballot, then on the ballot, and then off the ballot again.

  The 2004 Pennsylvania General Election Ballot was first certified by the Secretary of the Commonwealth pursuant to state law on September 17, 2004. At that time, consistent with the court order then in effect, the Secretary's Ballot Certification excluded the names of Nader and Camejo. Counties issued absentee ballots reflecting the amended certified list of candidates without Messrs. Nader and Camejo listed as candidates. On September 21, 2004, the Secretary amended the Certification to add Nader and Camejo to the ballot. On October 13, 2004, pursuant to court order, Nader and Camejo were again removed from the Secretary's list of certified candidates.

  The State Courts of Pennsylvania expedited review of the challenge to Nader and Camejo's nomination paper and diligently undertook to finally resolve the Nader/Camejo challenge with all due speed. Despite the courts' best efforts however, the appeal process resulted in resolution of Nader's candidacy less than two weeks before the November 2, 2004 election. Only on October 19, 2004, was a final order issued from the Supreme Court of Pennsylvania affirming the Commonwealth Court's Order that Nader be excluded from the ballot.

  The United States Government, charged with protecting the rights of overseas voters pursuant to the Uniformed and Overseas Citizens Absentee Voting Act ("UOCAVA"), seeks injunctive relief to address the practical implications of the final certification of the slate of candidates so late in the election calendar.*fn1 Almost all of the absentee ballots issued to UOCAVA voters since August 24, 2004 include Nader and Camejo as candidates. To address its claim that UOCAVA voters with Nader ballots will be disenfranchised, the Government seeks "the widest possible relief" in the form of an emergency order directing that the Secretary of the Commonwealth advise Pennsylvania's 67 county election directors to prepare and dispatch new ballots to all UOCAVA voters. To ensure that these ballots are returned in time to be counted, the Government further requests that this Court order that the time for the return of UOCAVA ballots be extended beyond the statutory deadline of November 2, 2004, and/or that the Court order that UOCAVA ballots may be returned by fax or email. For the reasons that follow, the Government's request for injunctive relief must be denied.

  I. Standard for Preliminary Injunctive Relief

  It is well established that the grant of injunctive relief under Federal Rule of Civil Procedure 65(a) "is an "extraordinary remedy, which should be granted only in limited circumstances." Instant Air Freight Co. v. C.F. Air Freight, Inc., 882 F.2d 797, 800 (3d Cir. 1989) (internal citation omitted). The moving party bears the burden of establishing that the requested injunctive relief is warranted. Id. In determining whether to grant emergency injunctive relief, the Court must consider the following four factors: (1) the likelihood that the applicant will prevail on the merits of the substantive claim; (2) the extent to which the moving party will be irreparably harmed in the absence of injunctive relief; (3) the extent to which the non-moving party will suffer irreparable harm if the Court grants the requested injunctive relief; and (4) the public interest. AT&T v. Winback & Conserve Program, Inc., 42 F.3d 1421, 1427 (3d Cir. 1994) (citations omitted). District courts should only grant injunctive relief after consideration of each of these factors. Id. at 1427 n. 8. II. Discussion

  In support of its motion for preliminary injunctive relief, the United States offered the testimony of two witnesses: (1) Mark DeDomenic, the Assistant Deputy Director of the United States Military Postal Service ("USMPS") and (2) Pauline K. Brunelli, Director of the Federal Voting Assistance Program ("FVAP").*fn2

  Mr. DeDomenic testified regarding the procedures the United States employs to ensure the delivery of mail to members of the United States' armed services stationed at various embassies and bases throughout the world. Additionally, Mr. DeDomenic testified about the challenges and delays that attend delivery of mail to service men and women currently serving in the theaters of Afghanistan and Iraq. Mr. DeDomenic testified that, on average, it requires seven to ten days for the USMPS to deliver mail to military bases and embassies in Europe, Asia and South America. In contrast, it requires approximately two weeks to deliver mail to service members in Afghanistan and Iraq, although this process has taken as long as 29 days. Finally, Mr. DeDomenic testified that as of October 25, 2004, the USMPS will begin using express mail delivery from all Air Force Post Offices and Foreign Post Offices to ensure the timely delivery of absentee ballots with respect to the November 2, 2004 general election.

  Ms. Brunelli testified regarding the efforts undertaken by the FVAP to ensure that uniformed service members and overseas citizens are informed about their right to register and vote absentee in the 2004 elections. In fulfilling its responsibilities, Ms. Brunelli testified that the FVAP provides education and information services to voters at all foreign military installations, as well as at embassies and consulates throughout the world. As part of this educational campaign, the FVAP provides information to UOCAVA voters regarding the respective voting procedures and requirements of all fifty states and the District of Columbia, as well as all United States' territories.

  Ms. Brunelli testified that fourteen states and one territory have implemented procedures pursuant to statute or regulation that provide for an extension of time to count ballots received from overseas voters after November 2, although Ms. Brunelli did not testify that Pennsylvania had such procedures. Additionally, Ms. Brunelli testified that 33 states permit the faxing of ballots to absentee voters and six states allow ballots to be sent overseas by electronic mail. According to Ms. Brunelli, Pennsylvania allows for facsimile transmission of ballots to overseas voters located in hazardous locations, although Ms. Brunelli acknowledged that she was unaware of any Pennsylvania statute or other regulation authorizing this practice.*fn3

  Despite the fact that challenges to the candidacy of Messrs. Nader and Camejo were lodged on August 9, 2004, Ms. Brunelli testified that the FVAP has undertaken no special efforts to advise UOCAVA voters about these challenges and the possibility that Messrs. Nader and Camejo might not be certified in Pennsylvania as candidates for President and Vice President, respectively. Instead, Ms. Brunelli and the FVAP have advised UOCAVA voters to remain informed about such matters by referring to newspapers and other media. Additionally, despite the fact that the challenges to the Nader-Camejo candidacy were pending, the FVAP advised all UOCAVA voters to return their absentee ballots on or before October 15, 2004 to ensure timely delivery.

  Ms. Brunelli further testified regarding the kinds of procedures that the FVAP advises states to employ regarding overseas voters. Furthermore, Ms. Brunelli testified about hypothetical means by which absentee voters allegedly could return absentee ballots. However, Ms. Brunelli did not offer testimony as to how such procedures could be implemented with respect ...

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