45 Means 45: Federal Court Says Alabama Runoffs Don't Comply with MOVE Act

[Image courtesy of bamahammer]

I’ve written a good bit over the years of states’ – especially New York’s – struggles to comply with the MOVE Act for military and overseas voters. This week, that struggle found its way to Alabama, where a federal appeals court ruled that the state’s runoff law does not comply with the MOVE Act. Courthouse News has more:

Alabama’s mandate that runoff elections be held 42 days after an inconclusive federal primary pre-empts the right of overseas military personnel to participate via absentee ballots, the 11th Circuit ruled.

“In our nation’s recent history, active military personnel and their families have faced severe difficulties exercising their fundamental right to vote,” said U.S. Circuit judge Stanley Marcus, writing for the three-judge panel.

“For affected service members, the decision to serve their country was the very act that frequently deprived them of a voice in selecting its government,” Marcus added.

To remedy the problem, Congress in 1986 passed the Uniformed and Overseas Citizens Absentee Voting Act, which provides that a state must send absentee voters a ballot 45 days before a federal election.

But under Alabama law, a federal runoff election, required if no candidate in the primary election receives a majority of votes, is set by statute at 42 days after the federal primary election.

This system will not allow overseas voters 45 days to receive and return their ballots, the federal government said.

The State had attempted to use another MOVE Act provision regarding reporting to sidestep the 45-day requirement:

In response, Alabama’s secretary of state pointed to another provision of the act that directs states to give overseas voters “sufficient time” to vote, and argued that each state should be allowed to determine how much time would be sufficient for overseas voters to turn in their ballots.

But the Atlanta-based appeals court rejected Alabama’s interpretation last week.

“When we look to the text of [the law], we find that it directs states only to ‘establish a written plan’ in preparation for runoff elections, and makes no claim that it abrogates the mandatory forty-five day transmission timeline,” Marcus wrote. “In light of the plain language of this substantive command — and Congress’s clear intent to prioritize the empowerment of military voters through clear and accessible absentee voting procedures — we conclude that [this provision] does not alter our interpretation.”

It’s not clear if the State will appeal to the Supreme Court, but if this ruling stands Alabama will need to consider what to do about its runoff law. The appeals court seemed somewhat sympathetic to Alabama’s desire to hold state and federal runoffs on the same day, but noted that such a decision was a policy matter best left to the legislative branch:

Alabama argued that if it pushes back its runoff elections further, it will face significant voter attrition and low voter turnout.

“This argument is based on the fact that Alabama, not surprisingly, holds state and federal elections on the same day to increase voter turnout. The problem for Alabama is that this court is not the proper forum in which to raise these arguments,” Marcus said.

In light of Congress’ clear intention, the court said it cannot make a ruling on Alabama’s policy considerations.

“Alabama may well be correct in its calculations regarding lost votes from ordinary voters as compared to gained UOCAVA votes. But Congress, not this court, must be the branch of government to address these issues,” the panel concluded.

This dispute could end up reshaping runoff laws across the South, unless the Supreme Court takes the case and decides a shorter MOVE Act ballot window is sufficient. Either way, it’s a big deal. Stay tuned!