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.