LAW REVIEW 1055

DOD Acts on MOVE Act Waiver Requests

7.0--Military Voting Rights

By Captain Samuel F. Wright, JAGC, USN (Ret.)

For as long as military personnel have had the right to vote at all (since World War II), a substantial minority and in some cases a majority of them have been unable to cast ballots that really do get counted.  In June 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.  The Honorable C.G. Hall, Secretary of State of Arkansas and President of the National Association of Secretaries of State, testified that most military personnel in Korea were likely to be disenfranchised in the 1952 presidential election.

Secretary Hall testified that because of late primaries, ballot access lawsuits, and other problems many local election officials would not have absentee ballots printed and ready to mail until a few days before the election.  Military personnel in Korea would not have time to receive their ballots, mark them, and return them on time to be counted.  We have the same problems today, 58 years later, because absentee voting is still being conducted by shipping pieces of paper across oceans and continents by snail mail.

The 1952 congressional report includes a letter to Congress from President Harry S. Truman, calling upon the states to fix this problem and calling upon Congress to enact temporary federal legislation for the 1952 presidential election.  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.  The Korean War ground to an inconclusive halt in 1953, and this issue dropped off our national radar screen until 2000, when late-arriving military absentee ballots played a crucial role in determining the outcome of the excruciatingly close presidential election in Florida (details available upon request).

Congress has nibbled at this problem through the enactment of the Federal Voting Assistance Act of 1955, the Overseas Citizens Voting Rights Act of 1975, and the Uniformed and Overseas Citizens Absentee Voting Act (UOCAVA) of 1986.  Finally, in 2009, Congress really got serious about enforcing military and overseas voting rights, when it enacted the Military and Overseas Voter Empowerment Act (MOVE Act), as part of the National Defense Authorization Act for Fiscal Year 2010. 

The MOVE Act made several amendments to UOCAVA.  The most important amendment is that UOCAVA now explicitly requires each state to mail absentee ballots to military personnel and family members and U.S. citizens abroad at least 45 days before the election.  Alternatively, a state can ask the Secretary of Defense (SECDEF) for a one-time waiver from the 45-day requirement.  To obtain the waiver, the state must show both that an undue hardship (like a late primary) precludes the state from mailing ballots by Saturday, Sept. 18, 2010 (45 days before this year’s general election) and that the state has made satisfactory alternative arrangements (satisfactory to SECDEF) to ensure that overseas voters (military and civilian) have a reasonable opportunity to cast ballots that really do get counted. 

By regulation, SECDEF provided for an Aug. 6, 2010 deadline for states to submit these waiver requests.  Ten states, the District of Columbia, and the Territory of the Virgin Islands submitted timely waiver requests.  The SECDEF regulation also provided for an Aug. 27 deadline for SECDEF to act upon the requests.  Please go to www.fvap.gov to read all the waiver requests and the SECDEF responses.

SECDEF met the deadline and acted upon the waiver requests on Friday, Aug. 27, granting 5 (Delaware, Massachusetts, New York, Rhode Island, and Washington) and denying 6 (Alaska, Colorado, District of Columbia, Hawaii, Virgin Islands, and Wisconsin).  Maryland withdrew its waiver request, and that situation is discussed in Law Review 1056.  The denials were generally based on the state’s failure to show satisfactory alternative arrangements, not a failure to show that a late primary precluded mailing ballots by Sept. 18.

Where does this leave us?  We need to ensure that the Department of Justice (DOJ) comes down hard on the states that applied for waivers but did not get them.  In those states, the deadline for the receipt of absentee ballots mailed in from outside the United States should be extended to sometime in December, in order to ensure that these voters are provided a minimum of 45 days of round trip ballot transit time, as Congress has now explicitly required.  We also need to ensure that the 5 states that were granted waivers live up to their commitments as to when unmarked ballots will be mailed and when marked ballots will be accepted.

Bob Carey is the new (as of July 2009) Director of the Federal Voting Assistance Program in DOD.  Bob is a Captain in the Navy Reserve and a life member of ROA.  He has successfully resisted pressures to grant waivers without adequate alternative arrangements to ensure that overseas voters’ ballots will in fact be counted. 

The general news media has reported this story to some extent, focusing on the states that applied for waivers.  I am frankly more concerned about the 40 states that did not apply for waivers.  Many counties and municipalities in those states will miss the Sept. 18 deadline, for various reasons.  Some of those states have chosen the “cover-up” strategy instead of the “disclose and seek a solution” strategy. 

Please contact your own local election official—County Clerk, County Auditor, County Election Board, Town Clerk, etc.  The titles vary, but you can figure it out.  Remind the local election official that absentee ballots must be printed and mailed out by Saturday, Sept. 18, 2010.  Check again on Monday, Sept. 20 to see if the ballots have been mailed.  Excuses and alibis are no longer acceptable. 

If the local election official misses the Sept. 18 deadline, for whatever reason, the election official needs to make a full and timely report to DOD.  The report can be made to FVAP Director Bob Carey at Robert.Carey@fvap.gov or 703-588-8118.  The local election official needs to work with the FVAP and the state election official to find a solution, such as an extension on the deadline for the receipt of absentee ballots mailed from outside the United States. 

As President Truman’s 1952 letter to Congress states:  “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.”

President Truman’s words about the brave young men and women fighting the Korean War in 1952 apply equally to their grandsons and granddaughters, fighting today.  Please share these words with your local election official.  With that official’s help, military personnel from your community will not have to wait another 58 years to enjoy a basic civil right that the rest of us take for granted.  Please tell your local election official that we recognize that mailing out ballots by Sept. 18 will require a special effort in the election office, but this is a small accommodation to make for the young men and women from your community who protect the rights that we all enjoy.

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