Minnesota’s shame? Eric Eversole responds

Eric Eversole responds to my critique of his Weekly Standard column “Minnesota’s shame.” Eversole writes:

Your response to my column missed its point. It was not my intention as a third party observer to establish whether Minnesota violated federal election law. Quite frankly, I do not have all of the facts to make that determination, especially facts related to the individual ballots that were rejected (i.e., when the ballot was mailed, when it was received by the military voter, the location in the world, and when the ballot was cast).

However, the facts that I do have–the number ballots that were rejected as compared to non-military ballots, the number of ballots that were never returned, and the high percentage that were rejected for being returned late–strongly indicate a possible UOCAVA violation and, at the very least, should have been discussed by the contest court. As you know, the court summarily rejected the issue without mentioning a single fact or discussing how the law applied to those facts. To me, that was a disservice to military voters.

That being said, there may have been some readers, like you, who wanted more legal analysis. For those left wondering, I would direct them to the memorandum in support of the motion for a temporary restraining order that was filed by the McCain Campaign in McCain-Palin 2008, Inc. v. Cunningham, (E.D. Va. 2008).

While the Campaign was ultimately dismissed from the case because they lacked standing (they could not allege an injury after conceding the election), the memorandum makes a strong argument as to why absentee ballots should be sent to military voters at least 45 days before the deadline and why 35 days is not sufficient in Virginia.

However, this issue is not without dispute. The Department of Justice has taken the position that 30 days is sufficient under UOCAVA, although I disagree with their conclusion based on numerous studies that have been conducted. See this memorandum filed in support of the TRO motion. In any event, whether the 45-day argument would have carried the day is not for you or me to decide (perhaps we can have that debate in a future article). My point was simply that the contest court should have been decided the issue.

I also believe it was important to challenge the contest court’s repeated assertion that there was no wholesale disenfranchisement of Minnesota voters in 2008, especially given the low participation rate of military voters. As I noted in my column, when nearly 85 percent of a voting group is unable to participate in an election, how could that be anything less than wholesale disenfranchisement? You are right, this is a serious problem. Minnesotans should be outraged by these numbers. However, this issue will never be resolved if the contest court and elected officials in Minnesota sweep the issue under the rug.

As for the question of whether it is the state’s responsibility to make sure that military voters have a reasonable opportunity to participate in elections, that question has been answered, in part, by the Secretary of State. The SoS has assumed that responsibility by proposing and pursuing numerous legislative amendments in his 2009 agenda that will increase the voting opportunities for Minnesota’s voters. See this fact sheet.

What I find troublesome is that while Secretary Ritchie proposed numerous changes to help Minnesota’s non-military voters to increase voter participation (i.e., the ones that had a 78 percent participation rate in 2008), he did not propose a single change to increase military voter participation. In other words, even though only 15.7 percent were able to cast an absentee ballot that counted in 2008, he could not find a single amendment to improve their participation. That too raises questions regarding Minnesota’s treatment of military voters.

Ultimately, I doubt that you and I disagree on this point: our men and women in uniform have every right to vote and our state and federal government should make every effort to ensure that right. When only 15.7 percent of Minnesota’s military voters and their dependents are able to vote in an election, when 78 percent of the state participated in the same election, that should raise concerns about whether Minnesota is doing enough for these voters. Our men and women in uniform deserve better.

I am grateful to have Mr. Eversole’s expansion on his column and happy to give him the last word on this important subject for the moment.

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