[Congressional Record Volume 156, Number 82 (Thursday, May 27, 2010)]
[Senate]
[Pages S4513-S4521]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
MILITARY AND OVERSEAS VOTER EMPOWERMENT (MOVE) ACT OF 2009
Mr. SCHUMER. Mr. President, since becoming chairman of the Committee
on Rules and Administration with jurisdiction over Federal elections, I
have come to have a better appreciation for and deeper understanding of
the obstacles and barriers that our military men and women serving
abroad and at home and U.S. citizens living in foreign lands encounter
when they try to vote.
As I explained at a Rules Committee hearing held in May of 2009,
every couple of years around election time, there is a great push to
improve military and overseas voting. But as soon as the election is
over, Congress all too often forgets the plight of these voters.
But last year, Congress delivered. Our motive was simple--we wanted
to break down the barriers to voting for our soldiers, sailors, and
citizens living overseas. On a bipartisan basis, we agreed that it was
unacceptable that in the age of global communications, many active
military, their families, and thousands of other Americans living,
working, and volunteering in foreign countries cannot cast a ballot at
home while they are serving or living overseas. For our military, what
especially moved us to act was the fact that they can fight and put
their life on the line for their country, but they can't choose their
next commander-in-chief. This shouldn't happen--not in the United
States of America where elections are the bedrock of our democracy.
With the 2010 elections less than 7 months away, a new law is on the
books. The provisions of the Military and Overseas Voter Empowerment
Act, MOVE Act, of 2009 were incorporated in Public Law 111-84, the
National Defense Authorization Act of 2010. This law will make it
easier for members of our Armed Forces and citizens living abroad to
receive accurate, timely election information and the resources and
logistical support to register and vote and have that vote count.
Mr. President, a legislative history of the MOVE Act is as follows:
Background and Purpose of the MOVE Act
American citizens believe voting is one of the most
treasured of our liberties and a right to be defended at any
cost. It is therefore unacceptable that our military men and
women serving abroad and at home, who put their lives on the
line every day to defend this right, often face obstacles in
exercising their right to vote.
Empirical evidence confirms that members of the military
and citizens living overseas who have attempted to vote
through the absentee balloting procedures that has been in
place for the last 30 years were often unable to do so. The
reasons were many, including insufficient information about
military and overseas voting procedures, failure by States to
send absentee ballots in time for military and overseas
voters to cast them, and endemic bureaucratic obstacles that
prevent these voters from having their votes counted. While
the Uniformed and Overseas Citizens Absentee Voting Act,
UOCAVA, enacted in 1986, created a Federal framework for both
military and overseas citizens to vote it was clear that, in
order to break down these barriers to voting, UOCAVA was in
need of an overhaul.
A history of congressional efforts to aid military and
overseas voters highlights the obstacles faced by these
voters. In 1942, the first Federal law was enacted to help
military members vote in Federal elections. The Soldier
Voting Act of 1942 was the first law to guarantee Federal
voting rights for servicemembers during wartime. It allowed
servicemembers to vote in elections for Federal office
without having to register and instituted the first iteration
of the Federal Post Card Application for servicemembers to
request an absentee ballot. Though this was a commendable
first effort by Congress, the 1942 law's provisions only
applied during a time of war, and barriers to voting
remained. In 1951, President Truman commissioned a study from
the American Political Science Association on the problem of
military voting. Recognizing the difficulties faced by
military members serving overseas during World War II and the
Korean War in trying to vote, President Truman wrote a letter
to Congress that called on our legislators to fix the
problem. In response, Congress passed the Federal Voting
Assistance Act, FVAA, in 1955 which recommended--but did not
guarantee--absentee registration and voting for military
members, Federal employees serving abroad, and members of
service organizations affiliated with the military. In 1968,
FVAA was amended to cover U.S. citizens temporarily living
outside of the United States, thus increasing the number and
scope of U.S. citizens that fell within the law's purview. In
1975, the Overseas Citizens
[[Page S4514]]
Voting Rights Act at last guaranteed military and overseas
voters the right to register and vote by absentee procedures.
In 1986, Congress enacted UOCAVA as the primary military and
overseas voting law, incorporating the expansion of rights
granted under prior Federal legislation and making several
significant advances to improve military and overseas voting.
UOCAVA has been the operational voting framework provided to
military and overseas voters.
UOCAVA's main provisions placed several mandates on States.
First, States must allow members of the uniformed services,
their families, and citizens residing overseas to register
and vote by absentee procedures for all elections for Federal
office including all general, primary, special and runoff
elections. Second, States are required under UOCAVA to accept
and process all valid voter registration applications
submitted by military and overseas voters--as long as the
application is received no less than 30 days prior to an
election. Third, UOCAVA created the Federal write-in absentee
ballot, FWAB, a failsafe backup ballot for Federal general
elections.
Congress has amended UOCAVA several times over the last 24
years. The 1998 amendments included certain reporting
requirements on States to provide information on military and
overseas voting participation; and the 2001 amendments
required States to accept the Federal Post Card Application,
FPCA, as a combined voter registration and absentee ballot
request form, and gave voters the opportunity to request that
the FPCA be a standing absentee ballot request for each
subsequent Federal election in the voter's State that year.
In 2002, the Help America Vote Act, HAVA, modified this
provision to allow voters to automatically request an
absentee ballot through the FPCA for the two subsequent
regularly scheduled Federal election cycles after the
election for which the FPCA was originally submitted. HAVA
also added a number of substantive provisions to UOCAVA,
including a provision to give voting assistance officers the
time and resources to provide voting guidance and information
to active duty military personnel, a mandate that the
Secretary of each branch of the Armed Forces provide
information to service personnel regarding the last date that
an absentee ballot can reasonably be expected to arrive on
time, and a requirement that States identify a single office
for communication with UOCAVA voters. Finally, Congress
amended UOCAVA in 2004 to allow military personnel to use the
Federal write-in absentee ballot, or FWAB, from within the
territorial United States.
Despite these improvements over the years, evidence
revealed that significant barriers to voting continued for
military and overseas citizens. Registration among military
voters has been shown to be substantially lower than among
other voting-eligible U.S. citizens. According to testimony
submitted by hearing witnesses, in 2006, the registration
rate among military personnel was 64.86 percent compared to a
registration rate of 83.8 percent for the general voting age
population. According to one survey of military and overseas
voters conducted after the 2008 election, of those overseas
voters who wanted to vote but were unable to do so, over one-
third--34 percent--could not vote because of problems in the
registration process. The same survey found that even among
experienced overseas voters, nearly one-quarter--23.7
percent--experienced problems during the registration
process. Military and overseas voters have had to deal with a
lack of information about registration procedures and a slow,
cumbersome registration process that often turns into the
first roadblock to voting.
Military and overseas voters also have trouble even when
they have been able to properly register. The Congressional
Research Service, CRS, found that during the 2008 election
military personnel and overseas citizens hailing from the
seven States with the highest number of deployed soldiers
requested 441,000 absentee ballots. Of these, 98,633 were
never received by local election officials. Further, survey
data shows that two out of every five military and overseas
voters, 39 percent--who requested an absentee ballot in 2008
received it from local election officials in the second half
of October or later--much too late for a ballot to be voted
and mailed back in time to be counted on election day.
Sending absentee ballots too late to have the opportunity to
actually vote is an unacceptable situation for military and
overseas Americans.
Finally, some States reject ballots from military and
overseas voters for reasons unrelated to voter eligibility,
including unnecessary notarization requirements and criteria
such as the paper weight of the ballot or ballot envelope. As
many as 13,500 ballots were rejected from military and
overseas voters from the seven States with the greatest
number of troops deployed overseas.
These numbers are totally unacceptable. These barriers
effectuate rampant disenfranchisement among our military and
overseas voters. Congress has a compelling interest to
protect the voting rights of American citizens, and it is
especially incumbent upon Congress to act when those very
individuals who are sworn to defend that freedom are unable
to exercise their right to vote.
The need for sweeping improvement was clear. The Military
and Overseas Voter Empowerment Act is a complete renovation
of UOCAVA that brings it into the twenty-first century and
streamlines the process of absentee voting for military and
overseas voters through a series of common sense,
straightforward fixes.
First, it allows military and overseas voters to request,
and when so requested, requires States to send, registration
materials, absentee ballot request forms, and blank absentee
ballots electronically. It ensures that military and overseas
voters have at least 45 days to receive and complete their
absentee ballots and return them to election officials. The
legislation also requires that absentee ballots from overseas
military personnel be sent through expedited mail procedures,
making it faster and easier to send voted ballots back to
local election officials. In addition, it prevents election
officials from rejecting overseas absentee ballots for
reasons not related to voter eligibility, like paper weight
and notarization requirements.
