Virginia likely to toss overseas military votes

By Larry O'Dell ASSOCIATED PRESS | Tuesday, December 9, 2008

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RICHMOND | A federal judge said Monday that he probably will not order Virginia election officials to count late absentee ballots from overseas military personnel but wants a solution before the next election.

U.S. District Judge Richard L. Williams ordered the State Board of Elections and the Justice Department to work out a procedure to ensure the timely mailing of ballots to service men and women in future elections.

Judge Williams said counting the late absentee ballots would not change the outcome of the Nov. 4 elections.

However, he refused to throw out the Justice Department's lawsuit purporting state elections officials violated a 1986 federal law requiring states to give deployed military members adequate time to receive, fill out and return absentee ballots before Election Day.

The judge said he would refer the case to a magistrate judge for a settlement conference.

The Justice Department says that to comply with the Uniformed and Overseas Citizens Absentee Voting Act, state officials should have mailed military ballots at least 30 days in advance. The agency also says at least 656 of the ballots were not even printed until 28 days before the election - 125 of them two weeks or less before Nov. 4.

Robert A. Dybing, an attorney for the state board, said the 1986 law does not impose a specific deadline for states to mail military absentee ballots. He said the law allows military members who don't receive a requested absentee ballot to cast a federal write-in ballot.

However, the Justice Department says the Defense Department's Federal Voting Assistance Program guidelines on state ballots should be mailed 30 days before Election Day, and other courts have adopted that as the legal standard.

Justice Department attorney Alberto Ruisanchez told Judge Williams that Congress intended the federal write-in ballot to be an emergency backup, not a substitute for a state absentee ballot. He said the write-in ballots are more difficult to obtain, especially by military members serving in combat zones.

Judge Williams said the state's inability to print and mail ballots promptly was an "inexplicable failure."

He also said if the 125 ballots were indeed not printed until two weeks before Election Day, then state officials violated the federal law and need to make sure it doesn't happen again.

The plaintiffs wanted Judge Williams to order a remedy for future elections, but he said the state board and the Justice Department were better qualified to craft a solution.

The lawsuit was originally filed by the presidential campaignofJohn McCain, a Republican. The Justice Department intervened and became the lone plaintiff after Judge Williams ruled that the campaign lacked standing to sue.

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