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: