Once again, it is no accident this embarrassing settlement is being released on a Friday, so fewer might notice.
The Pentagon had denied Wisconsin’s application for a waiver from the 45-day requirement: “The states granted waivers presented thorough and comprehensive plans to protect the voting opportunities for military and overseas voters,” Bob Carey, director of the Federal Voting Assistance Program, said in a statement. Wisconsin’s waiver application didn’t even come close to compliance with the MOVE Act. They wanted to send ballots only 29 days before the election. The folks at the Pentagon rightfully denied the waiver request.
The victory for military voters was short-lived.
Instead of aggressively suing Wisconsin immediately after the waiver denial, the DOJ engaged in secret negotiations. An immediate lawsuit would have strengthened the negotiating position of the DOJ as well as preserved various equitable legal arguments, including the argument DOJ waited too long to commence litigation. Instead of doing the right thing, the DOJ did the easy thing and reached a settlement with Wisconsin that undermined the Pentagon’s denial of Wisconsin’s waiver request.
The tough negotiating stance of the Holder DOJ extracted a whopping additional three days out of Wisconsin. Ballots will mail 32 days before the election instead of 29. A consent decree filed Friday will reflect this quisling agreement.
This is a disgrace, plain and simple. Military voters, their families and veterans organizations should be outraged at the Holder DOJ.
It is true that time was added to allow ballots to roll in after the election, but time after the election is different in quality than time before. The MOVE Act was explicitly designed to add time before an election to ensure the solider would get a ballot in time to benefit from the express delivery requirement under the MOVE Act. This guarantees that ballots placed in military mail at least 7 days before an election will be returned in time to be counted. By sending ballots only 32 days before the election, many overseas soldiers will be denied this important guarantee. Congress specifically rejected post-election add-on time as a solution. Compressing the pre-election time ignores both of these important statutory purposes.
The limp DOJ settlement demonstrates a core fear inside Justice of litigating military voting cases. Even when the DOJ actually acts to protect military voters, the investigative methods resemble the Keystone Cops.
After the administration changes, an increasing possibility in 2013, it will be essential to clean house and install litigators who don’t flinch under fire, both in the courtroom and also on the battlefield. It’s time to put someone in charge of protecting military voters who cares about military voters, preferably with military experience.
Senator John Cornyn has put the heat on Justice, and blocked the nomination of James Cole to be Deputy Attorney General. Justice was desperate to have Cole confirmed weeks ago, and the military voting mess has aggravated top DOJ leadership. Americans rightfully outraged by the DOJ concession should send notes of support to Senator Cornyn for his efforts to protect military voters. The shameful Wisconsin settlement will likely strengthen Cornyn’s resolve on the Cole hold.
Could Wisconsin have done something differently? Lots.
Wisconsin could have done what Florida, Georgia or Vermont did, and fix the problem in the nearly twelve months since the MOVE Act was passed. It’s a question of priorities. Wisconsin could have just gotten the job done like other waiver-requesting states did when their waivers were rejected. The primaries in Wisconsin are on September 14, but the DOJ settlement won’t require ballots to be printed and mailed until October 2.
This is what happens when government bureaucrats negotiate with other government bureaucrats. They are completely oblivious to the private sector solutions to the problem, such as printing technology, and instead allow a tedious 18 days to go by before ballots are mailed.
This settlement shows a slavish devotion to plodding process, to doing things without any sense of urgency. It contrasts starkly with the methods and mindset of our men and women serving in combat zones.
Could DOJ have done something differently? Absolutely. DOJ could have sued Wisconsin in June once it was clear the State would not comply with MOVE. If the DOJ took the timid approach and didn’t sue because it thought a waiver might be sought, they could have sued immediately upon the denial of the waiver application. They didn’t. Justice could have then filed a motion for a temporary injunction seeking an order to force Wisconsin to print ballots and mail them a few days after the conclusion of the September 14 primary. Similarly, Justice should have used the pending motion to leverage a better settlement.
But all that requires swift efficient work, speed, resolute decision making, and the courage to enter a courtroom — traits in short supply in military voting enforcement at the DOJ.
DOJ also could have had the courtesy to respond to the draft Pentagon waiver guidance that was sent in the spring. DOJ could have reviewed the draft and provided a written response. Because it failed to do so, no final waiver guidance was ever given to the states. This alone calls for consequences.
Simply put, the DOJ allowed Wisconsin to do less than the law allowed. Like Julie Fernandes rewriting the Motor Voter law, bureaucrats nullified important protections for military voters in the Wisconsin settlement.
Compare this timorous approach to what just happened to Cuyahoga County, Ohio. About 6,000 Americans who grew up in Puerto Rico live there. DOJ threatened to sue the county unless Spanish ballots were used across the whole county. The problem is that the need for Spanish ballots doesn’t exist across the whole county. And the law doesn’t even allow a county-wide remedy.
No matter. When it comes to Spanish ballots, the DOJ demanded a remedy that went beyond the law. When it comes to our military voters, the DOJ negotiated a remedy that was less than the law requires.
Expect more of the same regarding Hawaii and the District of Columbia, two more states grossly out of compliance with the MOVE Act.
It’s really just a question of priorities, of favored political constituencies. It’s a dangerous game of politicization to play considering the mood of the country. It is one more incident that grows the coming wave.
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.
