Number 43, May 2002:
Military Voting Rights

By CAPT Samuel F. Wright, JAGC, USNR*

Q: I enjoy your Law Review articles. In “Law Review Number 3” (May 1998), you discussed the case of Casarez v. Val Verde County, 957 F. Supp. 847 (W.D. Tex. 1997). How did that case finally turn out? Has that problem ever been resolved?

A: That case arose out of the 1996 general election in Val Verde County, Texas. (Del Rio is the county seat, and Laughlin AFB is located in the county.) For two local offices (sheriff and county commissioner), the 800 military absentee ballots determined the outcome of the election. When only ballots cast on Election Day were counted, one pair of candidates won. When the 800 mailed-in military ballots were added, a different pair of candidates won.

Using our federal tax dollars (through a Legal Services Corporation grant), Texas Rural Legal Aid (TRLA) brought suit in the United States District Court for the Western District of Texas (Judge Fred Biery presiding). Judge Biery wrote four published decisions: Casarez v. Val Verde County, 957 F. Supp. 847 (W.D. Tex. 1997) (Casarez I); Casarez v. Val Verde County, 967 F. Supp. 917 (W.D. Tex. 1997) (Casarez II); Casarez v. Val Verde County, 16 F. Supp. 2d 727 (W.D. Tex. 1998) (Casarez III); and Casarez v. Val Verde County, 27 F. Supp. 2d 749 (W.D. Tex. 1998) (Casarez IV). Finally, the United States Court of Appeals for the Fifth Circuit affirmed Casarez IV, without opinion: Casarez v. Val Verde County, 194 F.3d 1308, 1309 (5th Cir. 1999).

Before deciding Casarez I, Judge Biery permitted TRLA to use our federal tax dollars to send to each of the 800 military voters (mostly active-duty Air Force officers) a burdensome and intrusive deposition on written interrogatories, amounting to a comprehensive residency questionnaire. Each voter was legally required to complete the deposition under oath, get it notarized, and return it to the court, all in just three days.

The deposition inquired into each military voter’s sleeping arrangements (and the sleeping arrangements of the voter’s spouse), the location of bank accounts and insurance policies, the names of organizations to which the voter has belonged, and whether the voter had ever been charged with a felony. However, the bottom-line question was, “Where do you intend to live after leaving active duty in the Armed Forces?” Judge Biery relied upon the responses to the depositions in finding a “likelihood of success on the merits” and enjoining the installation of the two disputed victors (Casarez I).

Judge Biery’s discussion of one particular voter is instructive and illustrative of the problem. The voter in question was an active-duty Air Force officer who had established a domicile of choice in Val Verde County while stationed at Laughlin AFB in the early 1990s. At the time of the 1996 general election, he was stationed in Colorado Springs, Colo. His wife completed and returned the deposition because he was away from Colorado on temporary additional duty when the deposition arrived in the mail.

In response to the deposition, the wife stated that the couple intended to return to Texas when he retires from the Air Force (sometime in the second decade of the 21st century), but that they would probably settle in Austin or San Antonio, not Val Verde County. Judge Biery held that the service member does not have the right to vote by absentee ballot in Val Verde County because he lacks the present intent to return to that particular county. [See Casarez I, 957 F. Supp. at 860. See also Casarez III, 16 F. Supp. 2d at 729.]

If this officer cannot vote by absentee ballot in Val Verde County, he cannot vote at all. He gave up his domicile of origin, at his home of record, when he established a domicile of choice while stationed at Laughlin AFB in the early 1990s. He cannot re-establish his domicile of origin without moving back to his original hometown. Of course, his military duties preclude him from moving back home. He cannot vote in Colorado because he has already decided and stated (according to his wife’s oath) that he does not intend to live there after leaving active duty. He cannot establish a new domicile of choice in Austin or San Antonio merely by intending to move there upon retirement, many years in the future.

As I explained in “Law Review Number 3,” the service member enters active duty with a domicile of origin at the place he or she lived just before entering active duty. That domicile of origin persists unless and until the service member establishes a new domicile of choice at some other place while on active duty. To establish a new domicile of choice, one must have a physical presence in the place to which one wishes to change and the intent to make that place one’s home. One must have both elements simultaneously. Neither intent alone nor physical presence alone is sufficient to effect a new domicile of choice.

Because intent alone is not sufficient to effect a new domicile, a change in one’s intent about where to live after leaving active duty must not be enough to destroy a pre-existing domicile (of origin or of choice). Otherwise, a person like this Air Force officer is left without a domicile or the right to vote anywhere. His situation is typical among career military personnel. It is a rare career service member who can testify, under oath, that he or she is certain that he or she will move, immediately after retirement, to the place that he or she has claimed as a domicile while on active duty. He or she will probably move, upon retirement, to the place where he or she can find a civilian job. It is impossible to anticipate where that will be months in advance, much less years in advance.

In 1997–2000, the Senate, but not the House, each year passed language responding to Casarez, but each of those years the House refused to go along, and the pertinent language was deleted from the National Defense Authorization Act (NDAA) before enactment. Finally, in late 2001, the House went along with this much-needed legislation.

Public Law 107-107 is the FY02 NDAA, and section 1603 of that law adds a new provision (section 704) to the Soldiers’ and Sailors’ Civil Relief Act (SSCRA). This new section reads, in part, as follows: “For the 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.” [Emphasis added.] New section 704 of the SSCRA is now codified in section 594 of title 50, United States Code Appendix (50 U.S.C. App. 594).

I think that this new provision solves the Casarez problem. We need to get the word out to the nation’s 5,000 local election officials who administer absentee voting.

The FY02 NDAA contains several other favorable new provisions concerning military voting rights. Those provisions are discussed in “Law Review Number 44” which appears on the following page. ROA

Captain Wright was employed as an attorney for DoL for ten years. He was largely responsible for drafting USERRA, along with one other DoL attorney. He also helped to write the successful appellate briefs for the veterans in both the Imel and the Akers cases. Most recently, he was on active duty for 71 days (May–July 2001), including 40 days in Bahrain. Please see his July 2001 “Law Review” article.
You may write to Captain Wright at ROA, or you can reach him by e-mail at samwright50@ yahoo.com.