But, what were the facts that led the court to this decision? Did military members have the same chance to vote as non-military voters in Minnesota? Did election officials reject military absentee ballots at the same rate as non-military ballots? Were military voters provided a reasonable opportunity to participate in the election as required by UOCAVA? The short answer to these questions is no.
In a state that prides itself on high voter participation--78 percent participated in the 2008 presidential election--Minnesotans should be ashamed to know that only 15.7 percent of its military voters were able to cast a vote that counted in the presidential election. Specifically, of the nearly 22,000 overseas military members and dependents eligible to vote in Minnesota, only 3,362 were able to cast a vote that counted. In addition, local election officials rejected at least 302 ballots or 8.2 percent of the total number of absentee ballots cast by military members, which is nearly four times higher than the rejection rate for non-military ballot. A vast majority of these rejected ballots--about 65 percent--were rejected because they were received after the election deadline. Finally, there were approximately an additional 2,100 military absentee ballots that were sent out but never returned--many of which were lost in the mail, sent to the wrong address, or received too late by the military voter to be returned.
Given these facts, it is puzzling that the contest court found no evidence of wholesale disenfranchisement. They had a military absentee voting population equal to one of the twenty-five most populous cities in Minnesota (22,000 voters), and only 15.7 percent were able to vote. When nearly 85 percent of a voting group does not participate, how could this be anything less than evidence of wholesale disenfranchisement? And, what about the fact that military absentee ballots were nearly four times more likely to be rejected by local election officials? Moreover, shouldn't there be some concern that nearly half of the absentee ballots sent to military voters never make it to the voter or make it too late to be returned? At the very least, Minnesota's military voters deserve some discussion as to why these facts do not show a systemic problem.
Minnesota's military voters also deserve to know why UOCAVA did not protect their votes. At its core, UOCAVA requires a state to provide military absentee voters with reasonable time to vote in federal elections. When passing the act, Congress made clear that it wanted to ensure that military voters "were not disenfranchised because of poor mail service." Congress wanted to ensure that states did not mail absentee ballots so close to Election Day that the voters "fail[ed] to receive their absentee ballots in time to vote and return them."
Minnesota's election process, however, does precisely that--it sends absentee ballots too late for military members to receive and return them prior to Election Day. Because of Minnesota's late primary in September, local election officials are unable to print and mail absentee ballots until 30 days before the election, even though every relevant federal agency recommends that absentee military ballots be sent at least 45 days before an election. Delays in mail delivery to war zones (estimated to take at least 24 to 36 days) and additional delays caused by military exigencies (i.e., fighting the war) make 45 days necessary. In fact, the Chief of the Military Postal Service Agency recommends that absentee ballots be sent 60 days before the state deadline for receiving completed ballots.
There should be no doubt that Minnesota law makes it difficult for military voters to participate in elections and potentially violates federal law. The real question is why the contest court ignored these facts and, more importantly, why it refused to take any steps to enforce federal law. Given the daily sacrifices of our men and women in uniform, they at least deserve a reasonable explanation why their voices were silenced.
M. Eric Eversole formerly worked as an attorney for the United States Department of Justice, Civil Rights Division, where he brought numerous cases to protect military and overseas voters.