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.
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.
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).
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.
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.
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.
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”
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.
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.”
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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