LAW REVIEW 1062

Voting by Disabled Veterans Residing at VA Facilities

By Scott J. Rafferty, Esq.[1]

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

Several thousand severely disabled veterans reside long-term at health care and nursing home facilities operated by the United States Department of Veterans Affairs (DVA).  Some of these men and women are recent veterans of the wars in Iraq and Afghanistan, with severe disabilities resulting from combat wounds, and some are middle-aged or elderly veterans of the 1991 Gulf War, the Vietnam War, the Korean War, and World War II.  Because of long-standing DVA policies, many of these individuals are precluded from participating in elections, as voters.

Let’s take the hypothetical but realistic SGT Joe Smith, who was severely wounded in action in Iraq in 2007.  He lost both legs and his vision and was medically retired from the Army in 2009.  He was transferred to a DVA long-term care facility for further care and rehabilitation, and he is likely to remain there for many years.

At the time of the 2006 general election, Joe was on active duty in Iraq.  He received assistance from his unit’s Voting Assistance Officer (VAO), and he voted by absentee ballot sent to his home town in Wisconsin.  At the time of the 2008 general election, he was still on active duty and was a patient at the Walter Reed Army Medical Center.  Again, he voted by absentee ballot, sent to his home town, and he again received assistance from an Army VAO. 

While Joe was on active duty, his right to vote by absentee ballot was protected by a federal law called the Uniformed and Overseas Citizens Absentee Voting Act (UOCAVA), which is codified in title 42, United States Code, sections 1973ff through 1973ff-6.  Once he left active duty in 2009, he was no longer covered by UOCAVA, but of course he still has the right to vote as a United States citizen. 

Joe may need to change his voter registration from his home town to the county where the DVA facility is located.  Some states allow a person in this situation to maintain the voter registration at the prior address, but Joe still needs to change the mailing address that pertains to his voter registration.  The Help America Vote Act requires voter registrars to purge a voter from the registration list if he or she has failed to vote in two prior elections and has failed to respond to mailed election notices.  See 42 U.S.C. 15483(a).

Some states provide for permanent absentee ballots for elderly and disabled voters.  In such a situation, for each new election the election official sends the voter a new absentee ballot and this practice continues as long as those ballots are regularly voted.  We are concerned about this scenario--Joe’s absentee ballot being mailed to an address where he no longer lives.  We are concerned about the possibility that a subsequent or continuing resident at that address could unlawfully cast the ballot for Joe.  Of course, such a practice is unlawful, even if the person casting Joe’s ballot is a relative who believes that he or she is acting consistent with Joe’s intentions.  Voting is non-delegable.  Joe’s ballot must be cast by Joe, or not at all. 

We believe that it is very important that someone (probably the DVA) should assist the veteran moving into a DVA long-term facility to reregister to vote, or at least to change the mailing address that pertains to the voter registration.  Giving the veteran the opportunity to reregister or to change the mailing address in this situation is a necessary precaution to prevent unlawful proxy voting.  This action also gives the individual veteran the opportunity to decide whether and how to vote and who should provide any necessary assistance. 

If Joe is keeping his voter registration in the community where he lived before he moved into the DVA long-term facility, or if the polling place for the precinct that includes the DVA facility is not very close to the facility, Joe will need to vote by absentee ballot.  Because of his blindness, Joe will likely need assistance in applying for his absentee ballot and in marking and returning the ballot after it arrives by mail. 

To protect the secrecy of the ballot, many states have laws against assisting another individual in marking his or her ballot, but a blind or otherwise severely disabled person may be unable to mark the ballot without assistance.  The Voting Rights Act of 1965 gives the blind or disabled voter the right to choose any person (other than the voter’s employer or union official) to provide the necessary assistance.  See 42 U.S.C. 1973aa-6.  Under Article VI, Clause 2 of the United States Constitution (commonly called the “Supremacy Clause”), the blind voter’s right to assistance under federal law supersedes and overrides a state law that makes such assistance unlawful.  There is now available technology to enable a blind person to vote at a polling place without assistance and without compromising the secrecy of the ballot, but such technology is probably not available to the person who is voting by mail.

