Disenfranchising Our Wounded Warriors

We now help our active duty troops register to vote, why don't we help our wounded warriors? Yesterday I received an email from Attorney Scott Rafferty about a client of his who wants to help veterans institutionalized on VA campuses have the opportunity to register to vote.

Wounded veterans shouldn't have to rely upon outside help to register to vote. The VA would be the best choice to help its own clients register to vote. Not only does the Veterans Administration fail to assist our wounded and also homeless veterans in registering to vote, but "During the 2004 and 2008 campaigns, the VA banned both individuals, party organizations, 501(c)(3)s and even the SoS of Connecticut herself from entering VA campuses for the purpose of individually registering voters."

As a federal agency, the Veterans Administration falls under the "Motor Voter Act" and should offer voter registration assistance to its clients. The executive order implementing motor voter requires federal agencies to accept designation by state's top election official to perform motor voter registration duties. But loopholes exist that can allow the VA to refuse to help register voters.

Why doesn't the VA help veterans register to vote? It is purely a policy decision - there is no law to prohibit assisting our veterans in voting. Who can right this wrong? Eric K. Shinseki, The Secretary of Veterans Affairs could immediately order the Veterans Administration to act as a voter registration agency.

The United States government policy has been to disenfranchise our active duty military and veterans. Only this past December 2009 did the Department of Defense agree to act as a voter registration agency and assist our military personnel in registering to vote, updating their registration and casting a ballot.
[ NY Times: "All Military Installations to Aid in Voter Registration" Dec 18, 2010
http://www.nytimes.com/2009/12/18/us/politics/18vote.html?_r=1 ]

Who can right this wrong? Eric K. Shinseki, The Secretary of Veterans Affairs could order the Veterans Administration to act as a voter registration agency.

Please see below Attorney Rafferty's email which brought the issue to my attention:

From: Scott Rafferty
Date: 12 April 2010
Subject: Helping Wounded Warriors Register to Vote

We had an opportunity to work together during the Kerry for President campaign. On behalf of my client, Santa Clara County Democratic Chair, Steve Preminger, I am asking for advice on how we can resolve a piece of unfinished business - getting homeless and institutionalized veterans the opportunity to register. The matter raises important issues for veterans rights, voter registration, and administrative law. But italso raises a policy issue - why do the Civil Division and the United States Attorney continue to defend a former administration policy that Senator Obama called "shameful" and introduced (with Senators Kerry and Feinstein) legislation to overturn? My client would be grateful for any assistance in obtaining policy review by the new Administration. And I would be grateful for legal guidance that any of you may be able to volunteer.

In 2007, after three years of litigation over a 2004 incident in Menlo Park, Steve filed a rulemaking petition seeking some solution that would comprehensively register veterans who live on VA campuses. In the middle of the 2008 campaign, the VA circumvented an adverse Federal Circuit decision (and notice-and-comment procedures) by issuing a "directive" that allowed 1400 facility heads to restrict voter registration according to their own local policies, none of which has been published. According to the VA, this directive resulted in the registration of 350 veterans nationwide in 2008, since only 176 volunteers had been "authorized" nationwide. Former VA Secretary Peake waited until 5 days before the election before denying it, stating that the unpublished directive was adequate.

During the 2004 and 2008 campaigns, the VA banned both individuals, party organizations, 501(c)(3)s and even the SoS of Connecticut herself from entering VA campuses for the purpose of individually registering voters. Additionally, the VA provides no affirmative voter registration services, and most of these wounded warriors do not get motor-voter aid from DMVs or state health and welfare agencies. The Kerry Obama bill to extend motor-voter passed the House by voice vote, but did not come to a vote in the Senate.

This basis for these restrictions was originally a Nixon-era rule that provides six months in jail for conducting an "authorized demonstration." The VA interprets this to include any private political conversation, even voter registration. After four years of litigation, Judge Fogel dismissed the "as applied" case because the Federal Circuit held the rule was "facially" constitutional. The Federal Circuit decision later recognized a Circuit conflict on unfettered discretion in non-public forums and granted rehearing.
On rehearing, the Federal Circuit held, as a matter of regulatory interpretation, that this particular rule cannot be used as a prior restraint to censor any subject matter or to discriminate based on party affiliation. In the Ninth Circuit, Preminger prevailed on standing. However, without briefing or reference to the intervening Federal Circuit decision, the Court "affirmed on the merits" the district court judgment, which had not addressed the injunctive claim. On rehearing, the Ninth Circuit amended this decision to acknowledge that it was limited to the single incident, which had given rise to a damage claim. Judge Fogel acknowledges that the issue of injunctive relief is unadjudicated and has indicated that he would entertain a Rule 60(b) motion.

The Federal Circuit heard argument last Thursday for more than an hour. The Civil Division took the position that the Federal Circuit could neither review the directive, nor require a rulemaking, but could only send Preminger's petition back for more reasons to be stated for its denial. "There is no end to this," Chief Judge Michel observed. The Rule 60(b) motion was filed Friday before Judge Fogel, with
hearing sought before the May 2010 registration deadline.

Again, my client and I would be grateful for your help reversing this "shameful" policy and guaranteeing our wounded warriors an opportunity to register.

Scott Rafferty
4730 Massachusetts Avenue, NW
Washington DC 20016
mobile 202-380-5525