Justice Department Reaches Agreement with Hawaii to Protect the Rights of Military and Overseas Voters

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WASHINGTON – The Justice Department announced last week that it has reached agreements with Colorado, District of Columbia, U.S. Virgin Islands and Hawaii officials to help ensure that military service members and U.S. citizens living overseas have an opportunity to participate fully in the Nov. 2, 2010 federal general election.

These agreements were necessary to ensure compliance with the 2009 Military and Overseas Voter Empowerment Act (MOVE Act).


Hawaii’s primary election on Sept. 18, 2010 precludes the state from sending absentee ballots to military and overseas voters by the MOVE Act’s ballot transmittal deadline of September 18 — the 45th day before the November 2 federal general election.

Hawaii, although an undue hardship was found, did not provide an adequate comprehensive plan.

To ensure that the state’s military and overseas voters have sufficient time to receive, cast and return their ballots in time for them to be counted in the Nov. 2, 2010 election, the agreement requires Hawaii to send out ballots by express delivery service no later than Sept. 24, 2010, and to provide voters with the means to return their completed ballots by express delivery free of charge.

Additionally, Hawaii will contact voters to remind them of their option to receive their ballots by email starting on Sept. 24, and of a procedure by which voters may obtain, and also return, replacement ballots electronically within 5 days of the Nov. 2 election if the voter has not otherwise received his or her ballot.

Hawaii will maintain contact with its military and overseas voters periodically in the days leading up to the election to monitor whether voters have received their ballots and to take action if replacement ballots are necessary.

These safeguards are designed to ensure that eligible military and overseas voters have sufficient time to receive, cast and return their ballots in time to be counted. Hawaii sought a hardship waiver on grounds that its Sept. 18 primary election date – the latest in the nation — prohibited it from complying with the 45-day deadline specified by the MOVE Act.

Earlier this year, Hawaii enacted legislation, effective on Jan. 1, 2011, which moves Hawaii’s primary date to the second Saturday in August in every even-numbered year to help ensure compliance with UOCAVA’s 45-day advance ballot mailing requirement in future federal general elections.

“Our uniformed service members and other overseas citizens deserve to have a meaningful opportunity to participate in the election of our nation’s leaders, and to know that their votes will be counted,” said Thomas E. Perez, Assistant Attorney General for the Civil Rights Division. “I am extremely pleased with state officials who worked quickly and cooperatively with the department and agreed to measures that will ensure the states’ military and overseas voters, many of whom are members of our armed forces and their families bravely serving our country around the world, will have their votes counted in the upcoming election.”

The Uniformed and Overseas Citizens Absentee Voting Act (UOCAVA) requires states to allow uniformed service voters (serving both overseas and within the United States) and overseas citizens to register to vote and to vote absentee for all elections for federal office. In 2009, Congress enacted the MOVE Act, which made broad changes to UOCAVA.

Among those changes is a requirement that states transmit absentee ballots to voters covered under UOCAVA no later than 45 days before federal elections. Under the new law, states can apply to the Department of Defense for a hardship waiver of this requirement for a particular federal election if the state’s primary election date prohibited it from sending ballots by the 45th day before the election; if a legal contest causes a delay in generating ballots; or if the state’s constitution prohibits compliance. To obtain a waiver, states must 1) establish that one or more of these circumstances creates an undue hardship, and 2) present a comprehensive plan that provides UOCAVA voters sufficient time to receive and submit marked absentee ballots in time to have them counted in that election. Waiver determinations are made by the Department of Defense, after consulting with the Department of Justice.

On Aug. 27, the Department of Defense denied Hawaii,  Colorado, District of Columbia, and U.S. Virgin Islands waiver requests.

Immediately following denial of the waiver applications for Colorado, the District of Columbia, U.S. Virgin Islands and Hawaii, the Department of Justice advised state officials that the Assistant Attorney General for Civil Rights had authorized litigation to enforce UOCAVA. Discussions with the state and territory officials were initiated to resolve the matter, which led to the agreements announced yesterday.

More information about UOCAVA and other federal voting laws is available on the Department of Justice website at www.usdoj.gov/crt/voting/misc/activ_uoc.htm. Complaints may be reported to the Voting Section of the Justice Department’s Civil Rights Division at 1-800-253-3931 begin_of_the_skype_highlighting.