By most accounts, the 2008 presidential election was a disaster for military voters. Thousands of them were disenfranchised when their absentee ballots were sent to wrong addresses, lost in the mail or mailed too close to the election for the ballot to be returned. To make matters worse, thousands of ballots were rejected by local election officials because the ballot - through no fault of the military voter - arrived after the election deadline.
Much of this disaster could have been avoided by the Voting Section of the Justice Department, and without swift action, the Voting Section will cause a similar disaster in 2010 despite congressional efforts to fix the problem.
The long-standing problems associated with military voting are well-known. As most Americans discovered during the 2000 election, military voters face significant hurdles when voting because of the transitory nature of military life and the delays associated with delivering absentee ballots, especially to war zones. These problems only have increased as America has sent hundreds of thousands of military members to Iraq and Afghanistan.
The primary hurdle, according to most experts, is time. Nearly every military-voting expert agrees that absentee ballots must be sent to overseas military voters at least 45 days before an election to give those voters sufficient time to receive and return their ballots. The Military Postal Service Agency goes one step further and recommends that absentee ballots be sent to war zones 60 days before an election.
Unfortunately, states have been slow to revamp their voting laws to accommodate a 45-day mailing standard. Before the 2008 election, at least 10 states and the District of Columbia provided military voters with just 35 days or fewer to receive and return their ballots. Overall, the Pew Center on the States found that “more than a third of states [did] not provide military voters stationed abroad with enough time to vote or [were] at high risk of not providing enough time.”
Yet the primary entity responsible for protecting military voters, the Voting Section, decided not to pursue those states even though federal law (i.e., the Uniformed and Overseas Citizens Absentee Voting Act) gave the section wide latitude to protect military voters. The law merely requires proof that the state did not provide a military member with a reasonable opportunity, including sufficient time, to vote by absentee ballot. Given the overwhelming evidence on mail delivery times, these cases could have and should have been brought.
There is no doubt that the Voting Section’s decision disenfranchised thousands of military members. According to the Election Assistance Commission, more than 17,000 military and overseas voters were disenfranchised in 2008 because their ballots arrived after the deadline and had to be rejected. Thousands more were disenfranchised when their ballots never arrived or were received too close to the election to be returned.
In states such as Minnesota, which mailed absentee ballots just 30 days before the election, military absentee ballots were twice as likely to be rejected as nonmilitary absentee ballots. The sole reason for this higher rejection rate was that more than 500 military and overseas ballots arrived after the election and had to be rejected. Had Minnesota mailed absentee ballots at least 45 days before the election, most of those votes would have been counted and could have made a difference in the state’s historic Senate race.
The section’s misfeasance was more than Congress could stand. In early 2009, a bipartisan group of senators and representatives worked to pass the most comprehensive military-voter reform in 25 years. The centerpiece of that reform was Congress’ decision to remove the section’s discretion in determining what constituted a reasonable time period for mailing absentee ballots.
Congress mandated that all absentee ballots must be mailed to military members at least 45 days before an election unless the state seeks a limited waiver from the Federal Voting Assistance Program. The limited waiver was intended to address situations in which a state provides military voters with 45 days to vote but did so by adding days after the election. For example, some states mail absentee ballots 35 days before an election and then add 10 days after the election to reach 45 days.
A law, however, is only as good as the people who enforce it and, once again, the Voting Section is making decisions that will disenfranchise military voters in 2010. In February, a senior official in the Voting Section informed an audience of state election officials that the waiver provision was ambiguous. The official further expressed the section’s willingness to work with states to submit waiver applications and emphasized the section’s desire to avoid litigation.
Since February, the section has continued to advocate a position that would grant waivers freely and even grant them if a state failed to provide a military voter with 45 days to receive and return his or her ballot. In other words, notwithstanding Congress’ clear mandate, the section continues to argue that military voters should have less than 45 days to receive and return their absentee ballots.
The irony here is that the Voting Section should be finding ways to protect military voters rather than making decisions that surely will disenfranchise our men and women in uniform. Congress conducted extensive hearings and determined that military members need at least 45 days to receive and return their absentee ballots. The Voting Section needs to enforce that standard.
M. Eric Eversole is director of the Military Voter Protection (MVP) Project and formerly served as a litigation attorney in the Voting Section of the U.S. Department of Justice.