Second, the MOVE Act expands accessibility and availability
of voting resources for military and overseas voters. It
shores up the Federal Voting Assistance Program, or FVAP, an
organization within the Department of Defense, DOD. Under the
provisions of MOVE, FVAP will make a number of improvements
to its voter education efforts for our military and other
Americans living and working abroad and serve as the central
administrative office for carrying out the Federal
responsibilities under UOCAVA and MOVE. It also increases the
usability and accessibility of the FWAB. This failsafe ballot
allows military and overseas voters to vote even when they
face a situation where they don't receive a State-issued
ballot in time. In addition to all these improvements, the
legislation advances voter registration for our military by
directing each of the Secretaries of the military departments
to designate offices in military installations where soldiers
and their families can register to vote, update their
registration information, and request an absentee ballot.
The MOVE Act also aims to secure future voting rights for
military and overseas voters. It increases accountability for
future elections by directing the Department of Defense to
regularly report to Congress on their activities for
implementing the programs and requirements under MOVE,
including information on ballot delivery success rates. It
also authorizes the Defense Department to create a pilot
program testing new technologies for the future benefit of
military and overseas voters.
The enactment of the provisions of the MOVE Act brings to
an end a system that could ever allow a quarter of ballots
requested by U.S. troops to go missing. It instead aims to
ensure that every single military and overseas vote be
counted.
Committee Hearing and Consideration at Markup
The Committee on Rules and Administration held a hearing on
May 13, 2009, which I chaired entitled ``Hearing on Problems
for Military and Overseas Voters: Why Many Soldiers and Their
Families Can't Vote.'' The first panel consisted of one
witness, Gail McGinn, Acting Under Secretary for Personnel
and Readiness for the Department of Defense. Testifying on
the second panel were Patricia Hollarn, board member of the
Overseas Vote Foundation and former supervisor of elections
in Okaloosa County, FL; Donald Palmer, director of the
Division of Elections at the Florida Department of State; LTC
Joseph DeCaro, active duty member of the U.S. Air Force, on
his own behalf; Eric Eversole, former attorney at the
Department of Justice Civil Rights Division, Voting Rights
Section, adviser to the McCain-Palin campaign, and former
member of the Navy's Judge Advocate General Corps from 1999-
2001; and Robert Carey, executive director of the National
Defense Committee.
The hearing focused on the reasons why so many military and
overseas voters find it difficult or impossible to
effectively cast their ballots, with special attention paid
to recommendations from the witnesses who possess extensive
experience with the military and overseas absentee voting
process. The hearing opened with a discussion of the
preliminary results from a study of military and overseas
voting in 2008 conducted by the Congressional Research
Service. The findings showed that in several of the largest
military voting States, up to 27 percent of the ballots
requested by military and overseas voters were not counted
for one reason or another.
Letters from soldiers serving abroad who wanted to cast
ballots in 2008 but were unable to do so were shared. One
letter from a soldier in Alaska concisely summarized the
problem underscored by the hearing: ``I hate that because of
my military service overseas, I was precluded from voting.''
Gail McGinn, Acting Under Secretary for Personnel and
Readiness at the Department of Defense, testified in detail
about the logistical and administrative challenges facing
military and overseas voters. Ms. McGinn identified time,
distance, and mobility as the chief logistical barriers to
these voters. She said, ``Our legislative initiatives for
states and territories to improve ballot transit time are,
first, provide at least 45 days between the ballot mailing
date and the date that ballots are due; give state chief
election officials the authority to alter elections
procedures in emergency situations; provide a state write-in
absentee ballot to be sent out 90 to 180 days before all
elections; and expand the use of electronic transmission
alternatives for voting material.'' Ms. McGinn further
pointed out that 23 States do not provide the minimum of a
45-day round trip for military and overseas absentee ballots.
Patricia Hollarn, board member of the Overseas Vote
Foundation and
[[Page S4515]]
former supervisor of elections in Okaloosa County, FL,
testified about her personal experience with local election
officials who, she said, had a lot of confusion about the
proper absentee balloting procedures they needed to provide
for overseas citizens and military personnel. She echoed Ms.
McGinn in recommending that States and local jurisdictions
provide a minimum of 45 days for absentee ballots to be
delivered to overseas voters, completed, and returned before
the state's deadline. She also emphasized the logistical
challenge facing the U.S. Postal Service and military mail
service with respect to the speedy delivery of overseas
ballots.
Donald Palmer, director of the Division of Elections for
the Florida Department of State, testified about Florida's
experience serving its military and overseas voters. Mr.
Palmer said that providing 45 days for ballot transmission
and delivery, as Florida does, is ``prudent'' and
``absolutely necessary, when relying solely on the mail
service.'' Mr. Palmer also discussed Florida's experience
using technology, including e-mail, fax, and the Internet, to
communicate with military and overseas voters and transmit
balloting materials to and from Americans abroad. Mr. Palmer
testified about an invitation from the Department of Defense
for Secretaries of State to travel to the Middle East and see
firsthand how soldiers receive their absentee ballots.
Florida Secretary of State Kurt Browning relayed to Mr.
Palmer that soldiers abroad many times do not have access to
fax machines and often use e-mail as a primary source of
communication and expressed their desire to be able to use
email or the internet to transmit balloting materials to
local election officials. Mr. Palmer also detailed pilot
programs in Florida which have used new technologies to
facilitate ballot transmission from abroad. He also described
Florida's efforts to work with the U.S. Postal Service to
reduce error rates in ballot delivery and to use intelligent
code technology to track absentee ballots while in the
Continental United States.
United States Air Force LTC Joseph DeCaro, testifying on
his own behalf, described his personal experiences with
absentee voting while serving abroad in 2004. His experience
illustrates the burdens facing uniformed servicemembers
overseas who want to vote:
Every moment I spent researching and coordinating with
state-side resources to be able to cast my ballot was against
any personal time off. The mission is and always must be the
main focus. Being deployed is difficult enough as it is . . .
I think every American should do what they can to cast their
ballot and make their voice heard. As with many other
citizens, I will continue to do this, but there should be a
better way in which [service personnel can] cast their ballot
while deployed.
Lieutenant Colonel DeCaro also lamented that he had no way
of knowing whether the ballot he mailed to his local election
office would ever reach its destination.
Eric Eversole, former attorney at the Department of Justice
Civil Rights Division, Voting Rights Section, began his
testimony by arguing that ``when it comes to the military
members' right to vote, we seem to forget their sacrifices
and we deny them the very voting rights that we ask them to
defend.'' He cited statistics which showed that only 26
percent of Florida's deployed servicemembers were able to
successfully request an absentee ballot in 2008. He also
echoed prior testimony that States should mail out absentee
ballots to military and overseas voters at least 45 days
before the local deadline to have the ballot count. Mr.
Eversole testified about the need for improvements in the
Federal Voting Assistance Program. Mr. Eversole strongly
advocated for military personnel to receive appropriate
voting information and voter registration materials when they
move or deploy to a new installation or port. In response to
a question I asked, Mr. Eversole also testified that certain
offices at the Department of Defense should be designed as
voter registration agencies under the National Voter
Registration Act.
Robert Carey, executive director of the National Defense
Committee, testified about his own experience taking a leave
of absence from his duty as a member of the U.S. Navy
Reserves and flying back to New York City at his own expense
in order to vote in the 2004 election. He cited research
showing that only 26 percent of the ballots requested by
overseas soldiers in 2006 were successfully cast. Mr. Carey
emphasized that insufficient time was the chief reason for
these statistics, arguing that States too often send out
ballots too late for military voters to complete and return
them in time to be counted. He pointed to a study conducted
by the Pew Center on the States, Pew, which found that 23
States do not provide enough time for military and overseas
voters to successfully cast their ballots. Mr. Carey also
recommended that ballots be sent out at least 60 days before
they were due.
Several organizations submitted statements for the hearing
record. Pew submitted a copy of its 2009 study of military
and overseas voting, No Time to Vote, for the committee
record. In its accompanying letter, Pew highlighted several
recommendations for reform from the study, including
``sending out overseas absentee ballots sooner, eliminating
notary and witness requirements and harnessing technology to
allow for the electronic transmission of ballots and election
materials to voters overseas.''
The Overseas Vote Foundation, OVF, submitted a copy of its
2008 post-election survey for the record. The survey included
data obtained from over 24,000 overseas voters and over 1,000
local election officials. Among OVF's key findings was that
more than half, 52 percent, of those overseas military voters
who tried but could not vote were unable to because their
ballots were late or did not arrive. OVF also found that
despite concerted efforts, less than half of UOCAVA voters
were aware of the Federal write-in absentee ballot.
