Friday, October 14, 2011

Gardner's Bluffing but It Has Nothing to Do with the MOVE Act

What is it with Friday and shallow hypotheses?

FHQ will not begrudge Hotline's Reid Wilson for pushing the conflict between the ever-earlier scheduling of presidential primaries and caucuses -- particularly New Hampshire and a December primary in this case -- and the mandates called for in the federal MOVE act. Here's Wilson:
That law, the Military and Overseas Voter Empowerment Act, significantly expanded a 1986 law known as the Uniformed and Overseas Citizens Absentee Voting Act. The MOVE Act requires state elections officials to send absentee ballots to qualified voters at least 45 days before an election; the goal is to ensure military personnel serving overseas and on Navy ships receive ballots with enough time to vote. 
So if Gardner prints ballots on October 31, he wouldn't be able to hold an election for at least 45 days, which is December 14. 
Hypothetically, if Gardner had an amazingly fast printer and a staff dedicated to getting every absentee ballot stamped and out the door in the hours between the end of the filing period and midnight, he could start the 45-day clock on October 28; the clock would then expire on December 12, so Gardner could hold the primary on December 13. But realistically, that's not going to happen.
That is an interesting argument, but as was the case with the early states fudging their rules/laws to schedule their primaries or caucuses, this one is guilty of not providing the proper context. Fine, let's say a voter does sue Gardner over a December primary MOVE/UOCAVA violation. How do those challenges work? What happened with past challenges to the new restrictions in the law?

As FHQ pointed out to a commenter who brought up this very same point the other day, this is an issue New Hampshire can most likely work around given the precedents set during the trial run waiver process the MOVE act triggered in 2010. Look particularly closely at the Hawaii and Wisconsin examples. Both Hawaii and Wisconsin held MOVE non-compliant primaries in September 2010. Both violated the 45 day buffer mandated by the law. And both struck different deals with the Department of Justice to ensure voters' rights were protected. In Hawaii that meant express mailing the ballots out to overseas voters. In Wisconsin the remedy was allow more time on the backend of the process to receive and count votes from those overseas. If that is all that is standing in the way of New Hampshire and a December primary, then the state can work around that.

FHQ is of the opinion that Gardner is bluffing too, but he is bluffing with little worry of the MOVE act.  As the one overseeing elections in the Granite state, the secretary is aware of the conflict and its implications.

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