Numerous military veterans groups have expressed consternation over a recent lawsuit filed by Obama for America as well as the Democratic National Committee and the Ohio Democratic Party against the Ohio Secretary of State over early voting in Ohio. They are right to be concerned.
The lawsuit is over a series of election bills passed by the state legislature that imposed a deadline for early voting for most voters of the Friday before election day. This makes perfect sense, because it allows election officials time to update their records of who has voted to ensure no one who voted early is able to vote again on election day.
However, Ohio still allows the relatively small number of voters qualified under the Uniformed and Overseas Citizens Absentee Voting Act (UOCAVA) to vote early through the end of the day before the election. The essence of the Obama campaign’s complaint is that providing any extra time to such a special class of voters is “arbitrary and capricious” and therefore a violation of the Equal Protection Clause. The lawsuit demands that all other voters be given the same extension.
UOCAVA is a federal law passed in 1986 that guarantees the right of members of the military and overseas American civilians to vote by absentee ballot in federal elections. It was passed because of the horrendously high disenfranchisement rate of military voters, which is caused by the unpredictability of military life and military deployments. UOCAVA was amended in 2009 to require states to mail out requested absentee ballots to members of the military at least 45 days prior to election day because of the long delays in overseas mail service, particularly in war zones like Afghanistan.
Regular voters have the ability to vote by absentee ballot in all states, and many also allow in-person early voting prior to election day. But civilian voters in the continental U.S. simply do not have the unforeseen problems faced by military voters. Many members of the military don’t know where they will be a week from now, let alone three or four months from now. This is especially true for those services running high-tempo operations—they are here today and gone tomorrow. A lot of military personnel who are deployed may come home for some brief R&R and having those few extra days before the election—especially over the weekend—may make a big difference in their ability to vote.
Contrary to the claims being made by the Obama re-election campaign, there is no comparison between the average resident of Ohio who knows he may be on a business trip on election day, and therefore should vote by absentee ballot or vote early, and a Marine who is suddenly given orders to deploy to Helmand province or is ordered on a field exercise with little advance notice.
Another good example is Air Force reserve pilots at Wright-Patterson AFB where the 445th Airlift Wing is located. Those pilots may be flying missions all over the country and, by virtue of that service, may be away from their residences on election day. Even though they are reservists, they are on active duty when they fly these missions and qualify to vote under UOCAVA. The extra days may be the only time they can exercise their franchise.
Contrary to the claims of the Obama campaign, there is nothing wrong with giving military voters extra time to vote. As already demonstrated, men and women in our armed forces have unique obstacles to exercising their franchise that are in place because of the exigencies of military service. It is neither arbitrary nor capricious to ameliorate those government-imposed obstacles. This is particularly true when one looks at the shockingly low participation rates of military voters, which is currently as severe as any in our nation’s history, including the low participation rate that led to the passage of the Voting Rights Act of 1965 to strike down barriers to voting for black Americans.
In 2008, when election turnout was the highest since the 1964 election at almost 62 percent, the U.S. Election Assistance Commission reported that only 5.5 percent of the eligible military and overseas voters under UOCAVA cast ballots that were counted. This compares unfavorably to historically low voter participation rates.
The Obama campaign is not just wrong on policy here—it is also wrong on the law. The courts have already held that it is not a violation of the Equal Protection Clause for states to treat UOCAVA voters differently than other voters.
In Igartua De La Rosa v. U.S. (1995), residents of Puerto Rico brought a lawsuit claiming that UOCAVA’s differing treatment of voters violated the Equal Protection Clause and was unconstitutional. The First Circuit Court of Appeals dismissed the claim, concluding that Congress had rational reasons for providing extra help to UOCAVA voters. The Second Circuit Court of Appeals issued a similar ruling in 2001 in Romeu v. Cohen. In fact, the Supreme Court in McDonald v. Board of Election Comm’rs (1969) upheld absentee voting statutes that were “designed to make voting more available to some groups who cannot easily get to the poll,” without making voting more available to all such groups. None of these cases are mentioned in the motion for a temporary restraining order filed by the plaintiffs.
Ohio has a rational and practical reason to provide members of the military, many of whom put their lives on the line for us every day, extra time to vote. This is not arbitrary, capricious, or somehow unfair to other voters. And it has a perfectly rational reason related to election administration to end early voting for other Ohio voters three days before election day. The courts should rule against Obama and the DNC to ensure that those who defend and serve will have every opportunity to vote in November.
Hans A. von Spakovsky is a Senior Legal Fellow at The Heritage Foundation (www.heritage.org) and a former member of the Federal Election Commission and Justice Department counsel. He is the co-author (with John Fund) of “Who’s Counting? How Fraudsters and Bureaucrats Put Your Vote at Risk” (Encounter Books, August 2012).