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Virginia argues that they don’t need to send out military absentee ballots in time to vote

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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By Soren Dayton, ago

Virginia argues that they don’t need to send out military absentee ballots in time to vote

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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By Soren Dayton, ago

Boehner and Read the Bill: A sign that Congressional Republicans are starting to get it and the media isn’t

I have argued for a while that Repubicans need to pick up the mantle of transparency. It is useful tactically and strategically. On the tactical level, the guys in leadership always play “hide the ball with what they are doing”. This gives Republicans a morally secure high-ground to attack whatever the Democrats do. Strategically, it gives us an issue that can both rally our base and makes good sense to independents and many Democrats.

On Friday, House Republican Leader John Boehner issued a statement on transparency. The key passage:

It’s just common sense: Americans should be allowed to read the text of major bills before Congress votes on them.  Previous Congresses, including Republican ones, failed to live up to this standard.  But never before has the failure been as blatant as it has been in the past nine months under Speaker Pelosi.   Things have to change.

There are two key parts to this. First, he grabbed the policy issue and framed it in the adult and serious way “Americans” (not “Members of Congress”, which seems like only a populist argument, although some in the media have grabbed the straw man to give the Democrats aircover) should know what Congress is doing so that we can hold them accountable.

The second part is, perhaps, more important. John Boehner has now explicitly rejected the way that he ran the House, said “we have learned”, and established a new line in the sand. Furthermore, one of the reforms that he advocates, in this case, a waiting period before legislation can be acted on, actually may impact many of the wasteful spending concerns that actually helped drive him out of office. 

What is so fascinating is the rejection by Senate Democrats and the silence of lefty advocacy groups other than the Sunlight Foundation. In an effort to get a public copy of the healthcare bill before a vote, John Kerry said:

“This is fundamentally a delay tactic,” the 2004 Democratic presidential candidate said. “I mean, let’s be honest about it. The legislative language, everybody knows, is relatively arcane, legalistic, and most people don’t read the legislative language.”

That’s right. But people who are interested do. People who are experts or people being impacted do, or they hire people to.

And this gets to the final point. Where is the press? Huffington Post is being sent around by Demcorats, because they are giving cover to Democrats. But they aren’t really press. But where is the Fourth Estate demanding that they have the information to tell the American people what the debate is about.

Crickets.

You would think that John Boehner repudiating how Republicans ran the House would be worthy of news.

Crickets.

You would think that John Kerry giving cover to the Senate acting without even having legislation (I’m not talking about reading the bill here …) would be newsworthy.

Crickets outside of Fox and the Washington Times.

4.4
Your rating: None Average: 4.4 (5 votes)
By Soren Dayton, ago

Boehner and Read the Bill: A sign that Congressional Republicans are starting to get it and the media isn’t

I have argued for a while that Repubicans need to pick up the mantle of transparency. It is useful tactically and strategically. On the tactical level, the guys in leadership always play “hide the ball with what they are doing”. This gives Republicans a morally secure high-ground to attack whatever the Democrats do. Strategically, it gives us an issue that can both rally our base and makes good sense to independents and many Democrats.

On Friday, House Republican Leader John Boehner issued a statement on transparency. The key passage:

It’s just common sense: Americans should be allowed to read the text of major bills before Congress votes on them.  Previous Congresses, including Republican ones, failed to live up to this standard.  But never before has the failure been as blatant as it has been in the past nine months under Speaker Pelosi.   Things have to change.

There are two key parts to this. First, he grabbed the policy issue and framed it in the adult and serious way “Americans” (not “Members of Congress”, which seems like only a populist argument, although some in the media have grabbed the straw man to give the Democrats aircover) should know what Congress is doing so that we can hold them accountable.

The second part is, perhaps, more important. John Boehner has now explicitly rejected the way that he ran the House, said “we have learned”, and established a new line in the sand. Furthermore, one of the reforms that he advocates, in this case, a waiting period before legislation can be acted on, actually may impact many of the wasteful spending concerns that actually helped drive him out of office. 

What is so fascinating is the rejection by Senate Democrats and the silence of lefty advocacy groups other than the Sunlight Foundation. In an effort to get a public copy of the healthcare bill before a vote, John Kerry said:

“This is fundamentally a delay tactic,” the 2004 Democratic presidential candidate said. “I mean, let’s be honest about it. The legislative language, everybody knows, is relatively arcane, legalistic, and most people don’t read the legislative language.”

That’s right. But people who are interested do. People who are experts or people being impacted do, or they hire people to.

And this gets to the final point. Where is the press? Huffington Post is being sent around by Demcorats, because they are giving cover to Democrats. But they aren’t really press. But where is the Fourth Estate demanding that they have the information to tell the American people what the debate is about.

Crickets.

You would think that John Boehner repudiating how Republicans ran the House would be worthy of news.

Crickets.

You would think that John Kerry giving cover to the Senate acting without even having legislation (I’m not talking about reading the bill here …) would be newsworthy.

Crickets outside of Fox and the Washington Times.

4.4
Your rating: None Average: 4.4 (5 votes)
By Soren Dayton, ago