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LAW REVIEW 1013
Absentee Ballots MUST Be Mailed 45 Days before Election
By Captain Samuel F. Wright, JAGC, USN (Ret.)
7.0—Military Voting Rights
On Oct. 29, 2009, President Obama signed into law the
National Defense Authorization Act (NDAA) for Fiscal Year 2010. This massive new law contains hundreds of
separate provisions, some favorable and some unfavorable. The 2010 NDAA made several welcome amendments
to the Uniformed and Overseas Citizens Absentee Voting Act (UOCAVA). Those amendments go into effect for this
year’s general election.
UOCAVA is a federal statute
enacted in 1986. It is codified in title
42, United States Code, sections 1973ff and following. You can find the complete text of UOCAVA at http://www.fvap.gov/resources/media.uocavalaw.pdf.
UOCAVA gives “absent uniformed
services voters” (AUSVs) and “overseas voters” (OVs) the right to vote
in primary, general, special, and runoff elections for federal office (President,
United States Senator, and United States Representative). An AUSV is a member of the uniformed services
(Army, Navy, Air Force, Marine Corps, Coast Guard, PHS commissioned corps, or
NOAA commissioned corps) on active duty or a member of the merchant marine or
the voting-age spouse or family member of a uniformed service or merchant
marine member. AUSVs are protected by
UOCAVA regardless of whether they are currently located within or outside the United
States.
An OV is a U.S.
citizen of voting age outside the U.S.
temporarily or indefinitely.
Until now, UOCAVA has not
mentioned a specific number of days of required ballot transmission time, but
it has been held that if the ballots are not available sufficiently early to
enable UOCAVA voters to mark and return their ballots in time for them to be
counted UOCAVA has been violated.
Section 105(a) of UOCAVA
provides, “The Attorney General [of the United
States] may bring a civil action in an
appropriate district court for such declaratory or injunctive relief as may be
necessary to carry out this title.” When
a state violates UOCAVA, by failing to have ballots printed and mailed
sufficiently early so that UOCAVA voters can cast ballots that get counted, the
Attorney General sues the state. The
usual remedy sought and obtained is a court order extending the deadline for
the receipt of absentee ballots mailed in from outside the U.S.,
including but not limited to APO and FPO addresses. For example, the United States District Court
for the Eastern District of Virginia ordered Virginia to count for federal
offices absentee ballots from outside the U.S. that were received up to 30 days
after the November 2008 general election.
I invite the reader’s attention to Law Review 0950 and 0950 Update. All previous Law Review articles (more than
600) are available at www.roa.org/law_review.
As amended in 2009, section
102(a)(8) of UOCAVA now explicitly requires each state to “transmit a validly
requested absentee ballot to an absent uniformed services voter or overseas
voter—(A) except as provided in subsection (g), in the case where the request
is received at least 45 days before an election for Federal office, not
later than 45 days before the election.” (Emphasis supplied.)
Section 102(g)(1) provides, “If
the chief State election official determines that the State is unable to meet
the requirement under subsection (a)(8)(A) [mailing out absentee ballots 45
days before Election Day] with respect to an election for Federal office due to
an undue hardship described in
paragraph (2)(B), the chief State election official shall request that the
Presidential designee [currently the Secretary of Defense] grant a waiver to
the State of the application of such subsection.” (Emphasis supplied.)
Section 107 of UOCAVA defines
eight terms used in this law, but the term “undue hardship” is not one of the
defined terms. Black’s Law Dictionary
defines “hardship” as follows, “The severity with which a proposed construction
of the law would bear upon a particular case, founding, sometimes, an argument
against such construction.” Black’s
Law Dictionary, Revised Fourth Edition, page 847. Black’s defines “undue” as, “More
than necessary; not proper; illegal.” Id.,
at page 1697. A “hardship” is much
more than an inconvenience, and an “undue hardship” even more so.
The Americans with Disabilities
Act (ADA) requires employers to make accommodations in employment for qualified
persons with disabilities. The employer
is excused from the obligation to make an accommodation if doing so would
impose an “undue hardship” on the employer.
See 42 U.S.C.
12111(10)(B). An Equal Employment
Opportunity Commission publication stresses the heavy burden that an employer
must meet to show such an “undue hardship”:
“An
employer does not have to provide a reasonable accommodation that would cause
an "undue hardship" to the employer. Generalized conclusions will not
suffice to support a claim of undue hardship. Instead, undue hardship must be
based on an individualized assessment of current circumstances that show that a
specific reasonable accommodation would cause significant difficulty or
expense. A determination of
undue hardship should be based on several factors, including:
- the nature and cost of the
accommodation needed;
- the overall financial resources of
the facility making the reasonable accommodation; the number of persons
employed at this facility; the effect on expenses and resources of the
facility;
- the overall financial resources, size,
number of employees, and type and location of facilities of the employer
(if the facility involved in the reasonable accommodation is part of a
larger entity);
- the type of operation of the
employer, including the structure and functions of the workforce, the
geographic separateness, and the administrative or fiscal relationship of
the facility involved in making the accommodation to the employer;
- the impact of the accommodation on
the operation of the facility.”
http://www.eeoc.gov/policy/docs/accommodation.html#undue
It is most
difficult for an employer to demonstrate that making an accommodation for a
disabled person (including a disabled veteran) would impose an “undue hardship”
on the employer. Similarly, it will be
most difficult for a state to demonstrate that moving the primary back to
earlier in the year, for the benefit of overseas military and civilian voters,
would impose an “undue hardship” on the state.