Democrats Abroad submitted a statement for the record
emphasizing the difficulties for military and overseas voters
stemming from the patchwork of varied State and local
regulations, a lack of awareness of the Federal write-in
absentee ballot, and general inability to effectively
communicate with local election officials from abroad.
Tom Tarantino, legislative associate with Iraq and
Afghanistan Veterans of America, submitted a statement for
the record including testimony about his own experience as a
voting assistance officer, citing the lack of sufficient
training about how to effectively educate soldiers about
absentee balloting procedures. Mr. Tarantino recommended
improving the voting assistance officer program and suggested
that the Department of Defense be required to ensure safe and
timely passage of military ballots to their home districts.
The Federation of American Women's Clubs Overseas submitted
a statement for the record in which it recommended that
States send overseas absentee ballots at least 45 days before
the deadline and that voter materials, including ballots, not
be rejected for reasons unrelated to voter eligibility.
Everyone Counts submitted a ``white paper'' for the record
comparing the effectiveness of various voting technologies
for military and overseas voters.
Alex Yasinac, dean of the School of Information and
Computer Sciences at the University of South Alabama,
submitted a statement for the record analyzing various
technological solutions to improve overseas absentee voting.
Dr. Yasinac suggested the creation of a technological pilot
program for overseas voters, including the use of virtual
private networks, cryptographic voting systems, and document
delivery upload systems to ensure secure electronic
transmission of balloting materials.
Introduction of the Bill
I introduced S. 1415, the MOVE Act of 2009, on July 8,
2009, and was joined by Senators Saxby Chambliss and Ben
Nelson as original cosponsors. After the bill's introduction,
56 additional Senators joined as cosponsors. The bill was
referred to the Senate Committee on Rules and Administration.
Committee Consideration at Markup
S. 1415 was considered by the Senate Rules Committee at a
markup held on July 15, 2009. The committee adopted three
amendments which I submitted on behalf of Senator John
Cornyn, who had introduced separate legislation on improving
military voting that was pending at the time in the Rules
Committee. Senator Cornyn joined in this endeavor by
contributing his knowledge and expertise on military voting
to the MOVE Act. Senator Robert Bennett, ranking member of
the Rules Committee, introduced an amendment with several
provisions intent on improving the effectiveness of the MOVE
Act.
The first amendment, which I submitted on behalf of Senator
Cornyn, strengthened the bill by ensuring that overseas
military personnel can mail their marked absentee ballots to
their local election offices with confidence that those
ballots will be received and counted by directing the
Presidential designee to work with the U.S. Postal Service to
provide expedited delivery services for ballots that are
collected before a prescribed deadline. The provision
provides ample discretion for the Presidential designee to
extend that deadline for collection of ballots, allowing the
Presidential designee to permit a longer transit time for
completed ballots to be delivered to local election
officials. To ensure Department of Defense accountability
under this section, the amendment directed the Presidential
designee to submit reports to the relevant congressional
committees to explain the procedures implemented to provide
the expedited mail delivery and inform the committees of the
number of military overseas ballots successfully and
unsuccessfully delivered to local election offices in time.
Finally, the amendment included language requiring the
Presidential designee to ensure, to the greatest extent
allowable, that the privacy of military servicemembers and
security of their ballots are protected during the delivery
process.
The second amendment, which Senator Cornyn and I worked on
together, fortified the bill by expanding voter registration
opportunities, services, and information for military and
overseas voters. It also required the Department of Defense
to provide voting information and an opportunity for
servicemembers to register and update voting information
during certain points in service and provided the Secretary
of Defense flexibility to designate certain pay, personnel,
and identification offices as voter registration agencies. In
addition to voter registration, the amendment required
written information to be provided to servicemembers on
absentee ballot procedures. Finally, the amendment contained
reporting requirements for the Department of Defense to
evaluate its voter support services and send Congress its
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recommendations for improving those programs.
The third amendment was technical in nature and altered no
substantive provisions of the bill.
Ranking Member Bennett offered a package of amendments
modifying several provisions of the bill. First, the
amendment clarified that States may delegate the obligations
under the MOVE Act to local jurisdictions. Some local and
State election administrators contacted the Rules Committee
to express concern because they thought that the MOVE Act
could be interpreted to require States, instead of
localities, to take administrative responsibility for running
elections for UOCAVA voters. Though there was no intent to
shift routine administrative responsibility of elections to
States, for the sake of clarity in the bill, I supported this
amendment. While clarifying that the MOVE Act can be
administered and implemented at the local level, the
amendment did not modify or otherwise alter the ultimate
responsibility of MOVE Act compliance, which remains with the
State. Accordingly, States retain the responsibility to
ensure local jurisdictions' compliance with UOCAVA and MOVE
and thus the State will continue to be the focus of any
potential enforcement actions that need to be taken by the
Attorney General.
Senator Bennett's amendments also modified provisions of
the MOVE Act which had originally required States to transmit
balloting materials ``by mail, electronically, or by
facsimile.'' The text of the amendment instead read to
require transmission of balloting materials ``by mail and
electronically.'' This change clarified the requirement on
State and local election administrators that, in addition to
mail, they must provide at least one method of fast and
effective electronic means of transmitting balloting
materials to U.S. citizens overseas and uniformed
servicemembers. It is important to note that Bob Carey during
his testimony before the Rules Committee on May 13, 2009,
testified that ``[R]ecent research by the National Defense
Committee indicates that fax transmission is not an effective
option for military personnel, especially those suffering the
greatest disenfranchisement in this process.'' However, at
the same time, the amendment's language clarified that
election administrators may provide multiple means of
electronic communication in order to ensure speedy
transmission of information, registration and balloting
materials.
Senator Bennett's amendments also reinforced the privacy
and security provisions of the original legislation by
directing States to protect, to the extent practicable, the
integrity of the voter registration and absentee ballot
process through procedures that shield identity and personal
data.
The amendments also simplified the timing provisions of the
original legislation by mandating that whenever a State
receives an absentee ballot request at least 45 days before a
Federal election it must send out an absentee ballot not
later than 45 days before the election. With respect to valid
ballot applications received after 45 days prior to such an
election, States are required to transmit a validly requested
absentee ballot in accordance with State law and as
expeditiously as possible. However, the amendment did not
impact the 30-day requirement under UOCAVA. At the same time,
the amendment removed language from the original version of
the bill which would have required States to accept and count
absentee ballots received up to 55 days after the date on
which an absentee ballot was transmitted or the date on which
the State certified an election, whichever was later. The
negotiated modification placed a 45-day mandate on States to
promptly respond to military and overseas absentee ballot
requests.
The amendments also strengthened Department of Justice
oversight of absentee voting by uniformed services and
overseas voters by requiring the Presidential designee to
consult with the Attorney General before approving any
hardship exemptions from States unable to comply with the
bill's timing provisions. This will help ensure a unified
governmental response to State compliance with the MOVE Act.
Finally, the amendments repealed subsections (a) through
(d) of Sec. 104 of the Uniformed and Overseas Absentee Voting
Act, which allowed military and overseas absentee ballot
applicants to indicate on their Federal Postcard Application
form that their application should be considered a continuing
application for an absentee ballot through the next two
regularly scheduled general elections. Given the highly
mobile nature of military and overseas voters, there was a
concern among States that this provision of UOCAVA required a
large number of ballots to be sent to old and outdated
addresses. Election officials reported receiving a large
number of these continuing absentee ballots as ``returned
undeliverable,'' thus artificially inflating the number of
failed ballots, and potentially wasting State resources.
Repealing these sections addressed those concerns. This
amended section does not prohibit States from providing
continuing applications for absentee ballots, or accepting
ballots received under such continuing applications. This
amended section also does not prohibit States from
considering a Federal Postcard Application submitted for a
primary election to carry over to the general election in
that same election cycle.
The committee agreed to all of the proposed amendments and
adopted them by voice vote. The committee then voted to
report S. 1415, the Military and Overseas Voter Empowerment
Act, as amended. The committee proceeded by voice vote, and
all members present became cosponsors of the legislation. S.
1415, as amended, was ordered reported to the Senate.
Passage by the Senate of the MOVE Act provisions in the DOD
authorization bill
On July 22, 2009, I offered Senate amendment No. 1764 to S.
1390, the National Defense Authorization Act for fiscal year
2010, on the Senate Floor.
Senator Cornyn spoke in support of this amendment that day:
Our military servicemembers put their lives on the line to
protect our rights and our freedoms. Yet many of them still
face substantial roadblocks when it comes to something as
simple as casting their ballots and participating in our
national elections . . . This important amendment contains
many other commonsense reforms suggested by other Senators
and will help end the effective disenfranchisement of our
troops and their families. Our goal has been to balance
responsibilities between elections officials and the
Department of Defense, and I believe this amendment
accomplishes that goal.
