DOJ military voting enforcement: failed to give the full measure of their devotion
The mess surrounding 2010 military voting rights enforcement is coming to a rotten conclusion. On Friday the DOJ announced settlements against states that were not in compliance with the MOVE Act. Friday was the day before ballots were required to go overseas to military voters. In some of the settlements, the ballots aren’t going to go on time.
These Friday news releases are becoming a pattern.
On Friday, the Justice Department reached agreements with Hawaii, Colorado, D.C. and the Virgin Islands in response to their failure to comply with the MOVE Act. MOVE requires ballots to go 45 days in advance of the election – there are no exceptions in the law, no ability for DOJ to rewrite the law. These jurisdictions have been out of compliance since their legislatures went out of session without fixing their laws. Justice took no action – except to wait.
Hawaii and the other states entered into a sweetheart settlement with Justice Friday that allowed them to ignore the MOVE Act while other states like Florida and Vermont took steps to come into compliance with the new law. Worst of all, Justice undermined the decision of the Pentagon to deny these states waivers – and rewrote the will of Congress and changed the law on their own, reducing the time period below 45 days that states must send out ballots.
Instead of mailing ballots 45 days before the election – Justice effectively rewrote the law and allowed ballots in D.C. to mail out 29 days in advance, 16 days fewer that Congress required. In the Virgin Islands, it is 30 days in advance. In Hawaii, Justice rewrote the law and allowed ballots to go out 39 days in advance.
In response to Keystone Cops enforcement of military voting rights at the DOJ, Texas Senator John Cornyn has blocked the nomination of the Number Two man at Justice, James Cole. The administration was desperate to see Cole confirmed last summer, but upon learning about the mess simmering at the Justice Department, Cornyn blocked the nomination. Cornyn should keep the hold in place until the 2011 Election Assistance Commission report data are available which will let everyone know how bad the mess is or isn’t. It will track the number of ballots that were requested and successfully returned, or didn’t get counted. Only after of a review of this data should the hold be lifted.
Could Justice have done something differently to protect military voters? Lots. For starters, DOJ never provided input to the draft Pentagon waiver guidance to the states. The waiver guidance should have been in place in June so states would know whether a waiver might be available, or not. It would have allowed states that relied on a waiver, like Hawaii or Alaska, to cure the defects well before the eve of the disaster in late August. Instead, a voting section manager never provided a written response to the Pentagon’s request to review the waiver guidance, and no guidance was ever issued as a result. In the real world, that would lead to a firing. But we all know the government isn’t the real world.
The Department could have also sued the states in the early part of the summer possibly to get a remedy in place earlier than the day BEFORE the ballots had to go out. But the states might seek a waiver!, they argue. Poppycock. Sue them and hold the matter in abeyance until the waiver process sorts out. It’s called strengthening a negotiating position. Showing someone you are serious usually yields better results in litigation. Showing you aren’t produces the opposite. Others will be writing in the future about the deep aversion to bringing lawsuits in this area of the law, and why it has plagued military voting enforcement in the past. There are very specific reasons why there is an aversion to litigating military voting cases, and the public has a right to know why.
And the last thing the Department of Justice could have done in places like D.C. and Wisconsin was to ask for an injunction requiring compliance with the law, not the law the DOJ made up on Friday, but the real law. If a judge denied it, so what, at least the DOJ would give the full measure of their devotion to the cause.
Apparently that’s something we only expect from men and women in uniform.
Take the Hawaii settlement for example. Hawaii and the Voting Section of the Department of Justice together undermined the MOVE Act (and while the media trumpets that express mail and fedex solve the problem), they ignore two problems that undermine the spin. Despite the DOJ press release praising the agreement, Hawaii is only required to mail out ballots on September 24, 2010 - 39 days prior to the election. And the ballots are all due back on Election Day - no excuse, no extension, no exceptions, out of luck Major Marine in Afghanistan. Not only is Hawaii not meeting the 45 days deadline required by federal law with no waiver required by DOD, but the only remedy DOJ sought is express mail which does not decrease the transit time for military overseas voters who use the military postal service. There will be no additional time to provide for a 45 day total transit. Great job Justice. The tough negotiating stance yielded superb results.
DOJ simply waited too long to act. That’s why the settlement in Hawaii and elsewhere fells short of the law. It is the same story every two years at DOJ. Instead, they should have asked a judge in July to force total compliance with the law. Again, others will be writing in time about the very particular aversion to enforcement of military voting laws and what impediments exist to protecting military voters within Justice. Hawaii had shown signs early this year of not being able to meet the requirements of MOVE yet there was no action.
This reminds us that earlier in the year, a Justice official spoke to state election officials. The DOJ official downplayed DOJ's interest in enforcing the law. “Bringing a lawsuit is the last resort” or “the MOVE Act is ambiguous” state officials were told by the DOJ official. Election officials who were there told the Washington Times they simply could not believe what they were hearing. It was an invitation to ignore the law, to them. This state official said that everyone got the message loud and clear - they didn't need to worry because DOJ wouldn't be aggressive. This mess rests at the foot of the bureaucrats in the Department of Justice and the political leadership at DOJ. Congressional oversight hearing next year will be very interesting.
Over the next months and years, the public will benefit from a complete and detailed explanation from people with direct experience litigating these cases inside the Department – why this mess happened. Citizens can demand members of Congress do the same. The performance in 2010 to protect military voters was an embarrassment for the DOJ that can’t happen again.