RUTHFULLY YOURS

The 2010 debacle involving military ballots just became surreal.

New York City and Westchester Country are but two of the several New York jurisdictions which admitted that they failed to mail military ballots. This fact should have been known on October 2, when the Justice Department should have marched into court seeking an immediate order that the ballots be sent — preferably by rapid express mail.

Instead, a Justice Department press flack says they are in “urgent discussions.” Great. Congress should ask why they aren’t in urgent “litigation.” New York had already received a waiver, which DOJ supported, allowing the state to mail ballots on October 1. They couldn’t even meet that relaxed deadline.

In 2008, the Justice Department engaged in Keystone Kops enforcement of military voting rights ^[1]. Their failure to enforce, aggressively, federal laws protecting military voters resulted in 17,000 wasted, late, or lost military ballots. Amazingly, Justice Department enforcement of military voting rights has only gotten worse in 2010.

This deterioration wouldn’t have anything to do with the change in administrations, would it?

Senator John Cornyn of Texas laid down the gauntlet this past weekend to Fox News:

If DOJ does not file a suit to right this wrong as soon as the courts open on Tuesday, then we will know once and for all that DOJ is not serious about safeguarding military voting rights.

Cornyn has particular interest in military voting rights. He has blocked the nomination ^[2] of James Cole for deputy attorney general because of the lax enforcement of military voting rights. He has asked for basic information from Justice — which Justice has been unwilling to provide — about which states are not in compliance with the law. Now, we learn that DOJ obviously didn’t know about New York (and Illinois).

Even if DOJ rushes to sue New York on Tuesday, Cornyn shouldn’t expect much. DOJ sued other states like Wisconsin, and then rewrote the federal statute Cornyn sponsored in a settlement that shortened the congressional mandate of 45 days.

The worst part of this? Justice knew, or should have known, months ago which states were not in compliance with the law. Months ago, election officials in many states like Maryland and Wisconsin literally made statements that they would not be in compliance with the law. Justice did nothing but sit and wait.

Knowing firsthand the problems which plague enforcement of military voting rights inside Justice, former DOJ Voting Section lawyer Eric Eversole has set up the Military Voter Protection Project. Instead of relying on the DOJ, Eversole has his own operation with teams of law students around the country investigating compliance. Private citizens are picking up the ball the DOJ has dropped.

And it has paid off. The private MVP Project detected the fact that Illinois failed to mail military ballots before DOJ had a clue. (Does it surprise anyone that a private sector effort has better results than the government counterpart?)

DOJ inaction was foreshadowed in a February 2010 speech by Justice voting officials to state election officials. According to state election officials who were present, the Justice official told the assembled crowd that the federal law protecting military voters was “ambiguous.” Further, the DOJ official told the audience that they wanted to avoid litigation to protect military voters, and that it would be the very last thing DOJ would consider.

No kidding. Obviously the state officials got the message: across the nation, military voters are suffering from a nationwide lack of compliance with the law. And the DOJ has filed exactly one lawsuit seeking to enforce the law … against Guam. All of the other lawsuits, such as against Wisconsin, have come after lousy settlement agreements have been reached.

I believe there is very little that can be done to alter this institutional sloth in the three weeks before the election. Citizens can, of course, petition the Voting Section (800-253-3931 begin_of_the_skype_highlighting              800-253-3931      end_of_the_skype_highlighting) and ask to speak to the person in charge of military voting protection. There is a chance the callers will view the problem more seriously than the government officials. Let me guess: the DOJ will say they are doing a great job.

Former Voting Section attorneys are working closely with members of Congress, leaving no doubt as to what the institutional problems are inside Justice. These problems should be eliminated after strict congressional oversight in 2011. If not next year, then in January 2013.

Meanwhile, DOJ paints a rosy picture of the great job they are doing to protect military voters. But the facts prove otherwise.  Just ask a Marine from Brooklyn.