Another Election Day has gone by with service members
excluded
In reflection of Veterans Day, let us redouble our efforts to ensure that those who protect the rights that we all enjoy are able to exercise those rights themselves. The right to vote is the most basic and important of all our precious rights. The Supreme Court has referred to the right to vote as "preservative of all other rights." Yick Wo v. Hopkins, 118 U.S. 356, 370 (1886).
In June of 1952, 13 months after I was born, the
Subcommittee on Elections, Committee on House Administration, United States
House of Representatives, conducted a hearing and wrote a report about absentee
voting for military personnel fighting the Korean War. The Honorable C.G. Hall (Secretary of State of
Arkansas and President of the National Association of Secretaries of State)
testified that military personnel fighting in Korea were likely to be
disenfranchised because they would not be able to receive their ballots, mark
them, and return them on time to be counted.
Because of late primaries, ballot access lawsuits, and other problems,
local election officials (LEOs) would not have ballots printed and ready to
mail until a few days before Election Day, in many instances. Although the service member may have applied
for an absentee ballot months in advance, there would not be enough time for
the ballot to go from the LEO to Korea and back by Election Day.
The congressional report includes a letter to Congress
from President Harry S. Truman, one of the founders of ROA in 1922. In his letter, he called upon the states to
fix this problem and he called upon Congress to enact TEMPORARY federal
legislation for the 1952 election. He
wrote: "Any such legislation by
Congress should be temporary, since it should be possible to make all the
necessary changes in State laws before the congressional elections of
1954."
Well, it did not work out that way. President Truman left office in January 1953
and the Korean War ground to an inconclusive halt in July 1953. The military voting issue fell off our national
radar screen, but the problem was not solved.
I became aware of this problem in 1976, and I have been
working the issue ever since. As a
brand-new lawyer, I represented a client in an election recount. The client was a freshman Congressman who had
been elected just six months previously, in a special election (Representative
Ron Paul). The client lost the 1976
general election by 225 votes. On
Wednesday morning after Election Day, the County Clerk of Harris County
(Houston) had 300 absentee ballots in his Post Office box, mostly from APO and
FPO addresses. Those ballots were not
counted.
In 2009, Congress enacted the Military and Overseas Voter
Empowerment Act (MOVE Act), amending the Uniformed and Overseas Citizens
Absentee Voting Act (UOCAVA). As amended, UOCAVA now explicitly requires
every state to mail out absentee ballots to military and overseas voters by the
45th day preceding any primary or election for federal office. See 42
U.S.C. 1973ff-1(a)(8)(A). This is section 1973ff-1(a)(8)(a) of title 42
of the United States Code.
Absentee ballots for UOCAVA voters, including INCONUS as
well as OCONUS military personnel, should have gone out not later than
September 22, 2012. Did your LEO meet
this deadline? Please contact the LEO
and ask, and let me know what you find out.
There are more than 7,500 LEOs who administer absentee
voting for federal elections, including 1,851 in Wisconsin alone. Only Alaska, Maine, and the District of
Columbia administer absentee voting at the state level. In the other 48 states, absentee voting is
administered locally by counties, parishes (Louisiana), cities, towns, and
townships. Your LEO may be the County
Clerk, Town Clerk, Registrar of Voters, Board of Elections--the titles vary but
you can figure it out.
Please ask your LEO the following questions. These questions relate to UOCAVA
voters--members of the uniformed services on active duty and voting age family
members of service members (INCONUS or OCONUS) and U.S. citizens outside our
country temporarily or permanently.
1. When did you first
send out absentee ballots to UOCAVA voters with respect to the November 6, 2012
general election?
2. How many
ballots did you send out to UOCAVA voters on that first day?
3. How many
ballots did you send out to UOCAVA voters after the first day because you
received the application after the day when you first sent out ballots?
4. Among the
UOCAVA voters, how many ballots came back on time and were counted? How many ballots came back late and were not
counted? How many ballots came back on
time but were rejected for other reasons?
5. Among the
UOCAVA voters, how many UNMARKED ballots were returned by the Postal Service as
undeliverable?
6. How many
completed Federal Write-in Absentee Ballots (FWABs) did you receive? How many of those FWABs did you count?
7. Of the FWABs
not counted, how many were rejected because the voter's regular absentee ballot
arrived on time to be counted? How many
FWABs were rejected for other reasons?
What were the reasons for rejecting FWABs?
Please ask your LEO to answer these questions in writing,
and please provide the responses to me, by e-mail or postal mail, at ROA.
We need you to contact the LEO NOW, before he or she has
put away the records of Election 2012 and turned his or her attention to other
matters.
Contacting the LEO serves two important functions. First, we need this data, to identify the
state and localities where military voting is still a problem. Second, and more importantly, we need to let
the LEO know that someone (you) is watching the LEO's performance with respect
to facilitating the enfranchisement of the brave young men and women who are
away from home and prepared to lay down their lives for our country. In most states, the election official is also
an elected official, so the LEO will have an incentive to respond to your
inquiry.
I invite your attention to www.servicemembers-lawcenter.org.
You will find 807 "Law Review" articles about military voting
rights, reemployment rights, and other military-legal topics. You will
also find a detailed Subject Index and a search function, to facilitate finding
articles about very specific topics. I initiated this column in 1997, and
we add new articles each week.
Here are three recent articles about military voting
rights:
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