The Pawtucket Times has more.

The Weekly Standard has an article  about a place who may be sued by the DOJ, Cuyahoga County near Cleveland, for not using Spanish language ballots.  Two important points:

1. Perhaps the article understandably doesn’t capture the nuance of the situation, but I am flabbergasted that no “notice letter” was sent to the county.  Notice letters have been standard procedure at the Justice Department for over a decade at least.  A notice letter is a formal notification than a lawsuit has been authorized and an invitation for negotiations.  The article states: “When queried as to why they could not receive documentation of the department’s concerns in writing the county officials were told that the department ‘didn’t want to create a public record.'”  If the adminstration has truly dispensed with the notice letter, this is staggering.  It is akin to a visit “asking” if you want to put a cigarette machine in your storefront.  The notice letter usually summarizes the legal basis for a lawsuit.   Reporters, and Congress, should follow up aggressively and demand to know why the Voting Section did not use a notice letter in Cuyahoga and instead engaged in an odd exercise of secret, shall we say, suggestion.

2. I also want it to be clear that the 4e triggers are almost certainly LOWER than the regular Section 203 triggers for Spanish language in places like Harris County Texas or Miami Dade.  Because it is Puerto Rican citizens, the law is different and there is no doubt there is likely some legal obligation.  The questions are, however, how much obligation and how is the obligation met?

An organization that once upon a time aggressively sought to protect overseas voters has published a defense of lax enforcement of overseas voter protections.   Here is a point by point separation of myth from reality.

Myth:

The primary problem for many of these states is the need to send out ballots 45 days before the election. The states seeking waivers have repeatedly complained that their states’ late primaries make it extremely difficult to send out ballots on time.

Reality: 

While legislative action may be difficult, this is one issue that should transcends politics and partisan bickering.  It is not too much to ask the legislatures to find the will to change voting practices and election calendars that in place leave thousands of people out of the process or result in throwing their ballot away.  Local election officials are patriotic hard working servants for the people who will undoubtedly utilize the latest technology to meet deadlines, even tight ones that require long days and nights of work.  However, they can only do so much within the confines of state law before the statutory language must be changed to allow our overseas and military the full opportunity to vote.  Unlike OVF, here you will find none of the sympathies exhibited towards state legislatures with late primary dates.  Anyone who knows anything about late primaries knows the fundamental reason entrenched politicians love late primary dates is that it adds just one more level of incumbent protection.  This self- interested reason is similar to those arguments offered by those politicians who fought for decades to maintain runoff elections even though it would similarly disenfranchise the military.  In the balance of things, that corrupt interest of incumbent protection should not outweigh the interest of allowing enough time that all overseas and military voters can return their ballots in time to be counted.  Therefore, the status quo is not acceptable and the “difficult problem” should be remedies by the state legislature in question. 

Myth:

Many of these same states, however, are also launching electronic blank ballot delivery methods that speed up the voting process by providing the ballots significantly faster and thus ensure that voters still have enough time to vote.

Reality:

While it is laudable that states are complying with the MOVE Act by launching blank ballot delivery systems developed by OVF, this feature does not help those military voters that may not have access to email or OVF’s website.  There are many many thousands.  Instead, those voters must rely on the postal service for enough time to vote just like millions of Americans.  OVF is an interested vendor for many of the states now struggling with MOVE Act compliance.  OVF maintains costly contracts with many of the same states now requesting waivers from the MOVE Act, in an effort to find alternative ways to send ballots.  Of course for those voters utilizing the OVF technology, all 45 days may not be needed.  However, the law requires 45 days and not all voters have access to the OVF website.  The military voters in remote areas, battle zones, and onboard ships or submarines may not be able to receive their ballots by email and still rely on regular postal mail for the transit and return of their ballots.   

Myth:

Alaska allows email transmission of the registration form, ballots to be faxed back and counts votes delivered up to 15 days after the election.

Reality: 

The use of facsimile as a means of transmission of ballots is obsolete and no longer commonly used.  Fax machines are not available in any broad terms to overseas military units.  Again, while the use of electronic means will undoubtedly help some, it doesn’t help those citizens or military without access.  Back to fundamentals:  where else in the voting rights granted to Americans is access to the ballot conditioned on access to the internet.  You know the answer.   

