Mazur: Should We Have VIP Lanes for Military Voters?

Here is a guest post from Prof. Diane Mazur:

Should We Have VIP Lanes for Military Voters?

The Obama campaign has challenged an Ohio law that extends the early voting period for members of the military, but not for civilians.  The focus is on the three days right before Election Day.  Under the new law, service members stationed in Ohio can continue to vote in person on Saturday, Sunday, and Monday before the election, but civilians can cast early votes only through Friday.  When the Obama campaign asked a federal court to open the full early voting period to all voters, Mitt Romney accused the President of trying to undermine military voting rights.

Republicans said the lawsuit questioned whether it was constitutional to ever make accommodations for military voters.  This characterization is inaccurate, and silly.  There is a long history of accommodation for military and overseas citizens to vote by absentee ballot (for example, the federal Uniformed and Overseas Citizens Absentee Voting Act), and this is a settled understanding.

The Ohio law is the first, as far as I know, to grant extra voting privileges to service members voting in person, not by absentee ballot.  The Obama campaign is not arguing that service members are never entitled to accommodation based on the unpredictable circumstances of their assignments, but only that it is arbitrary to hold “military-only” voting days when all voters are physically present and able to vote in person.  If the election offices are going to be open, we should let everyone in the door.  The Republican Party has offered no reason why Ohio needs “military-only” voting booths for in-person voting.  The law does not address any specific burden or difficulty in voting, such as the rare service member who might be deployed without notice away from Ohio at the last minute, too late to register to vote by absentee.  The law privileges all Ohio service members for no reason other than being in uniform.

If you follow the statements of the military groups and Republican representatives closely, you’ll see that they glide back and forth between references to absentee and in-person voting, realizing that their in-person arguments are without precedent and without justification.  News reports ought to make clear that this is a giant leap beyond any other kind of military voting accommodation, and one that has nothing to do with the needs of the military.

It is all too easy to win arguments by accusing others of disrespecting the military.  What really disrespects the military, however, is using service members as a wedge for political advantage and setting military and civilian communities against one another.  This is, unfortunately, the sorry legacy of the 2000 presidential election.  We have created a generation of service members who firmly believe the false myth that military people were disenfranchised in 2000 when they attempted to vote from overseas, and they remain suspicious today.  The opposite was in fact true, that Florida elections officials were bullied into accepting ballots that were voted after the election, lest they be accused of being anti-military.  We’re still paying for those reckless arguments today in terms of poorer civil-military relations.  [For more, see A More Perfect Military: How the Constitution Can Make Our Military Stronger (Oxford University Press, 2010) (Chapter 11, “A Cautionary Tale About Military Voting”) and The Bullying of America (4 Election Law Journal 105 (2005)).]

The Ohio debate is more of the same all over again.  It reminds me of the classic science fiction novel Starship Troopers, a story about a future society in which residents could qualify to become citizens, and to vote, only by serving in the military.  The motivation behind the Ohio law granting “military only” voting days comes uncomfortably close to that vision.  The idea that we should afford greater accommodations of convenience to service members because they are somehow more deserving of the right to vote than the rest of America does great damage to military professionalism.  It’s important to protect the right to vote for all Americans, whether they serve in the military or not, and military professionals would agree.

Diane Mazur is a former Air Force officer and Professor of Law at the University of Florida

 

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