Number 193, Web only article:
Election Officials Must Accept The FPCA

By CAPT Samuel F. Wright, JAGC, USNR*

Q: I am a career member of the U.S. Air Force. In August 2004, I mailed a completed Federal Post Card Application (FPCA) to the county clerk in my hometown. She rejected my absentee ballot application because I did not state the place of my birth. The FPCA asks for date of birth, but not the place of birth.

The county clerk sent me a letter asking for my place of birth, but I did not receive her letter until the day after the election. I responded and provided the requested information, but of course it was too late. I am angry that my right to vote was effectively denied. Was the county clerk correct as a matter of law?

A: No. The County Clerk violated Federal law when she rejected your completed FPCA. The Uniformed and Overseas Citizens Absentee Voting Act (UOCAVA) provides: “Each State shall … use the official post card [FPCA] form (prescribed under section 1973ff of this title) for simultaneous voter registration application and absentee ballot application.” Title 42, United States Code, Section 1973ff-1(a)(4) [42 U.S.C. 1973ff-1(a)(4)] (emphasis supplied).

In a statute, “shall” means “must, under penalty of law.” Your county clerk was required to process your completed FPCA and to send you an absentee ballot, even though the FPCA does not ask for all the same information (like place of birth) that must be provided on the state voter registration form.

Article VI, Clause 2 of the U.S. Constitution is called the “Supremacy Clause.” It provides that a federal statute, like UOCAVA, trumps a conflicting state statute, or even a state constitution. Your county clerk is required to comply with UOCAVA even if that means violating state law.

The universal acceptance of the FPCA is essential. It is feasible for the Voting Assistance Officer (VAO) of a military unit to store and distribute FPCAs. It is not feasible for a VAO to store and distribute 54 different state and territorial forms.

The best way to reach Captain Wright is by e-mail, at samwright50@yahoo.com.