Virginia’s Military Absentee Ballots

We believe our reader is referring to circumstances surrounding a lawsuit filed against Virginia’s State Board of Elections by the presidential campaign of Sen. John McCain.

On Nov. 3, the campaign filed a suit asking that officials count absentee ballots from voters in the military that had been postmarked by Nov. 4 and will be received by Nov. 14. The McCain campaign claimed that absentee ballots weren’t sent to overseas military members with enough time to have them returned by Virginia’s deadline of 7:00 p.m on Election Day. Sen. Barack Obama, however, won the state with a wide enough margin that absentee ballots can’t possibly change the outcome of the presidential election.

In the lawsuit, the McCain campaign said federal agencies recommend that absentee ballots be sent to voting members of the military (serving in foreign countries) at least 45 days before the general election. That means this year, absentee ballots should have been mailed out by Sept. 20 at the latest. But the campaign claims that in some instances, ballots weren’t likely mailed until October. The McCain camp lists several localities in Virginia that didn’t receive ballots from the printer until or after Sept. 20, and the lawsuit includes a statement from the mother of a U.S. marine who requested a ballot in August, but didn’t receive it until Oct. 29.

Lawyers for election board officials responded with a motion to have the case dismissed. A memorandum supporting the motion argues that there is no federal law that says absentee ballots must be mailed to military members 45 days prior to an election, that the plaintiffs lack standing, and that the case is moot. As the memo says: "The number of absentee ballots in question is fewer than necessary to change Virginia from blue to red. Moreover, even a change in Virginia’s electoral vote would not affect the outcome of the 2008 Presidential Election. The case should be dismissed."

The McCain camp responded with its own memo opposing the election board’s motion to dismiss. The memo says that the campaign wanted to make sure every vote was counted, not challenge the outcome of the election: "Such a cavalier attitude is surprising for officials charged with maintaining ‘purity in all elections.’ … Maintaining that purity means that every vote must be counted, whether or not it will affect the outcome."

There has been no official ruling yet on whether ballots that arrived late will be counted. On Nov. 4, U.S. District Judge Richard Williams ordered election officials in the state to simply hold on to absentee ballots from servicemembers that arrived late until further instruction. Williams scheduled a hearing on the matter for Nov. 17.

According to the election board, there were 538,142 absentee applications approved for the November election. As of Nov. 3, localities in Virginia had received 466,204 absentee ballots, 308,386 of which were absentee ballots cast in-person. It isn’t known how many ballots arrived on or after Election Day. The "unofficial" vote count in Virginia, according to the state election board, has Obama ahead of McCain by 232,824 votes (as of 11:19 a.m. on Nov. 12). Official results aren’t expected until canvassing is completed Nov. 24.

— D’Angelo Gore

Update, Nov. 18: According to the Associated Press: "The U.S. Justice Department has replaced John McCain’s presidential campaign as the plaintiff" in this lawsuit. "U.S. District Judge Richard L. Williams ruled [Nov. 17] that the Republican ticket lacked standing to sue and approved the Justice Department’s motion to intervene." Williams scheduled a hearing for Dec. 8.

We have modified our short answer accordingly, and we’ll update this item again after the Dec. 8 hearing.

Update, Dec. 11: According to the Richmond Times-Dispatch: Williams ruled Dec. 8 "that the State Board of Elections violated federal law by mailing absentee ballots to military personnel overseas too late for them to return the ballots in time to vote."

However, Williams did not order the State Board of Elections to count the late absentee ballots in question, saying: "It will not alter the course of the election." Instead, Williams left it up to the State Board of Elections and the U.S. Department of Justice to work out a solution to the problem for future elections.