On April 25, the Department of Veterans Affairs (VA) issued Directive 2008-023, "Voting Assistance for VA Patients," allowing voter registration drives in VA hospitals, only to reverse itself on May 5 with Directive 2008-025. Without registration drives, it appears that each veteran will have to request support individually, placing the burden on veterans who are staying in hospitals, long-term care facilities, or nursing homes. Litigation on the issue is pending. Under the April directive, viewed as a positive response to pressure from voting rights advocates and Capitol Hill, all VA facility directors were to ensure "that the facility has a policy that addresses assistance to VA patients who seek to exercise their right to register and vote."

The May VA policy states, "It is VHA policy to assist patients who seek to exercise their right to register and vote; however, due to Hatch Act (Title 5 United States Code (U.S.C.) §§ 7321-7326) requirements and to avoid disruptions to facility operations, voter registration drives are not permitted."

A May 6 letter from Sens. John Kerry (D-MA) and Dianne Feinstein (D-CA) to Secretary of Veterans Affairs James B. Peake expressed skepticism about the VA rationale, saying, "The Office of Special Counsel has made clear that federal employees, even those who are considered to be in sensitive positions, may 'assist in voter registration drives.' It is also clear from numerous policy statements issued by the Office of Special Counsel that federal employees can participate in nonpartisan voter registration drives on federal property and on official time. Moreover, the veterans the VA should support are not subject to any restrictions under the Hatch Act — because they are not federal employees." The letter also said, "It appears to us that the Department took one step forward for our veterans and the right to vote by directing that assistance be provided with voter registration and with securing absentee ballots, but then took a large step back by prohibiting voter registration drives."

VA Has Opposed Voter Registration Drives for Months

The VA's latest rejection of voter registration drives follows months of determined opposition by the VA in response to calls for the agency to help veterans vote. Kerry and Feinstein had earlier requested that the VA be designated a "voter registration agency" under the National Voter Registration Act (NVRA) — also known as the "Motor Voter Act." The Act requires states to offer voter registration opportunities at all offices that provide public assistance, services to the disabled, and motor vehicle registration services.

VA Secretary Peake responded to the earlier appeal in an Apr. 8 letter, obtained by AlterNet's Steven Rosenfeld. Peake wrote, "The VA remains opposed to becoming a voter registration agency pursuant to the National Voter Registration Act, as this designation would divert substantial resources from our primary mission." In their May 6 letter, the senators responded by saying, "We would appreciate knowing the type of disruptions the VA envisions might occur during voter registration drives by nonpartisan organizations, such as the League of Women Voters or veterans' organizations, and why any potential disruption could not be addressed by less restrictive means."

California Secretary of State Takes Action

In a request similar to that made by Kerry and Feinstein, California Secretary of State Mary Bowen sent a letter to Peake on May 1, also requesting that the VA register as a "voter registration agency." In her letter, Bowen wrote, "Offering the opportunity to register — or re-register — is particularly important for veterans who change their address as a result of accepting federal benefits, such as entering a VA nursing home, emergency housing, or rehabilitative care center. My goal as Secretary of State is to provide voters with a simple and convenient registration process."

In a connected case, on June 12, the U.S. Court of Appeals for the Ninth Circuit will hear oral arguments in Preminger v. Nicholson. The case challenges the absence of a uniform published VA policy on voter registration, as well as the distribution of unpublished instructions that authorize staff to exercise discretion in allowing or prohibiting voter registration activities. This case follows a decision by the U.S. Court of Appeals for the Federal Circuit in August 2007 in Preminger v. Secretary of Veterans Affairs that permitted the VA to exclude voter registration by third-party groups in VA facilities.