Outrage: Pentagon Grants Five States Waivers from MOVE Act

Protecting the rights of active duty military to have their vote counted is apparently not a priority for this administration.

In Washington, politicians always like to release bad news on a Friday, as fewer people notice. Today, the Pentagon announced that it had granted the waiver requests of five states seeking to escape requirements to protect military voters.

I have written previously here at PJM that all waiver requests should be denied. Unfortunately, if you are an overseas servicemember from Delaware, Massachusetts, New York, Rhode Island, or Washington, the protections in the MOVE Act aren’t going to apply to you this year. And if you are from one of the states who still aren’t in compliance with MOVE — like Colorado, Wisconsin, or Alaska — don’t be surprised if you get scant help from Attorney General Eric Holder.

Waivers can be granted from MOVE only if states find a way to make sure the votes of servicemembers are still counted.

Washington, despite having plenty of time after an August 17 primary to get the job done, received a waiver today. Washington was unwilling to change their schedule of ballot preparation to allow for 45 days mailing time. Though modern printing technology makes the Washington waiver unnecessary, it was granted.

Delaware election director Elaine Manlove says the state can get ballots out in time — but applied for a waiver “just in case.” Delaware’s waiver was motivated by caution, but caution isn’t a basis for the granting of a waiver. The law says “undue hardship.” However, waiver granted.

Rhode Island shared Delaware’s risk aversion: Spokesman Chris Barnett says they asked for a waiver in case they had a recount in the primary. A hypothetical “undue hardship.” Waiver granted.

Since MOVE passed last October, Massachusetts did nothing to adjust their late September 14 primary to comply. (This was the same state that introduced and passed legislation in mere days so that Senator Paul Kirk could be sworn in to vote for ObamaCare. The legislature previously stripped Republican Mitt Romney of the power to appoint replacements and required a special election.) It’s a shame soldiers aren’t as important as Senator Kirk’s vote was. Waiver granted.

New York sought a waiver. No surprise there: seven years after the passage of the Help America Vote Act of 2002, New York still wasn’t in compliance. Waiver granted.

Calls to Bob Carey, the director of the Federal Voting Assistance Program (FVAP), were not returned in time for this article, but a spokesman told me that these waivers are in compliance with the MOVE Act standards.

FVAP never published the waiver requests prior to today — including the Hawaii request received back on March 24, 2010. Many state officials, such as Massachusetts Secretary of State Bill Galvin, made no mention whatsoever of the waiver requests on their websites.

Given that few things could make Americans angrier than another 17,000 lost votes from soldiers — as happened in 2008 — the secrecy was understandable.

Some waivers place undue faith in technology to compensate for the delays. One waiver grant cites the use of the electronic “FVAP Voting Wizard Project” and a state’s comprehensive plans to use fax and email transmission of ballot forms. Yet Congress expressly rejected such work-arounds when debating the MOVE Act in 2009.

Congress rejected computer solutions because they knew that forward deployed troops don’t have computers.

Those most hurt by reliance on technology as a solution are the frontline soldiers like the Navy Seals, the 10th Mountain Division, the Marines, and others who hear the sounds of bullets whistling by but don’t see a computer screen for weeks. They eat MREs and sleep under the stars — they don’t carry laser printers and iPads. Waivers based on technological solutions are useful to servicemembers back in Wiesbaden, Okinawa, and Molesworth. But those solutions don’t help those directly fighting the War on Terror.

Anyone remember that war?

Bureaucracies tend to creek and groan when they have something new to do, and the creaking and groaning was deafening with MOVE Act implementation. Take the failure of the Department of Justice Voting Section to ever respond to the Pentagon’s draft final waiver guidance for states. FVAP officials wanted to give states early guidance about what would or would not justify a waiver, and the Pentagon wanted to publish the information well in advance of the July 28 deadline for states to submit waiver applications. So FVAP sent draft guidance to bureaucrats in the Voting Section last spring.

While they waited for the DOJ, the Pentagon had to issue “interim” guidance on May 24, 2010. It foreshadowed the problem:

Please be advised that [FVAP] will not to be able to provide guidance … until detailed guidance is available.

In a dereliction of their responsibility to provide advice to FVAP, officials in the Voting Section allowed the Pentagon draft to gather dust. In fact, the Department of Justice never replied. As a result, states never received the long-promised final waiver guidance, and were forced to submit waiver applications at the last minute without any hint of administration policy.

