LAW REVIEW 1061
What to Do When Your Absentee Ballot Is Late
By Captain Samuel F. Wright, JAGC, USN (Ret.)
I am on active duty in the United States Marine Corps and I am currently
serving in Afghanistan. I really want to
vote this year, but our mail service is slow and intermittent. I applied for my absentee ballot back in
June, but Election Day is rapidly approaching and I still don’t have my
absentee ballot in the mail from my local election official back home. What should I do?
and Overseas Citizens Absentee Voting Act (UOCAVA) provides for the Federal
Write-in Absentee Ballot (FWAB), which you can obtain from a Voting Assistance
Officer (VAO) in your military unit or at an American embassy or consulate or
on-line at www.fvap.gov (the FVAP website).
The paper FWAB that you receive from your unit’s VAO does not contain
the names of candidates, but the on-line version on the FVAP website does
contain names of candidates for the U.S. Senate and House of Representatives,
for many states.
The FWAB is
limited to federal offices (President, U.S. Senator, and U.S.
Representative). You mark the ballot by
writing in the name of your favored candidate or by expressing a party
preference for each federal office. Of
course, this year President is not on the ballot, and not every state has a
U.S. Senate seat on the ballot this year.
Some states have, by state law, expanded the use of the FWAB to include
state and local offices as well as federal offices. You write in the title of the office and the
name of your favored candidate, or you can vote for the nominee of your favored
party, even if you don’t know the nominee’s name. This information is available in the on-line
version of the FWAB, on the FVAP website.
This is a great reason to use the on-line version instead of the
traditional paper version.
mark and submit your FWAB in early October, if you do not have your regular
absentee ballot by then. If you receive
your regular ballot after having submitted your FWAB, you are permitted and
indeed encouraged to mark and return the regular ballot as well. Please include a note to the effect that you
have already submitted the FWAB. In that
situation, the local election official will count your regular ballot (if it
arrives on time) and set aside your completed FWAB. The FWAB is a pretty poor substitute for a
ballot, but it beats being completely disenfranchised.
accords the right to vote in federal elections to “absent uniformed services
voters” and “overseas voters.” An absent
uniformed services voter is a member of one of the U.S. uniformed services
(Army, Navy, Marine Corps, Air Force, Coast Guard, Public Health Service
commissioned corps, National Oceanic and Atmospheric Administration
commissioned corps, or Merchant Marine), in active service, or the voting age
family member of a member of the uniformed services. Uniformed services members and their
accompanying family members are eligible to vote under UOCAVA, regardless of
whether they are within or outside the United States. UOCAVA also gives U.S. citizens outside the
U.S. the right to vote by absentee ballot for federal offices.
qualify as an absent uniformed services voter, you are permitted to submit your
marked FWAB from within or outside the U.S.
If you are an overseas voter and not a uniformed services voter, your
FWAB will not be counted if it is mailed within the U.S. For example, SGT Joe Brown was wounded on
Sept. 18, 2010, which is the same day that his local election official back
home mailed his absentee ballot to his APO address in Afghanistan. SGT Brown was evacuated to an Air Force
hospital in Germany, and then to the Walter Reed Army Medical Center in
DC. The ballot is in Afghanistan, and
SGT Brown is in DC. By the time the
ballot catches up with him, Election Day likely will have passed. SGT Brown is permitted to use the FWAB to
vote. It would be unlawful for the local
election official to reject the ballot based on the DC postmark on the ballot
When you receive your
regular absentee ballot, you should immediately mark it and return it to your
local election official, even if Election
Day has passed. If you receive your
unmarked ballot in Nov. 2011, a year after the election, mark it and send it
back. Of course, absentee ballots that
late will not be opened, so send a separate
letter to your local election official, in a separate envelope, and say
that you applied for the ballot in June 2010 and received it in Nov. 2011. Copy your U.S. Senators, your U.S.
Representative, and your state senator and representative (in your state
capitol). Make the point that you wanted
to vote in 2010, for state and local offices as well as federal offices, but
your local election official, the United States Postal Service, and the
Military Postal Service Agency could not figure out a way to make it possible
for you to receive your ballot in time to vote.
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