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 1064

LAW REVIEW 1064

Suit Filed To Protect Military Voting Rights in Maryland

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

7.0—Military Voting Rights

On September 23, 2010, Officer John Doe[1] and the Military Voter Protection Project[2] (MVPP) filed suit in the United States District Court for the District of Maryland, Greenbelt Division, against the Maryland State Board of Elections (MSBE), its Chairman, its Vice Chairman, its three Members, and its Administrator.  The Civil Action Number is 8:10-cv-02646-RWT.[3] 

The Executive Director of the MVPP is Eric Eversole.  He is a Commander in the Navy Reserve Judge Advocate General’s Corps and a member of ROA.  I know Eric through the Navy Reserve and also through his years of effort on behalf of military voting rights.  The lawsuit contends that the MSBE violated the United States Constitution, the Uniformed and Overseas Citizens Absentee Voting Act (UOCAVA), and Maryland law by disenfranchising military personnel and family members with respect to non-federal offices on the ballot in the general election to be held on November 2, 2010.[4]

UOCAVA is a federal statute enacted in 1986 and codified at title 42, United States Code, sections 1973ff through 1973ff-6.  UOCAVA gives “absent uniformed services voters” and “overseas voters” the right to vote by absentee ballot in primary, general, special, and runoff elections for federal office.[5]  A year ago (October 2009), Congress enacted the Military and Overseas Vote Empowerment (MOVE) Act, as part of the National Defense Authorization Act for Fiscal Year 2010.  The MOVE Act made several most welcome amendments to UOCAVA.

Until recently, UOCAVA did not mention a specific number of days of required ballot transit time, but several courts have held that UOCAVA requires that UOCAVA voters (military and civilian) be given sufficient time to mark and return their absentee ballots in time for them to be counted.  When states are late in mailing out absentee ballots, for whatever reason, the usual remedy sought and obtained has been a court order extending the deadline for the receipt of absentee ballots mailed in from outside the United States, including but not limited to APO and FPO addresses.

The MOVE Act amended UOCAVA to make explicit what previously was implicit.  As amended, UOCAVA now requires every state to mail ballots to UOCAVA voters by the 45th day before Election Day[6]so that military personnel and others will have sufficient opportunity to cast ballots that really do get counted, no matter where the service of our country has taken them. 

The MOVE Act also provided the states the opportunity to apply to the Secretary of Defense (SECDEF) for one-time waivers of the 45-day rule.  To obtain such a waiver, the state was required to show an undue hardship (caused by something like a late primary) that prevented mailing ballots by September 18, and also a satisfactory alternative arrangement (satisfactory to SECDEF) to ensure that UOCAVA voters have a sufficient opportunity to vote despite the state having missed the 45-day deadline. 

In non-presidential even-numbered years, Maryland conducts its primary in September.  This year’s primary was held on September 14, 2010, just four days before the deadline for mailing out general election ballots.  As I explained in Law Review 1056 (available at www.roa.org/law_review), the MSBE applied to SECDEF for a waiver on July 28, 2010.  On August 25, 2010, the MSBE wrote to the SECDEF again and withdrew its waiver request.  You can find both letters at www.fvap.gov, the website of the Federal Voting Assistance Program (FVAP). 

In withdrawing its waiver request, the MSBE promised to send out ballots for federal offices only on September 18, and the MSBE apparently did this.[7]  The full ballot, including non-federal offices, will go out much later, probably on Monday, October 18, just 15 days before Election Day.[8]  Under a state law enacted a quarter century ago, Maryland counts overseas ballots received up to ten days after Election Day, but even with those ten days added Maryland falls 20 days short of the MOVE Act’s 45-day standard. 

There are 27,051 active duty military members and 16,934 voting-age military family members who are Maryland voters.[9]  These folks are paying Maryland state income tax, through withholding from their salaries, no matter where the service of our country has taken them, and it is only because of their sacrifices that all of us have the opportunity to vote in free elections.  I think that it is unconscionable that Maryland can reach out to military Marylanders to collect state income tax but not to enable them to vote for Governor, state legislator, and other non-federal offices. 

I strongly support the MVPP’s lawsuit and wish them success.  Also, next year, we will push Congress to amend UOCAVA to give military personnel and family members the explicit statutory right to vote by absentee ballot in non-federal as well as federal elections.


[1] John Doe is the pseudonym for an officer of the Maryland Army National Guard who is currently serving on active duty in Iraq.  John Doe’s real name was withheld for reasons of operational security.

[2] The Military Voter Protection Project is a project of the Vets for Freedom Educational Institute in partnership with Families United, both charitable organizations recognized by the Internal Revenue Service under section 501(c)(3) of the Internal Revenue Code.  For more information about the Military Voter Protection Project please visit its website at www.mvpproject.org

[3] The initials “RWT” signify that this case has been assigned to Judge Roger W. Titus, who was appointed by President George W. Bush and confirmed by the Senate in 2003.

[4] Maryland has a unique electoral system.  Both houses of the Legislature and all the statewide elected officials serve four-year terms that end in the non-presidential even-numbered year, like 2010.  In the November 2 general election, Maryland voters will elect a Governor, a Lieutenant Governor, an Attorney General, and other statewide officials, as well as members of the Maryland Senate and Maryland House of Delegates and many county officials.  Voters will also elect a United States Senator and eight United States Representatives.

[5] UOCAVA is silent as to their right to vote for non-federal offices.

[6] This year, the 45th day preceding was Saturday, September 18, 2010.

[7] In Maryland’s 8th Congressional District, the Republican Primary was very close and its result was not determined until several days after September 18.  The ballot that was mailed to UOCAVA voters on September 18 contained the names of both Republican candidates for United States Representative, leaving it to the voter to figure out which candidate ended up getting the nomination.  Military personnel in Afghanistan and elsewhere have very limited time and Internet bandwidth to figure out this critical information.  If the voter marked his or her ballot for the wrong Republican candidate for the House of Representatives, the voter will be disenfranchised as to that office.

[8] In Montgomery County, there are two lawsuits pending about two separate proposed ballot questions.  Both questions were rejected by the County Board of Elections based on an insufficient number of valid voter signatures.  In making that determination, the County Board applied hyper-technical rules about how the individual voter must sign his or her name on the petition.  Those lawsuits will likely delay further the printing and mailing of general election ballots.

[9] These figures come from a letter dated November 9, 2009, from the FVAP to the MSBE.  You can find the letter at http://www.fvap.gov/resources/media/md10init.pdf