Myth:  Additionally, it is important to note that the process for requesting the waivers is provided for by the Act itself. States requesting waivers are still in compliance with the law. Legislators recognized in October 2009, that a year may not be enough time to implement all of the changes necessary. Thus, waivers were made available as a temporary alternative during the 2010 election and allow states the time needed to plan improvements.  2010 election and allow states the time needed to plan improvements.

Fact: Just because the option to grant a waiver does not mean the grant of the waiver should be presumed.  October 2009 was plenty of time to comply with the law for all of the states now seeking waivers.  If any grants of waivers are made, there will be solider and sailors who will suffer and lose their right to vote in those states, period.

Myth:

Critics underestimate both the challenges of passing election laws in individual states and the considerable effort that most states have put into passing laws related to MOVE Act compliance

Reality:   A detailed waiver process was placed in the MOVE Act for states that have a late primary date which would cause an undue hardship on the state to send ballots to overseas and military voters 45 days prior to the election.  The waivers and necessary plan to ensure sufficient time would be submitted for approval prior to each election and would not be approved repetitively.  Without the pressure of Senator Cornyn, the Department of Justice was considering open-ended waivers for multiple elections.  In response to his advocacy, the DOJ clarified to the Senator in a letter that the state waiver request would be required for each election.  It would be nice to have OVF advocate on these issues.  The waiver must meet specified criteria in the law and the state must provide a plan with alternative means of gaining additional periods of time to provide for the necessary sufficient time for transmittal by mail.  Most studies have found that 45-60 days are required to send ballots to and from the front line.  The 30 day window advocated for years by Department of Justice mid-level managers has been thoroughly discredited and forcibly changed by the Congress.  Under federal law and court interpretation, each state must insure there is sufficient time for each overseas and military voter to return the ballot in time to be counted or their rights have been violated.

For many of the states, the legislatures either refused to pass legislation – see Wisconsin and Alabama.  Some states like Maryland and Colorado either refused to bring up the issue, ignored the issue altogether, or decided on a waiver request even prior to the Legislative Session as the easy way out rather than debating the issue.  While Washington DC passed a comprehensive election reform bill that included pre-registration of 16 year old and electronic transmission of ballot, they failed to enable enough time to provide for 45 days.    A large number of states including Vermont, Missouri, Illinois, Louisiana, Florida, and Minnesota appeared to have passed legislation to change their primary date or generally conform their laws to the MOVE Act.   Unfortunately, the track record exhibited by state legislatures can provide no assurances that the waiver states will see the light in 2011 and pass legislation to conform to the MOVE Act.  In the meantime, military voters will be disenfranchised in the thousands. 

OVF should use its considerable resources to advocate on behalf of military and overseas voters.  The organization was created to represent them and not to make excuses for stumbling or deadlocked legislatures or go to bat for a timid DOJ while states hide behind non-legitimate reasons such as incumbency protection for not addressing the MOVE Act. 

Myth: The question of the 45-day window is important and the Department of Defense, FVAP, and Department of Justice must certainly insist on full compliance with the MOVE Act in due course, but other important policy initiatives that states have made should not be ignored.

Reality:  In fact, the question of a 45 day mailing window is paramount and fundamental for most overseas and military voters.  That is why it is the foundation of the MOVE Act.  One must seriously ask what exact other policy initiatives on the state level would be ignored by Legislatures by acting upon legislation that allowed for compliance with the federal MOVE Act.  Changing the distance from shore that one can shoot ducks in Maryland?  For those remote military and overseas citizens, what more important issue, other than ensuring enough time is available, should have priority – pre-registration for 16 year olds.  OVF insists on full compliance only “in due course.”  One should ask how many more tens of thousands of votes should be thrown out for lack of time to return ballots before a state should feel obliged or shamed into finally legislating on this issue. OVF, support local election officials and stop making excuses for state legislatures.    

