Sunday, August 01, 2010

Disenfranchised Over There, Redux

Unless you watch Fox News, or read various conservative blogs, you probably missed the most under-reported story of the past week. Thanks to those outlets--and Justice Department whistle-blowers--we know that the Obama Administration's lax enforcement of voting laws isn't limited to the "New Black Panthers" case in Philadelphia. Turns out that Eric Holder and his crew have also taken a pass on upholding the voting rights of military members.

We refer to the Military Voter Empowerment Act (MOVE), passed by Congress last fall. It's designed to give members of the armed forces more time to submit their absentee ballots from overseas locations. But, according to former DOJ attorney J. Christian Anderson--the same man who testified against the the government when it dropped the Black Panthers case--the Justice Department has little interest in enforcing the new military voting law:

“I do know that they have adopted positions or attempted to adopt positions to waivers that prove they aren’t interested in aggressively enforcing the law,” Adams told “They shouldn’t be going to meeting with state election officials and telling them they don’t like to litigate cases and telling them that the waiver requirements are ambiguous.”

Sen. John Cornyn,R-Texas – who co-sponsored MOVE – wrote a letter to U.S. Attorney General Eric Holder on July 26 saying he is concerned that the Department of Justice is allowing states to opt out of the new law. Click here to read the letter.

“Military voters have been disenfranchised for decades, and last year Congress acted," Cornyn said in a statement to "But according to recent information, the Department of Justice has expressed reluctance to protect the civil rights of military voters under the new law. All our men and women in uniform deserve a chance to vote this November, and the Obama administration bears responsibility for ensuring that they have it.


In his letter to Holder, Cornyn cites minutes from the 2010 winter meeting of the National Association of Secretaries of State (NASS), during which Rebecca Wertz, deputy chief of the DOJ's voting section, told state election officials that the legislative language regarding waivers is not completely clear. Wertz described the provisions of the law as “fairly general” and “somewhat of an open question as to what type of information” a state needs to submit in order to for their waiver application to be granted. She said it was also unclear whether waivers are for one election only, or if they apply to future elections.

According to the meeting's minutes, obtained by, Wertz also said “that the DOJ is working to find effective ways to disseminate any information guidance that can help states with different questions about MOVE interpretation. She invited questions and dialogue from states, and said that litigation is always the last resort.”

Anderson's contentions are supported by another former DOJ attorney, Eric Eversole, who now runs the Military Voter Protection Project, a new organization devoted to ensuring military voting rights. “It is an absolute shame that the section appears to be spending more time finding ways to avoid the MOVE Act, rather than finding ways to ensure that military voters will have their votes counted,” said Eversole. "The Voting Section seems to have forgotten that it has an obligation to enforce federal law, not to find and raise arguments for states to avoid these laws."

Adams described DOJ's handling of the MOVE Act as "Keystone Cops enforcement."

So far, the Justice Department has not formally responded to Senator Cornyn's letter. But the department's non-existent enforcement policies should come as no surprise. We've written at length about the problems associated with military absentee ballots; putting in bluntly, many (if not most) are never counted because they arrive after the submission deadline.

And the problem doesn't lie with the soldiers, sailors, airmen and Marines who send in their ballots from distant corners of the globe. The problem can be blamed squarely on state and local election officials who mail out ballots at the last possible moment, realizing they can never be returned in time. How many military personnel are disenfranchised by these delays? Estimates vary, but in a May 2008 article published by The Weekly Standard, Hans Von Spakovsky and Roman Buehler estimated that only one-third of the 1,000,000 absentee ballots submitted by military personnel (and other U.S. residents abroad) were actually counted during the 2004 Presidential election.

Anecdotal evidence from 2008 suggests the number of disenfranchised troops was lower; in an editorial published last week, The Washington Times reported the votes of 17,000 military members were rejected two years ago. However, the paper does not report how it arrived at that figure, and given the sacrifices of our armed forces, you can argue that even one disenfranchised solider is one too many. Additionally, other analysts believe the number of rejected military absentee ballots in 2008 was much, much higher than the Times' total, and may have been closer to estimates from 2004.

More disturbing is the Justice Department's curious take on enforcing the MOVE Act. By pointing out ambiguities in the existing statutes, the DOJ appears to be encouraging states and territories to apply for waivers from the military voting law. That would allow the continued, late mailing of absentee ballots to members of the armed forces, virtually guaranteeing the continued disenfranchisement of thousands of military members and dependents.

