LAW REVIEW 1064
Suit Filed To Protect Military Voting Rights in Maryland
By Captain Samuel F. Wright, JAGC, USN (Ret.)
7.0—Military Voting Rights
23, 2010, Officer John Doe
and the Military Voter Protection Project
(MVPP) filed suit in the United States District Court for the District of
Maryland, Greenbelt Division, against the Maryland State Board of Elections
(MSBE), its Chairman, its Vice Chairman, its three Members, and its
Administrator. The Civil Action Number
Executive Director of the MVPP is Eric Eversole. He is a Commander in the Navy Reserve Judge
Advocate General’s Corps and a member of ROA.
I know Eric through the Navy Reserve and also through his years of
effort on behalf of military voting rights.
The lawsuit contends that the MSBE violated the United States
Constitution, the Uniformed and Overseas Citizens Absentee Voting Act (UOCAVA),
and Maryland law by disenfranchising military personnel and family members with
respect to non-federal offices on the ballot in the general election to be held
on November 2, 2010.
UOCAVA is a
federal statute enacted in 1986 and codified at title 42, United States Code,
sections 1973ff through 1973ff-6. UOCAVA
gives “absent uniformed services voters” and “overseas voters” the right to
vote by absentee ballot in primary, general, special, and runoff elections for
federal office. A year ago (October 2009), Congress enacted
the Military and Overseas Vote Empowerment (MOVE) Act, as part of the National
Defense Authorization Act for Fiscal Year 2010.
The MOVE Act made several most welcome amendments to UOCAVA.
recently, UOCAVA did not mention a specific number of days of required ballot
transit time, but several courts have held that UOCAVA requires that UOCAVA
voters (military and civilian) be given sufficient time to mark and return
their absentee ballots in time for them to be counted. When states are late in mailing out absentee
ballots, for whatever reason, the usual remedy sought and obtained has been a
court order extending the deadline for the receipt of absentee ballots mailed
in from outside the United States, including but not limited to APO and FPO
The MOVE Act
amended UOCAVA to make explicit what previously was implicit. As amended, UOCAVA now requires every state
to mail ballots to UOCAVA voters by the 45th day before Election Dayso
that military personnel and others will have sufficient opportunity to cast
ballots that really do get counted, no matter where the service of our country
has taken them.
The MOVE Act
also provided the states the opportunity to apply to the Secretary of Defense
(SECDEF) for one-time waivers of the 45-day rule. To obtain such a waiver, the state was
required to show an undue hardship (caused by something like a late primary)
that prevented mailing ballots by September 18, and also a satisfactory
alternative arrangement (satisfactory to SECDEF) to ensure that UOCAVA voters
have a sufficient opportunity to vote despite the state having missed the
non-presidential even-numbered years, Maryland conducts its primary in
September. This year’s primary was held
on September 14, 2010, just four days before the deadline for mailing out
general election ballots. As I explained
in Law Review 1056 (available at www.roa.org/law_review), the MSBE applied to SECDEF for a
waiver on July 28, 2010. On August 25,
2010, the MSBE wrote to the SECDEF again and withdrew its waiver request. You can find both letters at www.fvap.gov, the website of the Federal Voting
Assistance Program (FVAP).
withdrawing its waiver request, the MSBE promised to send out ballots for federal offices only on September
18, and the MSBE apparently did this. The full ballot, including non-federal
offices, will go out much later, probably on Monday, October 18, just 15 days
before Election Day. Under a state law enacted a quarter century
ago, Maryland counts overseas ballots received up to ten days after Election
Day, but even with those ten days added Maryland falls 20 days short of the
MOVE Act’s 45-day standard.
27,051 active duty military members and 16,934 voting-age military family
members who are Maryland voters. These folks are paying Maryland state income
tax, through withholding from their salaries, no matter where the service of
our country has taken them, and it is only because of their sacrifices that all
of us have the opportunity to vote in free elections. I think that it is unconscionable that
Maryland can reach out to military Marylanders to collect state income tax but
not to enable them to vote for Governor, state legislator, and other
support the MVPP’s lawsuit and wish them success. Also, next year, we will push Congress to
amend UOCAVA to give military personnel and family members the explicit
statutory right to vote by absentee ballot in non-federal as well as federal
John Doe is the pseudonym for an officer of the Maryland Army National Guard
who is currently serving on active duty in Iraq. John Doe’s real name was withheld for reasons
of operational security.
The Military Voter Protection Project is a project of the Vets for Freedom
Educational Institute in partnership with Families United, both charitable
organizations recognized by the Internal Revenue Service under section 501(c)(3)
of the Internal Revenue Code. For more
information about the Military Voter Protection Project please visit its
website at www.mvpproject.org.
The initials “RWT” signify that this case has been assigned to Judge Roger W.
Titus, who was appointed by President George W. Bush and confirmed by the
Senate in 2003.
Maryland has a unique electoral system.
Both houses of the Legislature and all the statewide elected officials
serve four-year terms that end in the non-presidential even-numbered year, like
2010. In the November 2 general
election, Maryland voters will elect a Governor, a Lieutenant Governor, an
Attorney General, and other statewide officials, as well as members of the
Maryland Senate and Maryland House of Delegates and many county officials. Voters will also elect a United States
Senator and eight United States Representatives.
UOCAVA is silent as to their right to vote for non-federal offices.
This year, the 45th day preceding was Saturday, September 18, 2010.
In Maryland’s 8th Congressional District, the Republican Primary was
very close and its result was not determined until several days after September
18. The ballot that was mailed to UOCAVA
voters on September 18 contained the names of both Republican candidates for
United States Representative, leaving it to the voter to figure out which
candidate ended up getting the nomination.
Military personnel in Afghanistan and elsewhere have very limited time
and Internet bandwidth to figure out this critical information. If the voter marked his or her ballot for the
wrong Republican candidate for the House of Representatives, the voter will be
disenfranchised as to that office.
In Montgomery County, there are two lawsuits pending about two separate
proposed ballot questions. Both
questions were rejected by the County Board of Elections based on an
insufficient number of valid voter signatures.
In making that determination, the County Board applied hyper-technical
rules about how the individual voter must sign his or her name on the
petition. Those lawsuits will likely
delay further the printing and mailing of general election ballots.
These figures come from a letter dated November 9, 2009, from the FVAP to the
MSBE. You can find the letter at http://www.fvap.gov/resources/media/md10init.pdf.
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