LAW REVIEW 1258
Virginia—Don’t Disenfranchise Service Members in the 2013 Gubernatorial Nomination
By Captain Samuel F. Wright, JAGC, USN (Ret.)
7.0—Military Voting Rights
Virginia is a state with some unusual election laws. Virginia is one of five states that elect the Governor and other state officials in November of odd-numbered years. In Virginia the political party gets to decide whether its nomination process will be conducted by primary or by convention. Although the 2012 general election is still almost five months away, the 2013 gubernatorial election in Virginia is already well under way. Governor Robert McDonnell is constitutionally ineligible to seek reelection, and the two principal candidates for the Republican nomination are Lieutenant Governor Bill Bolling and Attorney General Ken Cuccinelli.
The Republican Party of Virginia is currently scheduled to conduct a primary for Governor next year, but a movement is in progress to change this to a convention. On behalf of the 35,785 Virginians currently serving on active duty in our armed forces, I object to the proposal to nominate the gubernatorial candidate by convention, because active duty service members would thereby be disenfranchised.
Of the 35,785 Virginians on active duty, only a few are currently serving in Virginia. There are tens of thousands of service members stationed in Virginia (Pentagon, Fort Belvoir, Norfolk Naval Base, etc.), but almost all of them vote in other states. The Virginians on active duty are serving in other states or in places like Afghanistan. They are paying Virginia state income tax, through withholding from their military salaries, regardless of where the service of our country takes them. Thus, they should be given the full opportunity to participate in the nomination as well as election of the state officials who spend their tax dollars.
The active duty service member will find it logistically very difficult to sign up as a delegate to a state party convention and to travel to the state for the convention, but even if the member can overcome these logistical difficulties he or she cannot overcome an insuperable legal problem. I invite the reader’s attention to Paragraph 126.96.36.199 of Department of Defense Directive 1344.10, dated February 19, 2008. This paragraph provides that active duty service members are absolutely forbidden to participate in partisan political conventions.
This directive is a lawful general order. This means that a service member can be convicted at court martial of violating it, even if the member was not aware of it. You are charged with knowledge of a lawful general order, just as you are charged with knowledge of a statute. Ignorance of the law is no excuse.
To the Virginia Republican Party—please ensure that the 35,785 Virginians serving our country in uniform have the opportunity to participate in the nomination of your gubernatorial candidate next year. That means holding a primary, not a convention.
 The other four are Kentucky, Louisiana, Mississippi, and New Jersey.
 This figure comes from the Federal Voting Assistance Program of the Department of Defense.
 Please see Law Review 1204 (January 2012) for a detailed discussion of the regulations limiting political activities by active duty service members. I invite the reader’s attention to www.servicemembers-lawcenter.org. You will find 759 articles about military voting rights, reemployment rights, and other military-legal topics, along with a detailed Subject Index and a search function, to facilitate finding articles about very specific topics. I initiated this column in 1997, and we add new articles each week.