On July 23, 2009, I urged my colleagues to support the MOVE
Act amendment to the DOD authorization legislation:
Now, if [our soldiers] can risk their lives for us we can
at least allow them to vote. They take orders from the
commander-in-chief. They are the first people who ought to be
allowed to elect and vote for a commander-in-chief. And if we
can deploy tanks and high-tech equipment and food to the
front lines, we can figure out a way to deliver ballots to
our troops so they can be returned and counted. And that, Mr.
President, is what the MOVE Act does.
Senator Bennett spoke in support of the amendment:
Now, then the legislation was introduced in its original
form, I raised concerns with Senator Schumer about some of
its provisions. He worked with me and my staff to address
these concerns and the amendment that we have before us today
effectively does so. That's why I'm pleased to now be a
cosponsor of the bill. The difficulties our service personnel
face in voting and the Senator from New York has described
them, and I believe this amendment deals with them in a
proper fashion.
Senator Chambliss also spoke in support of the amendment:
[N]ot since the passage of the Uniform and Overseas Voting
Act in 1986 have we proposed such significant legislation
designed to help the men and women of the military who time
and time again are called upon to defend the rights and
freedoms that we Americans hold so sacred. Unfortunately, our
military's one of the most disenfranchised voting blocs we
have and today we have the opportunity to correct this.
Senator Nelson also added comments in support:
We owe it to our men and women in uniform to protect their
right to vote. And for military and overseas votes, that
right is only as good as their ability to cast a ballot and
have it counted. For years, we have known of the obstacles
these brave Americans face in exercising their right to vote,
often when far from home and in harm's way. I firmly believe
this legislation will make a huge impact in empowering our
military and overseas voters to have their votes counted no
matter where they find themselves on election day.
Senate amendment No. 1764 to S. 1390 was agreed to by voice
vote on July 23, 2009. The Senate took up H.R. 2647 on July
23, approved an amendment that substituted the text of S.
1390, then passed the bill by unanimous consent and requested
a conference with the House. A Senate-House conference was
held, and the House passed the conference report to H.R.
2647, H. Rept. 111-288, on October 8, 2009, and the Senate
passed it on October 22, 2009. H.R. 2647 was signed by the
President on October 28, 2009, and became Public Law 111-84.
The MOVE Act Today
The Military and Overseas Voter Empowerment Act of 2009 is
a response to an unacceptable situation--the
disenfranchisement of Americans serving and living abroad who
are unable to vote because of logistical and geographic
barriers.
The MOVE Act brings to an end a system that in the past
allowed a quarter of the ballots requested by U.S. troops to
go unreturned. It does so by insisting that every military
and overseas vote be counted. Congress recognized that those
who fight to defend America's freedom often face the greatest
obstacles in exercising their right to vote. Congress acted
to break down the challenges and barriers to voting faced by
these citizens with passage of the provisions of the Military
and Overseas Voter Empowerment Act.
Most of the MOVE Act provisions will be in place for the
November 2010 general elections. States started implementing
measures and procedures to comply with the MOVE Act almost
immediately after passage of Public Law 111-84. At the
Federal level, the Department of Defense has been in
consultation with the Attorney General to develop and
promulgate regulations to administer the waiver process. As
the 2010 Federal election approaches, the States and the
Department of Defense are making every effort to
[[Page S4517]]
ensure that military and overseas voters have every
opportunity to register, vote, and have their vote counted.
Mr. President, I ask unanimous consent that a section-by-section of
the MOVE Act provisions in the National Defense Authorization Act for
fiscal year 2010 be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
Section-by-Section Analysis of the MOVE Act in the NDAA
The following is an explanation of each provision of the
bill, what it does, and how it improves the ability of
military and overseas voters to register, vote, and have
their votes count in elections. It should be noted that in
conference, there were two major substantive changes in the
MOVE Act provisions as passed by the Senate.
One, the section on ``Findings'' was stricken. The
``Findings'' section provided an explanatory foundation for
MOVE and why it was critical for its provisions to be
enacted. It highlighted the fundamental nature of the right
to vote; the logistical, geographical, operational, and
environmental barriers that create obstacles for military and
overseas voters to exercise their right to the franchise; the
central role shared by States and the Department of Defense
in overseeing and facilitating military and overseas voting;
and the need for the relevant State, local, and Federal
government entities to work together to ensure the ability of
military and overseas voters to have their ballots count.
Two, the responsibilities attributed to the Department of
Defense in ensuring military voters can effectively register
to vote was changed in conference from the Senate-passed
version. The reason for this change is explained in the
summary of Section 583.
Section 575. Short title.
Title: ``Military and Overseas Voter Empowerment Act''.
Section 576. Clarification regarding delegation of State
responsibilities to local jurisdictions.
This section clarifies that while the MOVE Act contains a
number of mandates on the States with respect to military and
overseas absentee voting, States remain free to delegate
those responsibilities to local officials as they did under
UOCAVA. In effect, this provision puts States on notice that
the MOVE Act does not intend to and does not in fact take
administrative control of military and overseas voting out of
the hands of local officials. Compliance with MOVE's
mandates, however, ultimately remains a State responsibility,
and States will continue to be the main entity against which
the provisions of MOVE and UOCAVA will be enforced should
enforcement by the Department of Justice become necessary.
Section 577. Establishment of procedures for absent uniformed
services voters and overseas voters to request and for
States to send voter registration applications and
absentee ballot applications by mail and electronically.
This section amends UOCAVA to require States to allow
military and overseas voters the choice of requesting voter
registration applications and absentee ballot applications
either by mail or electronically. It mandates that the
voter's choice of mail versus electronic extends to the mode
of delivery of both the voter registration and absentee
ballot applications. States must give all UOCAVA voters the
option of receiving their applications by mail or
electronically. To ensure military and overseas voters have
an opportunity to choose their desired delivery method,
States must provide a way for voters to designate their
preferred method of delivery, and States are required to send
these materials in accordance with the voter's designation.
If no delivery preference is indicated, States are to
transmit these materials according to applicable State law
or, in the absence of such law, by mail. The requirements of
this section apply to all general, special, primary, and
runoff elections for Federal office.
Allowing military and overseas voters to request and
receive voter registration and absentee ballot applications
electronically requires States to establish at least one
means of electronic communication for military and overseas
voters to use. States are free to establish multiple means of
electronic communication if they wish. In addition to using
the electronic format to give voters the option of requesting
and receiving voter registration and absentee ballot
applications, it is also to be used to provide any other
related voting, balloting, and election information requested
by or otherwise provided to the voter.
In addition to email and the Internet, this provision
contemplates the use of fax machines as a legitimate means of
electronic transmission. This gives States an additional
method of electronic communication. However, it is important
to note that the Rules Committee received testimony regarding
the challenges of solely relying on fax technology for
military and overseas voting. Robert Carey, the Executive
Director of the National Defense Committee pointed out in his
written testimony that ensuring the privacy of a faxed
absentee ballot is difficult. He also cited research
indicating that only 39% of junior enlisted personnel had
daily access to a fax machine. This provision therefore
contemplates the use of fax technology as States gradually
transition to more accessible forms of transmission for
military and overseas voters through internet and email
usage.
Information about how to communicate with States
electronically, including any official designated email, web
addresses, and phone numbers, should be readily accessible
and is required to be included with any informational or
instructional materials that accompany balloting materials
sent to military and overseas voters.
The provisions of this section are a direct response to
evidence gathered by the Rules Committee that showed lengthy
mail transit times for voting materials, including
registration forms and absentee ballot applications. This was
a fundamental reason why so many of these voters did not have
enough time to vote, and it showed the difficulty military
and overseas voters have in communicating efficiently and
effectively with State and local election officials. Taking
advantage of modern technology is an important part of the
solution to the ``no time to vote'' problem. The testimony of
Lieutenant Colonel Joseph DeCaro at the Rules Committee's May
2009 hearing, in which he repeatedly expressed his gratitude
for internet connectivity while serving in Air Force and
described how he was able to use email to quickly communicate
with local election officials, is particularly instructive.
Lt. Colonel DeCaro testified that postal mail can sometimes
take up to three weeks to reach its destination.
Compliance with this provision of the law may save States a
substantial amount of money. Using a multiplier of $12.95 for
a 1 oz. United States Postal Service Priority Mail
international flat-rate mailing, States can potentially save
as much as $1,295,000 for every 100,000 military and overseas
voters that utilize electronic transmission methods of
sending voter registration and ballot request materials.
This section also directs the Federal Voting Assistance
Program of the Department of Defense to maintain and make
available an online repository of State contact information
with respect to Federal elections for use by military and
overseas voters. The repository should include contact
information for all the relevant State and local election
officials in each State, including any designated email and
Internet addresses and phone and fax numbers instituted to
comply with the provisions of this law.