Here is the list of Secretaries of State submitting waiver requests:

Hon. Douglas La Follette
PO Box 7848
Madison, WI 53707-7848

Hon. A. Ralph Mollis
82 Smith St, State House Rm 217
Providence, RI 02903

Hon. John McDonough
State House
Annapolis, MD 21401

Hon. Stephanie Scott
1350 Pennsylvania Ave., NW Suite 419
Washington, DC 20004

Hon. William Gardner
State House, Room 204
Concord, NH 03301

Hon. James “Duke” Aiona
State Capitol, Room 415
Honolulu, HI 96813

Hon. Lorraine Cortés-Vázquez
1 Commerce Plaza, 99 Washington Ave., Suite 1100
Albany, NY 12231

Hon. Jeffrey Bullock
401 Federal St., Suite 3
Dover, DE 19901

Hon. Gregory Francis
18 Kongens Gade
St. Thomas, VI 00801

Hon. Craig E. Campbell
PO Box 110015
Juneau, AK 99811-0015

Hon. William Galvin
State House, Room 337
Boston, MA 02133

Hon. Sam Reed
PO Box 40220 Olympia, WA 98504-0220

Hon. A. Ralph Mollis
82 Smith St, State House Rm 217
Providence, RI 02903

Hon. Bernie Buescher
1700 Broadway, Suite 250
Denver, CO 802

The behavior at today’s Civil Rights Commission meeting was surprising to say the least.  It was precisely the sort of thing people across the country have grown weary of in Washington.   Commissioner Michael Yaki doesn’t understand enough about the options available in the Noxubee submission to speak authoritatively about the issue.  The plain fact is that the Department could have objected to the Ike Brown submission as discriminating against the rights of the white minority in Noxubee County under Section 5 of the Voting Rights Act.  I predicted they would not do so when I testified, and I was proved right.  Mr. Yaki trumpeted an eventual civil court filing seeking to extend a remedy in the civil case against Ike Brown.  This is very different than an objection under Section 5 and provided absolutely no relief to the discriminated against white minority.  I have written extensively about how this court filing is a cop-out to equal enforcement of Section 5 at Pajamas Media. 

The Department will spend a great deal of time and effort to extend a remedy that has nothing to do whatsoever with the Section 5 submission.  They are separate matters.  Worse, the Department may likely lose the motion given they have produced little or no evidence in support of the motion.  But the motion serves a short term political purpose.  Protecting the voters in Noxubee could have been accomplished with the cost of an objection letter under Section 5 and a postage stamp.  The truth is that that didn’t happen because the Department of Justice does not believe Section 5 of the Voting Rights Act should be used to protect a white minority.  I could be proved wrong if the Department were to produce the analysis they did under Section 5 for this submission to determine whether or not the change was retrogressive in intent or effect.  In fact, the Department has never once rebutted my specific allegation that they do not believe Section 5 of the Voting Rights Act should be used to protect a white minority.  A reporter will not get a straight or truthful answer from them on that issue.

The Voting Section didn’t even contact any of the victims of the previous discrimination which is a routine part of a Section 5 analysis.  As a Civil Rights Commissioner, Mr. Yaki should be concerned about equal enforcement of Section 5.  Obviously his concerns lie elsewhere.

Here is my latest article at Pajamas Media.  Military Voting Rights Hang in the Balance.   In pertinent part:

Decisions by Washington bureaucrats over the next four weeks will have a profound impact on the upcoming November elections. These bureaucrats will decide whether or not those serving in the military from twelve states will have a full and effective opportunity to participate. If they choose to do anything other than aggressively enforce federal laws protecting military voters, many of those serving our nation won’t have a voice.

Every American can do something about it. . . .

In the meantime, the public, particularly military families and veterans groups, have a right to petition their government and voice their opinion about the waivers. Citizens can reach FVAP and tell them to deny all waiver requests at 800-438-8683 or vote@fvap.gov. Citizens can petition the DOJ and tell them both to recommend against granting the waivers and to sue states who submitted them at (202) 307-2767 or rebecca.j.wertz@usdoj.gov.

Citizens have this right in a free and democratic government. Whether or not Washington cares enough to listen remains to be seen.

A second editorial in Friday’s Washington Times on the Justice Department failing to aggressively enforce laws to protect military voters.  The bottom line in both articles is that there are states, right now, this moment, not in compliance with MOVE who have not asked for a waiver.  A lawsuit could be filed tomorrow.  But based on the experiences of Mr. Eversole, he writes that the Voting Section will be acting slowly, without urgency and too late if at all. Thank God our soldiers aren’t like that.  But this second editorial by the Washington Times puts some of the blame squarely on the shoulders of the Pentagon (FVAP) for not even releasing the waiver requests.  Indeed, we asked the Pentagon for the waiver requests weeks ago.  In fact, we simply asked for the names of the states submitting waivers.  Here is the editorial:

“Military voting rights still aren’t protected. That’s the message from former Justice Department official M. Eric Eversole, who argues in a column at the front of this section that his former employer is undermining the new law requiring states to mail ballots to military voters at least 45 days before the November elections. If anything, the situation might be even worse than Mr. Eversole suggests.

