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 1074

New York, Illinois Fail to Deliver Absentee Ballots

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

7.0—Military Voting Rights

The MOVE Act permits states to apply to the Secretary of Defense (SECDEF) for one-time waivers of the 45-day rule.  To obtain the waiver, a state must show an undue hardship (caused by something like a late primary) preventing the state from mailing ballots by the 45th day before the election and a satisfactory alternative arrangement (satisfactory to SECDEF) to ensure that UOCAVA voters have sufficient time to receive, mark, and return their ballots in time for those ballots to count, despite the state having missed the 45-day deadline.

Ten states, the District of Columbia, and the Virgin Islands applied to the SECDEF for waivers of the 45-day rule this year.  Five states, including New York, were granted waivers because late primaries prevented those states from mailing out ballots by September 18, 45 days before the election.  To obtain the SECDEF waiver, New York promised to have ballots mailed by October 1 and to extend the deadline for the return of mailed-in ballots from outside the U.S. (including APO and FPO addresses) to provide at least 45 days of round trip ballot transit time.  The problem is that 13 major counties, including all five New York City boroughs (Bronx, Brooklyn, Manhattan, Queens, and Staten Island), seriously missed the October 1 deadline.  These counties were so late that there was not time for the unmarked absentee ballot to get to the voter in Afghanistan, much less to the voter and back, by November 2. 

It was predictable that the states with late primaries would have difficulty meeting the 45-day rule.  Until the results of the primary have been officially certified, the local election official cannot print general election ballots, much less mail them out.  But the problem of late absentee ballots is not limited to late primary states.  One of the worst states this year is Illinois, and it held its primary on February 2.  Thirty-five of the 110 Illinois counties seriously missed the September 18 deadline for mailing absentee ballots.  One of the seriously late counties was St. Clair County, home to 261,000 people and to Scott Air Force Base.

The Department of Justice (DOJ) sued Illinois because of this late mailing.  The lawsuit was resolved with a consent decree under which overseas ballots received up to 14 days after Election Day will be counted, but the consent decree extended by only one day (November 1 to November 2) the deadline for these ballots to be postmarked.  Some Illinois voters in Afghanistan and elsewhere will be disenfranchised because they won’t even receive their unmarked ballots by Election Day.

Readers, Election Day is next week and this is our last chance to obtain data for the 2010 general election, the first election to which the MOVE Act applies.  There are 7,810 local election officials (County Clerks, County Registrars, Town Clerks, etc.) who administer absentee voting for federal elections.  Please contact your local election official.  Did he or she mail out ballots to UOCAVA voters by Saturday, September 18?  Please let me know what your local election official says.  My e-mail is swright@roa.org.  You can reach me toll-free at 800-809-9448, extension 730.

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