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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.

I must note that Ms. Bashir is not at fault, and she is a dedicated and committed lawyer. She didn’t develop this inept investigative methodology; her superiors did. It is the same plan used every two years at DOJ. In 2008 we know it cost our nation about 17,000 wasted military votes. There is no way to calculate how many thousands of military votes were wasted in previous elections because of the investigative shortcomings.

“On September 30, 2008,” Bashir notes, “I spoke with Vickie Williams” at the Virginia State Board of Elections. Williams was in charge of monitoring the mailing of military ballots. You’ll note this conversation occurred only 35 days before the election.

Until Congress stepped in last year, the statute set no mailing deadline, and DOJ was only requiring ballots to be mailed 30 days in advance. The Military Postal Service Agency had recommended 60 days, but bureaucrats inside DOJ were stuck in their ways and refused to budge from the 30-day tradition despite calls from all quarters to do so. In a rebuke to the bureaucrats, the new law now requires 45 days.

And what was the extent of the DOJ’s efforts to figure out if the thousands of Virginians serving overseas had their ballots mailed in time? On September 30, “Ms. Williams assured me that all of Virginia’s localities had sent absentee ballots to all UOCAVA voters who had requested an absentee ballot up until that date. She told me that she would send a follow-up email to [the Pentagon] with the specific dates when each locality had mailed such ballots,” the affidavit states.

Ms. Williams assured that all was well. Except it wasn’t. Actually, many ballots in Virginia were mailed overseas just a couple of weeks before the election. There was no chance they would ever be returned in time to be counted.

On Halloween 2008, the DOJ learned they had gotten a trick courtesy of the Virginia State Board of Elections when Ms. Williams called back with some bad news. She told the DOJ that her system never really could “provide the information requested” such as “the specific dates when each locality in Virginia had mailed such ballots.” Nobody actually knew what was going on -- not Virginia, and obviously not the Justice Department either. The election was just four days away and the witches brew of electoral catastrophe was boiling.

One wonders what was happening from September 30 until October 31. Will the DOJ use this same broken system again in 2010? I’d suggest the DOJ look outside the bureaucracy, to the private sector, where experts on systems management exist that can fix this mess and prevent it from happening again. Turning inward to the bureaucracy for answers is likely to yield the same sorry results. But I’ll bet virtually nothing changes because a bureaucrat’s first instinct is to deny that a problem exists.

On November 3, the day before the election, the McCain campaign -- unable to convince the DOJ it needed to act, and fast -- filed a lawsuit to protect military voters. And not until November 14, 2008, did the DOJ do what it should have done weeks before -- file papers in court to protect Virginia voters serving overseas in the military. Eventually the United States took the place of the McCain campaign and litigated the case.

Remember, this same mess played out all over the country, but the whip-smart investigative methods of the DOJ never could detect it. Seventeen thousand trashed military ballots prove it.

Amazingly, the Virginia State Board of Elections (SBE) is continuing to advocate positions in the ongoing (yes, ongoing) litigation which are hostile to military voting rights. Those responsible for these disgraceful positions should be removed, or Virginia Attorney General Ken Cuccinelli should be allowed to assume management of the defense. Cuccinelli does not suffer fools gladly, particularly ones seeking to make it harder for soldiers and sailors to vote. No doubt he would settle the case immediately and agree to protect our servicemembers fully.

But the single Bashir affidavit, filed in the single military voting case arising out of the 2008 election where 17,000 military votes were trashed, tells you everything you need to know.

While our soldiers patrol dangerous frontiers in Korea and south Asia, looking hard for any signs of danger, the DOJ has a very different approach when it comes to detecting compliance by states with federal law. Airmen glued to radar screens and sailors listening hard to the sounds from towed sonar arrays have a right to expect better from bureaucrats in Washington. They put their lives on the line for us. The DOJ should do more than take the word of Vickie Williams at the Virginia SBE that all is well, all is quiet, no problems to report. And the DOJ should respond with overwhelming force when signs appear that states aren’t ready to comply with the new federal 45-day mailing mandate. Requests for waivers from the 45-day mandate should be denied. In fact, requests for waivers should trigger a DOJ investigation.

We owe these heroes no less.