Home -> Law Blog Directory -> Federal Judiciary Blogs -> Bench Memos - National Review Online

Federal Judiciary

: Bench Memos - National Review Online

Justice Dept. Shrugs About Potential GI Voter Disfranchisement

Imagine if five states announced that they lacked the money and manpower to ship ballots to precincts in predominantly black rural counties before the fall federal election. The Justice Department would, appropriately, shift into fifth gear to assure that those Americans could vote on November 2. Enforcement lawsuits would fly like pigeons fleeing a breezy schoolyard.

Now, convert those rural blacks into American GIs serving abroad. Delaware, Massachusetts, New York, Rhode Island, and Washington State are dragging their feet on the urgent task of delivering absentee ballots to overseas service members. The response at Justice's Voting Rights Division in Washington, D.C., echoes a Louis Armstrong tune: 'It's sleepy time down South.'

#ad#On Saturday, September 18, it will be 45 days until the election. According to the Military and Overseas Voter Empowerment Act (MOVE Act), that is the deadline by which states must send unmarked ballots overseas. That period should allow ballots to reach GIs, from bases in Germany to trenches in Afghanistan, in time for them to be returned by election night.

However, these five states have received waivers from the MOVE Act, essentially giving them extensions on their homework. Primary elections last Tuesday gave four of those states (Delaware, New York, Massachusetts, and Rhode Island), and also Wisconsin, only four days to determine party nominees, print ballots, and send them off. Rather than employ this cramming-for-finals approach, election officials in these states should have scheduled primaries early enough to avoid this headache. Meanwhile, Alaska, Colorado, Hawaii, Maryland, Washington, D.C., and the U.S. Virgin Islands also have indicated an inability to adhere to Saturday's deadline.

Even worse, some of the waivers went to states that never demonstrated that they were 'unable' to obey the law. This is the only standard for approving waivers.

As Sen. John Cornyn (R., Texas) reminded Justice in a July 28 letter:

There are only three types of 'undue hardship' that are an adequate excuse for a state to seek a waiver: (i) The State's primary election date prohibits the State from complying; (ii) The State has suffered a delay in generating ballots due to a legal contest; or (iii) The State Constitution prohibits the State from complying.  If none of these situations exists, then the state may not apply for a waiver, and the federal government may not grant one. 

J. Christian Adams, a former Justice Department voting-rights attorney, wrote about this in an August 27 column for Pajamas Media (on whose Internet TV broadcasts I occasionally appear). Despite the strict language of the MOVE Act, Adams reported, Washington State got a waiver even though its primary was on August 17, which gave it plenty of time to transmit military ballots. Delaware applied for a waiver 'just in case' problems arose. Rhode Island asked for and received a waiver because of the hypothetical possibility of a recount.

Also, the act states that waivers apply only to 'an election for federal office.' They cannot be granted for multiple years or permanently.

Nevertheless, as Cornyn's letter reported:

Unfortunately, according to the minutes of the 2010 Winter meeting of the National Association of Secretaries of State ('NASS'), the Deputy Chief of the Voting Section told state election officials that the legislative language regarding waivers is not completely clear, that the provisions of the law are 'fairly general,' that it is 'somewhat of an open question as to what type of information' a state must submit to be granted a waiver, that it is unclear whether waivers, once granted, are valid only for one election or permanently, and that litigation to enforce the provisions of the MOVE Act against the states 'is always the last resort.' 

The Defense Department, which has the responsibility of deciding on waiver applications, asked Justice to help it prepare guidelines so that states would understand the new law's waiver rules and other details. Last May 24, the Pentagon asked Justice to review its 'interim' guidelines.

As Adams put it, 'Officials in the Voting Section allowed the Pentagon draft to gather dust. In fact, the Department of Justice never replied.' (His emphasis.)

Meanwhile, Wisconsin officials told Justice they planned to mail ballots 29 days before the election. In this case, Justice negotiated a hard bargain: The ballots will go out 32 days before election day.

Justice routinely sues states to force them to comply with federal voting-rights laws. Such suits now sit unfiled, while fires remain unlit beneath the tails of these law-breaking states.

As reported by the mighty Quin Hillyer of the Washington Times -- who watches Justice's Voting Rights Division seemingly with night-vision goggles -- DOJ's lethargy in this matter inspired Senator Cornyn to scathe Attorney General Eric Holder anew. 'Last year, Congress enacted the MOVE Act with overwhelming bipartisan support,' Cornyn wrote Holder on Thursday. 'This law represented the most meaningful reform in this area in decades, but it is not going to enforce itself.' 

Why is the normally hyperactive Obama administration somewhere between drowsy and counterproductive on this matter? Could it have anything to do with the fact that military voters lean more Republican than Democratic? An April 8–11 Gallup poll found that Americans overall are 26 percent Republican, 29 percent Democratic, and 42 percent independent. Meanwhile, a survey of 1,800 active-duty troops in the April 11 Military Times discovered that these GIs were 41 percent Republican, 27 percent Democratic, and 32 percent independent. Since military voters are likelier to support Republican candidates and causes, perhaps President Obama's Justice Department just isn't that into defending the voting rights of overseas combatants.

Missed deadlines and other administrative snafus reportedly disfranchised some 17,000 military voters in 2008. These ballots might have tipped close elections, such as Minnesota's skin-tight contest that eventually made Democratic comedian Al Franken a U.S. senator.

America's uniformed men and women dodge -- and sometimes absorb -- bullets so that the rest of us can peacefully debate about taxes and mosques. They should expect to have a voice in choosing the leaders who might deploy them into combat -- or suddenly call them home.

President Obama's Justice Department should wake up, sue negligent states, and ensure that every military vote counts on election night.

-- Deroy Murdock is a nationally syndicated columnist with the Scripps Howard News Service and a media fellow with the Hoover Institution on War, Revolution, and Peace at Stanford University.

Full post as published by Bench Memos - National Review Online on September 21, 2010 (boomark / email).