In the 2008 general election, as in all other recent elections, a substantial minority (in some places a majority) of the military personnel who tried to vote by absentee ballot were disenfranchised through no fault of their own. Because of late primaries, ballots access lawsuits, and other problems, the printing and mailing of unmarked absentee ballots is all too often delayed until just a few days before Election Day. Military personnel at sea or in places like Afghanistan simply do not have sufficient time to receive their ballots, mark them, and return them on time.
There are three time-consuming steps in absentee voting. First, the voter’s request for an absentee ballot must travel from the voter to an election official. Second, the unmarked absentee ballot must travel from the election official to the voter. Finally, the marked ballot must travel from the voter back to the election official. It can take weeks for a deployed service member to complete these steps. But if a deployed service member is allowed to vote through secure electronic means, he can complete this process in seconds.
The problem is that secure electronic means have not been authorized, except in a handful of places. As a nation, we are still conducting absentee voting in much the same way that we did during World War II and the Korean War: by physically shipping pieces of paper across oceans and continents. In our military, classified information is transmitted every day by secure electronic means. In commerce, billions of dollars change hands electronically every day, without loss. If electronic means are secure enough for our nation’s most important secrets and for huge sums of money, why is it not possible for our nation’s service members to vote in a way that will ensure that their ballots will be counted?
In June 1952, 13 months after I was born, the U.S. House of Representatives conducted hearings on the absentee voting rights of soldiers fighting in the Korean War. The Honorable C.G. Hall, Secretary of State of Arkansas and President of the National Association of Secretaries of States (NASS), testified that most military personnel would likely be disenfranchised in the 1952 presidential election. Because of late primaries, ballot access lawsuits, and other problems, in many cases local election officials would not have absentee ballots printed and available to be mailed until a few days before Election Day.
The 1952 congressional report on absentee voting for deployed military personnel includes a copy of a letter to Congress dated March 28, 1952, from President Harry S. Truman. In the letter, Truman called upon the states to fix the absentee voting problems and called upon Congress to enact temporary federal legislation for the 1952 presidential election. “Any such legislation by Congress should be temporary,” Truman wrote, “since it should be possible to make all the necessary changes in State laws before the congressional elections of 1954.”
Well, it did not work out that way. The Korean War ground to an inconclusive halt in 1954, and this issue dropped from our national radar screen until 2000, when late-arriving military absentee ballots played a crucial role in determining the outcome of Florida’s excruciatingly close presidential election.
Because of a late primary and an even later runoff primary, Florida’s supervisors of elections have habitually been late in printing and mailing absentee ballots for the general election. Under a 1982 federal court order that remains in effect, Florida is required to count, for federal offices, absentee ballots from outside the United States that are received up to ten days after Election Day. On November 17, 2000, ten days after the 2000 presidential election, canvassing boards assembled at each of Florida’s 67 county courthouses to review and count the 4,000 overseas ballots that had arrived since the election.
Outside the courthouses, Democratic activists were screaming “count every vote” and urging that every ambiguous hanging chad be counted as a vote for Gore. Inside the courthouses, Democratic lawyers were challenging these late-arriving military ballots one at a time, on every conceivable technical basis. The Democrats managed to get 1,500 of the 4,000 ballots set aside. Among the 2,500 ballots that were counted, Bush picked up a net gain of 739 votes. In the final count, Bush carried Florida by 537 votes. If it wasn’t for these 2,500 late-arriving ballots and the 1982 court order that required that they be counted, Gore would have carried Florida by 202 votes.
Congress has attempted to secure military and overseas citizens’ absentee voting rights through the enactment of the Federal Voting Assistance Act of 1955, the Overseas Citizens Voting Rights Act of 1975, and the Uniformed and Overseas Citizens Absentee Voting Act (UOCAVA) of 1986. These laws give “absent uniformed services voters” (military personnel and their family members within or outside the United States) and “overseas voters” (U.S. citizens outside the U.S. temporarily or permanently) the right to vote in primary, general, special, and runoff elections for federal offices. They also give the United States Attorney General the authority and responsibility to enforce military and overseas citizens’ voting rights by filing suit in the appropriate federal district court against any state that deprives these citizens of the right to vote.
On Oct. 29, 2009, President Obama signed into law the National Defense Authorization Act (NDAA). The NDAA included the Military and Overseas Voter Empowerment Act (MOVE Act), which made several amendments to UOCAVA. States are now explicitly required to mail absentee ballots to military and overseas citizens who have requested them at least 45 days before Election Day. If a state is unable to meet that 45-day standard, its chief state election official can request a waiver from the Secretary of Defense. To obtain the waiver, the state must show that it is unable to mail ballots 45 days before Election Day, and the state must show that it has made an alternative arrangement that will enable military and overseas citizens to cast ballots and will ensure that those ballots get counted.
In a letter to Attorney General Eric Holder dated July 26, 2010, Senator John Cornyn of Texas (principal sponsor of the MOVE Act) wrote:
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 [of the Department of Justice] told state election officials that the legislative language regarding waivers is not completely clear, that the provisions of law are ‘fairly general,’ that it is ‘somewhat of an open question as to what types of information’ a state must submit to be granted a waiver, that it is unclear whether waivers, once granted, are valid for only one election or permanently, and that litigation to enforce the provisions of the MOVE Act against the states ‘is always the last resort.’ 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.
Senator Cornyn’s fear, which I share, is that DOJ’s undue patience with non-complying states will mean that America’s sons and daughters who are away from home and prepared to lay down their lives in defense of our country will have to wait another 58 years to enjoy a basic civil right that the rest of us take for granted.
I invite the reader’s attention to the eloquent opening paragraph of President Truman’s 1952 letter to Congress:
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 their 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 words are as true today as they were in 1952, and that those words should be directed to Attorney General Holder and to today’s state legislators and state and local election officials. With their help, America’s service members will not have to wait until 2068 to vote.
Captain Samuel F. Wright, JAGC, USN (Ret.) is the Director of the Reserve Officers Association Service Law Center.