CO Move Act Waiver Denial 842011
Number of Pages:5
Date Created:August 26, 2010
Date Uploaded to the Library:February 20, 2014
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OFFICE THE UNDER SECRETARY DEFENSE 4000 DEFENSE PENTAGON WASHINGTON, 20301-4000 2010AUG PERSONNEL AND READINESS The Honorable Bernie Buescher Secretary State Colorado Department State 1700 Broadway, Suite 200 Denver, 80290 Dear Mr. Buescher: The Department Defense received from the State Colorado timely application dated August 2010, copy attached, for undue hardship waiver under Section 102(g) the Uniformed and Overseas Citizens Absentee Voting Act (UOCA VA), amended the Military and Overseas Voter Empowerment Act (MOVE Act), for the November 2010 Federal general election. Under delegated authority from the Secretary Defense the Presidential Designee for UOCA VA, have reviewed the State's application, consulted with the representative the Attorney General the United States, and find does not meet the requirements for one time undue hardship waiver under Section 102(g)(2) UOCAVA. Accordingly, deny the State Colorado's request waive the application Section 102(a)(8)(A) UOCA for the November 2010 Federal general election. rendering this decision, carefully considered the assertions made the State support its waiver request, which are explained detail the Memorandum attached this letter. Based those assertions and the attached rationale, have determined the following: the October 28, 2009 passage the MOVE Act and Colorado's primary election August 10, 2010 does not create undue hardship that prohibits the State from complying with Section 102(a)(8)(A) UOCAVA; the State's proposed comprehensive plan for this election does not provide sufficient time for UOCAVA voters vote and have their ballots counted substitute this election for the new Federal requirement that absentee ballots sent all UOCAV voters least forty-five days prior Election Day. Sincerely, Lynn Simpson Director, Human Capital and Resource Management Performing the Duties the Principal Deputy Under Secretary Defense (Personnel and Readiness) Enclosures: stated MEMORANDUM Denial State Colorado's MOVE Act Waiver Request under Section 102(g)(2) ofUOCAVA for the November 2010 Federal General Election The Federal Voting Assistance Program (FVAP) the Department Defense received the application the State Colorado (the State), dated August 2010, for undue hardship waiver for the November 2010 Federal general election, provided the amendments Section 102(g) the Uniformed and Overseas Citizens Absentee Voting Act (UOCA VA), enacted the Military and Overseas Voter Empowerment Act (MOVE Act).2 described this Memorandum, the denial the waiver request followed careful consideration the assertions made the State support its waiver request, including the official waiver request letter and subsequent supplementary information provided, and the explanation its written request the conference call August 2010, between Mr. Judd Choate, Director Elections, Mr. Wayne Munster, Deputy Director Elections, Mr. Rich Coolidge, Public Information Officer, Mrs. Hilary Rudy, Sr. Legislative and Policy Analyst; and officials from FVAP and the United States Department Justice's Voting Section (DOJNoting). The Presidential Designee for UOCA A,3 has reviewed Colorado's application, consulted with the representative the Attorney General the United States, finds the State's application does not meet the requirements for one-time undue hardship waiver under Section 102(g)(2) UOCA VA, and denies Colorado's waiver request from the application Section 102( a)(8)(A) UOCAVA for the November 2010 Federal general election. For purposes this Memorandum, the term "Presidential Designee" includes those officials exercising authority delegated the Presidential Designee. Background and Initial Findings UOCAVA authorizes the Presidential Designee grant waiver only those States whose reason for waiver corresponds with one the following situations: The State's primary election date prohibits the State from complying with Section 102(a)(8)(A); The State has suffered delay generating ballots due legal contest; The State Constitution prohibits the State from complying with such Section.5 U.S.C. 1973ff, seq. UOCAVA's waiver provision found U.S.C. 973ff-l (g). Pub. No. 111-84, Subtitle 575-589, 123 Stat. 2190, 2318-2335 (2009). The Secretary Defense was designated the Presidential Designee Executive Order 12642 (June 1988), CFR 21975. The Secretary Defense has delegated this authority the Under Secretary Defense (Personnel Readiness) through DOD Directive 1004.04. u.s.c. 1973ff-l(g)(2). U.S.C. 1973ff-l(g)(2)(B). within the Presidential Designee's authority consider Colorado's waiver application because Colorado states that its primary election scheduled for August 10, 2010 prohibits the State from complying with Section 102(a)(8)(A) ofUOCAVA.6 Under UOCA VA, State determines that unable comply with the requirement transmit absentee ballots least days before Federal general election (45 day prior requirement) due one the three situations referenced above resulting undue hardship, the Chief State Election Official shall request waiver from the Presidential Designee pursuant the Act. The Presidential Designee shall approve such request the Presidential Designee determines that: One more the three referenced situations creates undue hardship for the State; and, The State's comprehensive plan presented support its request provides absent uniformed services and overseas voters (UOCAV voters) sufficient time receive and submit absentee ballots they have requested time counted the election for Federal office. The Presidential Designee's findings for each these requirements are addressed separately below. The comprehensive plan proposed Colorado addressed the following requirements set forth the MOVE Act: (i) the steps the State will undertake ensure that UOCA voters have time receive, mark, and submit their ballots time have those ballots counted the election; (ii) why the plan provides UOCA voters sufficient time vote substitute for the requirements the MOVE Act; and (iii) the underlying factual information which explains how the plan provides such sufficient time vote substitute for such requirements.' Further, required UOCA VA, Colorado's application includes recognition that the purpose the Act's day prior requirement allow