Summary of plans for an agreement to agree
Earlier today, we asked the question where are the agreements between various states regarding their failure to comply with military voting obligations. It was noted that it was certainly possible that they were there, but hard to find. With a hat tip to a Voting Section alum, late this afternoon it seems that the agreements could be found here.
The agreements are not “agreements” in the conventional legal sense. I raise the issue of enforceability as a threshold matter to distinguish them from the ordinary customs of the Department. For these hardly seem enforceable. Simply calling something an agreement does not make it so, particularly when everyone was expecting something more robust. I can put a pineapple on my head but that certainly does not make me Carmen Miranda. Alas, this may explain why these documents did not accompany the press releases. For they are agreements in only the most cursory sense. Members of Congress will be surprised to learn that the "agreements" DOJ assured them were being implemented were little more than letters summarizing telephone conversations, especially when they were told otherwise.
Here is the “agreement” with Alaska. Odd that the letter characterizes itself as a “proposal.” Ooops. Given that contracts facially characterized as “proposals” usually do not convert to “agreements” absent some explicit execution of assent. The assent appears nowhere on the document, and thus, it is in fact what it says – a proposal. They won’t want to be attaching that as “Exhibit A” in an enforcement action.
Let’s look at the “agreement” with the Virgin islands. In the letter, the Virgin Islands “memorializes [their] plan to meet the 45-day requirement.” Instead of a signature line, the letter states the Department of Justice “had no objection to our course of action and agreed that such an action would resolve the issue.” Tough stuff. It would be a hoot to watch them try to enforce this “agreement.”
Onto Nevada. There the “agreement” came in the form of the DOJ writing a letter. It “confirms the steps [Nevada] has indicated it will take.” New state regulations are attached, but of course those regulations provide no foothold for the federal government to enforce. The “agreement” reads more like a confirmation of a phone call and restatement of a state regulation. No execution lines for the state to assent to the terms of the letter. Enforcement of the letter will be awfully difficult.
The “agreement” with North Dakota is thinner than the “agreement” from Nevada. Again, no execution line. Instead of agreement, these are more appropriately called – “summary of telephone call where you made promises.”
But maybe it is time to cut some slack. It was hard week. The soon-to-be-chairmen of the three committees which will oversee the MOVE Act caught on to the Keystone Kops Act on military voting enforcement. It is even less likely now that James Cole will be confirmed at Deputy Attorney General after it was discovered that Illinois turned into a disaster that DOJ never knew was happening – even though everyone else did. People were at work past midnight some nights working on pleadings. It wasn’t fun. The good news is, with these “agreements” in place, nobody will have to go to court to enforce them anytime soon, because, well, they aren't enforceable. But they looked dandy in the press release.
These documents represent 20 percent solutions to protect the right to vote of people who deserve 100 percent solutions. Thankfully folks on both sides of Capitol Hill now see what a mess they have on their hands, and it would not surprise me if changes come to the MOVE Act that push DOJ to the sidelines on enforcing the law.
The agreements are not “agreements” in the conventional legal sense. I raise the issue of enforceability as a threshold matter to distinguish them from the ordinary customs of the Department. For these hardly seem enforceable. Simply calling something an agreement does not make it so, particularly when everyone was expecting something more robust. I can put a pineapple on my head but that certainly does not make me Carmen Miranda. Alas, this may explain why these documents did not accompany the press releases. For they are agreements in only the most cursory sense. Members of Congress will be surprised to learn that the "agreements" DOJ assured them were being implemented were little more than letters summarizing telephone conversations, especially when they were told otherwise.
Here is the “agreement” with Alaska. Odd that the letter characterizes itself as a “proposal.” Ooops. Given that contracts facially characterized as “proposals” usually do not convert to “agreements” absent some explicit execution of assent. The assent appears nowhere on the document, and thus, it is in fact what it says – a proposal. They won’t want to be attaching that as “Exhibit A” in an enforcement action.
Let’s look at the “agreement” with the Virgin islands. In the letter, the Virgin Islands “memorializes [their] plan to meet the 45-day requirement.” Instead of a signature line, the letter states the Department of Justice “had no objection to our course of action and agreed that such an action would resolve the issue.” Tough stuff. It would be a hoot to watch them try to enforce this “agreement.”
Onto Nevada. There the “agreement” came in the form of the DOJ writing a letter. It “confirms the steps [Nevada] has indicated it will take.” New state regulations are attached, but of course those regulations provide no foothold for the federal government to enforce. The “agreement” reads more like a confirmation of a phone call and restatement of a state regulation. No execution lines for the state to assent to the terms of the letter. Enforcement of the letter will be awfully difficult.
The “agreement” with North Dakota is thinner than the “agreement” from Nevada. Again, no execution line. Instead of agreement, these are more appropriately called – “summary of telephone call where you made promises.”
But maybe it is time to cut some slack. It was hard week. The soon-to-be-chairmen of the three committees which will oversee the MOVE Act caught on to the Keystone Kops Act on military voting enforcement. It is even less likely now that James Cole will be confirmed at Deputy Attorney General after it was discovered that Illinois turned into a disaster that DOJ never knew was happening – even though everyone else did. People were at work past midnight some nights working on pleadings. It wasn’t fun. The good news is, with these “agreements” in place, nobody will have to go to court to enforce them anytime soon, because, well, they aren't enforceable. But they looked dandy in the press release.
These documents represent 20 percent solutions to protect the right to vote of people who deserve 100 percent solutions. Thankfully folks on both sides of Capitol Hill now see what a mess they have on their hands, and it would not surprise me if changes come to the MOVE Act that push DOJ to the sidelines on enforcing the law.
Posted by Christian Adams at October 19, 2010 
Categories: uncategorized
Tags: Alaska Military Voting Nevada MOVE Justice Department North Dakota
Categories: uncategorized
Tags: Alaska Military Voting Nevada MOVE Justice Department North Dakota
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