LAW REVIEW 1121
Proposed Private Right of Action under
By Captain Samuel F. Wright, JAGC, USN
7.0—Military Voting Rights
On February 14, 2011, Senator
John Barrasso (Wyoming) and Senator John Cornyn (Texas) introduced S. 331, the
proposed “Military and Overseas Voters’ Relief Act.” The bill would amend section 105 of the
Uniformed and Overseas Citizens Absentee Voting Act (UOCAVA) by creating an
explicit private right of action, authorizing aggrieved persons to sue, in
their own names and with their own lawyers, when their UOCAVA rights have been
S. 331 was referred to the
Senate Committee on Rules and Administration.
Reader: Please contact your
United States Senators and ask them to support this bill, and please contact
your United States Representative and ask him or her to introduce a similar
bill in the House of Representatives.
As you can imagine, there are
three time-consuming steps in absentee voting.
First, the absentee ballot request
must travel from the voter to the hometown election official. Second, the unmarked absentee ballot must travel from the election official to
the voter. Finally, the marked ballot must travel from the voter
back to the election official. For a
service member at sea or in a place like Afghanistan, each of these steps can
take weeks if snail mail must be used, but only seconds if secure electronic
means were authorized.
Because of concerns about the
security of electronic communications
electronic means have not been authorized.
As a nation, we are still conducting military absentee voting the same
way that it was conducted during the Korean War, by shipping pieces of paper
across oceans and continents by snail mail.
Because of late primaries,
ballot access lawsuits,
and other problems, LEOs sometimes do not have absentee ballots printed and
ready to mail until just a few days before Election Day. The service member overseas is likely to be
disenfranchised, despite having applied early for his or her ballot. Through no fault of the voter, there is not
enough time for the voter to receive the ballot, mark it, and return it on time
to be counted.
As amended in 2009 by the
Military and Overseas Voter Empowerment Act, UOCAVA now explicitly requires the
states to mail out absentee ballots to UOCAVA voters (military and civilian) at
least 45 days before the biennial general election for federal offices (e.g.,
by Sept. 18, 2010). If a state cannot
make this deadline, because of an undue hardship caused by something like a
late primary, the state can apply to the Secretary of Defense (SECDEF) for a
waiver. To obtain the waiver, the state
must show both the undue hardship and a satisfactory alternative arrangement
(satisfactory to SECDEF) to ensure that UOCAVA voters have a reasonable
opportunity to cast ballots that really do get counted, despite the state
having missed the 45-day deadline.
While UOCAVA imposes
obligations on states, it should be noted that absentee voting is not conducted
by states but by LEOs at the county, parish, city, town, or township level. In New York, in 2010, the State Board of
Elections applied for and received a waiver of the 45-day rule, because New
York’s primary was held just 49 days before Election Day. Under the approved waiver, the LEOs were to
mail ballots by Oct. 1 and to extend the deadline for receiving overseas ballots,
in order to provide 45 days of round trip ballot transit time. But 13 major counties, including all five
boroughs of New York City, missed the Oct. 1 deadline.
Illinois conducted its 2010
primary in February. There was no
apparent reason for any LEO in that state to miss the 45-day deadline, and
Illinois did not apply for a waiver, but 35 of the 110 counties missed the
deadline. One of the seriously late
counties was St. Clair County, home to 261,000 people and to Scott Air Force
It should be noted that there
are two relevant deadlines in absentee voting.
First, there is a deadline (usually the time set for the polls to close)
for the voter to mark the ballot and
put it in the return mail. Second, there is a deadline for the LEO to receive the marked ballot. If the ballots go out so late that the voter
does not receive his or her unmarked ballot until after Election Day, the voter
is effectively disenfranchised, no matter how many days are added to the
post-election counting period for late-arriving ballots.
UOCAVA currently provides as
follows concerning enforcement: “The
Attorney General may bring a civil action in an appropriate district court for
such declaratory and injunctive relief as may be necessary to carry out this
subchapter.” 42 U.S.C. 1973ff-4. This language does not expressly preclude a
private right of action, but neither does it expressly create a private right
of action. Some courts addressing this
question have permitted aggrieved persons (UOCAVA voters likely to be
disenfranchised without court intervention) to initiate their own lawsuits,
while other courts have held that only the Attorney General can initiate a
lawsuit under UOCAVA.
If enacted, S. 331 would add
a new subsection (b) to 42 U.S.C. 1973ff-4, as follows: “Private Right of Action—A person who is
aggrieved by a violation of this Act may bring a civil action in an appropriate
district court for such declaratory or injunctive relief as may be necessary to
carry out this Act.” I strongly endorse
this proposal. UOCAVA voters should not
have to depend upon the Attorney General to enforce their rights.
S. 331 would also add a new
subsection (c) to section 1973ff-4, as follows:
“Attorney’s Fees—In a civil action under this section, the court may
allow the prevailing party (other than the United States) reasonable attorney’s
fees, including litigation expenses, and costs.” Enactment of this provision would make it
easier for the aggrieved UOCAVA voter to find an attorney willing to undertake
such a lawsuit.
I am informed by experts in the field that no system relying on the Internet
can possibly be secure. A clever
criminal can intercept the attachment to an e-mail (like the marked absentee
ballot) and change it in a way that even experts cannot detect. If we cannot get legislation authorizing full
electronic voting, we at least need electronic transmission of the absentee
ballot request and the unmarked absentee ballot.
Until the results of the primary have been officially certified, the local
election official (LEO) cannot print general
election ballots, much less mail them out.
Only Maine, Alaska, and the District of Columbia administer absentee voting at
the state level. There are more than
7,500 LEOs that administer absentee voting for federal elections.
Compliance with this deadline is usually shown by the postmark or by a signed
and dated affidavit on the ballot return envelope.
As I explained in Law Review 1083, Congress recently amended the Servicemembers
Civil Relief Act (SCRA) to create an explicit private right of action under
that Act. I invite the reader’s
attention to www.roa.org/law_review
where you will find more than 800 articles about UOCAVA, the SCRA, the
Uniformed Services Employment and Reemployment Rights Act (USERRA), and other
laws that are particularly pertinent to those who serve our country in
uniform. You will also find a detailed
Subject Index and a search function, to facilitate finding articles about very
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