Samuel F. Wright

Captain, JAGC, USN (Ret.)
Director, Service Members Law Center
(800) 809-9448, ext. 730
Email: swright@roa.org
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LAW REVIEW 1005

Does the New Federal Law on Military Voting Apply to Special Elections?

By Captain Samuel F. Wright, JAGC, USN (Ret.)

7.0—Military Voting Rights

Q:  I read with great interest your Law Reviews 0955 and 0958, about the new federal law on absentee voting rights for military and overseas citizens.  You wrote that the new law explicitly requires that local election officials have absentee ballots printed and ready to mail by the 45th day before Election Day or obtain a waiver from the Secretary of Defense, after demonstrating that they have made satisfactory alternative arrangements to ensure that military and overseas citizens have a reasonable opportunity to receive, mark, and return their ballots in time for those ballots to be counted. 

Here in Massachusetts, we recently conducted a special election to fill a vacancy in the United States Senate.  I checked with my Town Clerk, and he did not have absentee ballots available 45 days before the special election.  Does this new law apply to special elections?

A:  The federal law applies to special elections (as well as primary and general elections) for federal office, but the 45-day requirement only applies after Nov. 1, 2010.  Moreover, the law is ambiguous as to whether the 45-day rule applies to special federal elections that are held after Nov. 1, 2010.

The relevant federal statute is the Uniformed and Overseas Citizens Absentee Voting Act (UOCAVA), enacted by Congress in 1986 and amended several times, most recently by the National Defense Authorization Act for Fiscal Year 2010 (signed into law by President Obama on Oct. 29, 2009).  UOCAVA is codified in title 42, United States Code, sections 1973ff through 1973ff-6.  For a copy of the complete text of UOCAVA, seehttp://www.fvap.gov/resources/media.uocavalaw.pdf

Under UOCAVA as most recently amended (Oct. 2009), each state is required to mail absentee ballots to military personnel and family members (within or outside the United States) and to civilian voters outside the United States “not later than 45 days before the election.”  42 U.S.C. 1973ff-1(a)(8)(A).  (This assumes that the voter’s application for an absentee ballot was received more than 45 days before Election Day.) 

Until the very recent amendment (which has not yet gone into effect), UOCAVA did not mention a specific number of days of required ballot transmission time, but the law did give military and overseas citizens the right to vote by absentee ballot in primary, general, special, and runoff elections for federal office.  UOCAVA gives the Attorney General of the United States the authority and responsibility to “bring a civil action in an appropriate district court for such declaratory or injunctive relief as may be necessary to carry out this title.”  The Department of Justice (DOJ) has brought many such lawsuits since UOCAVA was enacted in 1986, in cases where the printing and mailing of absentee ballots has been delayed by late primaries, ballot access lawsuits, or other problems. 

The usual remedy sought and obtained has been a federal court order requiring the election official to extend the deadline for the return of absentee ballots mailed in from outside the United States, including but not limited to APO and FPO addresses.  Several local election officials in Virginia were late in mailing out ballots for the 2008 general election.  To remedy this violation, the United States District Court for the Eastern District of Virginia ordered Virginia to count absentee ballots from outside the United States that were received up to 30 days after the 2008 general election.  Please see Law Review 0950 and 0950 Update.  All previous Law Review articles (more than 600) are available atwww.roa.org/law_review.

Several years ago, DOJ announced that its interpretation of UOCAVA is that a minimum of 30 days of ballot transmission time is required for military and overseas voters.  That 30-day standard remains in effect until the 45-day standard goes into effect in November.

Massachusetts law provides for absentee ballots received up to seven days after the election to be counted.  The Massachusetts Secretary of the Commonwealth has claimed that all local election officials mailed ballots at least 23 days before the recent special election, thus meeting the 30-day standard, but there are almost 500 local election offices in Massachusetts and I doubt that anyone has comprehensively monitored them.

Massachusetts readers:  Please contact your city or town clerk and ask when absentee ballots for the recent special election were mailed out.  Also ask:  How many absentee ballots were mailed to military personnel and family members within the United States?  How many ballots were mailed to military personnel and family members outside the United States?  How many ballots were mailed to civilian voters outside the United States?  For each category, how many of those ballots came back as marked ballots by Election Day or within seven days thereafter and were counted?  How many ballots came back on time but were rejected for other reasons?  How many ballots came back too late and were not counted?  How many ballots never came back at all?  How many unmarked ballots did the United States Postal Service return as undeliverable?  All readers:  Please contact your local election official and ask these questions with respect to the 2010 primary and general election in your state.  Please report your findings to me at SWright@roa.orgor 800-809-9448, ext. 730. 

If you have questions, suggestions, or comments, please contact Captain Samuel F. Wright, JAGC, USN (Ret.) (Director of the Servicemembers’ Law Center) at swright@roa.org or 800-809-9448, ext. 730.

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