DOJ settled today with Wisconsin over the gross failure to comply with protections of the MOVE Act and mail ballots 45 days prior to the election to military and overseas voters. This deal represents a repudiation of the role of the Pentagon in denying the waiver application. But it also represents a return to the discredited (legislatively and statistically) notion that 30 days is enough time for military ballots to transit overseas. The Pajamas Media coverage here:
BREAKING: DOJ Undermines Pentagon, Allows Wisconsin To Ignore Military Voting Protections
It is 2008 all over again. Today the Department of Justice effectively rewrote the 2009 MOVE Act designed to protect military voters. In a settlement reached with the Wisconsin Government Accountability Board, the Holder Justice Department allowed Wisconsin to mail ballots to overseas military voters only 32 days before the election, instead of the statutorily mandated 45 days.
Once again, it is no accident this embarrassing settlement is being released on a Friday, so fewer might notice.
The Pentagon had denied Wisconsin’s application for a waiver from the 45-day requirement: “The states granted waivers presented thorough and comprehensive plans to protect the voting opportunities for military and overseas voters,” Bob Carey, director of the Federal Voting Assistance Program, said in a statement. Wisconsin’s waiver application didn’t even come close to compliance with the MOVE Act. They wanted to send ballots only 29 days before the election. The folks at the Pentagon rightfully denied the waiver request.
The victory for military voters was short-lived.
Instead of aggressively suing Wisconsin immediately after the waiver denial, the DOJ engaged in secret negotiations. An immediate lawsuit would have strengthened the negotiating position of the DOJ as well as preserved various equitable legal arguments, including the argument DOJ waited too long to commence litigation. Instead of doing the right thing, the DOJ did the easy thing and reached a settlement with Wisconsin that undermined the Pentagon’s denial of Wisconsin’s waiver request.
The tough negotiating stance of the Holder DOJ extracted a whopping additional three days out of Wisconsin. Ballots will mail 32 days before the election instead of 29. A consent decree filed Friday will reflect this quisling agreement.
This is a disgrace, plain and simple. Military voters, their families and veterans organizations should be outraged at the Holder DOJ.
It is true that time was added to allow ballots to roll in after the election, but 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. 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 only 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. Compressing the pre-election time ignores both of these important statutory purposes.
The limp DOJ settlement demonstrates a core fear inside Justice of litigating military voting cases. Even when the DOJ actually acts to protect military voters, the investigative methods resemble the Keystone Cops [1].
After the administration changes, an increasing possibility in 2013, it will be essential to clean house and install litigators who don’t flinch under fire, both in the courtroom and also on the battlefield. It’s time to put someone in charge of protecting military voters who cares about military voters, preferably with military experience.
Senator John Cornyn has put the heat on Justice, and blocked the nomination of James Cole to be Deputy Attorney General. Justice was desperate to have Cole confirmed weeks ago, and the military voting mess has aggravated top DOJ leadership. Americans rightfully outraged by the DOJ concession should send notes of support to Senator Cornyn for his efforts to protect military voters. The shameful Wisconsin settlement will likely strengthen Cornyn’s resolve on the Cole hold.
Could Wisconsin have done something differently? Lots.
Wisconsin could have done what Florida, Georgia or Vermont did, and fix the problem in the nearly twelve months since the MOVE Act was passed. It’s a question of priorities. Wisconsin could have just gotten the job done like other waiver-requesting states did when their waivers were rejected. The primaries in Wisconsin are on September 14, but the DOJ settlement won’t require ballots to be printed and mailed until October 2.