I see the federal government has rejected Wisconsin’s request for a one-time exemption from the new-for-2010 45-day window for sending out federal absentee ballots to overseas and military voters while I was away. Since Wisconsin’s primary election is 49 days before the general election, on September 14, it would be logistically impossible to comply with the requirement that absentee ballots be available to overseas and military voters by September 18, 45 days before the general election.
Before I get to the “Who the hell screwed up and how?” question, I first must clarify what the new requirement is. From page 133 of the National Defense Authorization
Act for Fiscal Year 2010’’, which is amending the states’ requirements under the Uniformed and Overseas Absentee Voting Act:
(a) IN GENERAL.—Section 102 of the Uniformed and Overseas Citizens Absentee Voting Act (42 U.S.C. 1973ff–1(a)(1)), as amended by sections 577 and 578, is amended—
(1) in subsection (a)—
(A) in paragraph (6), by striking ‘‘and’’ at the end; (B) in paragraph (7), by striking the period at the end and inserting a semicolon; and
(C) by adding at the end the following new paragraph:
‘‘(8) transmit a validly requested absentee ballot to an absent uniformed services voter or overseas voter—
‘‘(A) except as provided in subsection (g), in the case in which the request is received at least 45 days before an election for Federal office, not later than 45 days before the election; and
‘‘(B) in the case in which the request is received less than 45 days before an election for Federal office—
‘‘(i) in accordance with State law; and
‘‘(ii) if practicable and as determined appropriate by the State, in a manner that expedites the transmission of such absentee ballot.’’;
The first part is going to be blown because Wisconsin takes 19 days to certify the primary results and get the ballots printed. However, the second part won’t be a problem becuase Wisconsin already allows military/overseas absentee ballots to be sent out if the request comes in 30 days prior to the election, and as the Milwaukee Journal Sentinel pointed out, somewhere less than 4% of the military/overseas ballots were rejected in the 2008 general election for all reasons, not just for being late.
So, what is the consequence of not having the absentee ballots out 45 days prior to the election? That is covered by 42 USC § 1973ff–4, which gives the US Attorney General the power to seek federal judicial relief. The Civil Rights Division of the Department of Justice, which handles those lawsuits, says in their FAQ on the Uniformed and Overseas Citizens Absentee Voting Act:
If a county is late in mailing absentee ballots to soldiers, what can the Department of Justice do?
Under Section 105 of UOCAVA, the Attorney General is authorized to bring civil actions to enforce UOCAVA requirements. When states have failed to make sure that ballots are sent to qualified servicemembers in a timely manner, the Department of Justice has successfully obtained court orders and consent decrees. Many of these have required states to extend their deadlines for receiving these ballots and to count the late-mailed ballots, even when they arrived after Election Day. In some cases, the states were required to make permanent changes to their laws or procedures to make sure the problems are not repeated in future elections. Through these cases brought to enforce the federal law, the Department has ensured that qualified servicemembers were able to cast their ballots, and know that they were counted.
In short, we may not know who won the Senate race on 11/3 (the day after the election), or even on 11/11, when military ballots postmarked by the day of the election can arrive and still be counted under current state law.
Now, for who screwed up. As much as I dislike the Government Accountability Board, the date of the election and the timing of certification is really out of their hands. That is all set by state statute, with the final state certification due on the third Wednesday after the primary. Indeed, because state law (under the direction of federal law) requires military ballots postmarked by the day of the primary to be counted if they arrive up to 7 days after the primary, they cannot certify a federal election in the 4 days between September 14 and September 18.
The ball falls squarely on the Legislature and Gov. Jim Doyle. The MOVE Act became law on 10/29/2009. While the Legislature was in session at the time, I’ll give them a pass for not dealing with it in that particular floorperiod because that ended on 11/5/2009. However, they had three more floorperiods to deal with it – 1/19/2010-1/28/2010, 2/16/2010-3/4/2010, and 4/13/2010-4/22/2010. The Legislature didn’t even attempt to deal with any part of complying with the MOVE Act until the last session possible, and then rolled a very-partial attempt into the “Driver/Voter” bill that would have automatically registered everybody who receives a driver’s license, given the information to ACORN’s successors, and in general would have made vote fraud even easier to accomplish. Notably, they didn’t even attempt to change the date of the primary in that bill. From the Legislative Reference Bureau’s summary of the version that went the farthest along the legislative process (AB895, Assembly Substitute Amendment 1):
Under current federal law, states are required to transmit absentee ballots to military and overseas electors no later than 45 days before each federal election at which the electors are entitled to vote, if the electors have requested their ballots by that time. However, a state may request a hardship waiver from the federal government, for a single election only, if the state’s primary election date does not permit compliance with this requirement and the state takes other actions to ensure expeditious delivery of absentee ballots to military and overseas electors. This substitute amendment directs GAB to report to the appropriate standing committees of the legislature no later than January 1, 2011, concerning GAB’s recommended method for compliance with the federal timeline for the absentee voting process. To achieve compliance, this state will likely need to advance the date of the September primary, beginning in 2012.
Even after the last day of the general floorperiod of the Legislature passed without so much as a token effort to comply with just a part of the MOVE Act passing the Legislature, Doyle could have called the Legislature back into session to ensure compliance with something their fellow Democrats in DC wrote. I guess that lack of desire to do anything without further encouraging vote fraud by the Wisconsin Democrats trumps all else.