October 12, 2010

October 12, 2010 | Commentary on Elections, Legal Issues

NY's Denial of Military Voting Rights

It's outrageous that election officials in New York City and four other New York counties have failed to mail ab sentee ballots to our troops (and civilians) overseas. It's illegal, too.

The gross ineptitude violates the federal MOVE Act, a bipartisan law passed last year to ensure voting rights for the brave men and women deployed to foreign soil "to fight and die for us," as Mayor Bloomberg put it.

Taking into account the long, overseas transit times for mail, the law requires officials to send out overseas absentee ballots at least 45 days before an election. That deadline was Sept. 18. Yet, as of Monday -- weeks later -- the ballots still had not been mailed.

Meanwhile, the local officials' failure has been compounded by both inaction from the Justice Department and unwarranted action by the Defense Department.

The MOVE Act allowed states to apply to Defense (which administers the federal law) for a waiver of the deadline. Such waivers were to be granted only in case of "undue hardship."

The department granted New York a waiver because the Legislature failed to move up the Sept. 14 primary date to give officials more time to prepare the absentee ballots. But Albany's refusal to implement compliance with a federal requirement doesn't excuse responsible local officials from complying with federal law. Officials throughout the South learned that lesson after passage of the Voting Rights Act.

Moreover, the Defense Department's ill-considered conditional waiver still required local officials to mail their absentee ballots no later than Oct. 1. Yet the city and Putnam, Erie, Niagara and Westchester counties failed to meet even that deadline.

Four days after the extended deadline, the state Board of Elections got around to notifying the Justice Department of this failure.

Justice is charged with enforcing the MOVE Act. It should have filed a lawsuit immediately. In fact, its lawyers should have been on the phone Oct. 1 checking to make sure election officials had met the deadline.

But Justice lawyers took no such action. A department spokesman was quoted as saying that Justice was "in urgent discussions" with New York officials.

But Justice didn't engage in "urgent discussions" with Defense when New York's unjustified waiver application was being considered. Nor did Justice sue New York months ago when it became obvious that the Legislature was not going to implement federal law by moving the primary. And Justice didn't sue the city and the other four counties when it belatedly discovered that they had not even met the waiver conditions.

All of which is no surprise, given the consistent lack of attention this administration's Justice Department has given to protecting the voting rights of our military personnel.

News reports suggest that Justice may finally file suit this week, only two weeks before Election Day. But given the long delays in overseas mail and the abysmal disenfranchisement rate of military voters (only about a third of requested overseas ballots were cast or counted in 2006, according to the Election Assistance Commission), every day lost is precious.

Which is why Congress implemented the 45-day deadline to begin with -- to guarantee that military voters got their ballots in time to be returned and counted.

This screwup will affect more than 35,000 registered voters from the five boroughs who are overseas. Nearly 7,000 of them are military voters. How demoralizing for them to find they've been denied the opportunity to vote. This situation must be remedied legally, now. And all of the local election officials involved in this fiasco should resign or be fired.

Hans A. von Spakovsky is a senior legal fellow at the Heritage Foundation.

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

Related Issues: Elections, Legal Issues

First appeared in The New York Post