LAW REVIEW 1093
Great Victory for Military Voting Rights
By Captain Samuel F. Wright, JAGC, USN
7.0—Military Voting Rights
Doe v. Walker, Case No.
RWT-10cv2646 (District of Maryland Oct. 29, 2010).
“It is axiomatic that a state
may not erect obstacles which deprive a group of citizens of the fundamental
right to vote absent sufficient justification.
Louisiana v. United States, 380
U.S. 145 (1965). This case requires the
Court to determine whether preliminary injunctive relief should be granted to
the Plaintiffs on their claim that the manner in which Maryland is conducting
absentee voting for state offices in the November 2, 2010 election deprives
absent uniformed services voters and overseas voters of their fundamental right
to vote. As explained below, the Court
concludes that it does, and, by separate order, a preliminary injunction will
This is the first paragraph
of the scholarly and eloquent decision of Judge Roger W. Titus of the United
States District Court for the District of Maryland. This is the case that I discussed in Law
Review 1064 (October 2010). I invite the
reader’s attention to www.roa.org/law_review. You will find
more than 750 articles about the Uniformed and Overseas Citizens Absentee
Voting Act (UOCAVA), the Servicemembers Civil Relief Act (SCRA), the Uniformed
Services Employment and Reemployment Rights Act (USERRA), 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
The Uniformed and Overseas
Citizens Absentee Voting Act (UOCAVA), a federal statute enacted in 1986 and
codified in title 42 of the United States Code, 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).
“Absent uniformed services voters” are members of the U.S. 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 who are absent, because of their service,
from their places of domicile, either within or outside the United States. Voting age family members of uniformed services
members also qualify as “absent uniformed services voters” when they are absent
from their places of domicile because they are accompanying service members
serving within or outside the United States.
“Overseas voters” are U.S. citizens of voting age who are outside the
United States temporarily or permanently.
UOCAVA is silent as to the
eligibility of military and overseas citizens to vote for non-federal offices,
like the Maryland Senate or House of Delegates, but virtually all military
personnel and family members and some overseas civilians are eligible under
state law to vote for all offices. A
person who is away from his or her place of domicile for temporary purposes
(even for many years) does not lose the domicile.
“For purposes of voting for
any Federal office … or a State or local
office, a person who is absent from a State in compliance with military or
naval orders shall not solely by reason of that absence—(1) be deemed to have
lost a residence or domicile in that State, without
regard to whether or not the person intends to return to that State; (2) be
deemed to have acquired a residence or domicile in any other State; or (3) be
deemed to have become a resident in or a resident of any other State.” 50 U.S.C. App. 595 (emphasis supplied). This provision is part of the SCRA.
In October 2009, Congress
enacted the Military and Overseas Voter Empowerment Act (MOVE Act), as part of
the National Defense Authorization Act for Fiscal Year 2010. The MOVE Act made several important and helpful
amendments to UOCAVA. As amended by the
MOVE Act, UOCAVA now explicitly requires each state to mail absentee ballots at
least 45 days before Election Day to UOCAVA voters, military and civilian. If a state is unable to meet the 45-day
requirement 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 of the 45-day rule. To
obtain the waiver, the state must show both an undue hardship and a
satisfactory alternative arrangement (satisfactory to SECDEF) that gives UOCAVA
voters sufficient time to receive, mark, and return their absentee ballots,
despite the state having missed the 45-day deadline.
The Maryland State Board of
Elections (MSBE) applied to SECDEF for a waiver on July 28, 2010, contending
that the primary scheduled for September 14, 2010 (just 49 days before the
general election) made it impossible for the state to meet the 45-day rule, because
it takes more than four days to certify the primary winners and print and mail
general election ballots. On August 25,
the MSBE wrote to SECDEF again and withdrew the July 28 waiver request. The MSBE promised to mail absentee ballots for federal offices only by Saturday,
September 18, and the MSBE met that deadline.
The ballots for all offices were not mailed until well into October.
The Military Voter Protection
filed this lawsuit in the United States District Court for the District of
Maryland, on behalf of John Doe, the pseudonym for a Maryland Army National
Guard officer serving on active duty in Iraq.
The MVPP contended that the constitutional right to vote of John Doe and
others similarly situated was violated by Maryland’s untimely mailing of
absentee ballots. Judge Titus agreed and
granted the requested relief.
Judge Titus ordered Maryland
to extend by ten days (beyond the ten days already provided by state law) the
deadline for the receipt of absentee ballots mailed in from outside the United
States, including APO and FPO addresses.
On Tuesday, November 23 (three weeks after Election Day), the county
boards of elections counted overseas ballots received between November 3 (the
day after Election Day) and November 22 (20 days after Election Day). These ballots were counted for all offices.
Maryland did not appeal. We will keep the readers informed of
developments on this important issue.
Eric Eversole, a Commander in the Navy Reserve Judge Advocate General’s Corps
and a member of ROA, is the Executive Director of the MVPP.
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