- The Washington Times - Monday, September 13, 2010

The U.S. Justice Department’s Voting Rights Section has reached an agreement with the state of Wisconsin that is too weak to adequately protect military voters stationed overseas. The department should not get away with letting other states give short shrift to the voting rights of our armed forces.

In 2008, a disturbing 38 percent - 2,125 out of 5,562 - of ballots requested by Wisconsin’s overseas military personnel were either not returned on time, returned as undeliverable or rejected for reasons such as a lack of proper witness signature. It’s possible that a soldier who went to the trouble of requesting a ballot might choose not to fill it out, but it’s unlikely. More likely is that many of those voters received their ballots so late that they figured there was no way to return them on time to be counted, and thus they didn’t bother trying.

It was to combat a nationwide problem of would-be military votes going uncast or uncounted that Congress in 2009 passed the Uniformed and Overseas Citizens Absentee Voting Act (UOCAVA), which requires states to mail absentee ballots to military personnel upon request at least 45 days in advance of the general election. UOCAVA allowed states to receive one-time waivers under restricted circumstances that include an explanation of how else the state will ensure military voting rights. However, the Defense Department rejected the Dairy State’s waiver request as providing insufficient guarantees.

Enter the Justice Department, which let cheddarhead officials off the hook. Wisconsin’s waiver request asked permission to mail the ballots 29 days in advance while allowing military votes to be counted up to 10 days after Election Day. The new agreement requires ballot mailing 32 days in advance and counting of the votes up to 17 days after. Unfortunately, this jury-rigged 49-day window isn’t as good as the regular 45-day window.


“Time after the election is different in quality than time before. The MOVE Act was explicitly designed to add time before an election to ensure the solider would get a ballot in time to benefit from the express delivery requirement under the MOVE Act,” election-law expert J. Christian Adams explained to Pajamas Media. “This guarantees that ballots placed in military mail at least 7 days before an election will be returned in time to be counted. By sending ballots just 32 days before the election, many overseas soldiers will be denied this important guarantee. Congress specifically rejected post-election add-on time as a solution.”

Another real-world consideration argues against this “count-the-votes-later” solution. In vote-counting as in property rights, possession effectively is nine-tenths of the law. When election results are announced the day after regular balloting, the media often treat any subsequent changes as being suspicious. The longer after an election the ballots trickle in, the less valid those ballots are likely to be seen to be - and the more time there will be for clever lawyers to invent novel ways to block their counting.

Congress was wise to set the 45-day deadline to allow ballots to be forwarded to troops on the move in remote locales around the world. The Justice Department is derelict in allowing states to avoid those requirements for insufficient alternatives.