LAW REVIEW 1142
Where Do Military Personnel and Family
By Captain Samuel F. Wright, JAGC, USN
4.5—Protection from State/Local Tax Authorities
7.0—Military Voting Rights
Where do military personnel
vote? And where do military spouses and
children of voting age vote? The chart
below shows these figures, for each state, as of September 2010. For each state, the first figure is the
number of active duty service members who are eligible to vote (usually but not
always by absentee ballot) in that state, and the second number is the number
of voting-age military family members who are eligible to vote in the
state. These figures come from the
Department of Defense (DOD) and are accurate and reliable.
The Director of the Federal
Voting Assistance Program (in DOD) has informed me that of those military
personnel who vote, 2/3 do so by absentee ballot, and the other 1/3 vote in
person on Election Day or during the early voting period in the days leading up
to Election Day. Among military family
members who vote, a clear majority vote in person.
Domicile of the
Joe Smith graduated from high
school in Florida and joined the Army.
His domicile (legal residence) for important legal purposes (including
voting and state income tax liability) is the place where he lived and was domiciled before he entered active duty by
enlisting, shortly after he graduated from high school in 1999. That place is called his domicile of origin and he can retain it for the entire time he is
on active duty, even 20 years or more.
Joe’s domicile of origin is
the place where he lived and was
domiciled in 1999, when he graduated from high school and shortly thereafter
enlisted in the Army. Let us assume that
Joe’s domicile of origin is the place where he lived with his parents since
early childhood, and where he was still living when he entered active duty in
1999. Since he has already been on
active duty for 12 years, it is entirely possible that his parents have since
moved away or died. Joe’s domicile is
not controlled by the current domicile of his parents. Joe’s domicile is that childhood home in
Florida, although his mother now lives and votes in California and his father
Local election officials—do
not assume that the address that Joe lists as his “permanent residence address”
on his Federal Post Card Application (FPCA) will be an address where he can
currently receive mail or where relatives of Joe currently reside. Since Joe has been on active duty for 12
years already, and remains on active duty, it is entirely possible that the
house at that address has been through two different owners or occupants in the
years since Joe enlisted in 1999. The
fact that Joe has no relatives at the address and cannot receive mail at the
address does not detract from the fact that the 1999 address remains Joe’s
domicile until he establishes a new domicile elsewhere or until he leaves
active duty, whichever comes first.
While he serves on active
duty, likely for an entire career, Joe will have many duty stations, both
within and outside our country. While he
is physically located at a duty station within the United States for a significant
time (not a two-week temporary additional duty stint), Joe can establish a new domicile of choice at that place. Establishing a new domicile requires simultaneously a physical presence at
the new place for a significant time and the intent to make that place home.
Neither intent alone nor physical presence or absence alone can create a
new domicile or destroy a preexisting domicile.
Joe’s domicile of origin is
in a state (Florida) with a very favorable tax policy (no state income
tax). Accordingly, Joe will likely retain
his domicile of origin in Florida until he retires from the Army, perhaps as
late as 2029 (30 years after he entered active duty).
Under the Servicemembers
Civil Relief Act (SCRA), a federal statute enacted in 2003 to replace the
Soldiers’ and Sailors’ Civil Relief Act, which goes back to 1917, Joe is not
required to pay state income tax to a state (let’s say Virginia) where he physically resides but is not domiciled,
and Joe does not become a Virginia domiciliary just because he rents an
apartment or buys a house in Virginia.
If Joe is assigned to duty at Fort Belvoir, he will need to make housing
arrangements somewhere near his Army assignment. The SCRA also precludes Virginia (and the
county) from imposing a personal property tax on Joe’s vehicle, so long as the
vehicle is titled in Joe’s name and Joe remains on active duty and domiciled
Mary Jones graduated from
high school in Vermont in 2009 and joined the Navy. After training, she is assigned to duty at
Naval Air Station Corpus Christi, in Texas.
Like Florida, Texas has a very favorable tax policy (no state income
tax). While stationed at NAS Corpus
Christi for a three-year period, Mary establishes her domicile in Nueces
County, Texas. She notifies the Navy
that she is now domiciled in Texas, not Vermont, and she registers to vote in
Nueces County. The Navy stops
withholding Vermont state income tax from Mary’s salary.
Like Joe, Mary is a career
active duty service member. She remains
on active duty until 2039, when she retires as a Master Chief Petty
Officer. During her long career, she
serves at many duty stations, within and outside our country. Having established a bona fide domicile in Texas, Mary is entitled to maintain that
domicile for the remainder of her long military career. The SCRA protects her from having to pay
state income tax and personal property tax to states where she serves on active
duty but is not domiciled.
military family members
Alice Williams was born in
California in 1980. In 2005, she met Joe
Smith, then serving on active duty in California, and they married in
2006. Alice has lived in California for
her entire life to that point. Marrying
a Floridian does not make her a Floridian.
Moreover, the SCRA does not protect Alice from having to pay state
income tax to the state where she physically resides, regardless of whether she
votes there, or votes somewhere else, or does not vote at all.
