Number 196, Web only article:
Federal Write-in Absentee Ballot

By CAPT Samuel F. Wright, JAGC, USNR*

Q: I am the staff judge advocate of an Army hospital in Texas. We have a patient in our hospital-a soldier who was seriously burned in combat in Iraq. She applied for her absentee ballot, from the county clerk in her hometown, many months ago. Election Day is rapidly approaching, and still no absentee ballot. Her ballot is probably somewhere in Iraq. She really wants to vote, and it is hard to imagine a more compelling case for the right to vote. Is it possible for her to vote? If so, how?

A: You should help this soldier to complete and mail a Federal Write-in Absentee Ballot (FWAB), provided for in Title 42, United States Code, Section 1973ff-2 [42 U.S.C. 1973ff-2]. She can use the FWAB to vote for federal offices (president, U.S. Senate, and U.S. House of Representatives) in the general election. She marks the ballot “by writing in the name of the candidate or by writing in the name of a political party (in which case the ballot shall be counted for the candidate of that political party.” [42 U.S.C. 1973ff-2(c)(1).]

Q: I have looked, and I cannot find any blank FWAB forms anywhere in the hospital. How can I obtain the form quickly?

A: Go to www.fvap.gov (Web site of DOD's Federal Voting Assistance Program). You can print the blank FWAB from the Web site.

Q: Joe Smith, a civilian employee of the hospital, has served as our voting assistance officer (VAO) for many years. He told me that we do not have FWABs in stock because federal law requires that the completed FWAB be mailed only from an address outside the United States. Is that correct?

A: Not any longer. Congress amended the law just days before the 2004 general election. It is now possible for an “absent uniformed services voter” (a category that includes military spouses and dependents as well as military members) to submit the FWAB from either inside or outside the United States. I invite your attention to 42 U.S.C. 1973ff-2(b)(1).

Q: We are assuming that the Soldier's regular state absentee ballot will not arrive here at the hospital before Election Day, but what if it does?

A: In that case, she should complete and mail in the regular ballot even though she has already submitted the FWAB. “An absent uniformed services voter or overseas voter who submits a Federal write-in absentee ballot and later receives a State absentee ballot may submit the State absentee ballot. The Presidential designee shall assure that the instructions for each Federal write-in absentee ballot clearly state that an absent uniformed services voter or overseas voter who submits a Federal write-in absentee ballot and later receives and submits a State absentee ballot should make every reasonable effort to inform the appropriate State election official that the voter has submitted more than one ballot.” [42 U.S.C. 1973ff-2(d).] If both ballots arrive on time to be counted, the election official is to set aside the FWAB and count the regular ballot. See 42 U.S.C. 1973ff-2(b)(3).

Q: If she has already submitted the FWAB, why would she want to submit the regular state ballot?

A: The state ballot is clearly preferable to the FWAB. The FWAB is limited to federal offices, while the state ballot includes all offices. Moreover, the state ballot includes names of candidates, while the FWAB is limited to titles of offices.

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