Military and Overseas Voter Empowerment Act (MOVE)

1. Military and Overseas Voter Empowerment Act (MOVE) Donald Palmer, Director, Division of Elections, Florida Department of State

2. Enactment of the MOVE Act Signed into law on October 28, 2009 as part of National Defense Authorization Act Amends the Uniformed and Overseas Citizens Absentee Voting Act (UOCAVA) (initially adopted in 1986 and last amended in 2004)

3. Impetus for Legislation: • Congressional Research Survey: lowest registration and turnout rates among different groups: 65% compared with 84% general population; • UOCAVA overall participation even lower – low 20’s; • “logistical, geographical, operational and environmental barriers” impact the right of UOCAVA voters to register and vote; • CRS Study: 25% of all ballots requested went uncounted – disenfranchised; • Consensus that 30 days not adequate mailing transit time for ballots sent overseas;

4. too remote to receive ballot and return in timely manner….

5. Area’s of Responsibility • State Responsibilities: • Focused on facilitating the transmittal of materials to the voter by electronic means and left the return of ballot means to the States; • FVAP responsibilities: • Greatly increased duties voter registration and ballot collection from overseas sites + expedited delivery of ballots to election officials; • Implement voter registration offices on each military installation + DOD will designate pay, personnel, and identification offices as “voter registration agencies” by Nov 2010.

6. Move Act: the States shall….. • Transmitting Voter Registration & Absentee Ballot applications; • Designating Means of Electronic Communication; • Florida will designate fax and email. • Transmitting Blank Ballots; • Ballot Tracking Mechanism; • FWAB Expansion; • Ballot Transmittal Time 45 days; and • State Plan Change

7. MOVE Act: An Overview of FVAP responsibilities…. • Election Information Database – gather information on Single State Office information • Means of Transmission Designated for each State; • Ballot Collection/Delivery – USPS • Voter Registration: Secretary of each military department branch designate office on each installation of Armed Forces to provide voter registration; • DOD will designate pay, personnel, & identification offices to receive registration applications & absentee ballot applications

8. FVAP responsibilities continued… • Increased Reporting to Congress on activities and Voting Assistance Officers, including the cooperation between the States and the federal government in carrying out the MOVE Act; • Work with EAC and chief election officials in reporting absentee ballot data; • AG must submit report annually on UOCAVA civil actions enforcing UOCAVA & MOVE; • Utilizing Technology: FWAB + overseas voting pilot programs in conj w/ EAC/TGDC (NIST)

9. UOCAVA refresher:Federal Post Card Application Created the Federal Post Card Application to serve as a dual application for voter registration and request for an absentee ballot by a UOCAVA Voter

10. UOCAVA Refresher:Federal Write-in Absentee Ballot: • Provided a back-up ballot called the Federal Write-in Absentee Ballot (FWAB) for federal offices for UOCAVA voters who had requested but had not yet received their regular absentee ballot for the general election.

11. MOVE Act (Section 577): • For purposes of Act, includes not only Overseas military & citizens but absent Stateside Military & Dependents: • Members of the United States Uniformed Services and merchant marine absent stateside or overseas from place of residence, • Their family members (spouse and dependents who are also absent due to the above member’s absence), and • U.S citizens residing outside the U.S.

12. Sec 577: Transmitting Voter Registration & Absentee Ballot Applications Establish procedures to allow UOCAVA voters To request voter registration applications and absentee ballot applications and related voting, balloting, and election information by mail or electronically; To state theirpreference for receiving the voter registration application or absentee ballot application (or other election information) (i.e., by mail or electronically) To receive voter registration applications or absentee ballot applications based on the transmittal preference stated by voter;

13. Sec. 577: Transmitting Registration and Absentee Ballot Applications Establish procedures for UOCAVA voters: If no preference is stated, to deliver the application in accordance with state law, or if no state law, by mail; Inclusion of designation of means of electronic transmission with all instructional materials accompanying ballot materials to UOCAVA voters; Implementation will require request facsimile number or email address from UOCAVA voter to then provide materials or ballot at later time;

