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The Scandal of Military Voter Disenfranchisement

We can't depend on the Justice Department to see to it that the states comply with the law regarding absentee ballots being shipped in a timely manner to military personnel overseas.

by
Captain Samuel F. Wright, JAGC, USN (Ret.)

Bio

November 4, 2010 - 1:24 pm

In a speech to the House of Commons on August 20, 1940, Prime Minister Winston Churchill said:

The gratitude of every home in our island, in our empire, and indeed throughout the world, except in the abodes of the guilty, goes out to the British airmen who, undaunted by odds, unwearied in their constant challenge of mortal danger, are turning the tide of world war by their prowess and their devotion.  Never in the field of human conflict was so much owed by so many to so few.

These eloquent words about the Royal Air Force in the Battle of Britain could apply equally to the men and women of the United States Armed Forces today.  The entire U.S. military establishment, including the National Guard and Reserve, amounts to less than three-fourths of 1 percent of the U.S. population.  It is these few who, by their prowess and their devotion, have protected all Americans from a repeat of the horrors of September 11, 2001.

What do these few ask of our country in exchange for their valiant service?  They have every right to ask, and indeed to demand, that they be given the opportunity to cast ballots in elections that get counted.  In a 1952 letter to Congress, President Harry S. Truman wrote:

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 our 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.

President Truman’s letter is included in a 1952 report of the Subcommittee on Elections, Committee on House Administration, U.S. House of Representatives, concerning voting rights for military personnel fighting the Korean War.  The Honorable C.G. Hall, secretary of state of Arkansas and president of the National Association of Secretaries of State, testified that military personnel in Korea and elsewhere were likely to be disenfranchised because late primaries, ballot access lawsuits, and other problems made it impossible for local election officials (LEOs) to print and mail absentee ballots until just a few days before Election Day.

In his 1952 letter, President Truman called upon the states to fix this problem, and he called upon Congress to enact temporary federal legislation for the 1952 presidential election.  He wrote,

Any such legislation by Congress should be temporary, 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 1952, the issue dropped off our national radar screen, and the states did not fix the problem.  Finally, in 2009, Congress enacted the Military and Overseas Voter Empowerment Act (MOVE Act).  This new law requires every state to mail out absentee ballots to military personnel and family members by the 45th day before Election Day (e.g., September 18, 2010).  Several sstates with late primaries applied for and received waivers for 2010, and agreed to extend the deadline for the return of ballots mailed in from overseas.

In Illinois, the problem was not a late primary.  Indeed, Illinois held its 2010 primary on February 2, 2010.  But 35 of 110 Illinois counties seriously missed the September 18 deadline.  One of the late counties was St. Clair County, home to 261,000 people and to Scott Air Force Base.

The U.S. Department of Justice is responsible for enforcing the MOVE Act, but it seems not to take its responsibilities seriously — perhaps because military personnel vote overwhelmingly Republican when they do have the opportunity to vote.

DoJ entered into a consent decree with Illinois that does not solve the problem.  In those counties that were seriously late in sending out ballots, the consent decree extends by only one day (from November 1 to November 2) the deadline for the postmark of the marked ballot coming back to the local election official.  If Sergeant Smith in Afghanistan receives his ballot on November 3, he cannot cast a ballot that will get counted.

Congress should amend the MOVE Act to clarify that individual military voters have a private right of action to enforce the 45-day rule.  We cannot depend upon DOJ to enforce this law in good faith.  DOJ, under present management, will paper over MOVE Act violations for the same reason that it condoned voter intimidation by the New Black Panther Party in Philadelphia in 2008.

Congress should also clarify that military personnel and family members overseas have the right to vote in state and local elections as well as federal elections, and that any violation of the 45-day rule must be remedied by a court order extending both the deadline for the postmark of the marked ballot and the deadline for its receipt.

It is a national scandal that we as a nation are still conducting absentee voting in much the same way that it was conducted during the Korean War — by shipping pieces of paper across oceans and continents by snail mail.  In our Armed Forces, classified information is transmitted and received every day by secure electronic means.  In commerce, billions of dollars change hands electronically every business day.  If electronic means are secure enough for our nation’s most important secrets and for huge sums of money, why is it not possible, in 2010, for deployed service members to vote by a secure means that will guarantee that their ballots are counted?

Captain Wright retired after a career as a judge advocate in the Navy and Navy Reserve. He has been working the military voting issue since 1976.
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