A nonprofit dedicated to active military members’ voting rights has filed a federal lawsuit against Secretary of State John Merrill and the Mobile County Board of Registrars challenging the way votes from residents living overseas are tabulated in Alabama’s primary runoff elections.
The lawsuit, which was filed by Mirna Michel Jabbour and the National Defense Committee (NDC) earlier this month, claims a system adopted in 2015 to help comply with certain requirements under the Uniformed and Overseas Citizens Absentee Voting Act (UOCAVA) is unconstitutional.
Jabbour is registered to vote in Alabama, but currently resides in Lebanon and plans on voting by absentee ballot in the upcoming federal primary election. NDC, which has advocated for voting rights of active-duty military members since 2004, joined the lawsuit as a second plaintiff.
The issue stems from the ranked-choice voting system the state implemented for UOCAVA votes in 2015.
In Alabama, if no federal candidate receives a majority of the vote in a primary election, the two candidates with the most votes will move on to a head-to-head runoff election. Voters who cast their ballot in person or by using a standard absentee ballot simply vote twice: once in the primary and again during the runoff.
Things are more complicated for UOCAVA voters like military members and spouses stationed in foreign countries or other commissioned employees of various federal agencies working overseas. Alabama residents who are temporarily living overseas are also allowed to cast UOCAVA ballots.
Whether they receive those primary ballots through electronic transmission or on paper through the U.S. mail, UOCAVA voters don’t just cast a single vote; they are required to rank all the candidates on the primary ballot in order of their preference. The candidate ranked first gets the primary vote.
Then, if a runoff election is required, UOCAVA voters do not receive an additional ballot. Instead, the vote goes to the highest-ranked remaining candidate and the voter has no say in the matter.
Jabbour and NDC claim the use of that system is unconstitutional and could lead to votes cast in favor of candidates voters submitting ballots may not actually align with or support by the time the runoff occurs.
“Ranked-choice voting compels individuals to make voting decisions about speculative contests between indeterminate pairs of candidates weeks or even months prior to a runoff election,” the complaint reads. “In that way, it deprives voters of valuable political speech and other clarifying information that becomes available between the initial vote and the runoff election, and these voters are denied the ability to make a direct comparison between the two remaining candidates.”
The complaint also notes runoff races often include valuable clarifying information as the “campaigns work to present stark contrasts between the remaining two candidates.” It also claims the current system doesn’t account for any kind of new information revealed during runoff contests that might “change the political landscape.”
They also argue asking a small class of voters to calculate all the possible outcomes of a primary ahead of time places a confusing and undue burden on them. The complaint even compares it to historic examples of voter suppression.
“[It leads to] not only general voter confusion but also to greater numbers of spoiled or ‘exhausted’ ballots and reduced voter turnout even for the initial election, not unlike other arbitrary or discriminatory barriers to entry such as literacy tests or poll taxes,” the complaint reads.
NDC’s lawsuit is the latest in years of legal challenges that have stemmed from the tight turnaround between Alabama’s partisan primaries and any necessary runoff elections. Since 2013, that window has shrunk from nine weeks to six, and most recently to four weeks through legislation passed in 2019.
The Department of Justice (DOJ) filed a lawsuit against Merrill’s predecessor in 2011 because, under the law, UOCAVA voters are supposed to receive their ballots at least 45 days prior to the next election. But by the time primary results were certified, Alabama was already failing to meet that deadline for a runoff.
Ed Packard, the administrator of elections in the Alabama Secretary of State’s office, said the use of ranked-choice ballots was implemented in response to those issues.
“The reason the legislature adopted ranked-choice ballots [in 2015] is that there was no time to meet that 45-day deadline without moving the primary runoff to a later date,” Packard said. “I’m not familiar with other states using ranked-choice ballots, but I do believe in most states there’s enough separation between the primary and the runoff to where they don’t run into this issue.”
However, some states have run into the same issues.
DOJ filed a similar lawsuit against Georgia in 2012, but instead of adopting a ranked-choice voting system, that state’s legislature extended the time between its primaries and runoff elections. Through their litigation, Jabbour and the NDC are now asking a federal judge to force Alabama to do the same thing.
So far, neither Merrill’s office nor the board of registrars has filed a response to the lawsuit, and as a general practice, neither agency comments on pending litigation. At the moment, it’s also hard to say exactly how many Alabama voters this issue might actually be affecting.
Packard said state election supervisors had sent out around 225 electronic UOCAVA ballots for the upcoming March 2 primary, but that doesn’t account for the paper ballots handled by the local offices for absentee voting in each county.
An employee in Mobile County’s office said information about the number of UOCAVA votes cast in previous elections wasn’t immediately available to be reviewed.
The most recent data published by Merrill’s office shows, across the state, there were 9,361 UOCAVA ballots sent out during the 2008 general presidential election and, of those, 6,486 were completed and returned. In Mobile County, those numbers were 850 and 581, respectively.
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