Law Review 1121 - Reserve Officers Association

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 violated.

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[1] 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,[2] 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.[3] 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 Base.

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.[4] 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.[5]

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.

[1] 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.

[2] 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.

[3] 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.

[4] Compliance with this deadline is usually shown by the postmark or by a signed and dated affidavit on the ballot return envelope.

[5] 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 specific topics.