As the election season gears up and the races grow more contentious, the aphorism “every vote counts” will become evermore consequential.
Since the Voting Rights Act of 1965, Congress has purportedly worked to guarantee that every eligible American has the right to vote. This has not been the case, however, for our men and women in uniform.
The Election Assistance Commission reports that during the 2008 election, 17,000 American soldiers fighting overseas had their votes thrown out. According to J. Christian Adams, a former attorney for the Department of Justice’s Voting Rights Division, that year only an estimated 17% of deployed troops actually had their votes counted.
Election officials failed to count the remaining 83% because either the soldier never received a ballot, sent it in too late, never requested a ballot, lost the ballot in the mail, or did not complete the paperwork sufficiently. Adams also points to unwieldy voting regulations as another reason so few deployed military personnel had a voice in the last election. For example, the Minnesota requirement that the county notary notarize the ballot in order for it to count. “A soldier in a fox hole in Afghanistan is not going to have his county’s notary nearby,” Adams noted.
In October 2009, President Barack Obama signed the Military Overseas Voter Empowerment (MOVE) Act — a piece of legislation which aimed to ensure troops overseas have their votes counted — into law. Most significantly, the law eliminates such obstacles as the aforementioned Minnesota rule and requires states to dispatch absentee ballots to soldiers overseas 45 days before an election to ensure that they have enough time to receive, complete and return their votes. A point of contention with the new law, however, is a provision which allows states to request a waiver to exempt them from certain requirements in the event of “hardship.”
Prior to the MOVE Act, the government had no set number of days required for states to send out absentee ballots. Bureaucrats at the Department of Justice interpreted “reasonable” time to mean 30 days. This interpretation prevailed despite the fact that the Military Postal Service Agency said 60 days would be a far more accurate amount of time. Indeed, according to the Election Assistance Commission, in 2008, 43.7 % of rejected ballots were not counted because they missed the deadline, an outcome which might have been averted with a longer lead-time.
Captain (Ret.) Samuel Wright, Director of the Service Members Law Center for the Reserve Officers Association, explained the practical implications of this to The Daily Caller. “It’s not a huge leap to say that if it takes 20 days for the ballot to get to you in Afghanistan and it takes twenty days to get back and they don’t mail the ballot until 25 days before the election, that your right to vote has been violated.”
Though the MOVE Act goes into effect this coming election cycle, some have raised concerns that the Department of Justice will not be especially focused on enforcing the new law. Adams says that this concern comes down to bureaucratic inertia. “The people who are overseeing this have been in charge for a long time. And they were arguing, despite all the evidence to the contrary, that only 30 days was necessary for a ballot transmit to go out and come back…The fruits of that argument was 17,000 canceled votes,” he said.
While the MOVE Act asserts that states must send ballots out 45 days in advance, the law does provide wiggle room, allowing states to apply for a waiver to avoid compliance. The law gives the Federal Voting Assistance Program (a sub-sect of the Pentagon) the power to approve or reject a state’s application, however, they do so with the advice of the Department of Justice. As of today, six states have submitted waiver requests: Alaska, Washington, Hawaii, New York, Delaware, and Colorado.
Eric Eversole, Director of Military Voting Protection Project and former attorney at the Department of Justice Voting Section, told TheDC that the Department of Justice has a lot of influence in the decision making process. “At the end of the day the Federal Voting Assistance Program will make the decision, but the Department of Justice carries a lot of weight. So they have a very important role and they can steer the decision making process based on their purported interpretation of the law.”
Adams concurred. “The Pentagon can reject the consultation and goodness please let them do so if the consolation is anything less than strict enforcement,” he said. “Here is the core problem. The same people at [the] DOJ who were behind this ‘stuck on stupid’ 30 day policy are the ones writing the consultation advice.”
Eversole said there are a number of provisions that states have yet to incorporate into their own laws, such as implementing electronic systems for ballot requests. He questions whether the Department of Justice will take the necessary action to ensure soldiers overseas have ample opportunity to vote in 2010.
“There is no history of action on the part of the Department of Justice,” Eversole continued. “The real question is what are they going to do with respect to 2010. The concern I have is that the DOJ will wait until the last minute…There are two big questions. Are they really serious about enforcement? But the second is, are they going to take action in a timely manner to protect the troops? And that second question, considering the history, should be of concern to people going into the 2010 election.”
Adams said that an indication of the Justice Department’s lack of concern for military ballots has been manifest in the treatment of the subject on their website. “This law was signed in October, 274 days went by before [the] DOJ updated their web page — which they just did last Friday — to include the new law. They had the old 30 day standard,” Adams said. “In the meantime, [the] DOJ had the time to post how felons could apply to their state to get back the right to vote, which the federal government, of course, has nothing to do with.”
On July 26, Texas Republican Sen. John Cornyn sent a letter to Attorney General Eric Holder expressing his concern that the Department of Justice would not forcefully enforce the mandates of the MOVE Act and demanded that the DOJ bring any state out of compliance back within the confines of the law.
“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,’” he wrote. “If these are the positions of the DoJ, then they fly in the face of the clear statutory language, undermine the provisions in question, and jeopardize the voting rights of our men and women in uniform.”
Wright cannot fathom the continuation of military disenfranchisement. “This is a battle we have been fighting for over 58 years,” he said. “I hope it is not going to take 58 more.”
Sen. Cornyn echoed that sentiment in his letter. “For far too long in this country, we have failed to adequately protect the right of our troops and their families to participate in our democratic process,” he wrote. “The MOVE Act was supposed to end this sad history. The right to participate in democratic elections is fundamental to the American experience.”
Wright remains concerned that the perceived ideological tendencies of the military is one of the reasons their votes may be subverted. “I think there is somewhat of an animus against military voters because of the way they vote,” he said. “I believe the Department of Justice would be far more interested in military voting rights if they thought that it would help reelect Democrats in 2010 and 2012.”
INTERVIEW WITH SECRETARY GATES