Samuel F. Wright

Captain, JAGC, USN (Ret.)
Director, Service Members Law Center
(800) 809-9448, ext. 730
Email: swright@roa.org
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LAW REVIEW 1060

DOD Action on MOVE Act Waiver Requests-Continued

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

The recently enacted (2009) Military and Overseas Voter Empowerment Act (MOVE Act) amended the Uniformed and Overseas Citizens Absentee Voting Act (UOCAVA).  As amended, UOCAVA now explicitly requires every state and every local election official to mail absentee ballots at least 45 days before Election Day to UOCAVA voters (active duty service members and military family members within or outside the United States and civilian citizens outside our country).  The idea is to ensure that overseas military personnel and other UOCAVA voters have sufficient time to receive their ballots, mark them, and return them on time to be counted, no matter where the service of our country has taken them.  This year, the 45th day before the election is Saturday, Sept. 18, 2010.

The MOVE act also provides that a state’s chief state election official may apply to the Secretary of Defense (SECDEF) for a one-time waiver of the 45-day rule.  To obtain the waiver, the state must show both that it will suffer an undue hardship (because of something like a late primary) by sending ballots 45 days before the election, and that the state has made a satisfactory alternative arrangement (satisfactory to SECDEF) to ensure that military and overseas voters have sufficient opportunity to cast absentee ballots that really do get counted. 

Under the MOVE Act, the states were required to submit their waiver applications by Aug. 6, 2010, and the SECDEF was required to respond to the applications by Aug. 29, 2010.  Ten states plus DC and the Virgin Islands made timely applications for waivers.  SECDEF acted on the remaining 11 applications on Aug. 27, granting five (Delaware, Massachusetts, New York, Rhode Island, and Washington) and denying six (Alaska, Colorado, District of Columbia, Hawaii, Virgin Islands, and Wisconsin).  Maryland withdrew its waiver application.

After a waiver is granted or denied, the Department of Justice (DOJ) has exclusive authority for ensuring military and overseas voting rights.  The MOVE Act requires SECDEF to consult with DOJ before making a decision on waiver applications, but the enforcement provision of the MOVE Act does not grant the Department of Defense (DOD) any role in the enforcement process.

DOJ sued Wisconsin, and the suit has been resolved by a consent decree that is favorable to military and overseas citizens who are eligible to vote in Wisconsin by absentee ballot, under UOCAVA.  Under the consent decree, Wisconsin has promised that its local election officials will mail out ballots by Oct. 1 (32 days before the election) and will count ballots received up to Nov. 19 (17 days after the election), for a total of 49 days of round-trip ballot transit time. 

It should be noted that Wisconsin invited the DOJ lawsuit and volunteered to sign a federal court consent decree providing for ballots received up to 17 days after Election Day to be counted.  Wisconsin’s chief state election official proceeded in this way because he did not have the authority, under state law, to order local election officials to count ballots received after Election Day.  Mr. Kevin Kennedy, Wisconsin’s chief state election official, has informed me by e-mail that the ballots received between Nov. 3 (the day after the election) and November 19 (17 days after the election) will be counted for all offices, not just federal offices.

Since its waiver request was denied, Alaska has apparently figured out a way to get ballots mailed by Sept. 18, and has so informed SECDEF in a letter posted at www.fvap.gov, the website of the Federal Voting Assistance Program (FVAP).  The status of ballot mail-out and any possible DOJ action with respect to Colorado, the District of Columbia, Hawaii, and the Virgin Islands is very much up in the air, and DOJ has not released any information on this issue.  In Colorado, the Honorable Robert Balink, Clerk and Recorder of El Paso County, has assured me that his county will meet the Sept. 18 deadline, but I have no information about other counties.

The “Pajamas Media” blog published an article lambasting DOJ for undermining the SECDEF and agreeing to let Wisconsin off the hook with regard to overseas voting rights.  The author of the article contends that counting ballots received after Election Day is not a sufficient remedy for the failure of a state to mail the ballots 45 days before the election.

The problem now is that Wisconsin has more than 1,800 local election officials, and there are more than 7,800 nationwide.  In most states, absentee voting is administered by counties, but in Wisconsin, Michigan, and the New England states absentee voting is administered by cities, towns, and townships, which are smaller and more numerous than counties.  Only Alaska and the District of Columbia administer absentee voting on a statewide basis.  We have found that, within the same state in the same election, there is often a considerable variation as to when absentee ballots are printed and mailed.  Even in the 40 states that did not apply for MOVE Act waivers, there will be some counties and municipalities that miss the Sept. 18 deadline.

Readers—please contact your local election official—County Clerk, County Auditor, County Board of Elections, Town Clerk, etc.  The titles vary, but you can figure it out.  Remind your local election official that absentee ballots must be mailed by Sept. 18—alibis and excuses are not acceptable.  If the local official informs you that he or she mailed the ballots on or before Sept. 18, please thank the official for his or her efforts to ensure that military personnel from your community will have the opportunity to vote. 

If you find that your local election official has not mailed the ballots by Sept. 18, or that the official has not complied with the terms of any approved waiver or consent decree, report this matter immediately to Bob Carey, the Director of the FVAP. His e-mail is Robert.Carey@fvap.gov, and his telephone is 703-588-8118. 

Bob is a Captain in the Navy Reserve and a life member of ROA.  He took over as FVAP Director in July 2009.  I am pleased that he is doing a great job in holding state and local election officials accountable (within the limits of his authority) for ensuring that military personnel have a sufficient opportunity to cast ballots that really do get counted, even if the service member is serving in Afghanistan, on a ship at sea, or at some other remote place with slow and intermittent mail service.  But Bob needs information from the 7,800 local jurisdictions around the country that receive absentee ballot applications and mail out ballots.  This is where you (ROA members) need to step up to the bat and contact your own local election official.

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