MADISON, Wis. – Four states, the District of Columbia and the U.S. Virgin Islands were denied requests on Friday to ignore a new federal law meant to protect the voting rights of deployed troops and other Americans overseas, while five states were granted the waiver.
Not getting the waiver calls into question how the affected states — Wisconsin, Hawaii, Alaska and Colorado — will comply with deadlines for counting all votes cast for the Nov. 2 election by members of the military and other Americans living overseas.
The Defense Department granted Delaware, New York, Massachusetts, Rhode Island, and Washington the waivers.
States that won waivers provided "thorough and comprehensive plans to protect the voting opportunities for military and overseas voters," Bob Carey, director of the Federal Voting Assistance Program, said in a statement.
The U.S. Department of Justice said it was working with those denied to bring them into compliance. The department said it will file lawsuits against any state that doesn't voluntarily comply.
"Now that we've been denied, we have to do the best we can and get service members their ballots," said Colorado state Rep. Joe Rice, a colonel in the Army Reserve who served in Iraq and said the Army lost his ballot in 2003.
The Wisconsin board that regulates elections issued a statement saying it was committed to ensuring all military and overseas voters fully participate in elections and will begin working immediately with the DOJ to work out what steps to take next.
Wisconsin election director Kevin Kennedy said before the decision was handed down that a denial would not change how the state holds its Sept. 14 primary. Under the new federal law, ballots to members of the military and others living overseas have to be sent 45 days before the Nov. 2 election.
Wisconsin and other states with August and September primaries sought the waiver saying they don't have enough time to formalize the ballot and get it sent to those voters by the Sept. 18 deadline.
Minnesota and Vermont responded to the law by moving their Sept. 14 primaries back to August. Maryland initially asked for a waiver for its Sept. 14 primary, but then determined it could get the ballots to military and overseas voters before the election.
The head of a nonprofit group that advocates for military and overseas voters said the 45-day requirement under the law isn't that big of an issue because all states can e-mail ballots to voter.
The 45-day requirement was the worst-case scenario for how long it would take a ballot to be sent and returned by mail, said Susan Dzieduszycka-Suinat, president and of the Overseas Vote Foundation.
Of those that requested a waiver, three have already had their primaries — Colorado on Aug. 10, Washington on Aug. 17 and Alaska on Aug. 24. Six of them are on Sept. 14 — Delaware, New York, Massachusetts, Rhode Island, Wisconsin and Washington, D.C. The Virgin Islands' primary is Sept. 11 and Hawaii's is Sept. 18.
In response to the Defense Department's denial, Hawaii election officials have said the state may agree to count troops' ballots after the Nov. 2 general election, which would delay final election results.
Advocates who pushed for the Military and Overseas Voter Act said more time is needed to send ballots overseas and get them returned and counted on time. The potential delays and problems are most extreme for members of the military as the mail gets sent from port to port, base to base.
Last year the Pew Center on the States identified problems with the turnaround of military and overseas ballots in 25 states. The report found that it took states anywhere from 21 to 60 days before an election to mail ballots to overseas voters and sometimes they didn't come back until it was too late to be counted.
Carey, the director of the Federal Voting Assistance Program, said shortly after the law passed in October that it would affect 1.4 million military members and their 400,000 voting-age dependents. Many more American civilians living overseas are also affected.
In Wisconsin, which has a 10-day post-election grace period and extends other options to military voters, there has been little appetite for holding the primary earlier than the traditional September time.
Wisconsin's final general election ballot is available to overseas voters between 29 and 39 days before the election, which is not enough time to ensure all ballots will be returned in time to be counted, the Department of Defense said in its denial letter to the state.
In the 2008 general election, of the roughly 10,000 ballots sent to members of the military and overseas voters claiming Wisconsin as their home state, 28 percent were not returned. Of that ones that were, only 4 percent were not counted because of errors.
The three major candidates for governor in Wisconsin, Democrat Tom Barrett and Republicans Scott Walker and Mark Neumann, all said the state should move its primary election to earlier in the year. There were also calls for that in Colorado, which had its primary on Aug. 10.
Wisconsin Republican Party spokesman Andrew Welhouse said the state needs to do everything possible to ensure all of the votes are counted.
"I understand that they're saying the tight timeline between the primary and the general election makes that tough, but again, we're talking about the people serving overseas, away from their families, keeping us safe," Welhouse said. "Why wouldn't the government — at every level — do everything they can to help them vote?"
Associated Press writers Pete Yost in Washington, D.C.; Steven K. Paulson in Denver; and Mark Niesse in Honolulu contributed to this report.