Samuel F. Wright

Captain, JAGC, USN (Ret.)
Director, Service Members Law Center
(800) 809-9448, ext. 730
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DOJ Sues New York To Enfranchise Military Voters

7.0 - Military Voting Rights

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

On Oct. 12, 2010, the Department of Justice (DOJ) sued New York under the Uniformed and Overseas Citizens Absentee Voting Act (UOCAVA), seeking a remedy because nine major counties in the state (including all five New York City boroughs) have failed to mail absentee ballots in time for overseas voters (military and civilian) to receive their ballots, mark them, and return them on time to be counted.  As amended a year ago by the Military and Overseas Voter Empowerment Act (MOVE Act), UOCAVA explicitly requires each state to mail absentee ballots to military personnel and family members (within or outside the United States) and to overseas Americans by the 45th day prior to the election (e.g., Sept. 18, 2010). 

The MOVE Act also provides for a waiver provision.  The chief state election official had the opportunity to apply to the Secretary of Defense (SECDEF) for a one-time waiver of the 45-day rule.  To obtain the waiver, the state needed to show both an undue hardship (caused by something like a late primary) that prevented the state from mailing out ballots by September 18 and that the state had made satisfactory alternative arrangements (satisfactory to SECDEF) to ensure that UOCAVA voters (military and civilian) will have sufficient time to cast ballots that really do get counted, despite the state having missed the 45-day deadline.

Ten states plus the District of Columbia and the Virgin Islands applied for waivers, and five states (including New York) were granted waivers.  In its waiver request, which the SECDEF approved, the New York State Board of Elections promised to have the ballots mailed by October 1 and to extend the deadline for the receipt of mailed-in overseas ballots, to provide at least 45 days of round-trip ballot transit time.  You can find the New York waiver request and the SECDEF response at, the website of the Federal Voting Assistance Program (FVAP).

The problem is that each of the five New York City boroughs (Bronx, Brooklyn, Manhattan, Queens, and Staten Island) plus Erie County (Buffalo), Niagara County (Lockport), Putnam County (Carmel), and Westchester County (White Plains) all missed the October 1 deadline.  New York City and these four major counties make up more than 90% of New York State’s population.

As of today, just 20 days before Election Day, these nine jurisdictions (each New York City borough is treated like a county for election administration purposes) still have not mailed out the ballots.  Thus, there will not be time for the absentee ballot to get to the voter in Afghanistan, Iraq, or a ship at sea, much less to the voter and back, by November 2. 

As a remedy, these jurisdictions should be ordered to count overseas ballots received up to December 31, 2010 and to waive the requirement that the ballot be marked and placed in the return mail by Election Day.  Make these local election officials come in on New Year’s Day to count these ballots, instead of watching football on television. 

There are 60, 076 active duty military personnel who are eligible to vote in New York.  Only Texas, Florida, and California have more military voters. Senator Charles Schumer of New York said, “Put these ballots on the next plane to Afghanistan.  These soldiers sacrifice their lives to protect our freedoms; they should never, ever be denied their right to vote.  I wrote and passed this law [the MOVE Act] so our brave men and women overseas would no longer be disenfranchised, and there is no excuse for failing to get this done.  The boards of elections should immediately get these ballots to each and every one of our service members around the world—no ifs, ands, or buts.”

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