Feds threatened suit over military ballots

OLYMPIA — Less than a month before the November election, the U.S. Department of Justice threatened to sue Washington state because it was moving too slowly in mailing military ballots overseas.

At that point Washington was the only state that hadn't mailed its overseas ballots.

Questions about military ballots have come up frequently since the Nov. 2 election ended with a deadlocked governor's race. Democrat Christine Gregoire was certified governor-elect Dec. 30 and is to be sworn in Wednesday. But Republican Dino Rossi has made the military ballots, generally seen as Republican votes, a key part of his effort to call for a new election.

On Oct. 7, State Elections Director Nick Handy sent all county auditors an e-mail tagged "URGENT" telling them about a threat from the senior litigation attorney for the Department of Justice. Handy said the state's attorney had been told the federal government "is preparing a lawsuit to be filed tomorrow against the state of Washington."

He said the conflict could be avoided with what he described as "one final offer" from the federal government. The next day he wrote the Justice Department agreeing to a compromise:

Four counties — Franklin, Pend Oreille, San Juan and Whatcom — would mail federal write-in ballots instead of regular absentee ballots so they could meet the federally imposed deadline. The federal write-in ballots included spaces to write in candidates for president and Congress, as well as a separate section to write in candidates for state or local offices, though no office was listed. Military voters could vote for governor by listing that race and indicating their candidate's political party, even if they didn't know his or her name.

Regular state absentee ballots, which list all candidates for governor and other state offices, were sent soon after, with what officials said was time to get the ballots back to be counted. Washington was ahead of a deadline set by state law, but that clearly wasn't good enough for the federal government.

"They just put their foot down," Handy said yesterday in an interview. "When you get a call from them and they say 'You're doing something by tomorrow or we're filing a lawsuit,' it really gets your attention."

All but one county met the federal deadline, Handy said. Island County fell a few days behind in mailing less than 1,000 ballots, an oversight he said was reported to the Justice Department.

A Justice Department spokesman yesterday declined to comment.

Rossi's challenge

Rossi won the first two of three counts of the closest election in state history. Gregoire won the last count by 129 votes.

Last week, Rossi challenged the gubernatorial election in court and included a claim of mishandled military ballots.

"Military overseas and other absentee voters may not have received or been sent their absentee ballots in a timely manner and could have been disenfranchised by the neglect, mistake, or error of election officials," according to the case filed by Republicans in Chelan County Superior Court.

Rossi was joined at a news conference by the parents of Tyler Farmer, a Marine wounded in Iraq who didn't get his ballot until the day after the election and was unable to have his vote for Rossi counted.

Farmer's story also was featured in Republican radio ads calling for a new vote. A small rally was held near Fort Lewis last week to draw attention to the issue of military ballots.

But election officials say there is no evidence of any widespread problem with military voters.

Under state law, counties this year were required to send absentee ballots, including ballots for the military, by Oct. 18 for the Nov. 2 general election. It was a tight deadline because the state's primary was Sept. 14, leaving just over a month to print and distribute ballots.

The Justice Department "understands the timing issues relating to our primary and the complications associated with printing ballots to meet this deadline," Handy said in his e-mail to auditors.

Federal attorneys may have understood, but they wanted ballots in the mail sooner. Indeed, the Department of Justice sued Pennsylvania and Georgia over the timeliness of the mailing of their overseas ballots.

The Department of Defense and the Department of Justice sent a letter to Secretary of State Sam Reed on July 21 reminding him of deadlines to stay in compliance with the Uniformed and Overseas Citizens Absentee Voting Act.

A follow-up fax came Sept. 29. It said that the military's Federal Voting Assistance Program strongly recommends mailing ballots 45 days before the election, which for Washington would have been less than a week after the primary.

The fax also said studies by postal authorities "have established that a minimum of 30 days is necessary for the round-trip transit of absentee ballots mailed to overseas voters and then sent back to election officials."

Washington was already days behind that goal.

"The Department of Justice remains ready to assist you in complying with this federal statute," said the fax from Assistant U.S. Attorney General R. Alexander Acosta. "However, we will not hesitate to take legal action if necessary to make sure that overseas voters are not disenfranchised."

After polling county election officials, the Secretary of State's Office told the Justice Department that all but four counties would have ballots in the mail by Oct. 8, with the rest coming the following week.

That's what prompted the threat of a lawsuit and the compromise of getting at least the federal write-in ballots in the mail.

But counties had no control after that over whether the postal service and the military delivered the ballots in time, said Pam Floyd, the state's assistant elections director.

Some counties took extra measures to make sure military personnel received ballots. Clark County, for instance, sent letters to military members asking for e-mail addresses and fax numbers so the county would be better prepared in case their absentee ballots did not arrive in time.

Military and overseas voters can ask their home county to fax or e-mail ballots to them. They can be faxed back as well.

King County wound up e-mailing and faxing ballots to some military and overseas voters. The county issued a total of 15,289 military and overseas ballots. Of those, 12,694 were returned and all but 220 were found to be valid and counted, according to statistics from the King County elections division.

Unlike regular absentee voters, who must have their ballots postmarked by Election Day, military and overseas voters only have to date their ballot and sign an oath that they voted by Nov. 2.

"There is no reason for a military member who wants to vote to not be able to cast a ballot," Floyd said. "But they do have to make an effort."

Troops cite mishaps

Military personnel overseas, though, say making an effort is not always enough.

"As far as I know, I would be willing to bet a large amount of money that 95% of the people in my platoon, company and battalion did not receive a ballot," Marine Cpl. Ted Lester of Snohomish County e-mailed from Fallujah.

"The other 5% did, but they received them burned beyond recognition and about 4-5 weeks too late."

Lester said that the mail system in Iraq "is a joke" under the best circumstances, that one mail truck was blown up a week before the election and that it was difficult to get information about where to send write-in ballots.

He said he never got his ballot, which he would have used to vote for Rossi.

On board the USS Trenton, Ensign David Mauel of Chehalis said he didn't get a ballot by Election Day.

"We returned to port one day before the actual election and then my ballot was finally processed through our ship's post office the day after the election. Either way, I just assumed that voting was pointless because my ballot would have been received back in Washington state after the election," he said in an e-mail.

Rossi spokeswoman Mary Lane said the system does not appear to work well for military voters.

"Just the fact that we were the last state to get our military ballots out is really disturbing," she said, and unfair to military personnel. "They are in Afghanistan and Iraq dodging bullets and bombs and the burden should not fall on them."

Lisa Cohen, a spokeswoman for the state Democratic Party, said no one has shown evidence of "broad disenfranchisement" of military voters. "Was there some isolated cases? Quite possibly," she said. But she said that most of the problems could be avoided by the alternative methods of voting available to military personnel.

She also said the tight deadline between the primary and the general elections is an argument for moving the primary earlier in the year, as Reed proposed last week.

David Postman: 360-943-9882

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