NDC letter to DoJ on Fairfax County

October 21st, 2008

Rear Admiral (Ret.) James J. Carey — Chairman
Captain (Ret.) Samuel F. Wright — Director, Military Voting Rights Project<
1201 S. Court House Rd., Suite 735
Arlington, VA  22204
(703) 486-4247 (voice)

October 21, 2008

Christopher Coates, Esq.
Section Chief, Voting Section
Civil Rights Division
U.S. Department of Justice
950 Pennsylvania Avenue, N.W.
Washington, D.C. 20530

Re:      Urgent Military Voting Issue in Virginia

Dear Mr. Coates:

I want to raise an issue of critical importance to our men and women in uniform who are trying to vote in the November 2008 election and may be disenfranchised by a particular wrongful application of Virginia law.

As you know, the Uniformed and Overseas Citizens Absentee Voting Act (UOCAVA), 42 U.S.C. sections 1973ff through 1973ff-6, gives the “absent uniformed services voter” (member of the U.S. uniformed services or family member of a uniformed services member) and the overseas voter the right to vote by means of the Federal Write-in Absentee Ballot (FWAB).  If the UOCAVA voter (military or civilian) has applied for a regular absentee ballot in a timely manner but has not received it, the voter is permitted to obtain and utilize the FWAB as a back-up ballot.  The voter marks the FWAB by writing in the names of his or her favored candidates for President, United States Senator, and United States Representative, or the voter can express a party preference for each Federal office in the general election.  The FWAB is a poor substitute for the regular absentee ballot, but it beats being wholly disenfranchised.

FWABs are pre-positioned at U.S. military installations at home and abroad, and at U.S. embassies and consulates around the world.  The blank FWAB form is also available at www.fvap.gov   This is the website of the Federal Voting Assistance Program (FVAP), in the Department of Defense (DoD).   The absent uniformed services voter (including a military family member) is permitted to submit the FWAB from either within or outside the United States, while the overseas voter must submit this ballot from outside our country.  See 42 U.S.C. 1973ff-2(b)(1).

Section 1973ff-1(a)(3) of UOCAVA [42 U.S.C. 1973ff-1-(a)(3)] provides, “Each State shall– … permit absent uniformed services voters and overseas voters to use Federal write-in absentee ballots (in accordance with section 103) in general elections for Federal office.”  Section 1973ff-2(b) requires: “Except as otherwise provided in this subchapter, a Federal write-in absentee ballot shall be submitted and processed in the manner provided by law for absentee ballots in the State involved.”  With regard to UOCAVA voters, UOCAVA lists only two lawful reasons to refuse to count the FWAB:  (1) the UOCAVA voter failed to submit the voter registration application (on the Federal Post Card Application or FPCA) in time under State law; or (2) the ballot is received after the deadline for receiving ballots under State law.  See id.

Notwithstanding UOCAVA, it is my understanding that the Fairfax County (Virginia) General Registrar has announced an intention to refuse to count a completed FWAB if the ballot does not contain both the signature and the address of the voter’s witness.  This peculiar application of Virginia law may well apply in other Virginia counties and independent cities as well.   The Fairfax General Registrar cites section 24.2-702.1(B) of the Virginia Code as the basis for his decision.

As a concrete example, let us take the hypothetical but very realistic Sergeant Mary Jones, a resident of Fairfax County who is currently serving on active duty in the Marine Corps and is presently assigned to duty in Al Anbar Province, Iraq.  Sergeant Jones used the FPCA to apply for her absentee ballot back in July.  Now, with Election Day just two weeks away, she has not yet received her regular absentee ballot from Fairfax County.  Today (October 21, 2008), she obtains the blank FWAB and uses it to vote for the candidates of her choice for President, United States Senator, and United States Representative.

Sergeant Jones is a conscientious voter, and she wants to ensure that her FWAB will be counted.  She consults with her unit’s Voting Assistance Officer (VAO), and the VAO shows her a copy of the 2008 edition of the Voting Assistance Guide, which is biennially published by the FVAP as the basic reference tool for military and State Department VAOs.  Sergeant Jones carefully reviews the Virginia chapter, at pages 390-398 of the 2008 Guide. The Voting Assistance Guide is also available at the FVAP website, www.fvap.gov

The Fairfax County Registrar has announced his intention to refuse to count Sergeant Jones’ ballot unless it contains both the signature and the address of the witness for the ballot.  There is nothing in the Virginia chapter of the Guide to alert Sergeant Jones to this requirement.  Moreover, the FWAB instructions say nothing about this issue, and the FWAB form does not contain space to accommodate the address of the witness.  Sergeant Jones (and all other similarly situated UOCAVA voters) is likely to be disenfranchised by the application of a requirement about which she is unaware, despite the exercise of due diligence to inform herself of the requirements for casting a valid FWAB.

