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LAW REVIEW 1072
Military Absentee Voting in Maryland
By Captain Samuel F. Wright, JAGC, USN
(Ret.)
7.0—Military Voting Rights
Q: I am an
active duty Soldier, currently serving in Afghanistan. My home is in Maryland, and my mother is
running for the Maryland House of Delegates this year. I applied for my absentee ballot back in
March. I have received an absentee
ballot, but it only gave me the opportunity to vote for the United States
Senate and the United States House of Representatives. I have already marked that ballot and put it
in the return mail. Can I expect to
receive a separate ballot for all the non-federal offices?
I am paying Maryland state income tax, through
withholding from my Army salary. I want
to vote for Governor, other statewide offices, the Maryland Senate and House of
Delegates and for county offices listed on the ballot this year. Of course, I am especially interested in
casting a ballot for my mother. Am I
eligible to vote by absentee ballot for non-federal offices?
A: Yes. Because
you are domiciled in Maryland (as shown by the fact that you are paying
Maryland state income tax), you are eligible to vote by absentee ballot for all
offices. You will be receiving a new
ballot that includes all offices, including both federal and non-federal
offices. You should mark that ballot and
put it in the mail as soon as you receive it.
I sincerely hope that you will receive the ballot in time to send it
back to be counted, especially for your mother.
Q: Is my
eligibility to vote governed by federal law or by state law?
A: Both. The
federal law that applies here is the Uniformed and Overseas Citizens Absentee
Voting Act (UOCAVA), enacted by Congress in 1986 and amended several times,
most recently in 2009. UOCAVA is
codified in title 42, United States Code, sections 1973ff through 1973ff-6.
UOCAVA 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, U.S. Senator, and U.S. Representative). UOCAVA is silent as to the eligibility of these
folks to vote in non-federal elections, like the election for the Maryland
House of Delegates.
An “absent uniformed services
voter” is a member of one of the seven uniformed services (Army, Navy, Marine
Corps, Air Force, Coast Guard, Public Health Service commissioned corps, and
National Oceanic and Atmospheric Administration commissioned corps) in active
service, or the voting-age family member of such a service member. The service member or family member must be
absent from the place where he or she is domiciled and is eligible to vote, because
of uniformed service of the service member or of the spouse or parent of the
family member. The absent uniformed
services voter can be either within or outside the United States. An “overseas voter” is a U.S. citizen who is
outside the U.S., temporarily or permanently.
Q: Why am I
receiving two absentee ballots this year?
A: As recently amended (2009), UOCAVA now explicitly
requires each state to mail absentee ballots to UOCAVA voters (military and
civilian) by the 45th day before the election. If a state is unable to make that 45-day
deadline, because of an undue hardship caused by something like a late primary,
the state can apply to the Secretary of Defense (SECDEF) for a one-time waiver.
To get the waiver, the state
must show both an undue hardship caused by something like a late primary that
precludes mailing ballots by the 45th day before Election Day and a
satisfactory alternative plan (satisfactory to SECDEF) to ensure that UOCAVA
voters have sufficient time to receive, mark, and return their ballots in time
to be counted, despite the state having missed the 45-day deadline. On July 28, 2010, the Maryland State Board of Elections (MSBE) applied
for a waiver, contending that mailing ballots 45 days before Election Day was
impossible because the Maryland primary was scheduled to be held (and was held)
just 49 days before Election Day, and it takes a lot more than four days to
certify the primary winners and print and mail general election ballots.
On August 25, 2010, the MSBE sent SECDEF a new letter, withdrawing the
waiver request. In that letter, the MSBE
promised to send out ballots for federal offices only by Saturday, September
18, the 45th day before the election. You can find Maryland’s waiver request and
waiver request withdrawal at www.fvap.gov. This is the website of the Federal Voting
Assistance Program (FVAP), in the Department of Defense. The MSBE did in fact mail out ballots on
September 18, but those ballots only listed federal offices.
Q: When can I
expect to receive my regular absentee ballot?
A: Maryland’s counties will likely be mailing out the
regular ballots sometime between October 12 (21 days before Election Day) and
October 18 (15 days before Election Day).
Q: When do I
need to mark my ballot and put it in the return mail? And when must my marked ballot be received?
A: The regulations adopted by the MSBE provide as
follows:
.08 When Ballots Are Timely.
A.
United States.
(1)
“United States”
means the several states, the District of Columbia, the Commonwealth of Puerto
Rico, and the Virgin Islands.
(2)
“United States”
does not include American Samoa, the Canal Zone, Guam, the Trust Territory of
the Pacific Islands, any other territory or possession of the United States, an
Army Post Office address, or a Fleet Post Office address.
B. In General:
An absentee ballot is considered to have been timely received only if:
(1)
The ballot is
received by the local board office before the polls close on election day; or
(2)
The ballot:
(a) Is received by
the local board office from the United States Postal Service or a private mail
carrier:
(i) On or before 10
a.m. on the second Wednesday after a primary election preceding a gubernatorial
election; or
(ii) On or before 10
a.m. on the second Friday after a general or special election or in a primary
election preceding a presidential election; and
(b)
Was mailed on or
before election day, as verified:
(i) By a postmark of
the United States Postal Service, an Army Post Office, a Fleet Post Office, or
the postal service of any other country; or
(ii) By the voter’s
affidavit that the ballot was completed and mailed on or before election day,
if the return envelope does not contain a postmark or the postmark is
illegible.
(C) Untimely
Ballots: A ballot that is not timely
received as provided in this regulation
may not be counted.
Code of Maryland Regulations,
Section 33.11.03.08.
Q: Does my
ballot need to be postmarked by the day BEFORE Election Day? Or is it sufficient that it be postmarked ON
Election Day? I have seen it both ways,
and this is very confusing.
A: This question used to be addressed by statute in
Maryland, and when it was addressed by statute the rule was that the ballot had
to be postmarked by the day before Election
Day. Some years ago, the Legislature
repealed that statutory section and delegated to the MSBE rulemaking authority
to address questions of when absentee ballots must be postmarked and when they
must be received. The pertinent
administrative regulation is quoted above, in its entirety. Now, the rule is that the ballot must be
postmarked on or before Election Day.
Q: My county is
so late in mailing ballots, and my mail service here in Afghanistan is so slow,
that I probably won’t even receive my ballot by Election Day, much less will I
have time to return it. If my ballot
does not count for my mother, I am going to be very upset, especially if she
loses by just one vote. What gives?
A: The Military Voter Protection Project (MVPP) has filed
suit against Maryland, on behalf of John Doe, the pseudonym for a Maryland Army
National Guard officer on active duty in Iraq.
The suit contends that the way that Maryland is handling military
absentee voting this year is illegal and unconstitutional. I invite your attention to my Law Review
1064, titled “Suit Filed to Protect Military Voting Rights in Maryland.” Go to www.roa.org/law_review. You will find
more than 750 articles about UOCAVA, the Uniformed Services Employment and
Reemployment Rights Act (USERRA), the Servicemembers Civil Relief Act (SCRA),
and other laws that are particularly pertinent to those who serve our nation in
uniform. You will also find a detailed
Subject Index and a search function, to facilitate finding articles about very
specific topics.
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