Military Ballots Remain Problematic

November 30, 2008

By Diane M. Grassi

“At a time when these young people are defending our country and its free institutions, the least we at home can do is to make sure that they are able to enjoy the rights they are being asked to fight to preserve.”

These words were penned to members of the United States Congress during the Korean War when then President Harry S. Truman was expressing his discontent that the votes of active duty soldiers in theater overseas were in jeopardy of their votes not being counted in the Presidential election of 1952.

And although the Presidential election of November 4, 2008 will be official come December 15, 2008 when the Electoral College casts its votes and later tallied by the U.S. Congress on January 6, 2009, remnants of the November 4th election remain with a few states yet to certify their Congressional district vote counts, while a runoff election is set for December 2, 2008 in Georgia’s U.S. Senate District 1.

And in that regard, absentee overseas ballots of serving U.S. military members could ultimately be far more meaningful. With several close races not officially certified, military absentee ballots now play a greater role in those last few razor-thin vote counts ongoing in Minnesota’s Senate District 63 between Republican incumbent Norm Coleman and comedian, Al Franken; Virginia’s 5th Congressional District, presently involved in a court decision, between six-term Republican Virgil Goode and Democrat Tom Perriello; California’s 4th Congressional District between Democrat Tom McClintock and Republican Charlie Brown, who has not yet conceded; and the runoff election in Georgia, featuring incumbent Republican, Saxby Chambliss and Democrat Jim Martin.

Unfortunately, the Minnesota election may either be decided by the courts, similar to the case in Virginia, or could even wind up determined by the U.S. Senate itself, due to contested absentee ballot vote counts and their legal status.

But once again, 8 years removed from the controversial and unprecedented Presidential election of 2000 and its involvement of the U.S. Supreme Court over a disputed Florida ballot count, and 56 years since Harry Truman’s plea to the Congress, the overseas absentee military ballot election process remains terribly flawed and needlessly archaic.

And although the Congress in 1952 did not heed the outcry from President Truman, the 110th U.S. Congress also gets a failing grade in that regard. Legislation designed to specifically expedite the mailing and transit process for troops serving in Iraq and Afghanistan for the November 4th election was passed by the Senate on October 1, 2008.

The Military Voting Protection Act (MVP Act) S. 3073, was introduced by Senator John Cornyn (R-TX), of the Senate Armed Services Committee, in May 2008. The Act’s purpose is, “To amend the Uniformed and Overseas Citizens Absentee Voting Act (UOCAVA) of 1986, to improve procedures for the collection and delivery of absentee ballots of absent uniformed overseas service members and overseas voters and for other purposes.” It would ensure that U.S. military service members be fully able to participate in the electoral process.

The legislation would also require the Department of Defense (DoD) to track each ballot and materials sent between serving military and the various U.S. states to make sure that they properly arrive. And the DoD would be mandated to research the implementation of secure electronic voting mechanisms, most likely via the internet. More specifically, as in its companion bill, H.R. 5673, introduced in the House of Representatives on April 1, 2008, by Representative Kevin McCarthy (R-CA), it allows for the use of private contractors for express shipping instead of the U.S. Postal Service.

Over 500,000 military service members are presently deployed outside the continental U.S. and about 200,000 make up the total serving in Iraq, Afghanistan and other unaccompanied tours of duty. However, that number does not include the spouses of military service members who total approximately 120,000. They, too, face the same hurdles given the present voting process for personnel overseas.

On October 8, 2008, Representative Roscoe Bartlett (R-MD) along with 30 other co-sponsors of H.R. 5673, sent a letter to House Speaker, Nancy Pelosi, imploring her to move quickly for passage of H.R. 5673, in order to ensure that overseas military votes in this year’s election be received for the November 4th election.

Rather than ratifying passage of the legislation that would have been the best guarantee that self-sacrificing military service members fighting for U.S. liberty abroad could have had, Speaker Pelosi left the legislation on the table as she did its companion bill, S. 3073, passed by the Senate on October 1, 2008.

Interestingly, but sadly so, out of the 54 sponsors of H.R. 5673, 53 were Republican members of the House. And of the 30 co-sponsors of S. 3073, all were Republican members of the Senate. It clearly speaks volumes about the Democrats’ lack of concern about the rights of the U.S. fighting military. And if such lawmakers on Capitol Hill had hoped to correct such a public impression, they have but failed in that regard as well.

As stated by Congressman Bartlett, “It’s very sad that the House leadership blocked a vote on a bill approved by the Senate that would make it easier for American soldiers deployed in harm’s way to vote in federal elections. In 2006, only one-third of the absentee ballots requested were counted because the current system is too cumbersome and complicated.” And Congressman Trent Franks (R-AZ) added, “Knowing that we have experienced problems with counting the absentee ballots from our soldiers, Speaker Pelosi and Democrat leadership have no excuse for disenfranchising our overseas military.”

The complex system that offshore military personnel endure involves 50 states and select territories all with their own unique voting statutes that cover everything from voting registration to obtaining military absentee ballot applications and materials, to the receipt and delivery of the actual voting ballot. For example, some states do not send out absentee ballots until 35-40 days prior to the day of election. Other states such as Rhode Island and Massachusetts send ballots out just 21 days prior to the election, and is certainly not enough time for troops serving in the Middle East or even for troops changing posts stateside, to cast their votes.

In addition, each state has varying rules on how many days past Election Day they allow in order for received ballots to be counted and if the date of receipt is the controlling date or the postmark on the ballot is the date used. In Florida, where 10 days post-election is allowed, only federal races count for those ballots received and not for state or local races, which is the case for all states receiving a Federal Voting Absentee Ballot (FVAB) returned in the mail in lieu of a state produced ballot.

