The Washington Times has called for DOJ to file lawsuits to protect military voters by the end of the week. The first defendant should be Wisconsin, they are among the worst states. Now that the Wisconsin U.S. Senate seat is a toss up and at least three House seats held by Democrats at risk, I don’t expect swift and decisive action to cure Wisconsin’s failure to protect military voters.
And what makes it concerning is that Wisconsin obviously has no plan to fix the problem. According to sources, they are secretly working behind the scenes with DOJ to beg off a lawsuit. DOJ has had a cozy working relationship with the state in the past, particularly going back to HAVA compliance. It may be that Wisconsin’s attorney Kevin Kennedy felt the entire time that DOJ and FVAP would simply grant the waiver application and they need not lift a finger to comply with the law. They still may be right but for the moment, but DOD called their bluff and Wisconsin should now be a defendant in a lawsuit brought by DOJ.
Substantively, Wisconsin is mailing the ballots 29 days prior to the election, in the best case scenario. The mailing time could be shorter. This is unacceptable. In its waiver denial, FVAP stated emphatically that Wisconsin’s plan did not permit sufficient time for UOCAVA voter ballots to be returned and counted as a substitute for the requirement of 45 days under the MOVE Act. This part of the denial was also a swipe at some nonprofits involved in overseas voting issues and are trying to sell technological solutions to states as a revenue center.
Wisconsin attempted to allow 10 additional days for some UOCAVA voters so there would be to 39 days for these voters while other UOCAVA voters would only receive 29 days. Some voters are more equal than others, it seems, in Wisconsin. DOD rejected that plan. Bob Carey at FVAP deserves a great deal of credit for rejecting this waiver application. Now we will find out if the DOJ takes military voting protections as seriously as Bob Carey does.
DOD also rejected Wisconsin’s attempt to equate the mailing of a blank state ballot 90 days prior as a substitute for a regular ballot. DOD also rejected Wisconsin’s planed reliance on the use of facsimile for transmittal of ballots because the use of this obsolete technology is minimal by overseas military. Here is the shocking quote from Wisconsin’s waiver application. Note to the DOJ, cite this in the complaint you should be preparing. Maybe italicize the word “unable”:
“Wisconsin is unable to comply with the 45 day ballot transmission requirement under UOCAVA 102 (a)(8)(A) due to the date of our partisan primary (September 14 in 2010) and the associated post-election canvassing schedule. However, Wisconsin does comply with the spirit of the MOVE Act by sending official write-in absentee ballots to all military and overseas electors with an application on file no later than 90 days before an election.”
This is outrageous. The spirit of complying with MOVE? by sending second class ballots? How about just waving a flag next July 4th, ignore the spirit and just move your primary date.
The primary is September 14, 2010. Wisconsin has left itself only 4 days to meet the 45 day mark of September 18, 2010. They have given themselves only 49 days to send ballots. Who is to blame? The Legislature and the Governor.
Don’t forget some states respected the rights of military voters and fixed their noncompliance with MOVE. Florida solved it. So did Georgia and Vermont.
October 4 is the anticipated date of mailing. We all know how often jurisdictions in states across the country fail to mail the ballots on time and to report that delay to DOJ or FVAP. The Keystone Cops approach has been covered at Pajamas Media. Will the Wisconsin Government Accountability Board implement oversight procedures to absolutely ensure the ballots are mailed in time?
Filing a lawsuit will strengthen DOJ’s position, not weaken it. The question is whether the priority is protecting military voters, or something else.
Wisconsin had plenty of time to fix the problem. The legislative session went until May 6, 2010. They failed to take up these MOVE Act reforms. They failed to move their primary date of September 14, failed to change canvassing time periods or certification deadlines to allow for more efficient mailing times.
So the way forward: Will Wisconsin contract with ballot printing vendors to separately print and mail UOCAVA ballots on expedited timeline? Will Wisconsin utilize HAVA dollars to pay for the special creation and shipment of UOCAVA ballots? Will Wisconsin compress their canvassing and certification period by executive emergency order or regulation or will Wisconsin extend the deadline (with or without a court order) to allow more time to ballots to return.
Better yet, will DOJ do what is right and file a lawsuit against Wisconsin this week? As the Washington Times noted, every day the DOJ delays a case, the stronger the defendant’s equitable arguments against an injunction will be.