Samuel F. Wright

Captain, JAGC, USN (Ret.)
Director, Service Members Law Center
(800) 809-9448, ext. 730
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Maryland Will Meet the 45-Day Standard, But Only for Federal Offices

7.0--Military Voting Rights

By Captain Samuel F. Wright, JAGC, USN (Ret.)

In Oct. 2009, Congress enacted the Military and Overseas Voter Empowerment Act (MOVE Act), as part of the National Defense Authorization Act for Fiscal Year 2010.  The MOVE Act makes several amendments to the Uniformed and Overseas Citizens Absentee Voting Act (UOCAVA).  As amended, UOCAVA now explicitly requires each state to mail absentee ballots at least 45 days before Election Day to military personnel and family members (within or outside the United States) and to U.S. citizens outside the U.S.  This year, the 45th day preceding the election is Saturday, Sept. 18.

Alternatively, a state can apply for a one-time waiver from the Department of Defense (DOD).  To obtain the waiver, the state must show both that an undue hardship (like a late primary) prevents the state from meeting the 45-day deadline and that the state has made satisfactory alternative arrangements (satisfactory to DOD) to ensure that military and overseas citizens have a reasonable opportunity to cast ballots that really do get counted.

On July 28, 2010, the Maryland State Board of Elections applied to DOD for a waiver from the 45-day standard.  Maryland’s 2010 primary will be held on Sept. 14, just 49 days before the November 2 general election.  Certifying the primary winners and printing the general election absentee ballots will require much more than four days, so Maryland will not be able to meet the Sept. 18 deadline for mailing general election ballots.

On Aug. 25, 2010, the Maryland State Board of Elections sent a new letter to DOD, withdrawing the waiver request.  In the Aug. 25 letter, the State Board assured DOD that Maryland counties and the City of Baltimore will mail general election ballots for federal offices only on Sept. 18.  Separate state ballots (Governor and other statewide offices, Maryland Senate, Maryland House of Delegates, and county offices) will be mailed when those ballots are available, likely sometime in October.  Because UOCAVA only applies to federal elections, DOD was forced to accept that mailing federal ballots on Sept. 18 complies with the 45-day standard.

In 2010, Maryland will elect a United States Senator and eight United States Representatives.  The Senate seat is not realistically considered to be “in play.”  Senator Barbara Mikulski was last reelected with 65% of the vote in 2004 and will likely receive a similar percentage this year.  Among the state’s eight congressional districts, only the First District is really in play this year.  But the Maryland gubernatorial election is likely to be very close this year, and there will no doubt be close elections for some seats in the state legislature and county offices.  Maryland’s military and overseas voters are likely to be disenfranchised with respect to the races where their votes are mostly likely to be outcome determinative.

UOCAVA accords to absent uniformed services voters (including military family members of voting age) and overseas voters the right to vote by absentee ballot in primary, general, special, and run-off elections for federal office (President and Vice President, U.S. Senator, and U.S. Representative).  Unfortunately, this federal statute is silent as to the right of these folks to vote in non-federal elections, such as the 2010 gubernatorial election in Maryland.

In Law Review 0958 (Dec. 2009), I urged Congress to amend UOCAVA to give active duty military personnel, their family members, and U.S. Government civilian employees overseas the right to vote in state and local elections, as well as federal elections.  I believe that Congress has the constitutional power to expand the right to vote to include non-federal offices under Article I, Section 8, Clauses 11-16 (the war powers and military clauses) and under Article I, Section 8, Clause 18 (the “necessary and proper” clause). 

In 1917, when the United States entered World War I, Congress enacted the Soldiers’ and Sailors’ Civil Relief Act (SSCRA).  In 2003, Congress comprehensively updated that law, and the new law is called the Servicemembers Civil Relief Act (SCRA).  Under the SSCRA and SCRA, the active duty service member is protected from a default judgment in a civil case, if military service precludes the member from filing a timely answer.  This protection applies in state court as well as federal court proceedings.  Including state court proceedings is vital, because the number of civil lawsuits in state courts far exceeds the number in federal courts. 

Congress has the constitutional power to raise and support armies and to maintain a navy.  Obtaining personnel for the armed forces can be done through conscription or by providing incentives for young men and women to volunteer and for some of them to remain for an entire career.  Our nation has relied entirely on volunteers since 1973, when Congress abolished the draft. 

In order to encourage recruiting and retention in the armed forces, Congress can and has enacted legislation to address concerns that might otherwise dissuade individuals from enlisting or reenlisting.  One such concern could be the concern of being disenfranchised in elections back home.  Congress has the power to prevent such disenfranchisement in non-federal as well as federal elections.  I invite your attention to Dameron v. Brodhead, 345 U.S. 322 (1953) (upholding the constitutionality of the SSCRA, against a challenge brought by the State of Colorado) and Rumsfeld v. Forum for Academic and Institutional Rights, 547 U.S. 47 (2006) (upholding the constitutionality of the “Solomon Amendment” requiring colleges and universities to grant access to military recruiters).

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