|
LAW REVIEW 1060
DOD Action on MOVE Act Waiver Requests-Continued
By Captain Samuel F. Wright, JAGC, USN (Ret.)
The recently
enacted (2009) Military and Overseas Voter Empowerment Act (MOVE Act) amended
the Uniformed and Overseas Citizens Absentee Voting Act (UOCAVA). As amended, UOCAVA now explicitly requires
every state and every local election official to mail absentee ballots at least
45 days before Election Day to UOCAVA voters (active duty service members and
military family members within or outside the United States and civilian
citizens outside our country). The idea
is to ensure that overseas military personnel and other UOCAVA voters have
sufficient time to receive their ballots, mark them, and return them on time to
be counted, no matter where the service of our country has taken them. This year, the 45th day before the
election is Saturday, Sept. 18, 2010.
The MOVE act
also provides that a state’s chief state election official may apply to the
Secretary of Defense (SECDEF) for a one-time waiver of the 45-day rule. To obtain the waiver, the state must show
both that it will suffer an undue hardship (because of something like a late
primary) by sending ballots 45 days before the election, and that the state has
made a satisfactory alternative arrangement (satisfactory to SECDEF) to ensure
that military and overseas voters have sufficient opportunity to cast absentee
ballots that really do get counted.
Under the
MOVE Act, the states were required to submit their waiver applications by Aug.
6, 2010, and the SECDEF was required to respond to the applications by Aug. 29,
2010. Ten states plus DC and the Virgin
Islands made timely applications for waivers.
SECDEF acted on the remaining 11 applications on Aug. 27, granting five
(Delaware, Massachusetts, New York, Rhode Island, and Washington) and denying
six (Alaska, Colorado, District of Columbia, Hawaii, Virgin Islands, and
Wisconsin). Maryland withdrew its waiver
application.
After a
waiver is granted or denied, the Department of Justice (DOJ) has exclusive
authority for ensuring military and overseas voting rights. The MOVE Act requires SECDEF to consult with
DOJ before making a decision on waiver applications, but the enforcement
provision of the MOVE Act does not grant the Department of Defense (DOD) any
role in the enforcement process.
DOJ sued
Wisconsin, and the suit has been resolved by a consent decree that is favorable
to military and overseas citizens who are eligible to vote in Wisconsin by
absentee ballot, under UOCAVA. Under the
consent decree, Wisconsin has promised that its local election officials will
mail out ballots by Oct. 1 (32 days before the election) and will count ballots
received up to Nov. 19 (17 days after the election), for a total of 49 days of
round-trip ballot transit time.
It should be
noted that Wisconsin invited the DOJ lawsuit and volunteered to sign a federal
court consent decree providing for ballots received up to 17 days after
Election Day to be counted. Wisconsin’s
chief state election official proceeded in this way because he did not have the
authority, under state law, to order local election officials to count ballots
received after Election Day. Mr. Kevin
Kennedy, Wisconsin’s chief state election official, has informed me by e-mail
that the ballots received between Nov. 3 (the day after the election) and
November 19 (17 days after the election) will be counted for all offices, not
just federal offices.
Since its
waiver request was denied, Alaska has apparently figured out a way to get
ballots mailed by Sept. 18, and has so informed SECDEF in a letter posted at www.fvap.gov, the website of the Federal Voting
Assistance Program (FVAP). The status of
ballot mail-out and any possible DOJ action with respect to Colorado, the
District of Columbia, Hawaii, and the Virgin Islands is very much up in the
air, and DOJ has not released any information on this issue. In Colorado, the Honorable Robert Balink,
Clerk and Recorder of El Paso County, has assured me that his county will meet
the Sept. 18 deadline, but I have no information about other counties.
The “Pajamas
Media” blog published an article lambasting DOJ for undermining the SECDEF and
agreeing to let Wisconsin off the hook with regard to overseas voting
rights. The author of the article contends that counting ballots received after
Election Day is not a sufficient remedy for the failure of a state to mail the
ballots 45 days before the election.
The problem
now is that Wisconsin has more than 1,800 local election officials, and there
are more than 7,800 nationwide. In most
states, absentee voting is administered by counties, but in Wisconsin,
Michigan, and the New England states absentee voting is administered by cities,
towns, and townships, which are smaller and more numerous than counties. Only Alaska and the District of Columbia
administer absentee voting on a statewide basis. We have found that, within the same state in
the same election, there is often a considerable variation as to when absentee
ballots are printed and mailed. Even in
the 40 states that did not apply for MOVE Act waivers, there will be some
counties and municipalities that miss the Sept. 18 deadline.
Readers—please
contact your local election official—County Clerk, County Auditor, County Board
of Elections, Town Clerk, etc. The
titles vary, but you can figure it out.
Remind your local election official that absentee ballots must be mailed by Sept. 18—alibis and
excuses are not acceptable. If the local
official informs you that he or she mailed the ballots on or before Sept. 18,
please thank the official for his or her efforts to ensure that military personnel
from your community will have the opportunity to vote.
If you find
that your local election official has not mailed the ballots by Sept. 18, or
that the official has not complied with the terms of any approved waiver or
consent decree, report this matter immediately to Bob Carey, the Director of
the FVAP. His e-mail is Robert.Carey@fvap.gov, and his telephone is
703-588-8118.
Bob is a
Captain in the Navy Reserve and a life member of ROA. He took over as FVAP Director in July
2009. I am pleased that he is doing a
great job in holding state and local election officials accountable (within the
limits of his authority) for ensuring that military personnel have a sufficient
opportunity to cast ballots that really do get counted, even if the service
member is serving in Afghanistan, on a ship at sea, or at some other remote
place with slow and intermittent mail service.
But Bob needs information from the 7,800 local jurisdictions around the
country that receive absentee ballot applications and mail out ballots. This is where you (ROA members) need to step
up to the bat and contact your own local election official.
 Previous Page
Back to top of page
|
