OSU Navigation Bar

Election Law @ Moritz Home Page

Election Law @ Moritz

Election Law @ Moritz


Protecting the Voting Rights of Military and Overseas Voters

Last week marked not only the end of this year’s primary election season, but also the date when, under a new provision of federal law, states were required to send absentee ballots for the upcoming federal elections to U.S. military and overseas citizens. Specifically, last Saturday, September 18, was the 45th day prior to the November 2 general election. Under the Military and Overseas Voter Empowerment Act (“MOVE”), which Congress passed in 2009, the 45th day before a federal election is the deadline (except in a handful of states that recently received a waiver of this requirement) for sending absentee ballots to voters covered by the Uniformed and Overseas Citizens Absentee Voting Act (“UOCAVA”). This is a substantial improvement in the law protecting the voting opportunities of military and overseas voters, but precisely how well these voters are served, both by the requirements of the new governing law itself, and as a matter of the implementation of that law, merits close attention over the next two months.

U.S. military personnel and overseas civilians, who are collectively estimated to constitute approximately six million potential voters, have long struggled with greater voting challenges than most absentee voters face. These challenges reflect both the high degree of transiency of these citizens, as well as the difficulties of delivering mail to and from remote locations around the globe. Although military voters have tended to register to vote at rates higher than those of the general population, their voting participation rates have usually been dramatically lower. For some of these potential voters, blank ballots may never arrive, or may arrive too late to be timely cast, or may be timely cast but returned too late to be counted. Other voters may find the process of applying for an absentee ballot from abroad too complicated, or may have difficulty getting information about candidates and issues. In its 2009 study “No Time to Vote,” the Pew Center on the States found that more than one third of U.S. states do not provide enough time for military voters abroad to reliably cast their ballots, and that half of the states needed to improve their absentee balloting processes for these voters.

The MOVE Act seeks to address some of the difficulties facing military and overseas voters in part by mandating that states provide these voters a minimum 45-day time period for the round-trip that begins when a blank ballot is sent to a voter and ends when a voted ballot is returned to an election official. In addition, the act requires states to establish electronic means for voters to register to vote and to apply for an absentee ballot, as well as electronic means for election officials to send voters the blank absentee ballot itself. The act does not require states to permit voters to cast their absentee ballot electronically (although a handful of states have independently begun to permit some limited electronic voting, even if it is just accepting a faxed version of a paper ballot in some special circumstances). MOVE also prohibits the imposition of notarization requirements, which can be particularly onerous in some foreign jurisdictions, on ballots cast by military and overseas voters.

Last year’s MOVE Act is but the latest in a series of congressional efforts over many decades to reduce the challenges and to improve the absentee balloting process for military and U.S. citizens abroad. MOVE itself was an amendment to UOCAVA, a 1986 measure that established special voting rights and protections for military service members, their families, and U.S. civilians abroad. Yet notwithstanding the many previous federal efforts, difficulties for military and overseas voters have persisted, in large part because U.S. elections are conducted at the state and local level under procedures that vary widely from jurisdiction to jurisdiction. This panoply of divergent requirements and processes has complicated the efforts of military voting assistance officers, State Department officials, and non-governmental organizations to help individual voters.

Because of these difficulties, for the past two years the Uniform Law Commission (“ULC,” also known as the National Conference of Commissioners on Uniform State Laws) has been drafting a uniform state law for military and overseas voters. That effort concluded earlier this summer with the ULC’s approval of the Uniform Military and Overseas Voters Act (“UMOVA”). [Disclosure: I served as the Reporter for the ULC drafting committee that drafted UMOVA.] A copy of UMOVA is available here, and state legislatures are now beginning to consider adopting this act. While building upon existing federal law in the area, UMOVA also would extend protection to state and local elections not held in conjunction with the federal elections that MOVE and UOCAVA cover, and would provide additional uniformity in the voting process for military and overseas voters across the states.

Obviously, no state will adopt UMOVA in time for it to affect the November 2010 election. Instead, improvements this year in the participation of military and overseas voters are most likely to come from individual state responses to last year’s MOVE Act. But regardless of how well state efforts to become MOVE compliant succeed in improving the 2010 voting experience of UOCAVA voters, the 2010 election is likely to establish that UMOVA deserves to be widely enacted across the U.S. for future elections.

