Outrage: Pentagon Grants Five States Waivers from MOVE Act
In Washington, politicians always like to release bad news on a Friday, as fewer people notice. Today, the Pentagon announced that it had granted the waiver requests of five states seeking to escape requirements to protect military voters.
I have written previously here at PJM that all waiver requests should be denied. Unfortunately, if you are an overseas servicemember from Delaware, Massachusetts, New York, Rhode Island, or Washington, the protections in the MOVE Act aren’t going to apply to you this year. And if you are from one of the states who still aren’t in compliance with MOVE -- like Colorado, Wisconsin, or Alaska -- don’t be surprised if you get scant help from Attorney General Eric Holder.
Waivers can be granted from MOVE only if states find a way to make sure the votes of servicemembers are still counted.
Washington, despite having plenty of time after an August 17 primary to get the job done, received a waiver today. Washington was unwilling to change their schedule of ballot preparation to allow for 45 days mailing time. Though modern printing technology makes the Washington waiver unnecessary, it was granted.
Delaware election director Elaine Manlove says the state can get ballots out in time -- but applied for a waiver “just in case.” Delaware’s waiver was motivated by caution, but caution isn’t a basis for the granting of a waiver. The law says “undue hardship.” However, waiver granted.
Rhode Island shared Delaware’s risk aversion: Spokesman Chris Barnett says they asked for a waiver in case they had a recount in the primary. A hypothetical “undue hardship.” Waiver granted.
Since MOVE passed last October, Massachusetts did nothing to adjust their late September 14 primary to comply. (This was the same state that introduced and passed legislation in mere days so that Senator Paul Kirk could be sworn in to vote for ObamaCare. The legislature previously stripped Republican Mitt Romney of the power to appoint replacements and required a special election.) It’s a shame soldiers aren’t as important as Senator Kirk’s vote was. Waiver granted.
New York sought a waiver. No surprise there: seven years after the passage of the Help America Vote Act of 2002, New York still wasn’t in compliance. Waiver granted.
Calls to Bob Carey, the director of the Federal Voting Assistance Program (FVAP), were not returned in time for this article, but a spokesman told me that these waivers are in compliance with the MOVE Act standards.
FVAP never published the waiver requests prior to today -- including the Hawaii request received back on March 24, 2010. Many state officials, such as Massachusetts Secretary of State Bill Galvin, made no mention whatsoever of the waiver requests on their websites.
Given that few things could make Americans angrier than another 17,000 lost votes from soldiers -- as happened in 2008 -- the secrecy was understandable.
Some waivers place undue faith in technology to compensate for the delays. One waiver grant cites the use of the electronic “FVAP Voting Wizard Project” and a state’s comprehensive plans to use fax and email transmission of ballot forms. Yet Congress expressly rejected such work-arounds when debating the MOVE Act in 2009.
Congress rejected computer solutions because they knew that forward deployed troops don’t have computers.
Those most hurt by reliance on technology as a solution are the frontline soldiers like the Navy Seals, the 10th Mountain Division, the Marines, and others who hear the sounds of bullets whistling by but don't see a computer screen for weeks. They eat MREs and sleep under the stars -- they don’t carry laser printers and iPads. Waivers based on technological solutions are useful to servicemembers back in Wiesbaden, Okinawa, and Molesworth. But those solutions don’t help those directly fighting the War on Terror.
Anyone remember that war?
Bureaucracies tend to creek and groan when they have something new to do, and the creaking and groaning was deafening with MOVE Act implementation. Take the failure of the Department of Justice Voting Section to ever respond to the Pentagon’s draft final waiver guidance for states. FVAP officials wanted to give states early guidance about what would or would not justify a waiver, and the Pentagon wanted to publish the information well in advance of the July 28 deadline for states to submit waiver applications. So FVAP sent draft guidance to bureaucrats in the Voting Section last spring.
While they waited for the DOJ, the Pentagon had to issue “interim” guidance on May 24, 2010. It foreshadowed the problem:
Please be advised that [FVAP] will not to be able to provide guidance ... until detailed guidance is available.
In a dereliction of their responsibility to provide advice to FVAP, officials in the Voting Section allowed the Pentagon draft to gather dust. In fact, the Department of Justice never replied. As a result, states never received the long-promised final waiver guidance, and were forced to submit waiver applications at the last minute without any hint of administration policy.
Back in March 2010, Hawaii was begging for policy clarity from the Pentagon. Scott Nago, the Hawaii chief election official, wrote to them:
We were told your office was still in consultation with the attorney general and that we would be informed once that consultation was complete. It is our understanding that no application has been submitted by any jurisdiction with a late primary election as they are waiting for further guidance from your office.
We all are still waiting. This abdication of MOVE Act duty by DOJ officials may explain why this article about waiver decisions is appearing in late August, instead of late May.
This example also demonstrates the difference between a bureaucracy run by Robert Gates, and one run by Eric Holder. General Holder should find out on whose desk the Pentagon’s draft was allowed to gather dust for months, and he should take swift and appropriate action against the bureaucrat. Because states submitted late waivers, full implementation of MOVE waiver policy was delayed to the outer limits of the statute.
To complicate matters further, DOJ officials were actively undermining MOVE Act protections throughout the spring. Not only did one Voting Section official tell states that the provisions of the new law were “vague” and a lawsuit “was a last resort,” an analysis Senator John Cornyn has characterized as laughable, they encouraged states to apply for waivers.
State election officials who were in attendance for Justice Department presentations said they couldn’t believe what they were hearing.
Worse yet, these same Justice Department officials told multiple officials that once a MOVE waiver was granted, it might be permanent, carrying over to the 2012 presidential election, despite express statutory language to the contrary. Such staggeringly bad legal advice came from both political appointees as well as career attorneys in the Voting Section. So embarrassing was the position, that senior political DOJ appointees retreated from the position once Senator Cornyn heard about it.
The apologists for the waivers and lack of DOJ enforcement cite the fact this is a “transitional year,” a term that appears nowhere in the law. They say the waiver provisions contemplate a “late” primary. But every state with a late primary could have done something about it to comply with MOVE.
Florida did. Georgia did. Vermont did.
It was simply a question of legislative priorities, and states like New York, Massachusetts, and Colorado did nothing to fix the problem.
The ball is now in the Justice Department court once again. Will they sue the states like Colorado and Wisconsin who are blatantly noncompliant with the MOVE Act?
Ballots need to mail in just a few weeks to Iraq and Afghanistan. We all know who is breaking the law, right now. It isn’t rocket science. Every day that DOJ delays a lawsuit means some solider guarding a dangerous frontier will lose their vote. Shameful bureaucratic inaction by the DOJ in the days ahead will have real and tragic consequences. The attorney general should immediately order the Voting Section to file lawsuits against Colorado, Alaska, and Wisconsin.
It would take diligent Justice lawyers a day, at most, to draft and file a complaint. Our heroes serving overseas don’t have the luxury of going AWOL.