After marrying Joe in 2006,
Alice moves in with him in an apartment near the military base where he is
stationed, and she changes her voter registration to that address. Joe votes in Florida by absentee ballot, while
Alice votes in person on Election Day, at the polling place near the apartment
they share. It may seem anomalous for a
married couple to live together in the same house or apartment or military
quarters but be domiciled in different states, but that result is entirely
possible and indeed common when one or both are on active duty in the armed
Remember that many (maybe
most) of the military family members eligible to vote in a particular state
have no relation with the active duty service members who are eligible to vote
in that state. In ten states (Colorado,
Georgia, Hawaii, Kansas, Kentucky, Maryland, North Carolina, Oklahoma, and
Virginia) and the District of Columbia, the number of military family members
eligible to vote is greater (sometimes substantially greater) than the number
of service members eligible to vote there.
For example, in Virginia there are 35,785 active duty service members
and 90,466 military family members eligible to vote.
In 2009, Congress enacted the
Military Spouses Residency Relief Act (MSRRA), which supposedly makes it
possible for military spouses to enjoy some of the same benefits that active
duty service members enjoy, with respect to the determination of domicile for
taxation and voting purposes. As I
explained in Law Review 0959 (available at www.roa.org/law_review), the MSRRA is poorly drafted and does not accomplish
its advertised purpose for most military spouses.
Don’t forget the
Military voters are
distinctly overrepresented in states (like Texas and Florida) that have major
military installations and favorable tax policies, but every state and every
congressional district has military voters.
If you are the local election official, it is your duty to ensure that these
folks have a reasonable opportunity to cast ballots that really do get counted,
no matter where the service of our country has taken them. You have the same obligation, regardless of
whether you have one military voter or 100,000 military voters in your
Candidates and political
party organizations—don’t forget military personnel and family members as
voters. Remember that military absentee
voters probably do not receive many of the political messages that other voters
take for granted during the weeks leading up to Election Day. They may be hundreds or thousands of miles
away from the places where they vote by absentee ballot. They do not have the opportunity to watch
local television or listen to local radio or read local newspapers for the
communities where they vote. They are
not visited by precinct captains, and they do not receive “get out the vote”
calls from political phone banks. They
receive little if any political direct mail, unless you take it upon yourselves
to reach out to them by mail or e-mail.
But they do vote, for state and local offices as well as federal
offices, and they care deeply about the issues and outcome of the
There are ways to communicate
with these military voters, including those who are serving in places like
Afghanistan and Iraq, or on ships at sea.
Contact me for more information.
800-809-9448, extension 730 or SWright@roa.org.
are the numbers.
Alabama: 20,057 service members and 14,471 military family
Alaska: 36,430 service members and 14,717 military family
Arizona: 27,669 service members and 17,372 military family
Arkansas: 11,130 service members and 5,544 military family
California: 131,586 service members and 100,577 military family
Colorado: 19,615 service members and 28,252 military family
Connecticut: 8,764 service members and 4,392 military family
Delaware: 3,108 service members and 2,747 military family
District of Columbia:
822 service members and 1,821
military family members.
Florida: 187,290 service members and 54,155 military family
Georgia: 40,639 service members and 48,287 military family
Hawaii: 5,580 service members and 29,653 military family
Idaho: 8,946 service members and 3,562 military family
Illinois: 54,318 service members and 11,903 military family
Indiana: 20,282 service members and 3,871 military family
Iowa: 9,081 service members and 1,514 military family
Kansas: 11,224 service members and 17,430 military family
Kentucky: 12,243 service members and 17,135 military family
Louisiana: 17,005 service members and 14,024 military family
Maine: 5,250 service members and 1,837 military family
Maryland: 17,357 service members and 23,232 military family
Massachusetts: 12,222 service members and 3,899 military family
Michigan: 44,574 service members and 5,419 military family
Minnesota: 14,660 service members and 1,763 military family
Mississippi: 11,371 service members and 8,529 military family
Missouri: 26,332 service members and 11,949 military family
Montana: 8,501 service members and 2,510 military family
Nebraska: 7,031 service members and 5,531 military family
Nevada: 16,737 service members and 8,844 military family
New Hampshire: 8,032 service members and 1,035 military family
New Jersey: 22,276 service members and 7,006 military family
New Mexico: 9,285 service members and 8,900 military family
New York: 58,798 service members and 20,508 military family
34,847 service members and 73,901
military family members.
North Dakota: 3,006 service members and 4,083 military family
Ohio: 43,357 service members and 10,605 military family
Oklahoma: 15,538 service members and 16,744 military family
Oregon: 18,708 service members and 2,780 military family
Pennsylvania: 51,503 service members and 7,030 military family
Rhode Island: 2,590 service members and 1,940 military family
20,648 service members and
20,180 military family members.
South Dakota: 7,701 service members and 2,538 military family
Tennessee: 45,560 service members and 18,518 military family
Texas: 229,890 service members and 95,227 military family
Utah: 6,914 service members and 4,557 military family
Vermont: 2,585 service members and 299 military family members.
Virginia: 35,785 service members and 90,466 military family
Washington: 52,903 service members and 43,113 military family
West Virginia: 9,337 service members and 1,242 military family
Wisconsin: 16,227 service members and 2,703 military family
Wyoming: 5,466 service members and 2,068 military family
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