When Attorney General Eric H. Holder Jr. installed Thomas E. Perez as assistant attorney general for the Civil Rights Division, he emphasized the importance of being ready to confront 21st-century issues and doing so in a timely manner. He warned his new assistant, “The quest for justice must be an impatient thing - for we all know what happens when justice is delayed. So I am an impatient attorney general.”
Military voters know what happens when justice is delayed.
Notwithstanding overwhelming evidence in 2008 that military voters needed at least 45 days to receive and return their absentee ballots, the Voting Section of the Civil Rights Division stood by as more than 20 states failed to provide military voters with sufficient time to vote. This failure alone cost thousands of military members the right to vote.
Thousands more may suffer the same fate in 2010 despite congressional efforts to modernize military vote law. The Military and Overseas Voter Empowerment Act (MOVE Act), which was passed in 2009, was the most significant voter reform in 25 years. At its core, the law requires states to mail absentee ballots at least 45 days before an election and requires states to use electronic delivery mechanisms to expedite the delivery of absentee ballots to military members.
Now, 10 months after its passage, nearly one-third of the states have failed to implement one or more of the key provisions of the MOVE Act. At least 11 states (Hawaii, New York, Delaware, Alaska, Washington, Maryland, Massachusetts, Wisconsin, Rhode Island, New Hampshire and Colorado) and the District of Columbia have not implemented the 45-day deadline for mailing absentee ballots. At least five states (Alabama, Connecticut, Massachusetts, Missouri and New Hampshire) have not implemented the electronic-delivery requirement under the MOVE Act.
For its part, the Voting Section appears to be in no hurry to enforce the new law and, more problematic, appears to be hiding how many states have failed to comply fully with the MOVE Act.
This latter point was evident in a recent letter to Sen. John Cornyn, Texas Republican. While the letter repeatedly emphasized the department’s commitment to enforce the law, it avoided Mr. Cornyn’s specific request to identify noncompliant states. Nor did the letter answer Mr. Cornyn’s question about the department’s plan to ensure full compliance with the MOVE Act. Instead, the department promised to meet with Mr. Cornyn at a future date.
There is a good reason, of course, why the department wants to avoid Mr. Cornyn’s questions. Given the volume of noncompliant states, can the department or Voting Section realistically guarantee full compliance before the November election?
With so few days left before the election, the passage of each day makes it more and more unlikely that the Voting Section can ensure that each state will be compliant with the MOVE Act. It takes a significant amount of time to draft a complaint and request for an injunction, file it in federal court, set it for hearing, hold the hearing, issue a remedy and ensure compliance. Multiply these tasks by five, 10 or 16, and unlikelihood of full compliance is evident to most reasonable people.
Yet the Voting Section continues to wait and ignore reality, hoping states will comply voluntarily with the MOVE Act in the next few weeks. It should know better.
As one Wisconsin legislator recently stated, “If there’s no push from the feds, I’m not certain that we will see it happen,” referring to mailing absentee military ballots 45 days before the election. Wisconsin recently submitted a waiver application proposing to mail absentee military ballots approximately 34 days before the election, a time period significantly shorter than the 45-day requirement.
Colorado likewise needs immediate federal intervention. After the Colorado legislature failed to pass key revisions to implement the MOVE Act, the Colorado secretary of state’s office admitted that military voters from Colorado will likely be disenfranchised in 2010, especially if they serve in a remote location like a war zone. Still, the Voting Section waits to bring an enforcement action.
Unfortunately, the Colorado secretary of state has correctly identified the real victims of delayed compliance - that is, military members serving on the front lines in Iraq and Afghanistan. These heroes need every day of 45 days to receive and return their ballots. They are the ones who must rely on the mail system because they cannot pick up a phone or log on to a computer to download and print an electronic ballot. And they are the ones who will be denied justice if the Voting Section continues to wait. Perhaps the attorney general needs to remind the Voting Section about his impatience.
M. Eric Eversole is the executive director of the Military Voter Protection (MVP) Project and formerly served as a litigation attorney in the Department of Justice’s Voting Section.