President Obama is the first and only commander-in-chief in the history of the republic to petition a federal court with a claim that allowing the men and women who serve under his command three extra days to vote in-person by absentee ballot is a violation of the Constitution.
The former constitutional law professor’s campaign has brought suit and filed a formal legal complaint with a federal judge in the key swing state of Ohio that asserts there is no “legitimate justification” for giving members of the military extra time for early voting. In that same complaint, the president’s campaign argues at least 20 times that the Ohio legislature had no good reason to extend reasonable voting accommodations to military voters and that the law is unconstitutional.
Why is Mr. Obama unable or unwilling to “discern” why members of the active duty military need extra time to vote? After serving as commander in chief of the military for the past three-and-half years, Americans would expect this wartime president and former constitutional law professor to understand the practical and legal reasons why the men and women of the United States military should be afforded reasonable voting accommodations. In Orloff v. Willoughby, the U.S. Supreme Court recognized that, “the military constitutes a specialized community governed by a separate discipline from that of the civilian.” Each of the armed services strictly regulates how and where members of the military conduct their daily activities and as such their ability to vote, along with many other activities, is restricted in ways unlike civilian voters.
The Supreme Court elaborated on the highly regimented lives of those serving on active duty in the military in Middendorf v. Henry:
“It is common knowledge that military life differs significantly from civilian life. Soldiers, Sailors and Marines are not free to come and go as they please. They do not make up their own work hours. They do not choose the locations of their jobs. They do not choose what clothes they will wear to work, or even how they will wear those clothes Military life — as a matter of functionality, necessity and national security — is one of regimented, controlled, ordered existence.”
Members of the military are often sent at the last minute on temporary duty far from their regular duty station, conducting field-training exercises away from the base they reside on, working long and abnormal hours or going through the exhausting process of pre-deployment training readying to fight and win America’s wars.
Apparently, this common knowledge was either lost on Mr. Obama or purposefully ignored when his campaign filed its lawsuit. Either way, the practical and potential effect of a court ruling on the constitutionality of the military voter provision is the possibility that it could be found unconstitutional by the court thereby resulting in a restriction on the rights of military voters — a fact that Mr. Obama’s lawyers know full well is within the authority of a federal judge regardless of what remedy they seek in their formal complaint.
The president’s campaign goes on to argue that allowing military voters to have three extra days of in-person absentee voting amounts to “arbitrary and inequitable treatment of similarly situated Ohio voters with respect to in-person early voting.” That straightforward and legally baseless claim is how Team Obama’s lawyers and the president’s chief campaign adviser attempt to argue that all voters are entitled to an extra three days of in person absentee voting. This simultaneously shields the president from claims that he wants to purposefully strike down the military voter provision.
On three different occasions the Supreme Court has held there is no constitutional right to early or absentee voting. In 1969, 1974, and again in 2008 in Crawford v. Marion County Election Board, the highest court in the land found, “That the State accommodates some voters by permitting (not requiring) the casting of absentee or provisional ballots, is an indulgence — not a constitutional imperative that falls short of what is required.”
In Ohio, voters are already allowed to cast ballots early or by absentee ballot from Oct. 2 through Nov. 2 in addition to voting by mail and in person on Nov. 6. In addition to enjoying 32 days of early voting, Ohio voters including veterans, police officers, fire fighters and all other eligible voters are afforded time off from work by virtue of state statute allowing them time to run down to the local polling place on Election Day.
Further undermining the president’s position that he’s simply looking out for all voters is his refusal to rush into federal court when six of Ohio’s 88 counties held weekend voting while the other 82 didn’t. Why is it that only when military voters are the recipients of reasonable voting accommodations does this president run into federal court to claim equal protection violations?
This isn’t the first time that Mr. Obama has failed military voters. Two former Justice Department Voting Rights Division officials testified to members of the Senate that Mr. Obama’s Justice Department purposefully ignored a law aimed at protecting the rights of military voters. The Military and Overseas Voter Empowerment (MOVE) Act, signed into law by President Obama, requires that states send out military absentee ballots to our troops at least 45 days before an election. According to these officials, the Justice Department was encouraging states to use waivers to bypass the MOVE Act.
Defense Department officials, in consultation with the Justice Department, approved waivers for nine of the 12 states that applied in 2010. This dual-process of granting waivers along with lax enforcement standards by the Justice Department has resulted in de facto suppression of the military vote.
For example, in 2010 the Justice Department (DOJ) found that Mr. Obama’s home state of Illinois had violated the MOVE Act, yet the Justice Department waited for eight days after reports surfaced to assert jurisdiction over the matter. When DOJ finally took action, it entered into a consent decree with the state of Illinois that according to former Justice Department officials offered no meaningful relief to military voters.
The nonpartisan Military Voters Protection Project (MVP) has reported that this administration’s refusal to defend our defenders has had a detrimental impact on military voting. MVP found that less than 20 percent of 2.5 million military voters successfully voted by absentee ballot in 2008. In 2010, military voting shriveled to a mere 5 percent. Recently this organization awarded the state of Ohio, “All-Star” status for its legislative efforts to eliminate barriers to voting for military personnel.
During the Civil War, President Lincoln — a president whom Obama styles himself after, “issued an executive order declaring a cessation of military operations in order to allow military personnel to travel home so that they could cast their ballots. In order to make sure that those serving in the Civil War had access to the franchise, many states authorized elections officials to travel to units in the field to set up polling locations and to collect ballots from soldiers.”
This president who hails from Lincoln’s state should take note.
Joel Arends is chairman of Veterans for a Strong America and an Iraq War veteran.