14. MOVE Act: (Sec 577): Designating Electronic Communication Each state must designate at least one means of electronic communication for: Use by UOCAVA voters to request registration and absentee ballot applications; Use by states to send voter registration and absentee ballot applications to voters; For providing UOCAVA voters with election and voting information; Designated means of electronic communication must be included on all information and instructional materials that accompany balloting materials sent by the State to UOCAVA voters

15. MOVE Act (Sec 578): Transmitting Blank Absentee Ballots States must develop procedures for transmitting blank ballots to UOCAVA voters (stateside and overseas) by mail and electronically; Procedures must include a means for the voter to designate how they want to receive the ballot – by mail or electronic means - AND ballot must be transmitted based on voter’s stated preference; Security and privacy – “to the extent practicable”

16. MOVE Act (Sec 580): Tracking Marked Ballots Tracking Absentee Ballots for UOCAVA Voters via a free access system; The ultimate responsibility is on the “chief State election official” to develop a system or coordinated system with local jurisdictions; …work with local jurisdictions to develop a free access system that allows a UOCAVA voter to determine whether his voted absentee ballot was received by the election official;

17. MOVE Act (Sec 579): Ballot Transmittal Time: Absentee ballots must be sent or transmitted to UOCAVA 45 days before Federal election: Applies to primary and general elections Applies to all UOCAVA voters, not just overseas voters, includes absent stateside, using designated means of transmission;

18. MOVE Act: (Sec.579) Waiver of 45 day requirement Notice of Waiver Request submitted within 90 days of Election to Presidential Designee - DOD (FVAP) after consultation with the Attorney General (Voting Section); • 5 Days to approve or disapprove; • Hardship exemption: Unable due to an undue hardship;

19. MOVE Act: “Undue hardship”Predicate for Waiver • State primary election date prohibits a State from complying; • State has suffered a delay in generating ballots due to a legal contest; • coordination and communication absolutely necessary between State and local jurisdictions • State Constitution prohibits the State from complying with 45 day mailing requirement.

20. Waiver Process • Be prepared to provide a factual predicate and explanation of the hardship; • Articulate when ballots are able to be mailed or otherwise transmitted; • Submit a comprehensive plan to ensure sufficient time for UOCAVA voter ballots to be counted; • Articulate why the plan and steps to be taken provide sufficient time for return of ballots • Be prepared to provide additional time to accept ballots after Election Day to reach 45 total days;

21. MOVE Act (Sec. 585):Repeal of Section 104 UOCAVA Eliminates the Standing Absentee Ballot Request Provision for UOCAVA Voters: Removal of requirement that one request to serve as a request to receive absentee ballots through the next two federal general elections A high number of ballots were being returned as undeliverable. FVAP: Is encouraging UOCAVA voters to submit new FPCA at every change of address FVAP: Election officials should anticipate 2.2-2.5 million Federal Post Card Applications (FPCA)

22. MOVE Act (Sec 581): Expanding Use of Federal Absentee Write-in Ballot (FWAB): Effective Date: 12/30/2010

23. Federal Write-In Absentee Ballot (FWAB) – Section 581(a) and 582 States will be required to expands the use of the FWAB to include all special, primary, runoff and general elections for federal office - not just general elections; FVAP: Promote and adopt procedures to and expand use of FWAB; educational campaigns and legislative initiatives to expand use; UOCAVA: “back-up measure.” States are prohibited from refusing to accept FWAB due to notarization and paper/envelope type requirements; FVAP working on a FWAB wizard;

24. Federal Write-In Absentee Ballot (FWAB): Section 581 and 582 • FWAB Wizard will utilize technology that allows voters to enter their address and other relevant information to receive electronic list of all candidates for federal office – operational by end of 2010; • Print out ballot with correct instructions and the address of the election official; • Cooperation with state to receive information may be necessary to work.

