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.

The Pentagon Federal Voting Assistance Program (FVAP) has 45 days to deny or grant the waiver requests. Unfortunately, this takes us right up to the day when ballots would need to be sent to soldiers to be effective. The FVAP should quickly deny the waiver requests so the DOJ can then sue the states who are not in compliance with MOVE. The DOJ shouldn’t spend weeks pondering the waiver requests either. The DOJ’s Voting Section should get their recommendations back to the FVAP within a few days, not after a few weeks. Delay by the DOJ means someone serving overseas will be harmed. Instead of being ponderous, the DOJ should be putting targets in their crosshairs to sue, now.


The actual waiver requests have not yet been released to the public by the Pentagon, and perhaps never will (so much for the campaign promise of transparency). These waiver requests should be posted at the FVAP website for public review, now. Moreover, the Justice Department should post its recommendations to the FVAP the moment they are issued.

Let the public judge how aggressively the DOJ is willing to protect military voters in their recommendations to the FVAP.

We have reason to worry. Unbelievably, the DOJ earlier this year proffered the outlandish argument that once a waiver was granted for 2010, it would continue to apply for future elections, including the 2012 presidential election. This incorrect and equivocal reading of MOVE was conveyed to multiple people, including state election officials. It demonstrates a timid mindset dangerous to military voting rights.

The DOJ would never adopt such an equivocal approach to protecting the voting rights of a racial minority.

No wonder Senator John Cornyn made it clear to DOJ officials this won’t be tolerated anymore. After the senator’s scolding, the DOJ jettisoned the permanent waiver argument.

But Senator Cornyn is still on guard. He has put a hold on the Senate nomination for the number two man at the DOJ, James Cole. Cornyn placed the hold on the deputy attorney general nominee after learning from meeting minutes that a Voting Section official made remarks to state election officials encouraging waivers, and telegraphing an aversion to suing states for violating MOVE.


The Washington Times interviewed state election officials who were present for the speech — they reported that the remarks by the Voting Section official were even worse than reported in the meeting minutes.

Maryland’s failure to comply with MOVE is typical. I have reviewed documents which make it very clear that Maryland knew they were not in compliance with MOVE as far back as January 2010, but did absolutely nothing to fix the problem. This failure to protect military voters now threatens Governor Martin O’Malley’s reelection. Challenger Bob Ehrlich is hammering O’Malley for dropping the ball.

Instead of passing legislation to enact MOVE, the Maryland General Assembly was able to pass 810 other pieces of legislation in 2010.

Maryland found time for designating September 15 through October 15 as “Hispanic Heritage Month,” a ban on driving with cell phones, mandatory solar energy purchases for state utilities, a law to decrease how far away from shore people can hunt ducks … and saddest of all, a law allowing 16-year-olds to register to vote. Obviously Maryland has other priorities besides men and women serving overseas.

In the meantime, the public, particularly military families and veterans groups, have a right to petition their government and voice their opinion about the waivers. Citizens can reach FVAP and tell them to deny all waiver requests at 800-438-8683 or [email protected]. Citizens can petition the DOJ and tell them both to recommend against granting the waivers and to sue states who submitted them at (202) 307-2767 or [email protected].


Citizens have this right in a free and democratic government. Whether or not Washington cares enough to listen remains to be seen.


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