When I reported at PJM that military ballots in New York failed to mail just three weeks before the election, I described it as surreal. Surreal became tragic when considering how badly the DOJ dropped the ball. They failed to do anything about the problem for eight days after learning about it.
Now it has gotten much worse. I can report that Illinois has at least 25 counties which failed to mail military ballots in compliance with federal law. And DOJ never had a clue. The DOJ, charged with oversight, never detected the failure. To military families and servicemembers, rage is the only appropriate response.
I first reported over a week ago at PJM that ballots did not mail in parts of Illinois. All day long Wednesday, DOJ attorneys breathlessly pursued information about Illinois. I have obtained communications from DOJ and emails related to this panicked DOJ inquiry. They reveal that as of Wednesday, DOJ still didn’t know what was going on in Illinois 25 days after the September 18 mailing deadline — even though PJM did on October 7.
It’s time for members of Congress besides Senators Charles Schumer and John Cornyn to start demanding answers.
Bob Delaney, the St. Clair County clerk, outright refused to mail nearly 1,500 military ballots until October. He had hoped to include a GOP-spoiling Constitution Party candidate to the ballot. The spoiler never had a chance of getting in the race, and the ballots never mailed to military voters. Whether DOJ will act against such nakedly partisan motives remains to be seen.
Some like to speculate that the failure to enforce the MOVE Act must be intentional. They think DOJ is trying to help fading Democratic hopes. They say President Obama wants to help home state Democrats. For now, I tend to disagree, as would anyone who has ever worked inside the Voting Section at DOJ as I have. Everyone who works there knows exactly what the problem is: a broken enforcement system managed with a total lack of urgency.
In the spring, the Pentagon sent the DOJ a draft for waiver guidance to issue to the states. Waivers are available to states to opt out of the MOVE Act for one year, for good cause. The Pentagon wanted to give states some sense of when waivers might be justified, how they should structure their ballot mailing programs, and what would result in a denied waiver. They sent a draft to the DOJ.
The DOJ never wrote back with suggestions.
Because there was no guidance, states were left waiting and had no idea what to do. They failed to fix their laws, applied for waivers, and were denied in some instances. But the broken state systems were in place for the elections, without any chance for repair under DOJ guidance.
Again, the inability to move a document from point A to point B will come as no surprise to anyone has worked inside the Voting Section. Memos on important cases have sat gathering dust in the military voting pipeline for weeks, sometimes months. This peculiar inability to make a decision or to take decisive action is well-known and fully understood. There is also a history of aversion to entering a courtroom to litigate a case (though I’ll bet Arizona Governor Jan Brewer wonders why that wasn’t an issue in the parts of the Justice Department attacking her anti-illegal alien laws).
But protection of military voting rights requires urgency: there is no law enforced by the Voting Section that demands similar speed, and the ability to assess and react quickly. It’s similar to the tasks faced by our heroes in uniform.
Congress will have ample opportunity to collect documents about the catastrophic errors in 2010. These were foreseeable errors: indeed, I wrote about them here at PJM last summer, and others with firsthand knowledge of the broken system warned Americans about the mess that was coming. Sadly, it has gone worse than imagined.
If you are wondering what the system is that I claim is broken — how the DOJ actually investigates to see if states are mailing ballots in time to military voters — it’s not secret. You can read about their crack investigative methods in an affidavit filed in the 2008 case against Virginia (click here). Quite simply, the DOJ calls the states and asks state officials if their counties mailed the ballots in time. In Virginia in 2008, and in multiple places in 2010, this method just wasn’t good enough.
The non-profit Military Voter Protection Project — headed by Eric Eversole, a former DOJ Voting Section attorney — is a private organization which exists to detect failures to mail military ballots. They use a different methodology, which is more effective than the one DOJ uses. MVPP detected failures in Illinois and New Mexico before the DOJ did. (Once again, the private sector performs better.)
After the mess of 2008 and the shame of having to file that embarrassing affidavit, the DOJ should have reassessed how it protects military voting rights. It didn’t. Obviously, it wasn’t a priority of Attorney General Holder. Additionally, this DOJ has shown a preference to deny they did anything wrong rather then hurry to fix a problem.
The person in charge of the process at the Voting Section doesn’t take the criticism seriously, either.
The criticism was characterized by this person directly to me as a “biannual event, everyone complains every two years.” In other words: they’ve come to expect that people don’t think they do a good job, and they don’t care. They think the complaints arrive on a regular schedule, instead of deriving from their own performance.
The first step to recovery is to admit you have a problem, and Attorney General Holder has a very big problem on his hands. Actually, so does President Obama. If the mess of 2010 repeats in 2012, this president will have an even harder time convincing the public he merits reelection. I promise the voices of critics and the watchful eyes of citizens will be more intense in two years.