Finally, this section contains additional provisions
directing States, to the extent practicable, to ensure the
integrity of the voter registration and absentee ballot
request process, as well as the protection of personal data.
Section 578. Establishment of procedures for States to
transmit blank absentee ballots by mail and
electronically to absent uniformed services voters and
overseas voters.
This section amends UOCAVA to require States to establish
procedures for transmitting blank absentee ballots to
military and overseas voters both by mail and electronically
for all general, special, primary, and runoff elections for
Federal office. States are to use the preferred method of
transmission identified by the voter and institute a
procedure for allowing the voter to designate whether their
preferred delivery method is by mail or electronic delivery.
As in the previous section, if no delivery method is
specified, States should follow applicable State law or, in
the absence of such law, should deliver the blank absentee
ballot to the voter by mail.
Additionally, this section contains the same language with
respect to election integrity and voter privacy as the prior
section, and the same rationale for the efficiency and
effectiveness of electronic transmission also applies to this
section with equal force.
Section 579. Ensuring absent uniformed services voters and
overseas voters have time to vote.
This section amends UOCAVA to require States to transmit
validly requested absentee ballots to military and overseas
voters not later than 45 days before an election for Federal
office, if a ballot request form is received by the relevant
local election official at least 45 days before the election.
In a circumstance when the absentee ballot request is
received less than 45 days before the election, States must
transmit a validly requested absentee ballot in accordance
with State law and in as practicable a manner as possible
that expedites the ballot's transmission so that the voter
receives the ballot with enough time to cast the ballot and
to have it counted. If States receive an absentee request
less than 45 days before the election that contains an
electronic delivery designation and related contact
information, the State can expedite the blank ballot by
electronic means. Of course, the UOCAVA voter still may
request his or her ballot to be sent by mail. States may not
be able to send the ballot electronically if the State lacks
the necessary information, for example a correct email
address or facsimile number.
The language ``validly requested'' in the MOVE Act refers
to how this provision interacts with the pre-existing UOCAVA
statute. Under Sec. 102a(2) of UOCAVA, each State is required
to ``accept and process, with respect to any election for
Federal office, any otherwise valid voter registration
application and absentee ballot application from an absent
uniformed services voter or overseas voter, if the
application is received by the appropriate State election
official not less than 30 days before the election.'' The
language ``validly requested'' in MOVE refers to applications
that are received by local election
[[Page S4518]]
officials in accordance with Sec. 102a(2). It should be noted
that although UOCAVA requires election officials to accept
and process applications up to at least 30 days before an
election under Sec. 102a(2), States are of course free under
UOCAVA to shorten that time period to less than 30 days to
give military and overseas voters more time to send in their
applications. In such circumstances, the language ``validly
requested'' also refers to ballots that are requested in time
under the more permissive State law.
Also relevant here is that UOCAVA, as amended by the MOVE
Act, creates a 15-day ``gap'' in which a State might receive
an absentee ballot application from a military or overseas
voter less than 45 days in advance of an election, and thus
cannot comply with the 45-day rule under MOVE, but is still
required to accept and process the application due to the 30-
day rule under Sec. 102a(2). To ensure that military and
overseas voters whose applications are received during this
15-day gap are given enough time to vote, the MOVE Act
directs States to transmit such ballots ``in accordance with
State law,'' which is a directive for States to deliver
ballots in accordance with any procedures that may exist
under State law for transmitting ballots to UOCAVA voters,
and in as practicable a manner as possible that expedites the
ballot's transmission. This shall not supersede the MOVE
requirement that UOCAVA voters be able to designate their
preferred method of ballot delivery (mail or electronic) and
the State's obligation to comply. State law may allow state
election officials to fulfill requests that arrive less than
30 days before the election.
The ``time to vote'' provision was at the top of the list
for potential reforms of military and overseas voting at the
May 2009 Rules Committee hearing, with witnesses for both the
Majority and the Minority endorsing such a measure. The
original draft of the MOVE Act contained a 55-day mandate,
under which States were required to send out ballots 45 days
before an election and accept ballots up to 10 days after the
election or by the State's certification date, whichever was
later. This original provision was a response to complaints
that certain jurisdictions refuse to count ballots from
UOCAVA voters when those ballots are sent to States on or
before Election Day but do not reach State or local election
officials until after the polls have closed. However, there
were concerns that this post-election requirement would
intrude on States' ability to certify their elections in a
manner that complies with their respective State laws or
constitutions. Therefore the bill was modified to require
that ballots be sent out at least 45 days before Election
Day. The consensus recommendation emerged for a 45-day
requirement following the hearing because it provides
sufficient time for UOCAVA voters to request, receive and
cast their ballots in time to be counted in the election for
Federal office and better accommodates the laws of a number
of states.
However, recognizing that circumstances may arise that
prevent States from complying with the mandate to send
ballots 45 days before Election Day, the MOVE Act also
includes procedures whereby States can apply for a waiver
from that provision. Waivers are submitted to the
Presidential designee who, after consultation with the
Attorney General, will decide whether to approve or deny the
waiver request. If approved, the waiver is valid only for the
election for which the State requested it. MOVE does not
contemplate permanent waivers. Nor does MOVE contemplate
``automatic'' renewals of waivers--a waiver that is approved
for one election is not automatically valid for or applicable
to the State's next election. The reason is to protect UOCAVA
voters from situations where a State's plan is approved by
the Presidential designee, but ultimately proves insufficient
to serve as a substitute for the 45-day rule. For example, if
a waiver is granted for an election because the Presidential
designee determines that the comprehensive State plan will
give military and overseas voters enough time to vote, but
evidence subsequently shows that, in practice during the
election cycle, the State plan did not provide enough time to
vote, a future waiver request with a similar State plan may
not be granted just because it had been approved for the
prior election. However, if a waiver is approved and the
State plan is proven effective, a similar State plan
resubmitted in a subsequent election cycle may be approved
again. The key is that the State plan must provide adequate
substitute procedures so that UOCAVA voters are given an
opportunity to vote that is at least as sufficient as if the
State complied with the 45-day rule. In some cases, the State
waiver plan may provide even greater protection for UOCAVA
voters, and such plans would serve the interests of the
UOCAVA voters and the intent of the law. Thus state plans
that offer protection for UOCAVA voters that is better than
or equal to the 45-day provision and procedures that go
beyond other minimum requirements for state assistance for
those voters could merit repeated waivers.
This section mandates that the Presidential designee can
only approve or reject a waiver after consulting with the
Attorney General, since the Attorney General is the office
that enforces UOCAVA and the provisions of the MOVE Act, and
there should be coordination between the two entities.
Consultation between the Presidential designee and Attorney
General will promote consistency so that election officials
do not receive mixed messages about the viability of waiver
requests.
The Presidential designee may only grant a waiver if a
specific standard is met, which is laid out in the MOVE Act.
First, the Presidential designee may grant a waiver if one or
more of the following circumstances exist to prevent a State
from complying with the 45-day rule: (1) the State has a late
primary election date, making it impossible to send validly
requested ballots to voters 45 days before the election; (2)
the State has suffered a delay in generating ballots due to a
legal contest, such as a contested primary; or (3) the
State's Constitution prohibits the State from complying with
the 45-day rule. These are the only three circumstances under
which a waiver request may be sought under MOVE.
In addition to a finding that at least one of these
circumstances exists, the waiver request itself must include,
in writing, the following: a recognition of the need to
provide overseas voters with enough time to vote; an
explanation of the hardship that prevents the State from
transmitting absentee ballots 45 days before the election;
the number of days prior to the Federal election that the
State will transmit absentee ballots to military and overseas
voters; and a comprehensive plan ensuring that military and
overseas voters are able to receive and return requested
absentee ballots in time to be counted. The plan must include
the specific steps the State will take to ensure military and
overseas voters have time to receive, mark, and submit their
ballots in time to have them counted, an explanation of how
the plan serves as an effective substitute for the 45-day
rule, and relevant information that clearly explains how the
plan is sufficient to substitute for the 45-day rule in a
manner that allows enough time to vote. States are free to
use innovative methods to ensure their comprehensive plan
gives military and overseas voters enough time to vote.
Testimony before the Rules Committee supported the practice
of some States that accept and count UOCAVA ballots after
Election Day as one way of protecting the voting rights of
their UOCAVA voters. This can be an acceptable option for
states whose constitution and laws allow it and who want that
flexibility. States must be mindful that even when they count
UOCAVA ballots after an election, those voters may not be
aware of that procedure. Therefore, a state should ensure
that voters get ballots with enough time to vote and inform
them of the state's procedures for receiving and counting
ballots.