UOCA voters enough time vote and have their votes counted election for Federal office. determining whether the State's comprehensive plan provides sufficient time vote substitute for the requirement transmit ballots days before the election, the Presidential Designee considered that the minimum absentee ballot requirements under the new law require ballots transmitted days prior Election Day, using the voter's choice either postal mail electronic transmission method. Although facsimile transmission compliant with the MOVE Act's electronic transmission requirements, the least desirable method electronic See U.S.C. 1973ff-l(g)(2)(B)(i) and U.S.C. I973ff-l(a)(8)(A). U.S.C. 1973ff-l(g)(l)(D). U.S.C. 1973ftq(g)(l)(A). transmission, given that the least available among overseas active duty military voters, Reserve component military voters, and overseas DOD civilian employees. Each State's comprehensive plan was evaluated against several criteria; and the analysis whether State's comprehensive plan provides sufficient time was examined considering the totality circumstances presented the plan. Among the issues considered was the total time voter has receive, mark and return the ballot and have counted (including the number days before and after Election Day). Also among the issues considered was the cumulative number and accessibility alternative methods ballot transmission, and, applicable, ballot return, additional alternative methods provide more UOCA voters with the likelihood they will have sufficient time receive, vote, and return their ballots and have them counted. Finally, each State's comprehensive plan was reviewed for any additional efforts made the State, whether put place advance subsequent any changes the law, that improved the likelihood UOCA voter would able receive, vote and return the ballot and have count. II. The State Has Not Shown Undue Hardship its application, and required the statute, Colorado explained why its chief State election official determined that its primary election date and associated activities required generate Federal general election ballot prohibit from transmitting UOCA voters absentee ballot the 45th day prior the November 2010 election, thereby creating undue hardship. However, Colorado did not convincingly present case that local election officials statewide could not make absentee ballots available voters within the thirty-nine (39) day period between the primary date (August 10, 2010) and the forty-five day ballot-transmission deadline established UOCAV Accordingly, the Presidential Designee finds Colorado has not established that the State's primary election date prohibits compliance with UOCAVA's requirement transmit ballots least days prior the November 2010 Federal general election. III. The State's Comprehensive Plan Provides Insufficient Time for UOCA Voters Vote and Have That Vote Counted addition its failure establish undue hardship, the Presidential Designee concludes that Colorado did not establish that its proposed comprehensive plan provides UOCA voters "sufficient time receive absentee ballots they have requested and submit marked absentee ballots the appropriate State election official time have that ballot counted" the November 2010 Federal general election.10 reaching this determination, the Presidential Designee examined the totality circumstances presented the plan determine whether provided sufficient time vote substitute for UOCAV A's requirement that ballots transmitted least days prior Election Day. Among the issues considered were the time voters have receive, mark and return their ballots and have them counted (both before and Defense Manpower Data Center, "2006 Survey Results Voting Assistance Among Military Members and DoD Civilian Employees Location, Age, and Paygrade," Survey Note No. 2007-0 July 2007, http://www.fvap.gov/resources/media/ivas06dod.pdf. U.S.C. 1973ff-l (g)(2)(A). after Election Day); the cumulative number alternative methods ballot transmission and return; and the accessibility the alternative ballot transmission methods presented the comprehensive plan. Under its submitted comprehensive plan, Colorado will transmit absentee ballots UOCA voters October 2010, which days before the election. Military personnel residing outside the United States, and their spouses and dependents absent from the United States, will have eight (8) days after Election Day for ballots received and counted, long the ballot envelope postmarked Election Day. Other UOCAVA voters must have their ballots delivered their local elections office Election Day. The Presidential Designee considered the ballot transit time provided conjunction with the additional methods other than postal mail available Colorado's UOCAVA voters receive and return their ballots, such facsimile and email transmission the ballot the voter the voter's request. Military personnel residing outside the United States and their spouses and dependents absent from the United States may receive and return their ballots postal mail, fax email; all other UOCA voters are limited receiving and returning ballots postal mail fax. Colorado also allows voters six (6) counties use the FVAP-fnnded Electronic Voting Support Wizard, online ballot delivery and ballot marking system. While these electronic options will increase the opportunity for some UOCA voters receive and cast timely ballots, cannot conclude that Colorado's plan provides sufficient transit time for all UOCAV voters receive, mark and return their ballots time counted. IV. Conclusion Given the foregoing and considering the totality the circumstances presented, the waiver request the State Colorado denied. The Presidential Designee has determined Colorado has not established undue hardship grounds that the State's primary election date prohibits compliance with UOCAVA's requirement transmit ballots least days prior the November 2010. The Presidential Designee has fnrther determined that the comprehensive plan presented Colorado does not provide UOCA voters sufficient time receive absentee ballots they have requested and submit marked ballots the appropriate election official time counted the November 2010 election, and thus inadequate substitute for UOCAVA's day prior requirement. you have any questions concerns, please contact Paddy McGuire, Deputy Director for Election Official Assistance, 703-588-1584, Paddy.McGuire@fvap.gov.