Ballot Dispute Delays Absentee Ballot Mailing on Long Island
By Captain Samuel F. Wright, JAGC, USN (Ret.)
7.0—Military Voting Rights
A dispute about the way that a candidate will be listed on the ballot in Nassau and Suffolk Counties (Long Island), in New York, threatens to disenfranchise military and overseas citizens not only for the one affected office but for all non-federal offices. The office involved is the New York Supreme Court. In New York, unlike other states, the “Supreme Court” is not the state’s high court—that court is called the Court of Appeals in New York. The Supreme Court is the trial court.
New York has an unusual system whereby the same individual can be listed on the ballot with more than one party line. Being listed more than once is advantageous because a candidate’s vote is totaled, from all the party lines, in determining whether the candidate has received enough votes to be elected.
Richard Ambro is listed on the ballot as the Democratic Party candidate for the New York Supreme Court for the Long Island district. The Working Families Party (WFP) had its own candidate for that office, but that candidate withdrew. Now, the WFP seeks to list Ambro as its candidate, and the Republican Party and its candidate object. The ballots are being delayed pending resolution of this dispute, because the two counties do not want to bear the expense of sending out revised ballots for just one office.
In recent years, New York has been one of the worst states with respect to making it possible for military and overseas citizens to cast absentee ballots that really do get counted. A September primary date has prevented local election officials (LEOs) from having general election ballots printed and ready to mail by the 45th day preceding the general election. Until the primary results have been officially certified, the LEO cannot print general election ballots, much less mail them out.
In 2009, Congress amended the Uniformed and Overseas Citizens Absentee Voting Act (UOCAVA). As amended, UOCAVA now explicitly requires each state to send out ballots to UOCAVA voters by the 45th day prior to the day of the primary or election. See 42 U.S.C. 1973ff-1(a)(8)(A). Congress also provided a waiver procedure, for states that could not meet the 45-day requirement because of late primaries or other logistical difficulties. In 2010, New York applied for and received a waiver, but several major counties (including the five boroughs of New York City) missed even the revised deadline.
The New York Legislature was required to come up with a date for an earlier primary in 2012 and beyond, but the Legislature could not agree on such a date. Finally, the United States District Court for the Northern District of New York ordered the state to move back the congressional primary to late June. In 2012, the primary for the United States Senate and House of Representatives was conducted on June 26. Although New York State is in a serious fiscal crunch, and although conducting separate primaries on different dates is expensive, the New York Legislature refused to move the primary for state and local offices back to June 26. The state primary was conducted on September 13, 2012, just 54 days before the November 6 general election.
Because the federal primary was held in June, Nassau County, Suffolk County, and all other New York counties met the 45-day rule for the November 6 general election, sending out ballots on September 21 or 22. These general election ballots were limited to President, United States Senator, and United States Representative. Ballots for all other offices, including the New York Supreme Court, are still in doubt in Nassau County and Suffolk County, because of the unresolved dispute as to whether Richard Ambro will be listed on the ballot once or twice. As of the publication of this article (October 17), Election Day is only 20 days away. With respect to non-federal offices, the brave young men and women from Nassau and Suffolk Counties serving our country on ships at sea or in places like Afghanistan will be disenfranchised again this year.
In June of 1952, the Subcommittee on Elections, Committee on House Administration, United States House of Representatives conducted hearings on voting for military personnel fighting the Korean War. The Honorable C.G. Hall, Secretary of State of Arkansas and President of the National Association of Secretaries of State, testified that most military personnel would likely be disenfranchised in the 1952 presidential election. Because of late primaries, ballot access lawsuits, and other problems, LEOs would not have ballots printed and ready to mail until a few days before Election Day, in many cases. There simply would not be enough time for the absentee ballot to go from the LEO to Korea and back before the election.
The 1952 congressional report includes a copy of a letter to Congress dated March 28, 1952, from President Harry S. Truman. In his letter, President Truman called upon the states to fix this problem, and he called upon Congress to enact temporary federal legislation for the 1952 presidential election. He wrote, “Any such legislation by Congress should be temporary, since it should be possible to make all the necessary changes in State laws before the congressional elections of 1954.”
Unfortunately, it did not work out that way. President Truman left office in January 1953, and the Korean War ground to an inconclusive halt six months later. This issue simply fell off our national radar screen until 2000, when late-arriving military absentee ballots played a crucial role in determining the outcome of the presidential cliffhanger in Florida. I invite the reader’s attention to Law Review 23 (March 2001) for a detailed discussion of the role of late-arriving military ballots in Florida 2000.
In his letter to Congress in 1952, President Truman’s emphasizes the right to vote those in the Armed Forces deserve:
About 2,500,000 men and women in the Armed Forces are of voting age at the present time. Many of those in uniform are serving overseas, or in parts of the country distant from their homes. They are unable to return to their States either to register or to vote. Yet these men and women, who are serving their country and in many cases risking their lives, deserve above all others to exercise the right to vote in this election year. At a time when these young people are defending our country and its free institutions, the least we at home can do is to make sure that they are able to enjoy the rights they are being asked to fight to preserve.
I respectfully submit that President Truman’s powerful words about the brave young men and women fighting the Korean War in 1952 apply equally to their grandsons and granddaughters, and great-grandsons and great-granddaughters, fighting the Global War on Terrorism today. Please don’t make Long Island’s sons and daughters in our armed forces wait another 60 years to enjoy a basic civil right that the rest of us take for granted.
 UOCAVA gives covered voters the right to vote in primary, general, special, and runoff elections for federal office (President, United States Senator, and United States Representative). Covered voters are active duty members of the uniformed services and Merchant Marine and voting-age family members of those service members, as well as United States citizens who are outside the United States temporarily or permanently. UOCAVA applies to service members and family members whether they are within or outside the United States.
 New York has not applied for a waiver in 2012.
 See United States v. State of New York, 2012 U.S. Dist. LEXIS 10101 (N.D.N.Y. Jan. 27, 2012) and 2012 U.S. Dist. LEXIS 16126 (N.D.N.Y. Feb. 9, 2012).
 Senator Kirsten E. Gillibrand is seeking reelection in 2012. Senator Charles E. Schumer’s six-year term does not expire until 2016.
 Because New York’s population grew more slowly than the overall national population during the last decade, as shown by the 2010 Census, New York’s representation in the United States House of Representatives has been reduced from 29 to 27.
 Suffolk County sent out ballots with Ambro’s name listed once, as the Democratic Party candidate. The county may yet be required to resend the ballots, with Ambro’s name listed twice. The county will apparently resend the entire ballot, not just a ballot for the Supreme Court, because state law requires a unified absentee ballot. I have been assured that either ballot that comes back on time will be counted for all offices. The situation in Nassau County is unclear as we go to press.
 I invite the reader’s attention to www.servicemembers-lawcenter.org. You will find 801 articles about military voting rights, reemployment rights, and other military-legal topics. You will also find a detailed Subject Index and a search function, to facilitate finding articles about very specific topics. Category 7.0 in the Subject Index is about military voting rights.
 The New York State Board of Elections (NYSBOE) makes ballot downloads (all offices, not just federal) available through its website. A New York UOCAVA voter (military or civilian) who has made a timely application for his or her absentee ballot can download and print the ballot and then mark it and send it in. So far in 2012, more than 6,500 New York UOCAVA voters have utilized this system. In 2010 (the first year that the system was available), only 700 New York UOCAVA voters utilized this system. You can access the NYSBOE website or any state absentee voting website through the website of the Federal Voting Assistance Program, www.fvap.gov.