DoJ Must Enforce MOVE Act, Contact your local election officials

by Austin Brigden
Washington Scholars Intern to the Service Members Law Center

Military and overseas votes in the upcoming general election may be in jeopardy if the U.S. Department of Justice (DoJ) fails to enforce the Military and Overseas Voter Empowerment Act (MOVE Act).

For those unaware of the MOVE Act, it requires states to send overseas voters (military and civilian) their unmarked absentee ballots at least 45 days before Election Day. As co-author Senator John Cornyn (R – Texas) noted in a letter to Attorney General Eric Holder, this 45-day standard was statutorily mandated based on extensive Congressional evidence that any shorter period of time significantly burdens military and overseas voting rights. Click here to view the full letter.

There are, however, three specific situations of “undue hardship” which are considered adequate excuses for states to seek a special waiver exempting them from the 45-day standard of the bill:

(i) The state's primary election date prohibits the state from complying;

(ii) The state has suffered a delay in generating ballots due to a legal contest; or

(iii) The state constitution prohibits the state from complying.

If none of these situations exists, then the state may not apply for a waiver, and the federal government may not grant one.

The parameters for exemption are evidently quite clear. However, the minutes of the 2010 Winter meeting of the National Association of Secretaries of State have revealed the DoJ’s stance on the matter. The Deputy Chief of DOJ’s Voting Section stated during that meeting that the provisions of the law are “fairly general,” that it is “somewhat of an open question as to what type of information” a state must submit to be granted a waiver.

This language is quite shocking as it clearly violates the provisions of the law, disregards explicit and concise statutory language, and threatens the voting rights of service members. Senator Cornyn’s letter to Attorney General Holden will hopefully change this faulty way of thinking. Near the end of his letter, Senator Cornyn requested that the Attorney General remind state officials and the DoJ’s Voting Section of the MOVE Act’s provisions and issue directions to the Voting Section to bring non-compliant states into compliance through litigation if necessary.

Cornyn’s sense of urgency is entirely justified with all waivers currently under review. Bob Carey, director of the Federal Voting Assistance Program (FVAP), has explained to Fox news that “the Defense Department must respond, under the law, after consultation with the Department of Justice, no later than 65 days before the election, which is August 29, 2010.”

DOJ’s Assistant Attorney General for Legislative Affairs (Ronald Welch) responded to Senator Cornyn’s July 26 letter on July 30 and assured Senator Cornyn that “The Department of Justice is firmly committed to ensuring that our men and women serving in the uniformed services and living overseas have the opportunity to vote and have their ballots counted.” The reassurance is welcome, but the proof is in the pudding.

Please contact your Local Election Official (LEO)—County Clerk, County Supervisor of Elections, Town Clerk, etc. The titles vary, but you can figure it out. Please remind the LEO that federal law now requires him or her to mail absentee ballots to overseas voters (military and civilian) by Saturday, September 18, 2010, for voters who have applied that early. Please contact the LEO again on Monday, September 20, to determine if the ballots have been mailed. If the ballots have not been mailed, for whatever reason, please contact ROA life member Bob Carey, the FVAP Director, at 703-588-8118 or Robert.Carey@fvap.gov.