It sounds insane, but the McCain camp has filed a lawsuit in Virgina demanding that Virginia not certify election results until November 14. Virginia is a heavy military state, and McCain expects many veterans votes will go for him.
The lawsuit asks a federal judge to order the State Board of Elections to count any overseas absentee ballots sent by November 4 and received by local election officials as late as November 14.
The lawsuit claims that Virginia's absentee ballots were sent out later than the September 20 deadline mandated by federal law.
You may recall that in 2000, the 11th Circuit Court of Appeals in Florida ruled that military ballots received after the federal deadline or without a postmark had to be counted (with a little encouragement from Joe Liberman, no less):
A New York Times investigation earlier this year showed that 680 of the late- arriving ballots did not meet Florida's standards yet were still counted. The vast majority of those flawed ballots were accepted in counties that favored Mr. Bush, after an aggressive effort by Bush strategists to pressure officials to accept them.
A statistical analysis conducted for The Times determined that if all counties had followed state law in reviewing the absentee ballots, Mr. Gore would have picked up as many as 290 additional votes, enough to tip the election in Mr. Gore's favor in some of the situations studied in the statewide ballot review.
Rick Hasen, contacted by Talking Points Memo, questions whether the suite will be able to proceed. Hasen, a law professor at Loyola, writes:
I think there's a strong argument that because of the long delay the suit could well be barred by laches.
More fundamentally, the suit under UOCAVA may be barred for the same reason the Ohio mismatch case failed at the Supreme Court-- there's no private right of action: "42 USC Sec. 1973ff-4 Enforcement: The Attorney General may bring a civil action in an appropriate district court for such declaratory or injunctive relief as may be necessary to carry out this subchapter." The McCain campaign likely doesn't have standing to bring this suit; only DOJ does (and don't count them out!).
A hearing has been scheduled for 1:30 pm tomorrow, in front of the same judge who refused to extend voting hours in Virginia or other requests in the NAACP lawsuit against the state.
This isn't the first legal scuffle in Virginia over the military ballots:
Attorney General Bob McDonnell released a formal opinion today concluding that federal absentee ballots from overseas military voters lacking the printed name and address of a witness must be counted. The opinion affirms that federal law preempts state law, thus clarifying the state and federal statutes regarding the issue. The confusion centered over whether a state law requiring a witness’s printed name and address controls federal absentee ballots or the federal law governs this issue.
It is interesting that Republicans, so concerned with possible voter fraud and pushing tighter voting restrictions all over the US (particularly in swing states) want to relax the rules for military voters.
While the votes of military personnel are treated as though sacrosanct, it is possible that republicans could make a push to get those military personnel overseas who did not request or fill out absentee ballots to do so now and get them back to Virginia by November 14. Also, if they do not have to be postmarked and the witness' signatures no longer have to be legible or validated with an address, what is to stop families of military personnel from filling these ballots out on their serviceman or servicewoman's behalf and turning them in by the new deadline?
In other Virginia news, remember those fliers that were distributed in democratic-leaning areas with the official state of elections seal advising democrats to vote November 5? The Huffington Post reports that the culprit has been identified and the state board of elections secretary says it was a "joke that got out of control" and no charges will be filed.
Republicans are working their hardest to steal the election once again (Pennsylvania democrats have been getting robocalls telling them to vote Nov 5; Georgia voters--mostly democrats--are being told they cannot have provisional ballots if they dispute the fact that they are not on the rolls). Note that you never hear stories of flyers telling republicans to vote November 5 or democrats purging the rolls of republicans or democratic secretaries of state putting too few machines in republican areas.
It seems to me that those who tend to be the most suspicious of others are usually the ones who have the most to hide.