Minnesota’s excruciatingly close Senate election forms the backdrop of Eric Eversole’s Weekly Standard column “Minnesota’s shame.” In the column Eversole points out that local Minnesota election officials rejected “at least” 302 ballots or 8.2 percent of the total number of absentee ballots cast by military members. Eversole strongly implies that the exclusion of these ballots was illegal under the Uniformed and Overseas Citizens Absentee Voting Act (UOCAVA), the federal law designed to protect absentee military voters.
The election contest judges held in their February 13 order that UOCAVA ballots received after the deadline for the receipt of absentee ballots were not to be counted. In so holding, the election contest judges were enforcing the requirements of Minnesota’s absentee ballot statute. Are the requirements of the statute illegal because Minnesota does not allow sufficient time for military voters to receive and return absentee ballots?
Eversole implies that the exclusion of absentee military balltots by state authorities was illegal. Having served in the civil rights division of the Justice Department enforcing UOCAVA, Eversole speaks with some authority on the issue and implies that Minnesota has violated federal law. Eversole, however, does not specify how the exclusion of these ballots violates UOCAVA. He makes no legal argument and provides no legal analysis. By my lights, Eversole fails to make his case.
In a white paper prepared for the Republican Lawyers Association on the same subject, Eversole is somewhat more expansive. In the white paper he criticizes the exclusion of Federal Absentee Write-In Ballots for technical infringements of state law. He also expands a bit on the argument implicit in his Weekly Standard column:
Secretary Ritchie has an obligation to determine whether the Minnesota violated UOCAVA in 2008 by sending out overseas military ballots less than 45 days before the election. Once he finds such a violation, which the evidence appears to support, Secretary Ritchie again must inform the Contest Court of his decision and propose a remedy that will ensure these ballots are counted. In other cases where a violation of UOCAVA has been found, courts have ordered states to count ballots that arrive within reasonable time period after the election.[footnote omitted] These ballots were rejected solely because of the state’s (and not the voter’s) systematic failure to mail military and overseas ballots with sufficient time for them to be received and returned by Election Day. The state (i.e., Secretary Ritchie and the Contest Court) must find a way to remedy this systemic violation and count these ballots for the November election.
Did Minnesota actually violate UOCAVA? In his white paper, Eversole suggests that Secretary of State Ritchie should determine whether it did. In his Standard column, Eversole resorts to what seems to me a misleading use of statistics in place of a legal argument that it did. It may be the case that the numbers Eversole cites contribute to a legal argument under UOCAVA, but Eversole doesn’t flesh out the argument.
I spoke briefly with the Secretary of State’s office today. I was advised that Minnesota issued a total of 5,745 absentee military ballots. Of the total, 3,362 were returned and counted while 302 were rejected. Of the 302 rejected ballots, 195 were rejected because they were received late. The remainder were excluded for other violations of state law.
Eversole refers to 2,100 military absentee ballots that were sent out and never returned. Eversole states that many of these 2,100 absentee military ballots were lost in the mail, sent to the wrong address, or received too late by the military voter to be returned. Eversole cites no source for this assertion. I’m not saying he’s wrong, but the source of his information is not apparent.
Eversole states that Minnesota’s eligible military voting population protected by UOCAVA was 22,000. He makes much of the fact that only 15.7 percent of Minnesota’s eligible military voters actually voted (“were able to cast a vote that counted,” in Eversole’s parlance) in the election. By the same logic, one could say that Minnesota’s absentee ballot statute only excluded the votes of 195 military voters out of 22,000 eligible voters on grounds of lateness.
If I read Eversole’s numbers correctly, though, only 5,745 of the 22,000 eligible voters requested absentee military ballots. Is that the fault of Minnesota officials? Eversole implies that it is, yet again he cites no fact to support the implication.
I am not an expert on the issues Eversole addresses in his Standard column, and Eversole is. But he leaves the interested reader concerned about the issues in search of substance. In any event, it seems to me that Eversole swings mightily and whiffs in this column, doing a disservice to a serious subject.