Some of the residents of DVA long-term facilities are unable to vote because they lack the mental capacity to make their own candidate choices, but most of the residents (including Joe) are capable of determining the candidates for whom they wish to vote.  Care needs to be exercised to prevent undue influence upon those veterans, but certainly the solution is not to disenfranchise those veterans who are perfectly capable of determining the candidates they wish to support but who need assistance in registering to vote and casting absentee ballots, because of serious physical disabilities. 

In treating and rehabilitating a severely disabled veteran like Joe, the goal should be to enable him to participate in community affairs to the maximum extent feasible.  Voting is the most fundamental way to participate in community affairs.  Assisting these veterans in registering to vote and in voting by absentee ballot should be considered part of their medical care.

The DVA does not have VAOs, like military units, but it has most reluctantly provided for some volunteers at DVA facilities to be certified to perform this function.  In September 2008, as voter registration deadlines were approaching, the DVA had certified only 173 medical volunteers for this function, and they registered only 350 veteran voters nationwide during the 2008 election cycle. 

The National Voter Registration Act (NVRA, sometimes colloquially referred to as “Motor Voter”), generally requires government agencies to provide voter registration forms and the opportunity to fill them out and turn them in to citizens who deal with those government agencies in the course of their regular business.  Since Congress enacted the NVRA in 1993, millions of Americans have registered to vote or updated their voter registrations while obtaining or renewing driver’s licenses (hence the “motor voter” appellation), applying for public assistance, or who receive health benefits from state government agencies.

Executive Order 12926 directs military recruiters to register voters—potential recruits as well as citizens who happen to be in shopping centers where recruiting stations are located and who find that a convenient way to register.  The NVRA does not require other federal agencies to register members of the public who are not beneficiaries.

For many years, the DVA has resisted performing this NVRA function.  The DVA contends that performing this function would detract from its mission of providing health care to veterans.  We find that the DVA estimates of the financial costs and inconvenience of performing NVRA functions are grossly exaggerated.  We want the DVA to perform NVRA functions in general, but especially for severely disabled veterans like Joe Smith who reside on DVA campuses and cannot easily leave because of their disabilities. 

Even if a DVA facility serves veterans who reside in multiple states and counties, all of those jurisdictions are required to accept the same federal form.  It only costs pennies to duplicate this form and to offer it to DVA beneficiaries, in the course of other business with the DVA.  Most veterans will refuse the form, either because they are not interested in voting or because they are already properly registered.  Unless the beneficiary is disabled, he or she can complete the voter registration form without assistance.

Joe Smith resides on a DVA campus to which public access (particularly for political events) may be severely limited.  Campaign and political party volunteers are usually not permitted to come on the campus to register voters, assist voters in applying for absentee ballots, or to proselytize for their favored candidates.  The DVA has even excluded state election officials (Secretaries of State) who wanted to come onto DVA facilities to register voters and assist voters with absentee voting.  If Joe Smith’s brother wants to bring forms onto the facility and to assist Joe in voting, the DVA would probably not try to prevent that, but it would prevent the brother from assisting other residents. 

Some states mail official information pamphlets to voters, with information about candidates and ballot questions.  Voter registration will ensure that the severely disabled veteran residing on the DVA campus will receive this information pamphlet.  The pamphlet is particularly important for a voter (like Joe Smith) who is unable to receive political information from campaign and political party proselytizers.

A solution must be found to enable severely disabled veterans residing in DVA facilities to register to vote and to enable them to apply for and cast absentee ballots.  Those who have sacrificed so much to protect our nation, and the rights we all enjoy, deserve above all others to exercise those rights in this election year.

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[1] A.B., Princeton University, 1976; J.D., Yale University, 1979; Ph.D., Oxford University, 1986.  Mr. Rafferty has acted as counsel in lawsuits to protect the voting rights of patients at DVA facilities.