In October 2009, the enactment of the Military and Overseas Voter Empowerment (MOVE) Act heralded the first major policy changes for overseas and military voters for the first time in more than a decade.

Recently, however, questions have been raised about whether or not state election officials have been sufficiently proactive in implementing the new law and the role of the federal government in promoting non-compliance. (See also The MOVE Act in the News: Our Take)

Overseas Vote Foundation (OVF) has been monitoring the progress of the MOVE Act quite closely, both because we have an interest in any legislation that effects overseas and military voting, and because we must keep apprised of state requirements to maintain our State-specific Voter Information Directory.

For example, as part of our standard updating procedures, we sent a survey between July 27 and August 5 to election officials in all 50 states, the District of Columbia, the Virgin Islands and Guam, to update our database on both election deadlines and transmission of voter materials.

Based on the responses received and our contact with election officials at all levels including the Federal Voting Assistance Program (FVAP), we think current condemnation of the states’ implementation fails to grasp the bigger picture of legislative movement that is currently taking place.

In light of this criticism, it is important to review the major changes required by the MOVE Act.

  • Electoral officials must ensure that ballots are sent out 45 days before an election in order to provide 45-day window for ballot ,
  • Disallows the rejection of ballots for what are considering overly burdensome requirements, such as notarization,
  • Requires states to make voter registration applications, absentee ballot applications and blank ballots available electronically,
  • Provides an online “alternative” ballot for instances when the requested ballot does not arrive and expands usage of the Federal Write-in Absentee Ballot (FWAB),
  • Requires states implement the law in time for the 2010 General Election.

Recently the media took a hard look at the states (currently nine) that are seeking temporary waivers to MOVE Act compliance: Alaska, Colorado, Delaware, Hawaii, Maryland, New York, the Virgin Islands, Washington and District of Columbia.

The primary problem for many of these states is the need to send out ballots 45 days before the election. The states seeking waivers have repeatedly complained that their states’ late primaries make it extremely difficult to send out ballots on time.

Many of these same states, however, are also launching electronic blank ballot delivery methods that speed up the voting process by providing the ballots significantly faster and thus ensure that voters still have enough time to vote.

Specifically, for the states being criticized due to their need for 2010 waivers:

  • Alaska allows email transmission of the registration form, ballots to be faxed back and counts votes delivered up to 15 days after the election.
  • Washington allows email transmission of blank and voted ballots and counts ballots delivered up to 15 days after the election.
  • Delaware allows email transmission of blank and voted ballots.
  • Maryland will be using new downloadable ballot system via the internet.
  • The District of Columbia and Colorado are also conducting new online internet voting pilot programs this year.
  • New York is implementing the complete Power to MOVE system (from OVF and Scytl) for this election, which brings it into compliance with MOVE Act accept for the 45-day ballot transmission period. This is necessary because of New York’s late primary.

Details regarding overseas and military voting policy in the states can be seen by visiting OVF’s State-specific Voter Information Directory.

The emphasis on the 45 ballot transmission window can be traced back the Truman administration and one of the influences for its inclusion in the MOVE Act was a recommendation in the Pew Center on the States’ 2009 report "No Time to Vote". Ironically, of the nine states currently under fire for requesting a waiver, Pew had cited only New York as a state with “not enough time to vote.”

Additionally, it is important to note that the process for requesting the waivers is provided for by the Act itself. States requesting waivers are still in compliance with the law. Legislators recognized in October 2009, that a year may not be enough time to implement all of the changes necessary. Thus, waivers were made available as a temporary alternative during the 2010 election and allow states the time needed to plan improvements.

Finally, critics underestimate both the challenges of passing election laws in individual states and the considerable effort that most states have put into passing laws related to MOVE Act compliance.

To give an example of the first, according to the National Conference of State Legislatures, as of June 2010, 2,039 election laws had been introduced in state legislatures in 2001 but only 126 had been enacted. As of August 2010, on the other hand, 24 states have passed measures to bring them into compliance with the MOVE Act; related legislation failed to pass in Alabama and Wisconsin.

The question of the 45-day window is important and the Department of Defense, FVAP, and Department of Justice must certainly insist on full compliance with the MOVE Act in due course, but other important policy initiatives that states have made should not be ignored. Finally we do not see any evidence, based on the responses we’ve collected, of a pattern of states deliberately delaying or avoiding MOVE Act compliance.