Virginia Lawyers Weekly

A federal judge said last week that he probably won’t order Virginia election officials to count late absentee ballots from overseas military personnel but wants a solution before the next election.

U.S. District Judge Richard L. Williams ordered the State Board of Elections and the U.S. Justice Department to work out a procedure to ensure the timely mailing of ballots to service men and women in future elections.

Williams said counting the late absentee ballots wouldn’t change the outcome of the Nov. 4 elections.

He refused to throw out the Justice Department’s lawsuit alleging state elections officials violated a 1986 federal law requiring states to give deployed military members adequate time to receive, fill out and return absentee ballots before election day.

He said he would refer the case to a magistrate judge for a settlement conference.

The Justice Department claims that to comply with the Uniformed and Overseas Citizens Absentee Voting Act, state officials should have mailed military ballots at least 30 days in advance. The department says at least 656 of those ballots were not even printed until 28 days before the election – 125 of them two weeks or less before Nov. 4.

Robert A. Dybing, an attorney for the state board, said the 1986 law does not impose a specific deadline for states to mail military absentee ballots. He said the law allows military members who don’t receive a requested absentee ballot to cast a federal write-in ballot.

The Justice Department, however, claims the Defense Department’s Federal Voting Assistance Program guidelines say ballots should be mailed 30 days before election day, and other courts have adopted that as the legal standard.

Justice Department attorney Alberto Ruisanchez also told Williams that Congress intended the federal write-in ballot to be an emergency backup, not a substitute for a state absentee ballot. He said the write-in ballots are more difficult to obtain, especially by military members serving in combat zones.

Williams seemed troubled by what he called the state’s “inexplicable failure’’ to print and mail ballots promptly. He said if it’s true that 125 ballots were not even printed until two weeks before election day, then state officials violated the federal law and need to make sure it doesn’t happen again.

The plaintiffs wanted Williams to order a remedy for future elections, but he said the state board and the Justice Department were better qualified than he to craft a solution.

The lawsuit was originally filed by Republican John McCain’s presidential campaign. The Justice Department intervened and became the lone plaintiff after Williams ruled the McCain campaign lacked standing to sue.

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