To summarize, the Presidential designee can issue a waiver
only if one or more of three exigent circumstances exists: a
prohibitively late primary date; a legal contest that results
in a delay in generating ballots; or a conflict with a
State's Constitution. In addition, the Presidential designee
makes a determination that the State requesting the waiver
has submitted an acceptable plan, containing all necessary
information, which provides military and overseas voters with
enough time to receive, mark, and submit their absentee
ballots in time to have that ballot count in the election.
The Presidential designee must consult with the Attorney
General before approving a waiver request, since the Attorney
General is charged with enforcing and ensuring State
compliance with the provisions of UOCAVA and MOVE.
Waiver requests must be submitted by the chief State
election official to the Presidential designee not later than
90 days before the Federal election for which it is
requested, and the Presidential designee must approve or deny
the waiver not later than 65 days before the election. If the
hardship at issue is a legal challenge arising in a way that
makes compliance with the 90-day deadline impossible, the
State must submit the waiver request as soon as possible and
the Presidential designee will approve or reject it not later
than 5 business days after its receipt. It is certainly
possible that DOD in consultation with DOJ, rather than
rejecting a waiver request, might request the State to make
modifications in the waiver request that would allow the
waiver to be granted.
A waiver approved by the Presidential designee is valid
only for the Federal election for which the State requested
it and cannot be used by a State for any subsequent Federal
election. If a State wishes to request a waiver for a
subsequent Federal election, it must submit another waiver
request.
Section 580. Procedures for collection and delivery of marked
absentee ballots of absent overseas uniformed services
voters.
This section amends UOCAVA by directing the Presidential
designee to develop and implement procedures for collecting
marked absentee ballots, including the Federal write-in
absentee ballot, from absent overseas uniformed services
voters, and facilitating their delivery in a manner that
ensures that the ballots are received by the appropriate
election officials in time to be counted.
This provision was a response to evidence gathered by the
Rules Committee about the unpredictable nature of serving
overseas. At the Rules Committee hearing in May 2009, Eric
Eversole, formerly an attorney with the Department of Justice
Civil Rights Division's Voting Rights Section, testified that
an expedited mail delivery system would reduce the ballot
delivery time. In circumstances, such as unforeseen military
action, where overseas military personnel might be prevented
from sending in time to be counted, an expedited mail
delivery system would compensate for those numerous,
[[Page S4519]]
unforeseen factors. This requirement also is supported by the
statement from Tom Tarantino, Legislative Associate with Iraq
and Afghanistan Veterans of America, that the Department of
Defense should be responsible for collecting overseas
servicemembers' absentee ballots to ensure their delivery,
and to make certain that military voters serving overseas are
able to return their ballots in a timely and predictable
fashion because to do so is ``the most immediate step that
Congress can take in protecting the voting rights of service
men and women.'' This provision also incorporates language
similar to a legislative initiative introduced by Senator
Cornyn, who has advocated for DOD to take a direct role in
providing expedited ballot delivery.
This section directs the Presidential designee to establish
procedures for collecting absentee ballots from overseas
military voters, and to facilitate their delivery so they are
received by local election officials in time to be counted.
The Presidential designee must work in conjunction with the
U.S. Postal Service to provide expedited mail delivery for
all absentee ballots from overseas military members. These
ballots will be collected up until noon on the seventh day
preceding the date of the upcoming election for expedited
transmittal. This section also gives the Presidential
designee flexibility to change that deadline if remoteness or
other factors associated with military service, such as being
located in a combat zone, warrant collecting and transmitting
ballots prior to the regular deadline to ensure the ballots
can be counted in time.
Finally, this section mandates that all ballots sent by
military members overseas have to be postmarked by the
Military Postal Service with the date the ballot was mailed.
In accordance with existing law, it must be carried free of
postage. Without a postmark, election officials have been
unable to tell when a ballot was mailed, increasing the
likelihood of uncounted votes from military personnel. This
provision addresses the postmark problem and eliminates the
risk of a ballot not being counted for this reason.
In carrying out this provision, the Presidential designee
is charged with the responsibility of making certain that
overseas military voters are aware of the expedited mail
procedures and deadlines involved. The Presidential designee
shall do this in a number of ways within his discretion, such
as making information available via the Global Military
Network, through easily accessible websites frequently used
by military members, and in the informational forms made
available to military members during critical points in
service, such as the administrative in-processing at a new
installation or base. A later section of MOVE requires the
Presidential Designee to create online information portals
and use the Global Military Network to inform military voters
of voter registration information and absentee ballot rights.
In drafting this legislation, the Rules Committee
considered a direct mandate on the Department of Defense
which would have required that absentee ballots be
transmitted to the appropriate election officials by a date
certain. In consultation with the Department of Defense,
however, personnel of that agency responsible for overseeing
absentee voting for overseas military personnel expressed
concern that complying with such a provision would be beyond
its control. Absentee ballots mailed from abroad enter the
domestic mail system once those ballots reach the United
States and are no longer under DOD control. This section
recognizes that reality, while at the same time solidifying
the DOD's role in expediting transit times for these ballots
so they can reach local election officials in time to be
counted.
This section includes three supplemental provisions. First,
it directs the chief State election official in each State,
working alongside local officials, to develop a free access
system whereby all military and overseas voters can track
whether or not their absentee ballots have been received by
the appropriate election official. This language was
suggested by Lt. Col. Joseph DeCaro and others, to ensure
that UOCAVA voters know their ballots are similarly situated
to domestic absentee voters. Receipt of the UOCAVA ballot by
the local election official marks the most important hurdle
for overseas voters: getting the completed ballot back to the
election office.
Second, it mandates that those soldiers who cast ballots at
locations under the jurisdiction of the Presidential
designee, such as military installations, are able to cast
their ballots as privately and independently as possible.
Ensuring the privacy of all voters is important, and military
voters should be able to vote in a private and independent
manner.
Third, it directs the Presidential designee to ensure, to
the extent practicable, that absentee ballots in the
possession or control of the Presidential designee remain
private. Again, absentee ballot procedures should protect the
privacy of the voters, to the extent practicable.
This section only requires expedited mail procedures for
overseas service personnel and not all UOCAVA voters. In
crafting the legislation, the Rules Committee staff was
concerned about the challenges facing non-military overseas
voters seeking timely return of their ballots to State
election officials. Unfortunately, the problems inherent in
engaging every foreign, nonmilitary post office to provide
such assistance made this expansion of the expedited mail
requirement impractical at the present time. Additionally,
several of the challenges justifying the provisions of this
section, such as the sporadic lack of postmarks on military
mail and unpredictable conditions associated with service,
are pervasive problems faced by overseas military personnel.
However, under this section State officials are required to
develop the tracking system for absentee ballots from both
military and overseas voters. Lieutenant Colonel Joseph
DeCaro of the United States Air Force testified at the Rules
Committee's May 2009 hearing about his frustration at not
knowing whether his ballot had been received by State
officials. The tracking provision addresses this concern. The
Help America Vote Act already requires a free access system
to notify voters about whether or not their provisional
ballots have been counted. The MOVE Act absentee ballots are
not provisional ballots. However, it should not be too
difficult for State election officials to develop a system
that military and overseas voters can use to get information
about the status of their ballots that is similar to the
system mandated under HAVA for provision ballots. This will
allow those voters to complete FWAB ballots if it becomes
clear their ballot was not received in a timely fashion.
Section 581. Federal write-in absentee ballot.
This section amends UOCAVA to expand the availability and
accessibility of the Federal write-in absentee ballot and to
promote its use among military and overseas absentee voters.
The FWAB functions as a failsafe ballot for military and
overseas voters. It allows them to submit this ballot to
local election officials in every State in circumstances
where they have not received a requested ballot in time from
their respective election officials. However, information
gathered during Congressional hearings clarified the fact
that awareness of the FWAB among military and overseas voters
is very low, and therefore an underutilized resource. At the
May 2009 hearing on military voting problems held by the
Elections Subcommittee of the House Committee on
Administration, Gunnery Sergeant Jessie Jane Duff (Ret.)
testified that she had never heard of the FWAB despite a
twenty-year career as a marine.
Under this section, the Presidential designee is required
to adopt procedures to promote and expand the use of the FWAB
as a back-up measure. As part of this effort and required by
other sections of MOVE, the Presidential designee shall take
steps to make servicemembers aware of its existence and
function, by promoting it through the Global Military Network
and at critical points of service (example: such as the
administrative check-in of soldiers at a new base or
installation).
