June 22nd state Senate primary election date violates 45-day ballot requirement of federal law
UPDATED: County election officials 'outraged' by Governor's move...
By Scott Dick on 5/5/2010, 1:43pm PT  

[UPDATED: Santa Cruz, CA, County Clerk/Registrar and Vice President of the CA Assoc. of Clerks and Election Officials (CACEO) Gail Pellerin saw our article just after it went up, and wrote to both thank us for covering it, and to express her outrage over the Governor's decision here. She points us to a letter sent by clerks to his office earlier this week, and also notes that "Military voters are definitely disenfranchised" by this move. See the UPDATE at the end of this article for more comments and detail from Pellerin. - BF ]

[UPDATED AGAIN: Hispanic voters file federal complaint, charging violation of Voting Rights Act. Details at bottom of article - BF]

-- Guest blogged by Scott Dick

Governor Arnold Schwarzenegger is effectively disenfranchising at least 2,046 overseas California voters around the world, including military personnel stationed in combat zones in Iraq and Afghanistan by calling a special election for June 22, 2010.

Background: The Senate seat from California's Senate District 15 was recently vacated when Schwarzenegger's nominee, Abel Maldonado, was confirmed and sworn in as the new Lieutenant Governor. He was appointed as a replacement to the elected John Garamendi who was recently elected to the U.S. Congress in a special election filling the seat of Ellen Tauscher who had been appointed by the Obama administration to a post in the U.S. State Department.

Schwarzenegger set the date for the special election to fill Maldonado's Senate District 15 seat as June 22, 2010, virtually eliminating the ability of overseas voters to participate in the election.

While not directly violating the federal Military and Overseas Voter Empowerment Act (MOVE Act) signed into law October 28, 2009, he is most certainly violating it in spirit. The law was designed to ensure the rights of overseas civilians and deployed military personnel to participate in federal, state and local elections. For federal elections it requires ballots to be sent out 45 days prior to an election to allow the Department of Defense time to process those ballots. If a state requests a waiver they must do so 65 days before the election. The law was passed with a 45 day minimum requirement for a very good reason --- a reason that Schwarzenegger seems willing to ignore, unless he can be convinced to change the date of the election, and quickly...

According to the Pew Center Report, "No Time to Vote: Challenges Facing America's Overseas Military Voters", one of their suggested reforms includes, "Building at least 45 days into the process for ballots to travel between voters and election offices…"

The Pew Center Report categorized California as one of the states with, "time to vote, but with concerns. These are states where voters have time to vote but only if they submit their ballots via fax or e-mail. Transmitting completed ballots raises concerns about privacy and security. In these states, even if overseas military voters return submitted ballots via traditional mail, they will run out of time because of other factors in the states' process. The voters essentially must choose between potentially risking the privacy and security of their ballots [by returning them via fax or email] and being unable to complete the process in time."

The availability of fax or email are questionable for sailors serving aboard ship, military units in transit, families moving duty station and soldiers deployed in combat zones.

The Governor's edict for a June 22nd special election is likely to disenfranchise active duty military personnel of all ranks and all services. It may also serve to disenfranchise overseas voters representing the Department of State, Commerce, Department of Defense Dependent Schools (DODDS) teachers, administrators and any other California resident assigned overseas from a governmental, non-governmental or corporate entity.

Moreover, military families are traditionally the mail-backstop for military personnel deployed away from their duty stations. Mail moves from the continental United States (CONUS) US Postal System to military postal units and eventually unit mail rooms. Families collect and then forward the mail they think is important to their family members posted in restricted areas. When families are involved in permanent change of station (PCS) movements or are traveling to CONUS on vacation, they become extremely difficult targets to hit with time sensitive voting materials.

The period from Memorial Day to Labor Day is the traditional school break for military families worldwide and this period is also when the bulk of military families are reassigned and moved from base to base and country to country. In some cases, entire units' key and senior leaders are replaced and reassigned during this period as well. The bulk of voting officers are appointed from these key leaders.

