At DOJ, Military Voting Rights Hang in the Balance

Decisions by Washington bureaucrats over the next four weeks will have a profound impact on the upcoming November elections. These bureaucrats will decide whether or not those serving in the military from twelve states will have a full and effective opportunity to participate. If they choose to do anything other than aggressively enforce federal laws protecting military voters, many of those serving our nation won’t have a voice.

Every American can do something about it.

As I have written about before, the MOVE Act -- signed into law in October 2009 -- set a mandatory minimum time of 45 days before any federal election to mail ballots to overseas voters. MOVE was a rebuke to the bureaucrats who were stuck on a non-statutory 30-day standard used as a minimum in previous elections.

Blind bureaucratic reliance on the 30-day standard resulted in 17,000 overseas ballots not being counted in the 2008 election. The military postal service says 60 days is needed to get ballots to our troops and back again, but a law is only as good as the people enforcing it.

The new law contains a waiver provision which allows states to exempt out of the requirements by demonstrating an extreme emergency. They also must submit a plan that provides sufficient time for military voters to have their vote counted. For example, if a state had a constitutional provision in conflict with MOVE, and more time was needed to pass a constitutional amendment, a waiver would be appropriate if it included extra time after the election for the vote to be counted, even if late. A waiver is inappropriate if a state simply decides not to comply with MOVE.

But bureaucrats in Washington get to decide.

Thankfully the Pentagon, and not the Department of Justice, has the power to grant or deny a waiver. The only leverage the DOJ has over the Pentagon is the unsavory play of suggesting to the Pentagon they won’t sue a state even if a waiver is denied. If the DOJ plays that card, expect it to be done with oblique language well hidden from public view. The political fallout would be catastrophic for an already embattled attorney general.

If the DOJ actually initiates an aggressive litigation effort, pay close attention to the sort of consent decree the DOJ will accept from states. No consent decree should allow an end-run around the express intent of Congress. For example, it would be unacceptable to the public and Congress if bureaucrats negotiate a consent decree that requires fewer than 45 days to transit ballots. The law is the law.

Twelve states have applied for waivers from protecting military voters in the 2010 election: New Hampshire, Massachusetts, Rhode Island, New York, Maryland, Delaware, Wisconsin, Colorado, Washington, Hawaii, Alaska, and the District of Columbia.

Citizens from these states should be outraged that their state didn’t take steps to protect military voting rights despite having plenty of time to do so. States like Florida, Georgia, and Vermont got the job done and made changes to comply with MOVE. These twelve did nothing.

Citizens from these states can petition their top state election official, usually the secretary of state, to withdraw the shameful waiver requests. Some of these states still have legislatures in session that could fix the problem, but they won’t.