Last year, we covered some of the problems in the counting of military absentee ballots in Virginia, as did others. This problem has not gone away. It has just moved. The day before election day 2008, the McCain campaign filed a complaint in the Eastern District of Virginia to force Virginia to count military absentee ballots that came in after election day. McCain lost Virginia by more than enough votes, but the case went on with the Department of Justice replacing the McCain campaign.There were filings last month and will likely be a hearing this month. So what?

The Virginia State Board of Elections argued in their most recent filing that they have no legal obligation to send out military absentee ballots in a timely manner. Restated, the State of Virginia has argued in a federal court filing that they can legally send out absentee ballots to active duty soldiers the day before an election. Restated again, the Democratic Chairwoman of the Virginia State Board of Election (appointed by the Democratic National Committee Chair Tim Kaine, in his capacity as Virginia Governor) Jean Cunningham just claimed a legal basis for massively raising the barrier to voting for soldiers at war.

Really. Read on for details.

The details of the legal proceedings are at the invaluable Election Law@Moritz. Let’s start with the most recent filing on behalf of the defendant

There is no federal statute that requires States to mail absentee ballots to UOCAVA voters a minimum number of days before an election. The Complaint in Intervention is based entirely on a “determination” by the Federal Voting Assistance Program of the Department of Defense that such ballots be mailed at least 30 days before an election, and a “recommendation” that States allow 45 days for round-trip mailing of absentee ballots.

This is remarkable, and the implications of this should be understood. First of all, some counties in both Virginia and New Jersey haven’t sent out absentee ballots yet in violation of their own laws. Whether due to maliciousness or simply being overburdened and understaffed is always up for debate. If Virginia prevails, there would be a legal argument for putting the ballots of active duty military at the back of the bus, as it were.

Second, this whole debate concerns only federal elections. States have to pass laws that allow for military voting in non-federal elections. I do not believe that either state has done that. Virginia’s filing notes that many of these questions are irrelevant in many ways because of the Federal Write-in Absentee Ballot, but their flier on military voting notes "Virginia allows you use the FWAB as an absentee ballot for Federal Offices only". In other words, not state and local elections. In fact, state laws have to do more to let active duty military vote in state elections.

Third, if ballots were even to be sent out in a reasonable time, a question is them getting back in time. Rep. Kevin McCarthy, Rep. Dan Boren, Sen. John Cornyn, and Sen. Mark Begich have a proposal to have DoD pay for ballots to be returned by express mail, but Steny Hoyer and Nancy Pelosi are blocking consideration in the House, even though it passed the Senate last year

In discussing last year’s issues, Marc Ambinder noted, "Democrats insist they’re biased towards access… so will they try to intervene on behalf of these voters?"

Good question.

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