Summer turbulence combined with the 45-day minimum cycle required by Department of Defense guidelines will ensure that a disproportionate and unnecessary number of military personnel overseas, military undergoing reassignment inside CONUS, military personnel already assigned overseas and those deployed in hostile fire and designated combat zones will not have time to vote in the election scheduled for June 22, 2010.

Even if ballots where fully printed up and then sent out from all five counties in Senate District 15 within 24 hours after the candidate filing deadline of May 10 --- a virtual impossibility to start with --- that would still leave only 43 days for the ballot to reach the voter and then make the return trip. There is plenty of evidence to show that absentee ballots sent overseas under normal circumstances require a minimum of 45 days and that's just transit time.

Imagine the problems with getting ballots into hostile fire or combat designated zones. Here in California, absentee ballots must reach each County Elections office by close of business on Election Day or they simply will not be counted. Postmark doesn't matter.

The earliest primary date to ensure even minimal participation by overseas, military-family and active duty military personnel would be best within 14 days after the greatest amount of military turbulence has subsided. This would be after the beginning of the new DODDS school year: approximately August 31, 2010. The exact school start dates depend on region (i.e., whether the school is located in CONUS, Japan or Europe). Military units will have also stabilized by then with key leaders in position and voting officers appointed.

That best date for the Special Election to fill the senate seat in SD 15 would be no earlier than August 31, 2010, leaving a full cycle to count votes, prepare sample ballots and the requisite 45 days to mail absentee ballots to both CONUS and overseas locations and have them returned and counted. This date would then leave enough time to process the special election primary results and then send out the final special election absentee ballots coinciding with the general election scheduled for November 3, 2010. As state law requires a special election to fill a vacancy to be called by the Governor within 180 days of the vacancy, a late August special primary election would be well within the law and allow military and overseas voters appropriate time to cast their ballots.

We attempted to receive comment from CA Secretary of State Debra Bowen on this matter, as she's been a steadfast proponent of voter enfranchisement. Her office has not yet replied to our phone or email queries to date.

Action: Contact the Governor's office at: 916-445-2841 or email him via this page. Please encourage Governor Schwarzenegger to rescind his original special election primary date and move it to August 31, 2010, with the special final election (if necessary) to coincide with the general election held this year on November 3, 2010. Moving the date will ensure that our military families and active duty military personnel have an equal opportunity to participate in the basic democratic process they are out there defending.

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UPDATE 3:00pm PT: Shortly after posting this article, we heard from Gail Pellerin, the Santa Cruz, CA County Clerk/Registrar of Voters and Vice President of the California Association of Clerks and Election Officials (CACEO) who saw it, and wrote to let us know of her own and other affected County Clerks' outrage over Schwarzenegger's special election dates.

She points us to a letter [PDF] sent to the Governor on behalf of the CACEO on Monday, expressing their concern, along with links to other documents concerning the SD 15 special election

"The 5 counties involved are outraged by the Governor's decision to call two separate elections costing taxpayers $6 million," she tells The BRAD BLOG. "Money counties do not have. And then of course the logistics are a nightmare. Military voters are definitely disenfranchised."

"I don't know what the Governor was thinking," she added in a follow-up note. "This is definitely the worst of the worse case scenarios."

UPDATE 5/6/10: Hispanic voters now disenfranchisement, file complaint charging violations of federal Voting Rights Act. Details here...

UPDATE 5/13/10: Federal judge orders state to 'Show Cause' as to why special primary should not be postponed without pre-clearance under the Voting Rights Act from the Dept. of Justice. Details, court order, now here...

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Scott Dick has an MA from Columbia University and is a retired army officer with twenty years of service in both the Marine Corps and U.S. Army. He does political analysis everyday on the Scott Dick Show heard on KRXA 540am in Monterey, CA.