As New Hampshire voters were casting ballots in their state’s September 14 primary, local and state election officers were anxiously preparing to tabulate and certify the results with greater urgency than usual. The pressure to confirm town and city results with all possible speed was a reaction to certain provisions of the Military and Overseas Voter Empowerment Act (MOVE Act) signed into law by President Obama in 2009. In particular, the Act requires states to be able to provide U.S. soldiers and citizens abroad with their respective absentee ballots “not later than 45 days” before an election. With this year’s general election set for November 2, New Hampshire Secretary of State William Gardner was left with a mere four day interval to affirm the primary results and furnish general election ballots in accord with the 45-day requirement.

According to New Hampshire’s Nashua Telegraph, their state’s compliance with the new provisions for overseas voters left town and city clerks working into the early morning hours of September 15, completing paperwork normally left for several days after the close of the polls. Unpopular delays in announcing this year’s primary results to the press and public were largely attributed to state officials’ added haste to complete all necessary clerical duties, as well as the complications of multiple tightly contested primary races.

The MOVE Act’s 45-day requirement was originally crafted as a response to fears that Americans serving in the armed forces—particularly those deployed on the frontlines of the Iraq and Afghanistan conflicts—would be deprived of the opportunity to vote in state and federal elections if ballots were not ready to be issued upon request starting 45 days previous to any election. Prior to the Act’s passage, NH Senator Judd Gregg had moved to amend the Act’s definitive requirement and exempt states with an exceptional record of receiving and counting their proportion of overseas absentee ballots. It is suggested that New Hampshire might have fallen within Senator Gregg’s proposed class, having received only 83 late and uncountable absentee ballots for the 2008 presidential election. Nonetheless, Senator Gregg’s proposal for systematic exemptions was defeated and omitted from the MOVE Act’s final language.

In spite of the difficulties that the 45-day requirement may have posed for New Hampshire’s election logistics, the state surely deserves plaudits for stepping up and making alterations in its normal procedures to effect forthright compliance. Indeed, while there is no blanket exemption for historically well-performing jurisdictions, the MOVE Act did allow individual states the opportunity to apply to the federal executive for a case-by-case waiver from the 45-day requirement under circumstances of “undue hardship”. Five states with September primaries received such a waiver for the 2010 election cycle, including two fellow New England states which also held their primaries on September 14, namely Massachusetts and Rhode Island.

Yet, in meeting the 45-day requirement, New Hampshire has escaped some of the more trenchant criticism falling on those states which opted for waivers instead of surmounting the difficulties of compliance. Political commentator Deroy Murdock recently penned one such editorial questioning the political motivations of the five states that did secure waivers, and decrying a double-standard in voter disenfranchisement. Specifically, he argued that the potential loss of military and overseas votes was being treated more frivolously than any other prospective discrimination against voting groups specially protected by federal and state election laws, such as racial minorities.

Whether credible or not, such criticisms will in no way be mollified by the Granite State’s irrefutable proof that four days from the close of a September primary is a satisfactory interval of time to ensure that ballots for American soldiers and overseas citizens are ready to be distributed on the mark of 45 days before an election.

James Bernens is a third-year student at William & Mary Law School.


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