Among other things, while MOVE’s 45-day requirement surely will improve the voting participation rate of many UOCAVA voters, it does not apply to non-federal elections, as UMOVA would. In addition, although the 45-day time period will be a substantial improvement in some states, even 45 days may not always be enough for some potential voters. Indeed, the extent to which the 45-day period is sufficient will deserve careful monitoring during this election. UMOVA would extend this time period by allowing ballots cast before Election Day to reach local election officials after Election Day, as long as they are received in time to be included in the local canvass. This is an accommodation that several states have already made in litigation or in negotiation with the U.S. Department of Justice, and standardizing this practice across all states would enfranchise additional voters.

The MOVE Act’s centerpiece, its 45-day requirement, itself reflects another accommodation between the desire to fully enfranchise military service personnel, on the one hand, and some of the logistical challenges that election officials face in conducting an election, on the other, as well as the political realities of many states’ existing primary election calendars. Until the official canvass (and any potential recounts and contests) of the primary election is complete, local election jurisdictions cannot finalize their general election ballots. Thus, it would have been problematic for a state still tallying the official results of its primary election from last Tuesday to send out absentee ballots last Saturday. Accordingly, complying with the 45-day requirement demands that a state’s primary election occur at least two months before the general election, and ideally earlier than that. (Although the fact that ballots can be transmitted electronically means not only that they can be available to the voter almost immediately after the ballot content and style are finalized, without the delays typically associated with mail delivery, but also that the time between primary election and absentee ballot distribution may be somewhat reduced, without the need to wait for ballots to be printed.)

But how well is this accommodation working? As this first election under MOVE unfolds, a number of questions about the 45-day minimum deserve attention. The threshold question, immediately pertinent, is whether ballots are already available for these voters? Are states that did not request a waiver of the 45-day deadline in fact complying with the deadline? If not, why not? In the four states (Alaska, Colorado, Hawaii, and Wisconsin, along with the District of Columbia and the U.S. Virgin Islands) that sought a waiver this year but were denied it, what is happening to protect these voters? In the five states (Delaware, Massachusetts, New York, Rhode Island, and Washington) that received a waiver of this requirement for this election, will they be able to comply with the 45-day requirement in 2012?

Beyond these questions about the round-trip time requirement, many other questions also are worth considering in this first MOVE election: How well are the electronic methods of transmitting ballot applications and blank ballots working? Are voters better able to get the information and assistance they need? Can they complete the ballot and accompanying materials successfully? Are they in fact casting a ballot that ultimately is counted? If not, why not? Will enforcing their participation rights, particularly in a close election, eventually become a matter of litigation?

In short, the voting experiences of military and overseas voters deserve careful attention in the federal midterm elections now underway. Between now and mid-November there likely will be multiple opportunities to continue to reflect on how to further facilitate these voters’ participation. This reflection may confirm that the MOVE Act framework is sensible and therefore worth extending to state and local elections. It also may suggest how, for purposes of protecting this particularly deserving subset of the American electorate, federal law alone remains less effective than an effort to develop a more uniform voting process for these voters in every state, as UMOVA seeks to do. Given that elections themselves are state rather than federal undertakings, the value of additional state control over this process should not come as a surprise.

Steven F. Huefner has wide-ranging election law experience and interests, including the specific areas of contested elections, term limits in state legislative elections, military and overseas voting, legislative redistricting, and poll worker responsibility and training. Prior to joining the faculty at Moritz, Professor Huefner spent five years in the U.S. Senate's Office of Legal Counsel, where his responsibilities included advising the U.S. Senate in matters of contested Senate elections, as well as assisting in the 1999 presidential impeachment trial. View Complete Profile


Edward B. Foley

Gerrymandering as Viewpoint Discrimination: A "Functional Equivalence" Test

Edward B. Foley

A First Amendment test for identifying when a map is functionally equivalent to a facially discriminatory statute.

more commentary...

In the News

Daniel P. Tokaji

This is why US election ballots routinely go missing

Professor Dan Tokaji was quoted in USA Today about the prevalence of missing election ballots.


"Most of the time, it just goes unreported because it doesn't affect the result," Tokaji said. 

more EL@M in the news...

Info & Analysis

Supreme Court Finds Partisan Gerrymandering Claims to be Non-Justiciable Political Questions

In a 5-4 decision, the U.S. Supreme Court issued an opinion on Thursday determining that claims of partisan gerrymandering are political questions beyond the reach of the federal courts. The opinion resolved disputes originating in North Carolina and Maryland, in the cases of Rucho v. Common Cause and Lamone v. Benisek.

more info & analysis...