Will military ballot access impact key Congressional races?

Control of the House, and possibly the Senate, could come down to tough races in states like Wisconsin, Colorado, Washington, and Florida.  In close races, absentee and military ballots can play a large role in determining the winners.  However, some states may not get the ballots to military voters and their families in time to be counted despite the passage of legislation that require states to have a 45-day window on ballot delivery, as Fox News reported early today:

Sens. Russ Feingold of Wisconsin and Michael Bennet of Colorado are just two incumbents locked in tight re-election races in states where local officials have warned they will likely not be able to ship out generalelection ballots to overseas military voters by the Sept. 18 deadline.

Both Democrats’ race are listed as “toss-ups” by RealClearPolitics.com, and military ballots could make the difference.

But Wisconsin and Colorado are among 10 states where local officials say they may not be able to comply with Move Act provisions that call for ballots to be mailed out at least 45 days before the 2010 midterm election.

Fox News has identified four states — Wisconsin, Colorado, Maryland and Washington — where races may hinge on those absentee ballots and on whether their delivery works as intended on behalf of the fighting men and women abroad.

In a later development, the Department of Defense denied Move Act waivers to four states:

Four states, the District of Columbia and the U.S. Virgin Islands were denied requests on Friday to ignore a new federal law meant to protect the voting rights of deployed troops and other Americans overseas, while five states were granted the waiver.

Not getting the waiver calls into question how the affected states — Wisconsin, Hawaii, Alaska and Colorado — will comply with deadlines for counting all votes cast for the Nov. 2 election by members of the military and other Americans living overseas.

The specific issue for the states applying for waivers was their primary date.  Some of them simply moved the primary, including Minnesota and Vermont, from mid-September to mid-August in order to have ballots ready for the 45-day window. Maryland determined that the state could produce the ballots and send them out within the 45-day window without changing primary dates and withdrew its request for the waiver.  Colorado and Washington moved their primaries but kept their request for waivers.

Wisconsin refused to change dates, saying that they could comply either way, although they still asked for the waiver.  Massachusetts did the same, as did Delaware, New York, and Rhode Island.  It’s not clear how these latter states won the waiver while Wisconsin and the others got denials instead; all of them hold their primaries on the same day (September 14th).

It’s also unclear how the states will remediate the situation.  They can extend the time to accept the military ballots, and some have already done that, as Fox reports further.  Wisconsin and Colorado still will have less time than 45 days for military voters to return ballots even with the extension already planned.  One expert contacted by Fox suggested that the situation may not be a big problem, as states could deliver ballots by e-mail to the soldiers for printing and completing by hand.

How big of an impact might this have?  Sean Trende at RealClearPolitics reminds us of how close things got in previous elections:

“Russ Feingold’s election in 1998 was decided by fewer than 40,000 votes. This time around, our polls are showing him leading by one (percentage) point or maybe down by one point,” said Sean Trende of RealClearPolitics.com. “So there is a chance that the 15,000 or so overseas military ballots could be what decides that election, if it ends up within 1,000 votes, which is entirely possible.”

At this point, the Move Act seems a little toothless.  None of the reports indicates what kind of penalties states face for noncompliance.  The military voters are the only ones penalized, it seems, by a failure of states to prepare better for their elections and their men and women serving in the armed forces.