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November 04, 2008, 6:00 a.m.
Soldiering Suffrage
Fighting for their votes.
By Mark Hemingway
Electoral democracy is a very messy and often controversial process. And, as with seemingly every other issue these days, the two political parties are at loggerheads over how to resolve issues complicating voter registration and ballot counting.
But some perennial voter problems are so obvious and so easily correctable it’s downright shameful they have yet to be addressed. Nowhere is this more obvious than the issue of absentee military ballots, which are often challenged due to the difficulty of complying with wildly divergent local voting requirements from half a world away.
Perhaps most famously, absentee military ballots were the subject of a legal tug of war in the squeaker of an election in 2000. However, the current election has also seen its fair share of travails in counting military ballots.
On Monday, just a day before the election, the lawyers for the McCain campaign filed a temporary restraining order/preliminary injunction to allow an extra ten days to count absentee ballots in Virginia, which the McCain campaign says could potentially allow for thousands of military ballots to be counted that might not be received by the November 4 deadline.
“There were some printing issues and a number of localities did not send out their absentee ballots — including absentee ballots to military service men and women — until October,” Ashley Taylor, a lawyer for the McCain campaign, told National Review Online. “[The McCain campaign is] asking the court to require the state board of elections to count those absentee ballots received after the election but no later than seven p.m. on November 14.”
There is a federal statute — Uniformed and Overseas Citizens Absentee Voting Act (UOCAVA) — that requires each state to mail ballots in sufficient time so that the absentee military voter, or absentee voter generally, can receive, cast, and return the absentee ballot in time to be counted. Then each state goes about ensuring that that occurs.
While the statute doesn’t dictate the exact period of time absentee ballots are to be received by, they should be received 45 days ahead of time, according to guidance by the Department of Defense and the Department of Justice. “The basic rule is that if you are overseas it takes 12 to 20 days to receive your ballot and another 12-20 days for your ballot to be received by the commonwealth of Virginia,” Taylor said. “We picked the ten-day period because that would closely approximate the 45-day period that should have been permitted [with localities still mailing absentee ballots in October].”
The state board of elections is charged with ensuring that absentee ballots are sent in a timely manner that will allow them to be returned in time to be counted, and under Virginia law absentee ballots are supposed to be received by the close of election day in order to be counted. In this case, Taylor says that the state board of elections actually provided the proper guidance, informing individual districts and localities that the ballots needed to be sent out sooner. Even though ballots were delivered late against the board of election’s counsel, the board of elections is still the responsible government agency.
“It’s not extraordinary relief we’re requesting, we cite in our brief four instances in which other states have agreed to extensions of time so that these votes are counted,” Taylor said. “Certainly no one in the military in harm’s way should be prejudiced because there was a printing delay.”
This is the second problem that has arisen this past week in Virginia relating to absentee military ballots. The registrar in Fairfax County, Va. — notable for being a partisan Democratic activist — began tossing out military ballots, which trend Republican. The registrar justified his actions because he said the absentee ballots did not comply with a state law that said the ballots have to contain the signature and address of a witness. The state’s Republican attorney general eventually overruled the registrar, but even the Obama campaign agreed that the ballots in question should be counted.
Both of these instances highlight the need for more consistent guidelines governing how military and overseas absentee ballots should be treated, Rosemary Rodriguez of the Election Assistance Commission (EAC) said. The EAC is an independent, bipartisan commission — appointed by the president and confirmed by the Senate — that develops guidance on voter regulations.
The existing federal guidelines outlined by UOCAVA cover only protocols related to time, and aren’t even specific at that. Otherwise, military ballots have to comply with 51 different sets of state and district guidelines that may or may not be easily complied with by soldiers serving overseas.
“There are some really bad state laws on the books,” Rodriguez said. “Federal Express has made ballot transfer to overseas and military voters free this year — it’s a great program. But if you’re from Alabama, don’t send it that way because state law only allows it to be processed if it comes from the postal service.”
Congress could clear up much of the confusion here by creating a uniform federal standard for military ballots that states had to honor. “But until and unless Congress does something across the board, the states are going to have to come up with solutions,” Rodriguez said. “We’ve [the EAC] been fairly vocal in our advocacy for the states to take a look at the issue.”
Given that soldiers overseas are fighting to preserve your right to vote, it’s especially unjust they should have to fight through so much red tape in order to get their own ballots counted at home.
— Mark Hemingway is an NRO staff reporter.
— Mark Hemingway is a writer in Washington, D.C.
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