The liberal political establishment is always expressing its concern over the possible “disenfranchisement” of voters (claims that almost always turn out to be completely exaggerated), but their concerns seem to disappear when the disenfranchised are military voters. How else can one explain the almost total lack of interest expressed over the pending disenfranchisement of possibly thousands of overseas voters in Virginia, mostly military personnel?
Just prior to the Nov. 4 election, the McCain-Palin campaign filed a federal lawsuit in Richmond against the Virginia State Board of Elections under the Uniformed and Overseas Citizens Absentee Voting Act. UOCAVA guarantees the right of military personnel and overseas civilians to vote by absentee ballots in federal elections. The lawsuit claimed that some Virginia counties had mailed absentee ballots too late to be received and returned by military personnel stationed overseas by the Nov. 4 deadline. One of the examples given was a U.S. marine stationed in Western Anbar Province who requested an absentee ballot in August, but did not receive it until October 29. This was far too late to mail it back by the Nov. 4 deadline for receipt by Virginia election officials. The lawsuit requested the federal court to order Virginia to accept as valid all overseas absentee ballots postmarked by Nov. 4 and received by Nov. 14.
Unfortunately, on Nov. 4 the court inexplicably refused to enforce UOCAVA and would not grant any such remedy. It only ordered election officials to record the date and time of receipt of all absentee ballots received after Nov. 4 and to store them in sealable container until further order of the court.
On Nov. 17, the McCain-Palin campaign was dismissed as a party and the U.S. Department of Justice, which enforces UOCAVA, was allowed to intervene in the lawsuit. DOJ claimed in its motion that some counties had waited until less than two weeks before Nov. 4 to mail out the requested absentee ballots. Thirty days is the absolute minimum time before the election that postal authorities and other experts recommend that such absentee ballots be mailed to overseas voters, particularly military personnel, because of the long delays in overseas mail service. Forty-five days is what is actually recommended, including by the U.S. Election Assistance Commission.
The Virginia election board had previously embraced this 45-day standard, issuing guidelines to service members saying that “Virginia requires ballots be mailed no later than 45 days before the November 4, 2008 Presidential Election.” But the court again in another order on Nov. 17 denied the Justice Department’s request for a preliminary injunction that would have ordered the counting of these late received absentee ballots.
There is another hearing this coming Monday. The Virginia election board is not being represented by the Virginia attorney general, but by a private law firm. Instead of doing everything they can to enfranchise these voters, they are asking that the case be dismissed. The Virginia election board, headed by Jean Cunningham and including two other members, Nancy Rodriguez and Harold Pyon, are now arguing that UOCAVA does not require states to mail out absentee ballots in time for voters to receive them prior to the election because voters can use a federal write in absentee ballot if they do not receive their state ballot.
This is a complete misreading of the requirements of the federal statute and prior court decisions. The federal write-in ballot is a failsafe that is provided in case there is a problem receiving the state ballot; it does not excuse a state from failing to mail a requested absentee ballot in time for it to be received by the voter. This is particularly true because a write-in ballot does not contain a list of all of the candidates that are running for office in a particular county and a particular state, making it much more difficult for a military voter to cast a vote in all of the different races he is entitled to vote in.
If the court decides in favor of Virginia and dismisses the lawsuit, it will be a bad precedent for future UOCAVA enforcement cases, since it will sanction states essentially ignoring requests for absentee ballots from overseas voters. It will also result in the disenfranchisement of thousands of overseas voters in this election, including many members of our military who are in dangerous places around the world putting their lives on the line for this county. Such a decision would be shameful, and the members of the Virginia Board of Elections should be ostracized for taking such a legal position in this matter.
It is vital that the Department of Justice continue to pursue this matter, including an appeal if it is wrongly decided at the trial court level. The state attorney general should also intervene to protect Virginia’s military and overseas voters and dispute the position being taken by the Virginia Board of Elections. And Gov. Tim Kaine should repudiate the claims being made by the individuals he has appointed to this board.