Eugene Volokh recently posted the following on the election law listserve: “A correspondent of mine pointed to this decision, which “rul[es] that overseas voters and soldiers now have standing to challenge violations of their constitutional right to vote via the MOVE act.” (I quote him, since I haven’t read it yet.)”
Actually, today’s decision in Doe v. Walker issues a preliminary injunction extending Maryland’s November 12, 2010 deadline for absentee ballots by ten days. The Court found that absent uniformed services and overseas voters (I’ll call them UOCAVA voters) were likely to succeed on the merits that the Nov. 12 deadline unconstitutionally burdened their fundamental right to vote in state elections. In short, the Court found that it was likely that at least some of the absentee ballots sent to UOCAVA voters containing the state and local races were not postmarked until October 12 (absentee ballots for the federal races had been sent out earlier—by Sept. 18, to comply with the MOVE Act’s 45-day deadline). DoD’s Federal Voting Assistance Program estimated that international mail sent to overseas military requires at least 30 days for round-trip processing, and recommends 45 days. As the Court in U.S. v. Cunningham (2009, discussed below) stated, “in ‘some remote, austere locations,’ it may take as long as thirty-five days just for mail to travel from the United States to that location in the first place before the sevicemember can even open and read that mail, much less send response mail back to the United States.”
By imposing a deadline that was insufficient for round-trip processing, the court in Walker found that the state imposed a severe burden on UOCAVA voters’ fundamental right to vote, and that the state’s interest in the November 12 deadline was inadequate.
Doe v. Walker is significant in that it goes beyond U.S. v. Cunningham (2009). While Cunningham used federal statutory law (pre-MOVE UOCAVA) to conclude that Virginia didn’t give UOCAVA voters a meaningful opportunity to cast absentee ballots in a federal election due to a short turnaround, Walker concluded that Maryland would likely violate absent uniformed services and overseas voters’ fundamental right to vote under the U.S. Constitution (Anderson/Burdick standard) in state elections due to a short turnaround.
Walker is an important case in eliminating barriers and securing the right to vote. Before the MOVE Act, of absentee ballots requested, Pew noted that 86% of the general population’s ballots were completed by voters and arrived at election administrators’ offices on time, compared to only 27% of the ballots from members of the military overseas (in large part due to delays in international mail service to remote locations). While the MOVE Act establishes a 45-day window to protect the right to vote in federal elections, voting rights in state elections remain burdened when states choose to separate federal and state ballots as Maryland did. I appreciate the logistical difficulties faced by my home state of Maryland, but this case is a significant victory for voters.