October 8, 2009

October 8, 2009 | Commentary on Legal Issues

Disenfranchised by Dave

WHY does New York's Gov. David Paterson keep disenfranchising military voters? The answer is obvious -- and ugly.

When members of our military deploy, they're acting to protect the Rights and security of all Americans. But they often find they've lost a crucial right of their own.

Paterson recently scheduled a special election to replace Rep. John McHugh in the state's 23rd congressional district. But he set the election for Nov. 3 -- just 35 days after his proclamation.

That short deadline will effectively disenfranchise military voters -- and the governor should know it, since he's being sued on precisely this issue over the last snap election he called.

Five weeks simply isn't enough time for local officials to get absentee ballots out to servicemen and women deployed abroad. It takes too long to lay out the official ballot with the names of the candidates, get the ballots printed and get them set for mailing.

So absentee ballots requested by overseas military voters -- including the valiant men and women of the 10th Mountain Division at Fort Drum who are now deployed in Iraq and Afghanistan -- almost certainly won't be received and returned in time to count in the election.

This shouldn't surprise Paterson or the Board of elections: The Justice Department sued them in the wake of the last special election back in March, when Scott Murphy beat Jim Tedisco by about 700 votes for the House seat vacated by new Sen. Kirsten Gillibrand.

Absentee ballots actually made the difference in that tight race -- yet military voters didn't get to have their absentee ballots count.

New York officials are well aware that the US Election Assistance Commission recommends mailing absentee ballots to military voters at least 45 days before they're due. The Military Postal Service Agency's chief of operations suggests at least 60 days.

Sen. Charles Schumer recognizes this -- he's sponsoring a bill to require states to send military and overseas ballots at least 45 days before an election.

Deployed military voters are disenfranchised more often than any other class of American voter. In recent elections across the nation, only 5 percent to 20 percent of eligible military voters cast absentee ballots that were counted.

An Overseas Vote Foundation survey found that nearly a quarter of military and overseas-civilian voters never even received their requested absentee ballots for the 2008 presidential election. Another 10 percent got their ballots less than seven days before the election -- too late to return them.

This rate of disenfranchisement is as severe as any in our nation's recent history -- including that of blacks under Jim Crow, which resulted in the passage of the 1965 Voting Rights Act to strike down the barriers to registration and voting that robbed so many of this basic right of citizenship.

Paterson could have scheduled this election for early December. It's an off-year, so turnout is likely to be low in any event. But a later vote would've allowed more than enough time for local election officials to get their new ballots printed and shipped out to soldiers from Fort Drum who are stationed at the other side of the world.

The governor's motive is obvious -- and shameful. This is the only open congressional seat race in the country this fall. Both national parties are deeply involved in the race, and Democrats are desperate to win it -- if only to fend off claims that a loss would suggest that voters are souring on the president, the party that controls Congress and the policies they're pushing. And it's a common belief that military voters trend Republican.

In the short time before November's scheduled vote, the state could be sued under the federal law guaranteeing the right of military personnel to vote, the Uniformed and Overseas Citizens Absentee Voting Act. Or Paterson could reconsider, and act in the best interests of men and women engaged in public service at the risk of their lives.

Ironically, Rep. McHugh left Congress to be the secretary of the Army. So he has the duty to investigate and to do all he can to right this wrong. Officials nationwide should be ensuring that military voters are given a realistic opportunity to vote -- not disenfranchising them for partisan advantage.

Hans A. von Spakovsky is a visiting legal scholar at the Heritage Foundation. He is also a former commissioner on the Federal Election Commission and counsel to the assistant attorney general for civil rights at the Department of Justice.

About the Author

Hans A. von Spakovsky Manager, Election Law Reform Initiative and Senior Legal Fellow
Edwin Meese III Center for Legal and Judicial Studies

First appeared in the New York Post