LAW REVIEW 0950 (web only)
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7.0—Military Voting Rights

Military Voting Rights in Virginia

By Captain Samuel F. Wright, JAGC, USN (Ret.)

Q: I am a life member of ROA and I live in Virginia. For many years, I have followed with great interest your efforts to secure reforms in absentee voting laws and procedures, to facilitate absentee voting by the young men and women who serve in our nation’s armed forces. I have read that the Federal Government sued Virginia about disenfranchisement of military voters in the 2008 general election and that the lawsuit is still pending, and that Virginia has argued that it is under no obligation to mail absentee ballots sufficiently early that overseas military personnel will be able to return their marked ballots in time for counting. Please advise of the status of this case.

A: The lawsuit against the Virginia State Board of Elections (VSBE) concerning disenfranchisement of military and overseas voters in the 2008 general election is still ongoing. In a brief filed in the United States District Court for the Eastern District of Virginia in late September 2009, the VSBE made the following assertion: “There is no federal statute that requires States to mail absentee ballots to UOCAVA voters a minimum number of days before an election. The Complaint in Intervention is based entirely on a ‘determination’ by the Federal Voting Assistance Program of the Department of Defense that such ballots be mailed at least 30 days before an election, and a ‘recommendation’ that States allow 45 days for round-trip mailing of absentee ballots.”

The VSBE seems to be asserting that Virginia’s local election officials (LEOs) are under no obligation to ensure that military personnel and other overseas voters receive their absentee ballots in time to mark and return them in time to be counted. This is a most disturbing assertion.

As I explained in Law Review 23 (March 2001), the relevant federal statute is the Uniformed and Overseas Citizens Absentee Voting Act (UOCAVA). UOCAVA was enacted in 1986 and is codified in title 42, United States Code, sections 1973ff through 1973ff-6. This statute gives “absent uniformed services voters” and “overseas voters” the right to vote by absentee ballot in primary, general, special, and runoff elections for federal office (President, United States Senator, and United States Representative).

I invite the reader’s attention to www.roa.org/law_review. You will find more than 600 articles about military voting rights, reemployment rights, and other military-legal topics. You will find a detailed Subject Index, to facilitate finding articles about very specific topics. Category 7.0 is “military voting rights.”

It is true that UOCAVA does not mention a specific number of days of required ballot transit time, but it is not a huge leap to argue that if it takes 20 days for an unmarked absentee ballot to reach Sergeant Jones in Afghanistan, and it takes another 20 days for her marked ballot to make its way back to the LEO back home, and if the ballots are not printed and ready to mail until just 25 days before Election Day, Sergeant Jones has been effectively denied the right to vote, in violation of UOCAVA.

The United States Department of Justice (DOJ) has sued numerous states in recent years, concerning military and overseas voters being disenfranchised by late mailing of absentee ballots. The usual remedy sought and obtained has been a court-ordered extension of the deadline for the receipt of the absentee ballot mailed in by a UOCAVA voter outside the United States. In most instances, the states have readily agreed to this remedy because they don’t want their brave sons and daughters in the armed forces overseas to be disenfranchised.

Q: How much time do overseas military personnel need to receive, mark, and return their absentee ballots?

A: For many years, the Federal Voting Assistance Program has recommended that at least 45 days of round-trip ballot transmission time be provided, and has asserted that UOCAVA requires, as an enforceable statutory mandate, at least 30 days. More recently, the Director of the Military Postal Service Agency (MPSA) has stated that a minimum of 60 days needs to be provided.

For UOCAVA voters (like absentee voters generally), voting is a three-step process. First, the voter’s request for an absentee ballot must travel from the voter to the election official. Second, the unmarked ballot must travel from the election official to the voter. Finally, the voter’s marked ballot must travel back to the election official in the voter’s hometown. Each step can take weeks if “snail mail” must be used, but only seconds if secure electronic means are authorized. With only a few exceptions, the states have not authorized the use of electronic means for the transmission of absentee ballot requests and ballots. Absentee voting is still conducted in much the same way that it was conducted during World War II, by shipping pieces of paper across oceans and continents by snail mail.

The military voter is sometimes moving around in ways that cannot be predicted. Sergeant Jones was in Afghanistan when she requested her absentee ballot, and she requested that the ballot be sent to her APO (Army Post Office) address. The ballot was mailed on September 30. On October 1, she was wounded and transported to the Walter Reed Army Medical Center (WRAMC) in Washington, DC. The ballot is in Afghanistan, but she is in DC. By the time the unmarked ballot catches up with her, the deadline for receipt of her marked ballot will be past.

Two separate entities handle mail for military personnel. The United States Postal Service (USPS) delivers mail to all addresses within the United States, including military installations. The MPSA (administratively part of the Department of the Army) delivers mail to APO and FPO (Fleet Post Office) addresses outside the United States. In the Sergeant Jones scenario, the MPSA will return the ballot to New York City and turn it over to the USPS, for delivery within the United States.

Q: Why is it a problem for LEOs to mail absentee ballots 60 days before the election to voters who apply that early?

A: There is only one absentee ballot per voter, not one ballot for each office or question on the ballot. Until all questions about the names of candidates and the wording of ballot questions have been resolved, the LEO cannot print absentee ballots, much less mail them out. Late primaries, ballot access lawsuits, and other problems sometimes delay the mailing of absentee ballots until just a few days before Election Day.

Q: In the military, classified information is transmitted electronically every day by secure means. In business, billions of dollars change hands electronically every day, without loss. If electronic means are secure enough for huge sums of money and for our nation’s most important secrets, why is it not possible for the deployed servicemember to receive, mark, and return the absentee ballot by electronic means?

A: That is an excellent question. Neither Congress nor the state legislatures have enacted legislation authorizing the use of 21st Century technology in absentee voting for UOCAVA voters, because of fear that electronic systems might be susceptible to hacking or other criminal manipulation. If we cannot get authorization for the voter to return the marked ballot electronically, we at least need authorization for LEOs to transmit the unmarked ballot electronically. Transmitting the unmarked ballot is the most difficult step, because the voter (especially a military voter) is often moving around unpredictably. Getting the marked ballot back to the LEO is less problematic, because the county courthouse is not moving.

Q: Virginia is conducting a general election on Nov. 3, 2009 for the offices of Governor, Lieutenant Governor, and Attorney General, as well as the lower house of our state legislature and many local offices. How does UOCAVA apply to this election?

A: UOCAVA does not apply to the Nov. 2009 Virginia election because there is no federal office on the ballot. If absentee ballots are not timely mailed, there is no remedy in federal court for the resulting disenfranchisement.

Readers—please contact your LEO to stress the importance of timely mailing of absentee ballots, so that the brave young men and women serving in our armed forces will be able to cast ballots that really do get counted, no matter where the service of our country has taken them.

If you have questions, suggestions, or comments, please contact Captain Samuel F. Wright, JAGC, USN (Ret.) (Director of the Servicemembers’ Law Center) at swright@roa.org or 800-809-9448, ext. 730.

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