Now let’s take Robert Smith, another Fairfax County resident who is a sophomore at Virginia Tech in far southwestern Virginia.  When he casts his absentee ballot and sends it to Fairfax County, he is not required to include the address of the witness for the ballot.  In other words, Virginia is imposing on the UOCAVA voter a burdensome and unnecessary requirement that it does not impose on other absentee voters.  This disparate treatment of UOCAVA voters clearly violates the Equal Protection Clause of the 14th Amendment.

“Except as otherwise provided in this title, a Federal write-in absentee ballot shall be submitted and processed in the manner provided by law for absentee ballots in the State involved.”  42 U.S.C. 1973ff-2(b).   UOCAVA contains no provision that permits a State to impose on UOCAVA voters the requirement to include the address of the witness, when the State imposes no such requirement upon other absentee voters.  I am sure that you are familiar with the legal doctrine of expressio unius est exclusio alterius—to express one is to exclude all the others.  Applying to UOCAVA the statutory construction rules that apply to all statutes, there is no room for Virginia’s “provide the address of your witness” rule.

It also appears that Virginia in general and the Fairfax Registrar in particular need to be reminded of Article VI, Clause 2, commonly known as the “Supremacy Clause.”  Almost a century and a half ago, a great war was fought about the supremacy of Federal law over State law, and Virginia’s team lost.  Some Virginia officials still act as though they believe that General Ulysses S. Grant surrendered to General Robert E. Lee at Appomattox Courthouse, rather than the other way around.

Fairfax County in particular has a long history of going out of its way to disenfranchise military personnel and other UOCAVA voters.  Ten years ago (1998 general election), my friend Major General (Retired) Kenneth Dohleman served as a member of the absentee ballot counting board in Fairfax County.  He has reported that a large number of military absentee ballots were set aside uncounted (over General Dohleman’s strenuous objections) because the voters provided their “mail my ballot to” addresses, rather than their permanent home addresses, in the affidavits on the back of the ballot return envelopes.  The instructions that accompanied the ballots were ambiguous and confusing, and the General Registrar used this misunderstanding to disenfranchise the brave young men and women who are away from home and prepared to lay down their lives in defense of our country.

General Dohleman has since moved to North Carolina.  His current address is 109 Willowbrook Lane  Advance, NC  27006.  I believe that his telephone number is 336-998-9994.

Given the fact that there are only 14 days before the November 4, 2008 election, I ask the Department to act immediately to investigate and resolve this issue to ensure that our men and women in uniform have a reasonable opportunity to vote.  “The Attorney General may bring a civil action in an appropriate district court for such declaratory or injunctive relief as may be necessary to carry out this title.”  42 U.S.C. 1973ff-4.

In a 1952 letter to Congress, President Harry S. Truman wrote:

About 2,500,000 men and women in the Armed Forces are of voting age
at the present time.  Many of those in uniform are serving overseas, or in
parts of the country distant from their homes.  They are unable to return
to their States either to register or to vote.  Yet these men and women, who
are serving their country and in many cases risking their lives, deserve above
all others to exercise the right to vote in this election year.  At a time when
these young people are defending our country and its free institutions, the
least we at home can do is to make sure that they are able to enjoy the rights
they are being asked to fight to preserve.

Of course, President Truman was referring to the brave young men and women fighting the Korean War in 1952.  I am sure that you will agree that his eloquent words apply equally to their grandsons and granddaughters who are fighting the Global War on Terrorism today.  I call upon you to enforce UOCAVA vigorously against Virginia and other States that flout this important Federal law.  With your help, America’s sons and daughters serving in our Armed Forces will not have to wait another 14 Presidential elections to enjoy a basic civil right that the rest of us take for granted.


Samuel F. Wright
Captain, JAGC, USN (Ret.)

Rebecca Wertz, Deputy Section Chief
RADM James J. Carey, USN (Ret.)
MG Kenneth Dohleman, USA (Ret.)
Ms. Karen Jowers (Army Times Publishing Co.)
Mr. Tom Philpott (Military Update)
Ms. Polli Brunelli (FVAP Director)

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