WASHINGTON – The Justice Department today announced that it has reached agreements with Colorado, District of Columbia, U.S. Virgin Islands and Hawaii officials to help ensure that military service members and U.S. citizens living overseas have an opportunity to participate fully in the Nov. 2, 2010 federal general election. These agreements were necessary to ensure compliance with the 2009 Military and Overseas Voter Empowerment Act (MOVE Act).
“Our uniformed service members and other overseas citizens deserve to have a meaningful opportunity to participate in the election of our nation’s leaders, and to know that their votes will be counted,” said Thomas E. Perez, Assistant Attorney General for the Civil Rights Division. “I am extremely pleased with state officials who worked quickly and cooperatively with the department and agreed to measures that will ensure the states’ military and overseas voters, many of whom are members of our armed forces and their families bravely serving our country around the world, will have their votes counted in the upcoming election.”
The Uniformed and Overseas Citizens Absentee Voting Act (UOCAVA) requires states to allow uniformed service voters (serving both overseas and within the United States) and overseas citizens to register to vote and to vote absentee for all elections for federal office. In 2009, Congress enacted the MOVE Act, which made broad changes to UOCAVA. Among those changes is a requirement that states transmit absentee ballots to voters covered under UOCAVA no later than 45 days before federal elections. Under the new law, states can apply to the Department of Defense for a hardship waiver of this requirement for a particular federal election if the state’s primary election date prohibited it from sending ballots by the 45th day before the election; if a legal contest causes a delay in generating ballots; or if the state’s constitution prohibits compliance. To obtain a waiver, states must 1) establish that one or more of these circumstances creates an undue hardship, and 2) present a comprehensive plan that provides UOCAVA voters sufficient time to receive and submit marked absentee ballots in time to have them counted in that election. Waiver determinations are made by the Department of Defense, after consulting with the Department of Justice.
The agreement with Colorado provides that the state will take the actions necessary to ensure that its counties send an official absentee ballot to all military service members and U.S. citizens living overseas no later than Sept. 18, 2010, thus ensuring that eligible military and overseas voters have at least 45 days to receive, cast and return their ballots in time for them to be counted in the Nov. 2, 2010, election. The agreement also commits the state to take steps to ensure compliance in future federal elections and provide a report to the Department of Justice on those efforts. Colorado sought a hardship waiver on grounds that its Aug. 10 primary election date prohibited it from complying with the 45-day deadline specified by the MOVE Act.
Under the agreement with the District of Columbia, the District will send absentee ballots to military and overseas voters no later than October 4, and will provide additional time -- until Nov. 19, 2010 -- for receipt of absentee ballots. The District passed emergency rules embodying these new deadlines, which will ensure that eligible military and overseas voters have at least 45 days to receive, cast and return their ballots in time for them to be counted in the Nov. 2, 2010, election. The agreement also commits the District of Columbia to take steps to ensure compliance in future federal elections and provide a report to the Department of Justice on those efforts. Earlier this year, the Council of the District of Columbia adopted a “Sense of the Council Primary Election Timing Resolution of 2010” acknowledging that the District needed to enact legislation to move its primary election for federal offices to a date no later than the first Tuesday of the first full week of August, beginning in 2012. The District sought a hardship waiver on grounds that its Sept. 14 primary date prohibited it from complying with the 45-day deadline specified by the MOVE Act.
According to the agreement, the U.S. Virgin Islands will send absentee ballots for federal office (the Virgin Islands’ Delegate to Congress) on or before Sept. 18, the 45th day before the election. In addition, the Virgin Islands will mail a second ballot with the territorial contests for local office to UOCAVA voters by Oct. 2. The Virgin Islands sought a hardship waiver on grounds that its Sept. 11 primary election date prohibited it from complying with the 45-day deadline specified by the MOVE Act.
Hawaii’s primary election on Sept. 18, 2010 precludes the state from sending absentee ballots to military and overseas voters by the MOVE Act’s ballot transmittal deadline of September 18 -- the 45th day before the November 2 federal general election. To ensure that the state’s military and overseas voters have sufficient time to receive, cast and return their ballots in time for them to be counted in the Nov. 2, 2010 election, the agreement requires Hawaii to send out ballots by express delivery service no later than Sept. 24, 2010, and to provide voters with the means to return their completed ballots by express delivery free of charge. Additionally, Hawaii will contact voters to remind them of their option to receive their ballots by email starting on Sept. 24, and of a procedure by which voters may obtain, and also return, replacement ballots electronically within 5 days of the Nov. 2 election if the voter has not otherwise received his or her ballot. Hawaii will maintain contact with its military and overseas voters periodically in the days leading up to the election to monitor whether voters have received their ballots and to take action if replacement ballots are necessary. These safeguards are designed to ensure that eligible military and overseas voters have sufficient time to receive, cast and return their ballots in time to be counted. Hawaii sought a hardship waiver on grounds that its Sept. 18 primary election date – the latest in the nation -- prohibited it from complying with the 45-day deadline specified by the MOVE Act. Earlier this year, Hawaii enacted legislation, effective on Jan. 1, 2011, which moves Hawaii’s primary date to the second Saturday in August in every even-numbered year to help ensure compliance with UOCAVA’s 45-day advance ballot mailing requirement in future federal general elections.
On Aug. 27, the Department of Defense denied all four waiver requests. The Department of Defense found that Colorado and the Virgin Islands did not establish an undue hardship for the Nov. 2, 2010 election, and that their proposed comprehensive plans did not afford sufficient time for UOCAVA voters to receive and submit absentee ballots in time to have them counted. For Hawaii and the District of Columbia, although an undue hardship was found, they did not provide adequate comprehensive plans. Immediately following denial of the waiver applications for Colorado, the District of Columbia, U.S. Virgin Islands and Hawaii, the Department of Justice advised state officials that the Assistant Attorney General for Civil Rights had authorized litigation to enforce UOCAVA. Discussions with the state and territory officials were initiated to resolve the matter, which led to the agreements announced today.
More information about UOCAVA and other federal voting laws is available on the Department of Justice website at www.usdoj.gov/crt/voting/misc/activ_uoc.htm. Complaints may be reported to the Voting Section of the Justice Department's Civil Rights Division at 1-800-253-3931.