Number 23, March 2001:
Military Voting Rights

By CAPT Samuel F. Wright, JAGC, USNR*

We continue to receive inquiries about the controversy concerning uncounted military absentee ballots in Florida. For more than 20 years, I have headed up a nationwide effort to reform absentee voting procedures for the benefit of military and overseas citizens. I have recruited more than 1,900 volunteers (mostly military Reservists and retirees), and each state has made at least some progress toward simplifying absentee voting procedures and providing more ballot transmission time. I recently completed a new batch of letters, suggesting specific reforms for each state. For specific information about the reforms that are needed in your state, please send me an e-mail (swright@roa.org), or write to me at ROA.

Q: Does federal law give members of the Armed Forces the right to vote by absentee ballot?

A: Yes, under a federal law called the Uniformed and Overseas Citizens Absentee Voting Act (UOCAVA). The UOCAVA can be found in Title 42, United States Code, section 1973ff.
Members of the Armed Forces, their voting-age family members, and all U.S. citizens overseas have the right to vote by absentee ballot in primary, general, special, and run-off elections for federal offices (President, U.S. Senate, and U.S. House of Representatives). Their right to vote for state and local offices is governed by state law.

Q: Why were mailed-in overseas ballots counted late in Florida last year?

A: The UOCAVA does not mention any particular period of ballot transmission time, but it has been held that this federal law requires local election officials to provide sufficient time for the voter to receive, mark, and return the ballot in time for it to be counted. Generally, a minimum of 35 days must be provided from the date that the local election official has the ballots ready to mail (and in fact starts mailing them out) until the deadline for the return of a mailed-in overseas ballot (military or civilian).

Florida conducts its primary in September and its run-off primary in October, just 35 days before the general election. Even under the best of circumstances, it takes several days to certify the results of the run-off primary. Of course, the Supervisor of Elections cannot print general election ballots until the results of the run-off primary have been officially certified, and that official cannot mail ballots until they are printed.

In 1980, the U.S. Department of Justice (DoJ) sued Florida, at the request of the Department of Defense (DoD). The suit was settled with a 1982 consent decree providing for the counting of mailed-in overseas ballots received within 10 days after Election Day. Because the UOCAVA only applies to federal elections, these late-arriving ballots are only counted for federal offices (President, Senate, and House). Because the Florida Legislature has been unwilling to move its primaries back to earlier in the year, the 1982 consent decree remains in effect.

Q: Do other states count mailed-in absentee ballots received after Election Day?

A: Yes. At the request of DoD, DoJ has sued other states when the untimely mailing of absentee ballots has effectively denied overseas citizens (military and civilian) the right to vote by absentee ballot. The usual remedy is a court-ordered extension on the deadline for the return of mailed-in absentee ballots coming from outside the United States.

State law in New York, Maryland, Washington, Alaska, and a handful of other states has extended the absentee ballot return deadline. In those states, the late-arriving absentee ballots are counted for all offices, not just federal offices.

Q: "Snail mail" seems a hopelessly antiquated communications system in the "Internet age." Have there been efforts to enable overseas military voters to vote by electronic means?

A: Yes. Last year, DoD and certain local election officials in four states (Florida, Texas, South Carolina, and Utah) conducted an Internet voting pilot project involving 350 overseas military personnel and family members. Each participating voter was given an electronic "key" to use to send encrypted messages via the Internet. Participating local election officials were also given the key. This system provides substantially more security than is provided in traditional absentee voting, by mail.

There are three time-consuming steps in the absentee voting process. First, the voter must send his or her absentee ballot request to the local election official. Second, the official must send the unmarked ballot to the voter. Finally, the voter must return the marked ballot back to the election official. Under the DoD pilot project, all three steps were completed electronically and almost instantaneously.

DoD is still working on its report about this pilot project, but we believe that the system worked without major problems. We want to get all 50 states on board in time for the presidential election of 2004. Electronic voting is the long-range solution to the overseas voting problem, in my view.

Q: Other than inadequate ballot transmission time, do military personnel and family members have other problems when trying to vote by absentee ballot?

A: Yes. The career service member is away from his or her place of domicile for many years, perhaps more than two decades. Upon retirement, he or she will not necessarily return to that place.

A: 1997 case [Casarez v. Val Verde County, 957 F. Supp. 847, 853 (W.D. Tex. 1997)] threw into doubt the right of the service member to vote in a jurisdiction if he or she does not currently intend to return to that specific jurisdiction. The upshot is that many career military personnel may lose the right to vote anywhere, if Casarez comes to be generally accepted as the correct interpretation.

Because intent alone is not sufficient to create a new domicile, a change in one's intent about where to live after leaving active duty must not be allowed to destroy a pre-existing domicile. Otherwise, the service member is left without a domicile (or the right to vote) anywhere.

*Note: Captain Wright’s military title is used for purposes of identification only. The views expressed in this article should not be attributed to the Department of the Navy or the U.S. Government generally. You may write to him at ROA, or you may send him an e-mail at swright@roa.org.