The Obama administration refuses to release the waiver requests filed by a dozen states and territories claiming an inability to meet the legal deadline. Mr. Eversole and 17 members of Congress led by Rep. Robert E. Latta, Ohio Republican, sought this information through formal requests.

One of the states requesting a waiver, Colorado, held its primary three days ago – a whopping 84 days ahead of the November election. It defies belief that the Centennial State would claim that it doesn’t have enough time to mail ballots to military voters by the law’s deadline of Sept. 18. Colorado Secretary of State Bernie Buescher, a Democrat, insists that he is unable to comply, and his spokesman Rich Coolidge admitted that some military votes won’t get counted as a result. Mr. Buescher did post online the letter he sent with the waiver request, in which he claimed compliance would be “extremely difficult” in light of the state’s Sept. 3 date for “ballot certification.”

That leaves 15 days after certification to print and mail the ballots. With all the modern technology available, it’s hardly credible that this is something that cannot be made to happen. Other states that are dragging their feet and demanding waivers include Washington state, where the primary is Aug. 17, and Alaska, where the primary is Aug. 24. Again, these dates are well ahead of the legal deadline.

In the eight states where primaries are not held until Sept. 14, the waiver requests make some sense. Nonetheless, the law requires that these jurisdictions find some other way to guarantee that military votes can be cast and counted on time and that they detail how this will be accomplished despite missing the 45-day deadline. The public has a right to see and evaluate all such plans.

The lack of transparency on this issue makes it difficult to know whether the Justice Department takes seriously the right of military personnel serving overseas to have a say in the way our government is run. Those who risk their lives on behalf of this country should not be disenfranchised because the administration refuses to do its job.”

Former DOJ Voting Section lawyer Eric Eversole has this piece  in the Friday Washington Times:

“Notwithstanding overwhelming evidence in 2008 that military voters needed at least 45 days to receive and return their absentee ballots, the Voting Section of the Civil Rights Division stood by as more than 20 states failed to provide military voters with sufficient time to vote. This failure alone cost thousands of military members the right to vote.

Now, 10 months after its passage, nearly one-third of the states have failed to implement one or more of the key provisions of the MOVE Act. At least 11 states (Hawaii, New York, Delaware, Alaska, Washington, Maryland, Massachusetts, Wisconsin, Rhode Island, New Hampshire and Colorado) and the District of Columbia have not implemented the 45-day deadline for mailing absentee ballots. At least five states (Alabama, Connecticut, Massachusetts, Missouri and New Hampshire) have not implemented the electronic-delivery requirement under the MOVE Act.

For its part, the Voting Section appears to be in no hurry to enforce the new law and, more problematic, appears to be hiding how many states have failed to comply fully with the MOVE Act.

This latter point was evident in a recent letter to Sen. John Cornyn, Texas Republican. While the letter repeatedly emphasized the department’s commitment to enforce the law, it avoided Mr. Cornyn’s specific request to identify noncompliant states. Nor did the letter answer Mr. Cornyn’s question about the department’s plan to ensure full compliance with the MOVE Act. Instead, the department promised to meet with Mr. Cornyn at a future date.

There is a good reason, of course, why the department wants to avoid Mr. Cornyn’s questions. Given the volume of noncompliant states, can the department or Voting Section realistically guarantee full compliance before the November election?

With so few days left before the election, the passage of each day makes it more and more unlikely that the Voting Section can ensure that each state will be compliant with the MOVE Act. It takes a significant amount of time to draft a complaint and request for an injunction, file it in federal court, set it for hearing, hold the hearing, issue a remedy and ensure compliance. Multiply these tasks by five, 10 or 16, and unlikelihood of full compliance is evident to most reasonable people.

Yet the Voting Section continues to wait and ignore reality, hoping states will comply voluntarily with the MOVE Act in the next few weeks. It should know better.”

Full article at this link.

Portland considers becoming the next jurisdiction to allow non-citizens to participate in local elections.  Many places in Maryland and other states already allow this.

Commentary from today’s Plain Dealer about the Cuyahoga case.