This section also expands the availability and utilization
of the FWAB in two significant ways. First, it expands the
mandatory availability of the FWAB as a failsafe ballot from
use only in general elections, under the original UOCAVA
statute, to also include special, primary, and runoff
elections for Federal office. This is an important expansion
of its use, because special, primary and runoff elections
generally have shorter time periods between the time when
ballots are made available to voters and Election Day.
Second, this section directs the Presidential designee to
expand and promote the use of the FWAB as a back-up ballot.
As part of this effort, the law directs the Presidential
designee to use technology to develop a system under which a
military or overseas voter can enter his or her address or
other appropriate information, and the system will generate a
list of all candidates for Federal office in the voter's
jurisdiction. The voter will now have the information needed
to fill out the FWAB and submit it to his or her election
official. Such technology has already been developed through
a partnership between the Pew Center on the States and the
Overseas Vote Foundation, as noted in Pew's No Time to Vote:
Challenges Facing America's Overseas Military Voters report
submitted for the record for the Rules Committee's May 2009
hearing.
Section 582. Prohibiting refusal to accept voter registration
and absentee ballot applications, marked absentee
ballots, and Federal write-in absentee ballots for
failure to meet certain requirements.
This section amends UOCAVA by prohibiting States from
rejecting registration applications, ballot request
applications and ballots for reasons unrelated to voter
eligibility. The section is a response to evidence gathered
by the Rules Committee highlighting the unfortunate practice,
in certain jurisdictions, of rejecting absentee ballots and
other election materials for immaterial reasons. In his
testimony at the May 2009 Rules Committee hearing, Robert
Carey of the National Defense Committee recommended
eliminating notarization requirements for UOCAVA voters. That
recommendation was echoed by representatives of the Pew
Center on the States and the Overseas Vote Foundation. While
the original draft of MOVE in S. 1415 also eliminated witness
requirements in UOCAVA ballots, that provision was removed
through committee negotiations. Any witness requirements that
may be imposed by States should allow flexibility to ensure a
voter can easily complete an absentee ballot. Any complex
witness requirements make it more difficult for military and
overseas voters to complete and cast an absentee ballot.
The first provision of this section prohibits States from
rejecting otherwise valid voter
[[Page S4520]]
registration applications, absentee ballot applications
(including the official post card form prescribed under
UOCAVA), and marked absentee ballots submitted by military
and overseas voters solely on the basis of notarization
requirements, restrictions on paper type, and restrictions on
envelope type. In some cases, the need to photocopy a ballot
may result in a completed absentee ballot on different paper.
No jurisdiction should reject a properly completed form
simply because of the paper used.
The second provision contains similar prohibitions on
rejecting the FWAB. It prohibits States from rejecting marked
FWAB ballots solely because of notarization requirements,
restrictions on paper type, and restrictions on envelope
type.
Section 583. Federal Voting Assistance Program (``FVAP'').
This section amends UOCAVA to improve the Federal Voting
Assistance Program for military voters. These provisions
increase the availability of materials containing information
on absentee voting procedures for military voters, as well as
expand the overall awareness of such procedures.
The section directs the Presidential designee to take two
major steps to meet this end--first, to create an online
portal of information where our military can access
information about registration and balloting procedures in
their respective States; and second, to establish a program
using the Global Military Network, an email network that
reaches out to virtually every member of our military, to
notify servicemembers 90, 60, and 30 days prior to each
election for Federal office of voter registration information
and resources, the availability of the Federal postcard
application, and the availability of the FWAB as a fail-safe
ballot.
It should be noted that the sponsors of the MOVE Act
acknowledged that the Department of Defense already had a
number of regulations in place to try to assist
servicemembers in exercising their right to vote. Therefore,
a provision was included to clarify that the provisions of
MOVE were not meant to eliminate any other duties or
obligations promulgated by the DOD that are not inconsistent
or contradictory with the MOVE Act.
The section mandates that not later than 180 days after
passage of the MOVE Act, the Secretary of each military
department of the Armed Forces must designate offices on
military installations under their jurisdiction to provide
comprehensive voter registration services for troops and
their families. The office will serve as a clearinghouse for
providing servicemembers the opportunity to receive
information on the following: voter registration and absentee
ballot procedures, information and assistance with
registering to vote in their States, information and
assistance with updating the individual's voter registration
information, including instructions on how to use and submit
the Federal postcard application as a change of address form,
and information and assistance with requesting an absentee
ballot from the voter's local election official.
The section gives priority to individuals transitioning
through critical points in their service, such as individuals
who are undergoing a permanent change of duty station,
deploying overseas for at least six months, returning from an
overseas deployment of at least six months, or who otherwise
request assistance related to voter registration. These
resources are required by this section to be provided at
least during the administrative processing associated with
these points in service. By detailing exactly which points in
time servicemembers are to receive such information, this
section ensures that these voter resources can be most easily
and efficiently provided to our troops. As a result, their
ability to participate in Federal elections will be
dramatically increased.
The Secretary of each military department (or the
Presidential designee) is required to take steps to make the
availability of these resources known to military voters
through outreach efforts that include the availability of the
designated voter registration offices and the time, location,
and manner in which military voters may access such
assistance. The Presidential designee and Secretaries of
military departments are free to undertake a variety of
methods to satisfy this provision, including the requirements
in other sections of MOVE to inform servicemembers of the
ballot collection and expedited delivery procedures.
Finally, this section allows the Secretary of Defense to
authorize the Secretaries of the military departments of the
Armed Forces to designate offices on military installations
as voter registration agencies under Sec. 7(a)(2) of the
National Voter Registration Act of 1993 (NVRA).
Under the provisions of the MOVE Act as passed by the
Senate, the offices designated to provide voter registration
assistance were required to be uniformly deemed voter
registration agencies under the NVRA. In the conference
committee for the NDAA, this requirement was changed from
mandatory NVRA designation to giving the Secretaries the
option of designating the voter registration offices as NVRA
agencies.
There are good reasons for designating these voting
assistance offices as voter registration agencies under the
NVRA. Designation provides a minimum, uniform standard by
which these offices must provide voter registration
assistance and ensures such assistance is effective. First,
pursuant to Sec. 7(a)(4)(A) of the National Voter
Registration Act, such offices must provide mail voter
registration forms, assistance in completing voter
registration application forms, and acceptance of such forms
for transmittal to State officials. The Federal postcard
application can be used for this purpose because it is an
acceptable voter registration form under the NVRA. Second,
under Sec. 7(d), accepted registration forms have to be
transmitted to State officials within 10 days of acceptance,
or if accepted, within 5 days before the last day for
registration to vote in an election, not later than 5 days
after the date of acceptance. Furthermore, any individuals
providing registration assistance in such an office are
prohibited from doing the following: seeking to influence an
applicant's political preference or party allegiance;
displaying any political preference or party allegiance;
making any statement to the applicant that would discourage
registration; or making any statements with the purpose or
effect of leading the applicant to believe that a decision to
register has any bearing on other services provided at that
office. The NVRA sets a uniform standard by which these
offices must provide voter registration by ensuring an
expansive provision of voter registration assistance and
protecting against inadequate assistance and deficiencies in
registration services. Without the opportunity or ability to
register in an effective way, our military cannot vote.
While some have expressed concern with requiring DOD to run
an NVRA voter registration agency, this is not a new role for
the Department of Defense. The Department is already
responsible, and has been for well over a decade, for
administering the NVRA at designated offices. More than 6,000
military recruitment offices are currently required to
provide information, registration assistance, and
opportunities to register to vote in conformance with the
NVRA. Further, these offices would only be required to
provide the necessary voting assistance to individuals who
are seeking other appropriate services at the military
recruitment offices and not to any person who may happen to
walk in and request it.
Nor are these offices required to operate as stand-alone
voter registration agencies. Similar to other State
government agencies operating NVRA-designated voter
registration agencies, such as State social service offices,
Departments of Motor Vehicles, and the like, DOD can provide
voter registration services in offices that have a different
primary function such as pay, personnel, and identification
offices.
Following the passage of the MOVE Act, it is notable that
Chairman Schumer and Senator Cornyn sent a letter on December
4, 2009 to Secretary Gates requesting that he make the
determination, which he authorized to do under the NVRA, that
the Department of Defense would be designated as a ``voter
registration agency'' under the Act. In a letter back to
Senators Schumer and Cornyn, dated December 16, 2009, the
Deputy Secretary of Defense William J. Lynn, III, agreed to
``designate all military installation voting assistance
offices as NVRA agencies.''
Finally, the Secretary of Defense is required to prescribe
regulations relating to the administration of this section,
which must be prescribed and implemented by the November 2010
Federal elections.
Section 584. Development of standards for reporting and
storing certain data.
