Should military members who did not vote in 2010 receive a ballot?

December 26, 2011

by Wesley Moore

It may sound like a simple issue, but Colorado is currently in an uproar over this issue. The City of Denver had been planning to send mail ballots to all registered voters, including inactive military voters. In response, Republican Secretary of State Scott Gessler made the controversial move of filing suit against the city, arguing that Colorado law only allows localities to mail ballots to those on the active voting list. The full complaint can be found here. Because the election is mere weeks away, John Tomasic of The Colorado Independent notes that this new directive seems likely to effectively disenfranchise the effected soldiers.

Colorado law requires ballots to be sent out to all active registered voters, but it does not explicitly prohibit county clerks from being more proactive. According to The Daily Sentinel, Mesa County Clerk Sheila Reiner argued that counties should be able to do more if they wish. “I had made a decision early on not to include the inactive voters because it wasn’t required,” Reiner said. “But I have to agree with the Denver County clerk and recorder that the statute requirements are only a minimum, and in many areas clerks often go over and above depending on the needs of their counties.”

Gessler disagrees, arguing that the law applies only to active registered voters. In his complaint, Gessler urges the court to do three things: 1) declare that the Clerk must follow the Secretary’s orders; 2) declare that Colorado’s election laws must be applied uniformly; and 3) issue an injunction preventing the Clerk from sending ballots to any inactive voters.

Secretary Gessler’s office has commented that this move is necessary because of thousands of unreturned ballots mailed to inactive voters in 2010. Paul Gronke at Election Updates decided to peruse the public evidence and was unable to find conclusive numbers either way, but, urprisingly, it appears that mailings to active voters were the source of the large majority of unaccounted for ballots in the 2010 election.

This controversy comes with a bit of history. Colorado is an outlier in not requiring its county clerks to mail ballots to inactive voters in the military. In 2008, the state legislature passed a law which required the clerks to do just that for the 2009-10 election cycle, but the law was not renewed. The Colorado Pols suggests that there was some debate at that time on whether Colorado’s policy of not mailing ballots to inactive military personnel violates the federal Voting Rights Act, but there does not seem to be any real discussion on that issue.

While occasionally mentioned in passing in some reporting of this issue, there is currently not much current public discussion on the issue of other aspects of federal law and inactive military ballots. Pueblo County Clerk Gilbert Ortiz told the Colorado Independent that he believed that not sending ballots to military inactive voters would violate the Uniform Military and Overseas Voter Act. The UMOVA, available here, requires state officials to send out ballots to all “covered voters” who submit a ballot application, which is broadly defined as all military personnel eligible to vote. The Act seems to require each individual military personnel to take an affirmative step to have the right to a ballot under that law, so what portion of the law Secretary Gessler’s decision allegedly violates is unclear, and Ortiz did not specify.

Currently the debate is exclusively in the media and political arenas. As the lawsuit moves forward, it will be interesting to see what, if any, impact federal law has on this dispute.

UPDATE: On October 8, 2011, a Denver District Court Judge Brian Whitney denied Gessler’s request for a preliminary injunction, and the ballots were mailed out to inactive voters. The court determined that Gessler had not shown a likelihood of harm, though the issue of whether the law allows the ballots to be mailed to inactive voters could still go to trial. Though the 2011 elections were not affected, this issue is far from over. In fact, according to the Denver Post, two Democratic congressman have asked the Department of Justice to review Secretary Gessler’s assertions to see if they violate the Voting Rights Act.

Wesley Moore is a third-year law student at William and Mary.

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