LAW REVIEW 1056
Maryland Will Meet the 45-Day Standard, But Only for Federal Offices
7.0--Military Voting Rights
By Captain Samuel F. Wright, JAGC, USN (Ret.)
In Oct. 2009, Congress 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
makes several amendments to the Uniformed and Overseas Citizens Absentee Voting
Act (UOCAVA). As amended, UOCAVA now
explicitly requires each state to mail absentee ballots at least 45 days before
Election Day to military personnel and family members (within or outside the
United States) and to U.S. citizens outside the U.S. This year, the 45th day preceding
the election is Saturday, Sept. 18.
Alternatively, a state can apply for a one-time waiver from
the Department of Defense (DOD). To
obtain the waiver, the state must show both that an undue hardship (like a late
primary) prevents the state from meeting the 45-day deadline and that the state
has made satisfactory alternative arrangements (satisfactory to DOD) to ensure
that military and overseas citizens have a reasonable opportunity to cast
ballots that really do get counted.
On July 28, 2010,
the Maryland State Board of Elections applied to DOD for a waiver from the
45-day standard. Maryland’s
2010 primary will be held on Sept. 14, just 49 days before the November 2
general election. Certifying the primary
winners and printing the general election absentee ballots will require much
more than four days, so Maryland
will not be able to meet the Sept. 18 deadline for mailing general election
On Aug. 25, 2010,
the Maryland State Board of Elections sent a new letter to DOD, withdrawing the
waiver request. In the Aug. 25 letter,
the State Board assured DOD that Maryland
counties and the City of Baltimore
will mail general election ballots for
federal offices only on Sept. 18.
Separate state ballots (Governor and other statewide offices, Maryland
Senate, Maryland House of Delegates, and county offices) will be mailed when
those ballots are available, likely sometime in October. Because UOCAVA only applies to federal
elections, DOD was forced to accept that mailing federal ballots on Sept. 18
complies with the 45-day standard.
In 2010, Maryland
will elect a United States Senator and eight United
States Representatives. The Senate seat is not realistically
considered to be “in play.” Senator
Barbara Mikulski was last reelected with 65% of the vote in 2004 and will
likely receive a similar percentage this year.
Among the state’s eight congressional districts, only the First District
is really in play this year. But the Maryland
gubernatorial election is likely to be very close this year, and there will no
doubt be close elections for some seats in the state legislature and county
military and overseas voters are likely to be disenfranchised with respect to
the races where their votes are mostly likely to be outcome determinative.
UOCAVA accords to absent uniformed services voters
(including military family members of voting age) and overseas voters the right
to vote by absentee ballot in primary, general, special, and run-off elections
for federal office (President and Vice President, U.S. Senator, and U.S.
Representative). Unfortunately, this
federal statute is silent as to the right of these folks to vote in non-federal
elections, such as the 2010 gubernatorial election in Maryland.
In Law Review 0958 (Dec. 2009), I urged Congress to amend
UOCAVA to give active duty military personnel, their family members, and U.S. Government
civilian employees overseas the right to vote in state and local elections, as
well as federal elections. I believe
that Congress has the constitutional power to expand the right to vote to
include non-federal offices under Article I, Section 8, Clauses 11-16 (the war
powers and military clauses) and under Article I, Section 8, Clause 18 (the
“necessary and proper” clause).
In 1917, when the United
States entered World War I, Congress enacted
the Soldiers’ and Sailors’ Civil Relief Act (SSCRA). In 2003, Congress comprehensively updated
that law, and the new law is called the Servicemembers Civil Relief Act
(SCRA). Under the SSCRA and SCRA, the
active duty service member is protected from a default judgment in a civil
case, if military service precludes the member from filing a timely
answer. This protection applies in state
court as well as federal court proceedings.
Including state court proceedings is vital, because the number of civil
lawsuits in state courts far exceeds the number in federal courts.
Congress has the constitutional power to raise and support
armies and to maintain a navy. Obtaining
personnel for the armed forces can be done through conscription or by providing
incentives for young men and women to volunteer and for some of them to remain
for an entire career. Our nation has
relied entirely on volunteers since 1973, when Congress abolished the
In order to encourage recruiting and retention in the armed
forces, Congress can and has enacted legislation to address concerns that might
otherwise dissuade individuals from enlisting or reenlisting. One such concern could be the concern of
being disenfranchised in elections back home.
Congress has the power to prevent such disenfranchisement in non-federal
as well as federal elections. I invite
your attention to Dameron v. Brodhead, 345
U.S. 322 (1953) (upholding the constitutionality of the SSCRA, against a
challenge brought by the State of Colorado)
and Rumsfeld v. Forum for Academic and
Institutional Rights, 547 U.S. 47 (2006) (upholding the constitutionality
of the “Solomon Amendment” requiring colleges and universities to grant access
to military recruiters).
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