Making it more cumbersome is the combination of the Military Mail Service Agency with the U.S. Postal Service that is used for all mailed overseas military ballots. It is a requirement of all states with the exception of those states who accept faxed ballots, but in outposts in the Middle East, fax machines are not used.

Yet, the U.S. Postal Service and its representative union, the National Association for U.S. Postal Inspectors (NAPUS) has lobbied Speaker Pelosi and members of the Congress in an effort to prevent private contractors from being used for expediting the delivery of military ballots as proposed in both H.R. 5673 and S. 3073. And other members of Congress believe that it directly influenced Speaker Pelosi’s decision to completely drop the legislation.

The number of possible obstacles in the mailing process can be exacerbated by mail getting lost between the U.S. Postal Service and the Military Postal Agency. Mail is initially shipped by military channels and can prove undeliverable based upon periods of heavy combat, that can obstruct supply convoys, as well as replacing mail with higher priority cargo such as weaponry.

The DoD is expressly responsible for the adequate flow of getting essential voting information to troops in addition to overseeing the mail delivery process, known as the Federal Voting Assistance Program (FVAP). And unfortunately, according to the Government Accountability Office (GAO) in a June 2007 report, the Election Assistance Commission under the purview of the DoD failed to proceed with an internet based absentee voting system as requested by the Congress, although $25 million was allocated for it.

In the 2006 election, of the 6 million overseas military service members and eligible overseas voters, only 16.5% of them were able to request an absentee ballot. And of the one-third of the total ballots requested by such voters, only 5.5% were able to cast absentee ballots. This was according to the DoD Inspector General and the Election Assistance Commission Report, available in 2007.

Yet, in spite of the tabled legislation earlier this year, the Pew Center on the States has several initiatives it has been working on over several years such as the “adoption of a uniform state law on military and overseas voting” using the Uniform Commercial Code as a basis.

And going forward, Senator Bill Nelson (D-FL) currently is preparing legislation, for the next session of Congress, requiring federal funding for states and counties in order to provide internet voting to U.S. citizens overseas. It is the opinion of proponents of electronic voting that since the military depends upon electronic transmission for high security data that certainly a like type of system could be used for the security of electronic voting.

With regard to Virginia’s 5th District seat in the House of Representatives between Republican incumbent Virgil Goode and challenger, Democrat Tom Perriello, Perriello has been certified as the winner by a 745 vote margin. However, Goode has filed for a recount which has yet to be completed for certification.

However, on November 3, 2008, the McCain-Palin Campaign filed a lawsuit against the Virginia Board of Elections and 8 counties, over 4,750 absentee ballots. The issue is pertinent to the inclusion of military and overseas absentee ballots which remain uncounted. The suit contends that UOCAVA requires that ballots be mailed to military voters in foreign countries at least 45 days prior to Election Day, which this year would have been September 20, 2008. It also alleges that Virginia did not mail out the ballots until 35 days prior to the election, or in October, thus preventing sufficient time for voters to mail them back in time for Election Day.

But the state of Virginia contends in the lawsuit that, “There is no federal right to have absentee ballots mailed out 45 days before an election. The plaintiff’s claim is based on mere suggestion by federal officials, and suggestions are not enforceable under 42 U.S.C. § 1983.”

Virginia law requires that overseas absentee ballots be postmarked by Election Day and received no later than 10 days thereafter. Yet, the Virginia Board of Elections, as well as most states, does not keep data on how many overseas military members are even registered to vote.

Secondly, the McCain campaign claims that a federal law overrules Virginia state law that requires that a witness address be listed on absentee ballots. Both the state and federal forms issued by the state call for the signature of the witness to provide verification that the signature on the ballot is that of the registered voter. But the FVAB, which may be used in place of the state ballot, does not require the address of a witness, nor is there a space for it, causing even further confusion.

At a hearing on November 4, 2008, U.S. District Court Judge Richard Williams ordered all tardy ballots, in the 8 Virginia counties receiving overseas absentee ballots, be preserved. And on November 17, 2008 he removed McCain-Palin 2008 Inc. as the plaintiff and replaced it with the U.S. Department of Justice. So it will now be up to the U.S. Attorney General’s Office to pursue the contention that the nearly 5,000 ballots be counted. However, the exact number of military ballots remains unknown.

And Tuesday, December 2, 2008, as multi-million more dollars have been doled out for both candidates in Georgia, the remaining contest in 2008 for the U.S. Senate, between Republican incumbent, Saxby Chambliss and newcomer Democrat, Jim Martin, will hopefully be decided.

But the short turnaround time between November 4th and December 2nd in order to mail out ballots again to overseas destinations or even for the return mailing for those soldiers who were able to at least download the form either through the Overseas Vote Foundation website or from the Georgia Board of elections website, time may be too short. All ballots have to be postmarked by December 2, 2008 and received no later than December 5, 2008.

And prognosticators do not believe the Georgia election to necessarily be finalized on December 2nd, either. For short of its certification date, if it too proves to be a razor-thin count margin, expect military and overseas absentee ballots to again be thrown into the mix.

Finally, U.S. voters will be glad to know that NASA astronauts were able to cast their votes on time for this year’s November 4th elections onboard the International Space Station. In fact, a U.S. astronaut voted from the Russian Space Station as far back as 1997. And before this year, 4 different astronauts have successfully voted from outer space.

Digital ballot files are sent to NASA’s Johnson Space Center Mission Control Center which then sends them to the Space Station. The astronauts are then directly e-mailed encrypted credentials and passwords. When completed the encrypted ballots are e-mailed back to Mission Control.

– And for U.S troops overseas protecting the voting rights of Americans stateside? They can only hope.

Copyright ©2008 Diane M. Grassi