Back in March 2010, Hawaii was begging for policy clarity from the Pentagon. Scott Nago, the Hawaii chief election official, wrote to them:

We were told your office was still in consultation with the attorney general and that we would be informed once that consultation was complete. It is our understanding that no application has been submitted by any jurisdiction with a late primary election as they are waiting for further guidance from your office.

We all are still waiting. This abdication of MOVE Act duty by DOJ officials may explain why this article about waiver decisions is appearing in late August, instead of late May.

This example also demonstrates the difference between a bureaucracy run by Robert Gates, and one run by Eric Holder. General Holder should find out on whose desk the Pentagon’s draft was allowed to gather dust for months, and he should take swift and appropriate action against the bureaucrat. Because states submitted late waivers, full implementation of MOVE waiver policy was delayed to the outer limits of the statute.

To complicate matters further, DOJ officials were actively undermining MOVE Act protections throughout the spring. Not only did one Voting Section official tell states that the provisions of the new law were “vague” and a lawsuit “was a last resort,” an analysis Senator John Cornyn has characterized as laughable, they encouraged states to apply for waivers.

State election officials who were in attendance for Justice Department presentations said they couldn’t believe what they were hearing.

Worse yet, these same Justice Department officials told multiple officials that once a MOVE waiver was granted, it might be permanent, carrying over to the 2012 presidential election, despite express statutory language to the contrary. Such staggeringly bad legal advice came from both political appointees as well as career attorneys in the Voting Section. So embarrassing was the position, that senior political DOJ appointees retreated from the position once Senator Cornyn heard about it.

The apologists for the waivers and lack of DOJ enforcement cite the fact this is a “transitional year,” a term that appears nowhere in the law. They say the waiver provisions contemplate a “late” primary. But every state with a late primary could have done something about it to comply with MOVE.

Florida did. Georgia did. Vermont did.

It was simply a question of legislative priorities, and states like New York, Massachusetts, and Colorado did nothing to fix the problem.

The ball is now in the Justice Department court once again. Will they sue the states like Colorado and Wisconsin who are blatantly noncompliant with the MOVE Act?

Ballots need to mail in just a few weeks to Iraq and Afghanistan. We all know who is breaking the law, right now. It isn’t rocket science. Every day that DOJ delays a lawsuit means some solider guarding a dangerous frontier will lose their vote. Shameful bureaucratic inaction by the DOJ in the days ahead will have real and tragic consequences. The attorney general should immediately order the Voting Section to file lawsuits against Colorado, Alaska, and Wisconsin.

It would take diligent Justice lawyers a day, at most, to draft and file a complaint. Our heroes serving overseas don’t have the luxury of going AWOL.

J. Christian Adams is an election lawyer who served in the Voting Rights Section at the U.S. Department of Justice. His website is www.electionlawcenter.com.

Doing the DOJ’s Job for Them: Demanding Valid Voter Rolls Before November

I have sent notice letters to 16 states informing them that they are in violation of the National Voting Rights Act. Private lawsuits may follow if they do not comply. (Update: Don’t miss Adams’ new interview with Alexis Garcia on PJTV. Click here to watch.)
September 7, 2010 - by J. Christian Adams Share |
As the saying goes: if you want a job done right, you have to do it yourself. If Americans don’t want dead and ineligible felons participating in elections, they will have to clean up the mess themselves, as Attorney General Eric Holder won’t do his job by enforcing the integrity protections in the “Motor Voter” law passed in 1993.

Motor Voter struck an important balance — it sought to increase voter registration, as well as ensure voter integrity. Welfare offices and motor vehicle offices became voter registration centers. But the law also required states to conduct list maintenance to ensure ineligible names don’t pollute the voting rolls. Dead people, ineligible felons, and people who moved away must be removed from the rolls by state election officials.

The attorney general was given the power to enforce both provisions of Motor Voter, yet Eric Holder is only interested in enforcing one. This attorney general simply won’t do his job and enforce the list integrity requirements.

During the Bush administration, the Justice Department enforced both Section 7 (the welfare office registration provisions) as well as Section 8 (the list integrity provisions). Section 7 cases were investigated and brought against multiple states, including Illinois and Arizona. Section 8 cases were investigated and brought against multiple states, like Missouri and Maine.

The decision of the Holder DOJ to ignore the integrity provisions of Section 8 is deliberate and corrupt. In November 2009, political appointee Julie Fernandes told the entire assembled DOJ Voting Section that the Obama administration would not enforce the list maintenance provisions of Section 8. Section 8 “doesn’t have anything to do with increasing minority turnout,” Fernandes said. “We don’t have any interest in enforcing that part of the law.” End of story.

