Washington -- Gov. David Paterson’s decision to call for a special election Nov. 3 in the 23rd Congressional District will likely disenfranchise thousands of military voters deployed overseas, a former top U.S. Justice Department official said Tuesday.
The short 35-day window before the election makes it impossible for overseas ballots to be printed, mailed and returned in time to be counted, said Hans A. von Spakovsky, who enforced the federal Voting Rights Act at the Justice Department.
“If I was still coordinating enforcement of that law, I would sue the state of New York tomorrow,” von Spakovsky said in an interview Tuesday night in Washington.
Von Spakovsky, noting that 7,000 soldiers from the 10th Mountain Division at Fort Drum are now deployed in Iraq and Afghanistan, said Paterson’s decision Tuesday essentially guarantees that overseas military votes will not be counted.
"I frankly don't understand why they think it would be a problem for them to set the date of the election 60 days from now," said von Spakovsky, who enforced the nation's voting laws from 2001 to 2005 at the Justice Department's Civil Rights Division.
A state official acknowledged Tuesday night that the Nov. 3 special election date poses a "potential problem" for military and overseas voters.
“First and foremost, the state board and the counties will do everything in their power to make sure every vote is counted and no military or overseas voter is disenfranchised,” said John Conklin, communications director for the state Board of Elections in Albany.
"We recognize there is a potential problem with military and overseas voters," Conklin said. "We are having an internal discussion on what the 11 counties in the 23rd Congressional District can do."
Conklin did not elaborate.
Asked Tuesday if the Justice Department was considering a lawsuit or other action against New York to preserve voter rights, spokesman Alejandro Miyar said the department would have no comment.
The Justice Department sued New York over the same issue earlier this year in the special election March 31 to fill Sen. Kirsten Gillibrand’s former House seat in the 20th Congressional District.
In that case, the eventual winner, Democratic Rep. Scott Murphy, had only a 25-vote lead over Republican Jim Tedisco after the polls closed. In the end, the vote came down to about 6,000 outstanding absentee ballots, including 1,005 sent to military voters.
The federal lawsuit was settled when New York agreed to extend the deadline for receipt of the overseas ballots from April 7 to April 13.
Von Spakovsky, whose tenure at the Justice Department was marked by accusations led by then-Sen. Barack Obama that he politicized oversight of voter laws, said the extension was inadequate.
The U.S. Election Assistance Commission recommended absentee ballots be mailed to military voters at least 45 days before they are due, von Spakovsky said. And the chief of operations at the Military Postal Service Agency recommended at least 60 days.
A study in May by the office of U.S. Sen. Charles Schumer found an average of 41 percent of military voters in Upstate New York – a total of 8,226 voters -- did not have their ballots counted in 2008.
Schumer drafted reform legislation in May that passed the U.S. Senate, and now awaits action in the House. His bipartisan bill mandates that states send absentee ballots out to military and absentee voters at least 45 days before the election.
Capt. Fredrick Harrell, a spokesman for the 10th Mountain Division at Fort Drum, said Tuesday night that every effort will be made to make sure soldiers who are registered voters in the district will be able to vote from overseas. He could not elaborate on specific plans.
Several early polls show a close three-way race to fill the vacant seat of Rep. John McHugh, R-Pierrepont Manor, in the 23rd Congressional District. McHugh resigned to become President Obama's secretary of the Army.
Republican State Assemblywoman Dede Scozzafava, R-Gouverneur, is opposed by two political newcomers -- Democrat Bill Owens, a Plattsburgh lawyer; and Conservative Doug Hoffman, a Lake Placid accountant.
The national political parties in Washington, D.C., are investing heavily in the race, which will be the only open congressional seat in the nation this fall.
Washington correspondent Mark Weiner can be reached at mweiner@syracuse.com or 571-970-3751.