Disgrace: DOJ Fails to Protect Military Voting Rights

In the 2008 presidential election, 17,000 soldiers, sailors, and Marines mailed home completed ballots that were never counted.

Usually these ballots didn’t get home in time, mostly because they weren’t sent overseas early enough. One cause of this catastrophe is the Keystone Cops routine the Department of Justice Voting Section uses to enforce federal laws protecting the rights of military voters. Unfortunately, all signs point to a comic sequel in the upcoming November elections.

Congress tried to fix the problem last year by mandating that all ballots must be sent overseas at least 45 days before the election. But Military Voter Protection Project Director M. Eric Eversole has accused Justice Department officials of encouraging states to seek an exemption to the law. The law indeed grants states the right to ask the Pentagon to opt out of the law. Even worse, Eversole says the Department is telegraphing to states that it doesn’t want to pursue litigation to enforce the law.

Some voting rights are more important than others, it seems. Where have we heard this before?

Exemptions to the 45-day mailing mandate were supposed to be rare, and granted only for the most extreme emergencies. States had plenty of time to amend their laws to comply with the new 45-day window. Many states did nothing. Instead of aggressively enforcing the new protections, Justice has told states that the waiver provisions are ambiguous and encouraged waivers in numerous ways.

Senator John Cornyn, upon learning of the DOJ’s wobbly view of the new law, made it clear to the Pentagon in a recent meeting with Undersecretary Clifford Stanley that the Pentagon -- which has the power to grant waivers -- calls the shots. Cornyn’s message was the Pentagon should ignore any milquetoast attitudes emanating out of the Voting Section at Justice. Expect Senator Cornyn’s office to watch this issue like a hawk, which thankfully he is when it comes to military voting.

But Senator Cornyn has more reasons to worry than he knows. The investigative methods used by Justice in military voting matters are wholly inadequate. And even when the bureaucracy stumbles across violations, the Voting Section is timorous, and reluctant to aggressively litigate disenfranchisement of military voting rights.

One need only look at 2008 for proof. That year the Justice Department set up no telephone hotline for military voters to complain if they didn’t receive their ballot in time. No email address for the armed services was in use either. No outreach via military email, such as the daily “Early Bird,” took place. In fact, on the DOJ webpage devoted to military voting, all complaints are referred to the Pentagon. Naturally, after being detoured to the Pentagon, the aggrieved solider will learn the Pentagon has no enforcement power at all! Justice does.

DOJ should set up a well-publicized telephone hotline and email inbox to funnel complaints directly to litigation attorneys familiar with overseas voting. One Justice Voting Section attorney formerly served in Iraq and as a naval voting assistance officer. Others attorneys there are vets, or in the reserves. When someone in uniform from Iraq or Korea or Germany calls DOJ for help getting their ballot in time, the phones should ring on the desks of these specific military veterans at the Voting Section. It is a disgrace that DOJ refers them to the Pentagon, a bureaucracy without enforcement teeth.

But the problems at DOJ are even worse. Despite the fact we know that 17,000 uniformed personnel had their votes essentially thrown away in 2008, the DOJ didn’t bring a single case during the entire election season. Not one. Obviously there were problems with compliance with federal law. Seventeen thousand wasted votes scream that something is wrong. But apparently the DOJ didn’t have the imagination or investigative acumen to detect problems before the catastrophe had come to pass.

Bureaucracies tend to atrophy. Doing things the way you always do leads to 17,000 soldiers, sailors, and Marines losing their voice.

A document filed in the military voting case of McCain v. Cunningham makes plain the disinterested enforcement system at DOJ for military voters. In 2008, the McCain campaign learned that the Commonwealth of Virginia was sending ballots out far too late for them to ever be successfully returned before the election. The campaign responded by immediately commencing a lawsuit.

Think about that: the very day before a historic election, a presidential campaign -- with the distracting whirlwind of activity and bustle -- was able to do what the bureaucrats at DOJ are paid to do, and didn’t: figure out Virginia was breaking federal law and file a lawsuit.

An affidavit of Voting Section attorney Lema Bashir in the case tells you all you need to know about how ineffective the DOJ investigative methods are during election season. It can be read here.