At the same time, Fernandes stressed that the DOJ would vigorously enforce the welfare agency registration provisions of Section 7.

She made these lawless instructions in front of me and dozens of other shocked Voting Section lawyers. The DOJ has never once denied that Fernandes gave these instructions, nor has the DOJ countermanded them.

This lawless policy couldn’t have a partisan motivation, could it?

Now, Americans are left to clean up the voter rolls on their own. Thankfully, Motor Voter provides a private right of action — that means private citizens can bring lawsuits against states and voter registrars who are allowing dead and ineligible voters to taint the voter rolls.

Americans are used to getting the job done themselves. Reliance on government tends to disappoint.

Using this private right of action, I have given sixteen states the legal notice required to alert them that they have violated Section 8 of Motor Voter. I am working with private citizens across the nation to help ensure that the elections in November aren’t plagued by ineligible voters. If the states don’t fix the problem, private lawsuits may follow. The sixteen notice letters rely on publicly available data and describe problems in the voter rolls.

Every two years, states must report to the Election Assistance Commission (EAC) information about their voter rolls. The latest report is troubling. South Dakota, Texas, Mississippi, Kentucky and Indiana report in excess of a dozen counties with more registered voters than living people old enough to vote. Having more voters than living humans tells you something is wrong. In West Virginia, one county reported 113% of the voting age population was registered to vote. Baltimore, Maryland, reported 104% of voting age citizens on the rolls. Iowa and North Carolina also reported counties with more voters than living citizens of voting age.

All of these states received a notice letter.

Ponce de Leon wasted his time looking for the fountain of youth in Florida — he should have gone to Maryland, Arkansas, Massachusetts, Oregon, or Tennessee. These states report that they didn’t remove a single dead voter from 2006 to 2008. Some of the dead registered voters were resurrected on election day and cast ballots.

These states also received a notice letter.

Many counties in other states also have amazing longevity. Large numbers of counties in Alabama, Rhode Island, and Virginia report removing no dead voters in two years. Whatever they are drinking there, I’d like some quick.

Overall, all sixteen of these states received notice from me that they have violated Section 8 of Motor Voter because they have failed to maintain the integrity of their voting rolls. In the next 20 days, they will have the opportunity to explain why the data they reported to the EAC are wrong, or what has changed in the meantime. I will report on the responses here.

But if they are inadequate, private citizens may do what the DOJ refuses to: bring lawsuits to clean up the voter rolls before November 2, 2010.

Enforcement of Section 8 has become a bogeyman among some activist groups. They claim enforcement of the law is a sinister plot to deny the vote to eligible voters. Unquestionably, the hostility of Julie Fernandes originates in this fable. They crow that those concerned about integrity are engaged in “voter suppression.” They threaten to enlist the Justice Department to badger law-abiding citizens, apparently unaware that no such federal law exists pertaining to “voter suppression.” DOJ efforts to conjure legal theories of “voter suppression” have been met with embarrassing setbacks in the federal courts.

There are laws against voter “intimidation,” of course. But with the corrupt dismissal of the New Black Panther voter intimidation case, Eric Holder has set the bar very high on that score. Contrary to the claims of some, real legal standards define voter intimidation. Under no rational and credible legal theory do efforts to enforce Section 8 constitute voter intimidation. Shouting racial slurs and brandishing a weapon at voters? Yes, that’s intimidation. Making sure dead people aren’t on the voter rolls? No, that isn’t.

Some claim voter fraud doesn’t exist. They would be smart to reassess this myth. I have previously written at PJM that we have a long history of voter fraud, even if it doesn’t often affect election outcomes. I have cataloged dozens of instances of voter fraud at my blog, electionlawcenter.com, in just the last two months.

To opponents of effective list maintenance, Section 8 exists to threaten states who conduct robust purging programs. When Assistant Attorney General Tom Perez said that the DOJ is actually performing Section 8 functions, it was to advise states not to clean up voter rolls — as compared with my aim of enforcing the law against states who neglect to clean up the rolls. A nicely played trick of the tongue on his part.

The American story has always been about ordinary people making a better country on their own, without government. When government intentionally abdicates its responsibility, as the DOJ has done on this and other matters, it is up to private citizens to get the job done.

Whether it is the failure to secure American borders, or the failure to secure the integrity of our elections, the federal government is failing. Through the work and support of private citizens, hopefully only living, breathing, eligible voters will be casting ballots in November.

J. Christian Adams is an election lawyer who served in the Voting Rights Section at the U.S. Department of Justice. His website is www.electionlawcenter.com.

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