This section amends the UOCAVA statute to direct the
Presidential designee to work with the Election Assistance
Commission and the chief State election official of each
State to develop standards for reporting data on the number
of absentee ballots transmitted to and received from overseas
voters, as well as other data the Presidential designee
determines to be appropriate. States are required to report
this data as the Presidential designee, in accordance with
the standards developed by the Presidential designee under
this section. The Presidential designee is directed to store
such data, and should make that data publically available as
appropriate under the law.
Section 585. Repeal of provisions relating to use of single
application for all subsequent elections.
This section repeals Sec. 104(a)--Sec. 104(d) of the UOCAVA
statute. These provisions required States, once they
processed an official post card form received by military and
overseas voters, to send an absentee ballot to that voter for
each Federal election held in the State through the next two
regularly scheduled general elections for Federal office,
provided the voter indicated he/she wished the State to do
so. It has been reported by State and local officials that
this section of UOCAVA has led to inefficiency as blank
absentee ballots are sent to voters who have moved or are no
longer registered in the same location where they originally
registered. Because some military and overseas voters in
particular tend to be highly mobile, it is reported that this
provision was difficult to implement effectively. The
Committee responded by eliminating this federal mandate.
States, however, are free to continue absentee programs that
they find effective and convenient for voters, whether they
be domestic or overseas voters.
Section 586. Reporting requirements.
This section amends UOCAVA to include additional
requirements for reporting information to the Congressional
committees of jurisdiction, including the Senate Committee on
Appropriations, the Senate Committee on Armed Services, and
the Senate
[[Page S4521]]
Committee on Rules and Administration, and the House
Committee on Appropriations, the House Committee on Armed
Services, and the House Administration Committees.
The first provision is a requirement for the Presidential
designee to submit a report to these committees not later
than 180 days after the enactment of the MOVE Act. The report
is to include (a) the status of the implementation of the
procedures on collection and delivery of absentee ballots
from overseas military personnel, including specific steps
taken in preparation for the November 2010 general election;
and (b) an assessment of the Voting Assistance Officer (VAO)
Program of the Department of Defense, including an evaluation
of effectiveness, an inventory and full explanation of any
programmatic failures, and a description of any new programs
to replace or supplement existing efforts.
The Voting Assistance Officer (VAO) program is administered
by the Department of Defense to provide military personnel
with person-to-person guidance in understanding absentee
voting procedures and helping overseas military personnel
with the absentee voting process. However, the Rules
Committee gathered evidence during the drafting of this
legislation indicating the need for improvements in the VAO
program. Tom Tarantino, Legislative Associate with Iraq and
Afghanistan Veterans of America, submitted written testimony
that he had been poorly trained when he served as a VAO. A
report from the Department of Defense Inspector General
revealed that in 2004, voting assistance officers made
contact with only 40%-50% of military voters. Also, it was
made known to the Rules Committee that serving as a VAO is
often seen as a low-level military assignment, so it is not
given much priority in practice. The reporting requirements
established under this section will provide the new FVAP
chief with the time to assess existing programs and suggest
improvements, all with the goal of providing more overseas
and military voters with the information and support
necessary for them to exercise their right to vote.
The second reporting requirement is an annual report to
Congress, due no later than March 31 of each year. In this
report, the Presidential designee must include the following:
(a) an assessment of the effectiveness of the FVAP program,
including an examination on the effectiveness of the new
responsibilities established by the MOVE Act; (b) an
assessment of voter registration and participation by
overseas military voters; (c) an assessment of registration
and participation by non-military overseas absentee voters;
and (d) a description of cooperative efforts between State
and Federal officials. The report should also include a
description of the voter registration assistance provided by
offices designated on military installations utilized by
servicemembers and a description of the specific programs
implemented by each military department of the Armed Forces
to designate offices and provide assistance. Finally, the
report should include the number of uniformed services
members utilizing voter registration assistance at the
designated offices.
When the annual report is issued in years following a
general election for Federal office, it should include a
description of the procedures utilized for collecting and
delivering marked absentee ballots, noting how many such
ballots were collected and delivered, how many were not
delivered in time before the closing of polls on Election
Day, and the reasons for non-delivery.
These reporting requirements are a direct consequence of
the interest of Congress in initial compliance with the MOVE
Act and with its routine implementation over time. These
reports will provide a key indicator of how effective
absentee voting procedures are for overseas Americans in case
additional reform is needed in the future.
Section 587. Annual report on enforcement.
This section amends the UOCAVA statute to require the
Attorney General to send a report to Congress no later than
December 31 of each year regarding what actions the
Department of Justice has taken to enforce UOCAVA and the
MOVE Act amendments to UOCAVA.
Since UOCAVA's passage in 1987, the Justice Department has
filed 35 compliance suits against the States. Congress should
be updated on a regular basis on efforts made to comply with
federal military and overseas voting statutes. These reports
will provide the Rules Committee and other Congressional
committees with a key tool for oversight, in anticipation of
the Justice Department playing a key role in overseeing the
implementation and enforcement of the MOVE Act.
Section 588. Requirements payments.
This section amends the Help America Vote Act (HAVA) of
2002 to establish a new funding authorization, in addition to
the funding authorizations already in place under HAVA,
intended to be used only to meet the new requirements under
UOCAVA imposed as a result of the provisions of and
amendments made by MOVE. The language of the MOVE Act
indicates that separate from a HAVA requirements payment;
Congress has authorized, and can specifically appropriate
funds for requirements payments ``appropriated pursuant to
the authorization under section 257(a)(4) only to meet the
requirements under the Uniformed and Overseas Citizens
Absentee Voting Act imposed as a result of the provisions of
and amendments made by the Military and Overseas Voter
Empowerment Act.'' The appropriation would specifically
reference a MOVE requirements payment. That MOVE requirements
payment can be used only to meet the requirements of the MOVE
Act. Nothing in this section impacts the ability of States to
receive and spend funds on the traditional HAVA requirements
payment program.
States must describe in their State plan how they will
comply with the provisions and requirements of and amendments
made by MOVE. Under amendments made in conference committee,
chief State election officials may access MOVE requirements
payments without providing the 5% match upfront. This section
was amended in contemplation of providing funding for those
States whose legislatures do not meet on an annual basis.
Further, States may choose to use the original funding
authorizations under HAVA, those adopted as part of the
original HAVA statute, to fund MOVE related compliance
efforts so long as the State meets all of its other
obligations under HAVA. The provisions of the MOVE Act can
certainly be considered an activity ``to improve the
administration of elections for Federal office'' under the
HAVA requirements payments language.
Section 589. Technology pilot program.
This section gives the Presidential designee the authority
to establish one or more pilot programs under which new
election technologies can be tested for the benefit of
military and overseas voters under the UOCAVA statute. The
conduct of the program will be at the discretion of the
Presidential designee and shall not conflict with any
existing laws, regulations, or procedures.
Mindful of security concerns, the Rules Committee included
several items for the Presidential designee to consider in
crafting this pilot program. These include transmitting
electronic information across military networks,
cryptographic voting systems, the transmission of ballot
representations and scanned pictures of ballots in a secure
manner, the utilization of voting stations at military bases,
and document delivery and upload systems. There may be many
positive developments made by DOD pilot programs that can
assist in expedited voting procedures for military and
overseas voters. Security and privacy, of course, are
essential components to any pilot program.
Under this section, the Presidential designee is required
to submit to Congress reports on the progress of any such
pilot programs, including recommendations for additional
programs and any legislative or administrative action deemed
appropriate.
This section directs the Election Assistance Commission
(EAC) and the National Institute of Standards and Technology
(NIST) at the Department of Commerce to work with the
Presidential designee in the creation and support of such
pilot programs. The bill requires the EAC and NIST to provide
the Presidential designee with ``best practices or
standards'' regarding electronic absentee voting guidelines.
In particular, the MOVE Act directs the EAC and the NIST to
work to develop best practices which conform with the
electronic absentee voting guidelines established under the
first sentence of section 1604(a)(2) of the National Defense
Authorization Act for Fiscal Year 2002 (P.L. 107-107), as
amended by Sec. 507 of the Ronald W. Reagan National Defense
Authorization Act for Fiscal Year 2005 (P.L. 108-375). The
Committee staff contemplates that NIST will be helpful in
addressing the election integrity and security concerns
involved in developing electronic voting systems, as
illustrated by NIST report entitled ``Threat Analysis on
UOCAVA Voting Systems'' of December 2008 (NISTIR 7551).
This section also directs that, if the EAC has not
established electronic absentee voting guidelines by not
later than 180 days after enactment of the MOVE Act, then the
EAC is to submit to Congress a report detailing why it has
not done so, a timeline for the establishment of such
guidelines, and a detailed accounting of its actions in
developing such guidelines. This should provide to Congress
and the public a roadmap on progress made, as well as the
next steps the EAC plans to take.
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