25. Reporting and Storing of Certain Data (Section 584) • FVAP required to develop standards for reporting absentee ballots sent and returned; • FVAP will work “with the Election Assistance Commission (EAC) and the chief State Election officials from each State” to report data on number of absentee ballots transmitted and received; • “and [to report] other such data as Presidential designee determines appropriate”; • Anticipate some change with Election Day Survey (EDS): incorporate FVAP questions or data requests into the EAC Survey on expanded UOCAVA voters and ballot transmission;

26. MOVE: Sec. 588Requirements Payments for MOVE • Amends HAVA by authorizing the appropriation of “such sums as necessary” as requirements payments specifically for implementing MOVE; • States must amend their State plans to show how they will comply with MOVE Act; • States reporting to EAC/DOJ state of MOVE Act compliance • MOVE Act compliance priority in use of Req Payments.

27. MOVE Act (Section 589)Technology Pilot Program • FVAP may establish 1 or more pilots to test new election technologies for the benefit of absent UOCAVA voters – remote voting systems; • Transmission of voting material across military networks; • Use of virtual private networks and cryptology and other security techniques; • Use of computers overseas with certain encryption measures or a kiosk based system (utilization of voting stations at military bases); • Transmission of ballot representations and scanned pictures in secure manner; • Document delivery and upload systems • Balance between accessibility and security – Congress and FVAP accessibility; EAC = more security

28. MOVE Act: Effective Date for States All provisions apply before 2010 General Election; Exception: Expanded use of FWAB takes effect after 2010 General Election. Florida: All ready to go July 1, 2010 with exception of FWAB.

29. Implementing the MOVE Act:Election Administration • With the inclusion of absent stateside military & dependents under MOVE, anticipate an increased number of ballots being sent early by postal mail and by designated electronic transmission; • Technical modifications necessary to allow UOCAVA voters to request absentee ballot applications or registration application materials. • Via website, paper application, or other means and to allow designation preference of means of transmission;

31. UOCAVA Legal Developments • McCain v. Cunningham (Virginia SBE) • Delay of 8 counties in sending absentee ballots 30 days prior to Election Day; • Declaration of negatively impacted UOCAVA voter in Iraq; • DOJ intervened – United States v. Cunningham;

32. United States v. Cunningham (Virginia SBE) Additional Fact and Factors: • Some counties did not mail until within 14 days, impacting 125 voters; • 2,114 UOCAVA voters sent their ballots late; • MPS: In some remote locations, it takes 35 days one-way to reach service member – “the last mile”; • 30 days overseas ballot roundtrip not adequate

33. United States v. Cunningham (Virginia SBE) • United States requested: • Count the ballots received after Election Day of all UOCAVA voters that were sent a late absentee; • Permanent relief to ensure compliance with UOCAVA in future elections such that UOCAVA voters have “a fair and reasonable opportunity to participate in future elections for federal office.”

34. United States v. Cunningham (Virginia SBE): Court Ruled: • Virginia violated UOCAVA by failing to mail absentee ballots to UOCAVA voters at least 30 days prior to November 4, 2008 election; • Defendant violated UOCAVA by failing to give a reasonable opportunity to execute and return as validly cast a timely requested absentee ballots; • If even a single voter was deprived of that right solely as a result of the tardy mailing of absentee ballots, then Defendants have unquestionably violated UOCAVA;

35. U.S. v. Cunningham (Virginia SBE): Other interesting findings… More Court findings: • The Federal Write-In Ballot (FWAB) is not the exclusive remedy under UOCAVA – intended as emergency back-up rather than replacement for the regular ballot. • Local election officials not necessary parties; • The Court found it had the authority to count belatedly-received absentee ballots after Election Day – discussion of Supremacy Clause.

36. Conclusion • MOVE Act: • Most significant elections-related piece of legislation since HAVA; • Comprehensive Reform to UOCAVA; • Congress trying to provide an alternative means of transmission to avoid lengthy mailing times for registration, absentee materials, and blank ballots; Legislation essentially cuts the transit time in half.

37. Questions?