So far, several states (New York, Delaware, Washington, Hawaii, Maryland and Alaska) have applied for waivers, or plan to do so. You may notice that most of those requesting waivers are blue states, and several have key races that are expected to go down to the wire. Could the ballots of military absentee voters make a difference in those contests? Apparently, officials in those states--with the encouragement of the DOJ--don't want to find out. After all, military members tend to vote Republican, so Democrats have an incentive to suppress a key source of GOP absentee votes. That means that literally thousands of military personnel will be denied the right to vote this fall, just as they were in 2008, 2006, and ever other preceding election cycle.

If you don't believe DOJ is reluctant to enforce the military voting law, consider this: until last week, the department's website still encouraged local election officials to mail out absentee ballots at least 30 days before an election. Never mind that the MOVE Act mandates the mailing of absentee ballots to military voters no later than 45 days before the election. Incidentally, the DOJ didn't bother to update the military section of its website until late last week, after Mr. Anderson and Mr. Eversole went public with their charges. Meanwhile, the DOJ site devotes a large section (over 2,000 words) advising convicted felons on how they can regain their voting rights.

There is, of course, a rather obvious solution to this problem. Before the 2008 election, the state of Arizona implemented on-line voting for residents serving in the military, or living abroad. Using technology similar to that for on-line purchases and banking transactions, the Arizona system allowed thousands of expatriates to cast their vote without absentee ballots. The Pentagon was working on a similar system in the run-up to the last presidential election but it was scrapped due to "security" concerns that have never been fully explained.

While Senator Cornyn is demanding answers, there is no reason to believe the technical issues (or enforcement problems) will be corrected by November, or before the next presidential election in 2012. As a result, the very men and women who are charged with defending our democracy remained the most disenfranchised group in the American electorate. The bitter irony of that fact cannot be overstated.


Your IT Consultant said...

The "security concern" is most likely authentication. The biggest problem with voting, even in person, is proving you are who you claim you are. In person, we have Government IDs, proof of insurance, residence, bills, and other records that establish who we claim to be. It's "proof" of sorts.

But, these are physical tokens, something easily verified visually by those administering the voting site.

"On the Internet, nobody knows you're a dog." Even with a "fairly good" proof of identity, you still can't be sure the person on the other end isn't malicious or hijacking the vote for another. No matter how good your encryption is, you still face the authentication issue.

For what it's worth, absentee ballots have this same problem.

tfhr said...

IT Consultant,

Since you brought up the internet, why not steer the DoD into including an absentee ballot process into the My Pay system?

If we can tweak our pay and TSP settings via My Pay, why can't we work out a means by which we can register and vote electronically? DFAS, as a function of paying troops also provides tax information to states and the federal government. Seems to me that same interface is not a large leap to get to the point where you can also cast your ballot.

My next brilliant idea - move "Election Day" to a block of days beginning one day after Tax Day.

Yeah, that'll happen.

Your IT Consultant said...


I'd have to be much more familiar with the MyPay and TSP system to say. But remember, voting is not just a federal level enterprise. Voting systems, and votes, and tabulated on a county level, with different counties often having different issues to vote on.

This means having a massive amount of code, infrastructure, and understanding of each different voting system for each state, and each county.

Voting in the US is as confusing as the people who're citizens here.

tfhr said...

IT Consultant,

I'm with you on those points but I think an interface that is trusted enough to provide access to sensitive personal finance data is a big step in the right direction. The trick would be tying in all 50 states, Puerto Rico, DC, etc.

Your IT Consultant said...


I want to agree with you. Authentication should be as simple as the methods you use to check your bank account.

Sadly, your bank likely still uses what any other website uses: username, password, and "something only the real user would know" such as Mother's Maiden Name or First Employer.

That's not good enough, in my opinion. Even for banking, that's not nearly secure enough.

tfhr said...

IT Consultant,

All active duty military personnel are issued a Common Access Card. The computer in use must have a CAC reader and in a case where additional security might be needed, a specific activity could be restricted to users operating from a .mil domain. This is already in place and could be that answer.

I certainly agree with your assessment that greater security is needed. Such security is already at hand but what is lacking is a top driven DoD initiative to push the states to comply and to do it's own level best to guarantee a sacred right for service members.