Military voters must feel like Bill Murray’s character in Groundhog Day. Election after election, certain state and local election officials fail to meet the deadline for sending absentee ballots. The outcome is often the same - thousands of ballots are received too close to the election to be returned or, if they are returned, the ballots arrive after the deadline to be counted. In either case, the military voter is disenfranchised.
Congress attempted to fix this time loop in 2009. The MOVE Act was a new law that created a simple requirement: State and local election officials had to send absentee ballots to military voters at least 45 days before an election. Yet, this simple requirement has been hard to follow.
In 2010, for example, local election officials in at least 14 states failed to comply with the new law. The worst offenders, counties and boroughs in New York and Illinois, missed the deadline by more than two weeks. More than 40,000 military and overseas ballots were impacted by this failure with many of the ballots being sent only 25 days before the election.
Two years later, military voters are waking to the same rotten story in the presidential primaries.
Thus far, at least three states - Alabama, Ohio and Wisconsin - have had local election officials that failed to mail their absentee military ballots on time. Wisconsin and Alabama are repeat offenders from 2010.
Much of the blame for this recurring nightmare rests with the Department of Justice and its Voting Section. Time and again, the Voting Section has been dilatory in its investigations and has failed to take timely action. These failures were well documented in 2010.
But, even when the Voting Section does act, the negotiated settlements with states often lack meaningful relief or real consequences for the local election officials who missed the deadline.
Take, for example, the case against New York in 2010. Even though standard mail delivery to a war zone may take 30 or more days for the one-way delivery of a ballot, the Voting Section negotiated a settlement that allowed counties and New York City to mail absentee ballots using standard mail delivery. In other words, many of the ballots sent under the agreement would not arrive before the election.
The flawed nature of the New York settlement soon became evident. According to New York’s official data, local election officials rejected more than 30 percent of the absentee ballots that were returned by military voters in 2010. These voters should have been protected by the Voting Section, but they weren’t.
Nor has the Voting Section learned anything from 2010. Like the New York case, the Voting Section is once again allowing local election officials to mail absentee ballots to war zones less than 30 days before the election. In Wisconsin, many of the ballots were sent less than 25 days before the election. That is simply not enough time.
The problem in Wisconsin, however, may be much worse than reported. According to settlement agreement, there were at least 350 municipalities that failed to disclose whether they mailed their ballots or whether they mailed them on time. In other words, it is unclear whether nearly 20 percent of the municipalities in Wisconsin sent absentee ballots at all or on time.
Shockingly, the Voting Section took no real action against these nonreporting municipalities. The consent decree required the state to issue an order demanding the data, but provided no consequence for noncompliance. Not surprisingly, 56 municipalities didn’t bother to respond before the election. Their service members in these towns were abandoned by the Voting Section.
Ultimately, if military voters have any hope of ending this time loop, the Voting Section must be willing to demand relief that fully protects our military members and provides real consequences for those election officials failing to comply with the law.
For example, in both Wisconsin and New York, the Voting Section should have demanded that counties and municipalities send all absentee military ballots via express mail delivery - especially if they were being sent to a war zone. That remedy not only would have provided additional protection for the troops, it would have provided a real incentive to avoid future violations.
To the extent that local jurisdictions are unwilling to respond to official requests by state and federal officials, as was the case in Wisconsin, they should be hauled to court. That, too, will provide a little incentive to avoid future violations.
Unfortunately, the Voting Section failed to achieve either outcome and, thus, no one should be surprised when these same violations occur in November.
Eric Eversole is the executive director of the Military Voter Protection (MVP) Project and formerly served as a attorney in the Department of Justice’s Voting Section.