When Congress enacted UOCAVA in 1986, and when Congress amended UOCAVA
in 2009, it was well aware that making it possible for overseas military and
civilian citizens to vote will require the states to make certain adjustments
in the conduct of elections, including the timing of primaries. Congress determined that these are small
accommodations for the states to make to facilitate the enfranchisement of
those who protect the rights that we all enjoy, including the right to vote.
States that hold primaries in
September, barely 45 days before Election Day, cannot meet the requirement to
have absentee ballots printed and ready to mail by the 45th day
before Election Day. Until the results
of the primary have been officially certified, the local election official
cannot print general election
ballots, much less mail them out. The 13 states and territories that are
scheduled to hold primaries in September 2010 will need to move those primaries
back to earlier in the year, in order to comply with the federal law
requirement to mail ballots 45 days before the general election.
A state is eligible for consideration of its waiver request only
if the state can show that moving the primary back to earlier in the year will
cause an undue hardship. I contend that moving the primary back
causes, at worst, a minor inconvenience—not a hardship and certainly not an undue hardship. Congress has decided that imposing that
inconvenience upon the states is a small price to pay to ensure that military
personnel will be able to vote, no matter where the service of our country has
taken them.
Why do these states hold late
primaries? A late primary benefits
incumbents—if you are running for reelection it helps you to have your
potential opponents fighting among themselves for as long as possible, and to
delay for as long as possible the date when the opposite party has settled upon
its general election nominee to run against you. The legislators who set the election schedule
are by definition incumbents. Denying these
incumbents’ their desire to maximize their chance of reelection does not
constitute a “hardship” and certainly not an “undue hardship.”
In recent years, several states
have moved their primaries back to earlier in the year, in order to facilitate
the enfranchisement of the brave young men and women who serve in our nation’s
armed forces. Moving the primary to the
summer or the spring has not caused any “undue hardship” in those states that
have made this change. It is long past
time for the 13 remaining states and territories to move back their primary
dates.
Even if a state seeking a waiver somehow
gets past the “undue hardship” hurdle, it must meet another difficult
hurdle. To get the requested waiver, the
state’s application must include (among other required items) “A comprehensive
plan to ensure that absent uniformed services voters and overseas voters are
able to receive absentee ballots which they have requested and submit marked
absentee ballots to the appropriate State election official in time to have
that ballot counted in the election for Federal office, which includes—(i) the
steps the State will undertake to ensure that absent uniformed services voters
and overseas voters have time to receive, mark and submit their ballots in time
to have those ballots counted in the election; (ii) why the plan provides
absent uniformed services voters and overseas voters sufficient time to vote as
a substitute for the requirements under that subsection; and (iii) the
underlying factual information which explains how the plan provides such
sufficient time to vote as a substitute for such requirements.” Section 102(g)(1)(D).
Section 102(g)(4) provides that a
waiver is only valid for a specific federal election, like the 2010 general
election. Thus, if a state obtains a
waiver for 2010, based on a late primary that cannot be changed this year, the
state will need to apply for and obtain a new waiver in 2012, unless in the
meantime the legislature has moved the primary to earlier in the year. Ideally, a “hardship waiver” for 2010 should
be nothing more than a bridge to 2012, when a long-term solution is implemented. For the time being, the only conceivable
solution is an earlier primary.
On June 26 and July 1, 1952 the Subcommittee on
Elections, Committee on House Administration, U.S. House of Representatives
conducted hearings on absentee voting for military personnel fighting the
Korean War. You can find a copy of the
committee hearing report at www.roa.org/law. The Honorable C.G. Hall, Secretary of State
of Arkansas and President of the National Association of Secretaries of State,
testified that because of late primaries and other problems most military
personnel fighting in Korea would be unable to vote in the 1952 presidential
election.
The 1952 congressional report
includes a copy of a March 28, 1952
letter to Congress from President Harry S. Truman, one of the founders of ROA
in 1924. In his letter, he called upon
the states to fix this problem and he called upon Congress to enact temporary
federal legislation for the 1952 election year. He wrote, “Any such legislation by Congress
should be temporary, since it should be possible to make all the necessary
changes in State laws before the congressional elections of 1954.”
Well, it did not work out that
way. Today, 58 years later, military
personnel are still all too often disenfranchised through no fault of their
own. Congress has been far too patient
in waiting for the states to make the necessary changes in election calendars,
such as moving primaries to earlier months.
Don’t let the states have another 58 years to dawdle.
I invite the reader’s attention
to the most eloquent opening paragraph of President Truman’s 1952 letter:
About
2,500,000 men and women in the Armed Forces are of voting age at the
present time. Many of those in uniform
are serving overseas, or in parts of the
country distant from their homes. They
are unable to return to their States either
to register or to vote. Yet these men
and women, who are serving their country
and in many cases risking their lives, deserve above all others to exercise
the right to vote in this election year.
At a time when these young people
are defending our country and its free institutions, the least we at home can
do is to make sure that they are able to enjoy the rights they are being asked
to fight to preserve.
I respectfully submit that
President Truman’s eloquent words about the young men and women fighting the
Korean War in 1952 apply equally to their grandsons and granddaughters, and
great-grandsons and great-granddaughters, fighting the Global War on Terrorism
today. President Truman’s words need to
be redirected to today’s Governors, legislators, and election officials. With their help, America’s
sons and daughters in our Armed Forces will not have to wait another 58 years
to enjoy a basic civil right that the rest of us take for granted.
If you have questions, suggestions, or comments, please contact Captain Samuel F. Wright, JAGC, USN (Ret.) (Director of the Servicemembers’ Law Center) at swright@roa.org or 800-809-9448, ext. 730.
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