Doug Chapin, a nationally prominent, independent elections analyst, writes at electionline.org that the common thread for Washington and the four other states that got a federal waiver was that all meet the test of providing at least 45 days for military and overseas voters to “receive, mark and return” their ballots.

Chapin writes:

“Less than 45 days meant no waiver.”

Washington and nine other states and territories requested waivers due to the short turnaround time between their late primaries and getting military and overseas ballots in the mail 45 days before the election.

In Washington’s case, some counties have feared they couldn’t meet a strict Sept. 18 deadline when the primary wasn’t certified until Sept. 7.  A numbers of counties do expect to meet the deadline, but others will have until Oct. 3, a full month before the election.  In any event, the alternative Washington plan that was approved by the Pentagon, the Department of Justice and the Federal Voting Assistance Program (FVAP) provides at least 51 days total transit time, from county election department out to the voter and back again.

Secretary of State Sam Reed, who says his office and the county elections community have long given high priority to serving our military and overseas voters, said Chapin’s comments underscore the point that seeking a waiver didn’t diminish the state’s commitment to soldiers and Washington voters who are abroad.

Reed, who has spent over 30 years in election administration, said:

“We exceed the new 45-day rule by allowing at least 51 days for military ballots to be received, marked and returned.  We will work with the Legislature and Governor and our county partners to expand the transit time.  Our goal is to be the most military-friendly elections community in the country.”

Chapin’s analysis says the reference in the new Military and Overseas Voter Empowerment Act (MOVE Act) to the 45-day rule is clear, but that it isn’t clear whether the timeclock is supposed to end on Election Day, or continue tolling as long as states  continue to accept properly cast military and overseas ballots after the election. Washington, for instance, takes those ballots for three weeks after Election Day, until the final certification deadline that is required by state law.

Chapin writes:

“Reading through the individual memos in support of the decisions, one simple decision rule shines through: states that gave UOCAVA (Uniformed and Overseas Citizens Absentee Voting Act adopted by Congress 24 years ago) voters at least 45 days to receive, mark and return their ballots got a waiver; less than 45 days meant no waiver. Consider the following:

•    Alaska – total time 36 days (21 before Election Day/15 after) – waiver denied
•    Colorado – 40 days (32/8) – waiver denied
•    District of Columbia – 39 days (29/10) – waiver denied
•    Delaware – 45 days (45/0) – waiver granted
•    Hawaii – 35 days (35/0) – waiver denied
•    New York – 45 days (32/13) – waiver granted
•    Rhode Island – 46 days (46/0) – waiver granted
•    U.S. Virgin Islands – 40 days (30/10) – waiver denied
•    Washington – 51 days (30/21) – waiver granted
•    Wisconsin – 39 days (29/10) – waiver denied

What this means going forward is that 45 days appears to be the bright line between compliance and non-compliance for this provision under the MOVE Act. What isn‘t clear yet is whether states will get credit for allowing timely UOCAVA ballots to arrive after Election Day – or if this is only allowance for states that sought waivers. The 45-day period for the 2010 general election starts on Saturday, September 18 – and it will be interesting to see whether and how DoD and FVAP treat non-waiver jurisdictions that do not have UOCAVA ballots and information delivered on or before that date.”