LAW REVIEW 1070
DOJ Sues New York To Enfranchise Military Voters
7.0 - Military Voting Rights
By Captain Samuel F. Wright, JAGC, USN
On Oct. 12, 2010, the
Department of Justice (DOJ) sued New York under the Uniformed and Overseas
Citizens Absentee Voting Act (UOCAVA), seeking a remedy because nine major
counties in the state (including all five New York City boroughs) have failed
to mail absentee ballots in time for overseas voters (military and civilian) to
receive their ballots, mark them, and return them on time to be counted. As amended a year ago by the Military and
Overseas Voter Empowerment Act (MOVE Act), UOCAVA explicitly requires each
state to mail absentee ballots to military personnel and family members (within
or outside the United States) and to overseas Americans by the 45th
day prior to the election (e.g., Sept. 18, 2010).
The MOVE Act also provides
for a waiver provision. The chief state
election official had the opportunity to apply to the Secretary of Defense
(SECDEF) for a one-time waiver of the 45-day rule. To obtain the waiver, the state needed to
show both an undue hardship (caused
by something like a late primary) that prevented the state from mailing out
ballots by September 18 and that the
state had made satisfactory alternative arrangements (satisfactory to SECDEF)
to ensure that UOCAVA voters (military and civilian) will have sufficient time
to cast ballots that really do get counted, despite the state having missed the
Ten states plus the District
of Columbia and the Virgin Islands applied for waivers, and five states
(including New York) were granted waivers.
In its waiver request, which the SECDEF approved, the New York State Board
of Elections promised to have the ballots mailed by October 1 and to extend the
deadline for the receipt of mailed-in overseas ballots, to provide at least 45
days of round-trip ballot transit time.
You can find the New York waiver request and the SECDEF response at www.fvap.gov, the website of the Federal Voting Assistance Program
The problem is that each of
the five New York City boroughs (Bronx, Brooklyn, Manhattan, Queens, and Staten
Island) plus Erie County (Buffalo), Niagara County (Lockport), Putnam County
(Carmel), and Westchester County (White Plains) all missed the October 1
deadline. New York City and these four
major counties make up more than 90% of New York State’s population.
As of today, just 20 days
before Election Day, these nine jurisdictions (each New York City borough is
treated like a county for election administration purposes) still have not
mailed out the ballots. Thus, there will
not be time for the absentee ballot to get to
the voter in Afghanistan, Iraq, or a ship at sea, much less to the voter
and back, by November 2.
As a remedy, these
jurisdictions should be ordered to count overseas ballots received up to
December 31, 2010 and to waive the requirement that the ballot be marked and
placed in the return mail by Election Day.
Make these local election officials come in on New Year’s Day to count
these ballots, instead of watching football on television.
There are 60, 076 active duty military personnel
who are eligible to vote in New York.
Only Texas, Florida, and California have more military voters. Senator
Charles Schumer of New York said, “Put these ballots on the next plane to
Afghanistan. These soldiers sacrifice
their lives to protect our freedoms; they should never, ever be denied their right
to vote. I wrote and passed this law
[the MOVE Act] so our brave men and women overseas would no longer be
disenfranchised, and there is no excuse for failing to get this done. The boards of elections should immediately
get these ballots to each and every one of our service members around the
world—no ifs, ands, or buts.”
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