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UNITED STATES DISTRICT COURTEASTERN DISTRICT OF VIRGINIARichmond DivisionMCCAIN-PALIN, 2008, INC.Plaintiffs,v. Case No. 3:08cv709JEAN CUNNINGHAM,
et al.
,Defendants.
MEMORANDUM IN OPPOSITION TO PLAINTIFF’SMOTION FOR SUMMARY JUDGMENT, AND REPLY MEMORANDUMIN SUPPORT OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
The defendants, Jean Cunningham, Nancy Rodrigues, and Harold Pyon, being themembers of the Virginia Board of Elections, sued in their official capacity, the VirginiaState Board of Elections, and the Commonwealth of Virginia (collectively, the“Defendants”), moved for summary judgment against Intervenor United States of America. The Intervenor filed a combined Memorandum in Opposition and Cross-Motion for Summary Judgment. The Defendants oppose the Intervenor’s summary judgment motion, and submit this as their combined Memorandum in Opposition andReply Memorandum in support of their own summary judgment motion.
Introduction
The Intervenor has now abandoned any pretense that UOCAVA contains aprovision requiring States to mail absentee ballots a certain number of days prior to anelection. In response to the Defendants’ challenge to point to a source in UOCAVAestablishing such a requirement, the Intervenor responds with telling silence. Instead, theIntervenor’s “authority” for its position is not a statute at all: it is a series of contradictory
2estimates by various federal employees as to the minimum length of time absentee ballotsshould be mailed out prior to an election. However, the Intervenor does not explain whythese estimates should be accorded the dignity of federal law binding on theCommonwealth of Virginia.In a conspicuous omission, the Intervenor neglected to address, let alonedistinguish, the Defendants’ citations to the controlling law on deference to agencyopinions. Those authorities deal the
coup de grâce
to the Intervenor’s position that theFVAP estimates have the force of federal law. Indeed, those estimates are of no legalsignificance.
See BedRoc Limited, LLC v. U.S.
, 541 U.S. 176, 183 (2004) (courts“presume that [the] legislature says in a statute what it means and means in a statute whatit says there.”);
Neal v. U. S.
, 516 U.S. 284, 296 (1996) (“Congress, not this Court, hasthe responsibility for revising its statutes.”);
A. T. Massey Coal Co. v. Holland,
472 F.3d148, 166 (4th Cir. 2006) (before according deference to agency interpretation, Congressmust have delegated rulemaking authority to agency; “we look for an explicit or implicitgrant of interpretive power from Congress to the agency.”). The Intervenor’s ostrichstrategy cannot rectify Congress’s decision not to grant rulemaking authority to FVAP.
I. FactsDefendants’ Facts Were Unchallenged and Therefore Established
The Intervenor did not challenge any of the facts marshaled by the Defendants tosupport their motion. Pursuant to Local Rule 56(B), the Court may therefore assume thatthe facts so adduced are admitted. Among those facts, as numbered in the Defendants’Memorandum:
32. There is no federal statute that requires States to mail absentee ballots toUOCAVA voters a minimum number of days before an election. The Complaint inIntervention is based entirely on a “determination” by the Federal Voting AssistanceProgram of the Department of Defense that such ballots be mailed at least 30 days beforean election, and a “recommendation” that States allow 45 days for round-trip mailing of absentee ballots.3. There is no allegation that any UOCAVA voters were prevented from votingusing a Federal write-in ballot as provided in 42 U.S.C. § 1973ff-2.
Intervenor’s Facts
Not only do the Intervenor’s facts not support its argument, the self-contradictorynature of the Intervenor’s position is evident from the disparate time estimates requiredfor absentee ballot-mailing as proffered by various federal employees.1. Teddie Dyson. Mr. Dyson is a U. S. Postal Service employee.
See
Intervenor’s Exhibit I. Mr. Dyson averred that “Standard Transit Times” for locationsvary as follows:7-9 days (Europe)7-9 days (Central America/South America/Carribean)7-13 days (Iraq)7-13 days (Japan, Korea, Pacific Islands, Far East)35 days (for “remote, austere” locations, which are not identified).Mr. Dyson also states that “Transit times will vary.”
Id.
The Intervenor makes the claimthat these numbers “
average
” to 30 days round trip.
See
Intervenor’s Memorandum, p. 5(emphasis supplied). The Intervenor omitted the arithmetical basis for this assertion,
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