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 1061

What to Do When Your Absentee Ballot Is Late

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

Q:  I am on active duty in the United States Marine Corps and I am currently serving in Afghanistan.  I really want to vote this year, but our mail service is slow and intermittent.  I applied for my absentee ballot back in June, but Election Day is rapidly approaching and I still don’t have my absentee ballot in the mail from my local election official back home.  What should I do?

A:  The Uniformed and Overseas Citizens Absentee Voting Act (UOCAVA) provides for the Federal Write-in Absentee Ballot (FWAB), which you can obtain from a Voting Assistance Officer (VAO) in your military unit or at an American embassy or consulate or on-line at www.fvap.gov (the FVAP website).  The paper FWAB that you receive from your unit’s VAO does not contain the names of candidates, but the on-line version on the FVAP website does contain names of candidates for the U.S. Senate and House of Representatives, for many states.

The FWAB is limited to federal offices (President, U.S. Senator, and U.S. Representative).  You mark the ballot by writing in the name of your favored candidate or by expressing a party preference for each federal office.  Of course, this year President is not on the ballot, and not every state has a U.S. Senate seat on the ballot this year.  Some states have, by state law, expanded the use of the FWAB to include state and local offices as well as federal offices.  You write in the title of the office and the name of your favored candidate, or you can vote for the nominee of your favored party, even if you don’t know the nominee’s name.  This information is available in the on-line version of the FWAB, on the FVAP website.  This is a great reason to use the on-line version instead of the traditional paper version.

You should mark and submit your FWAB in early October, if you do not have your regular absentee ballot by then.  If you receive your regular ballot after having submitted your FWAB, you are permitted and indeed encouraged to mark and return the regular ballot as well.  Please include a note to the effect that you have already submitted the FWAB.  In that situation, the local election official will count your regular ballot (if it arrives on time) and set aside your completed FWAB.  The FWAB is a pretty poor substitute for a ballot, but it beats being completely disenfranchised.

UOCAVA accords the right to vote in federal elections to “absent uniformed services voters” and “overseas voters.”  An absent uniformed services voter is a member of one of the U.S. uniformed services (Army, Navy, Marine Corps, Air Force, Coast Guard, Public Health Service commissioned corps, National Oceanic and Atmospheric Administration commissioned corps, or Merchant Marine), in active service, or the voting age family member of a member of the uniformed services.  Uniformed services members and their accompanying family members are eligible to vote under UOCAVA, regardless of whether they are within or outside the United States.  UOCAVA also gives U.S. citizens outside the U.S. the right to vote by absentee ballot for federal offices. 

If you qualify as an absent uniformed services voter, you are permitted to submit your marked FWAB from within or outside the U.S.  If you are an overseas voter and not a uniformed services voter, your FWAB will not be counted if it is mailed within the U.S.  For example, SGT Joe Brown was wounded on Sept. 18, 2010, which is the same day that his local election official back home mailed his absentee ballot to his APO address in Afghanistan.  SGT Brown was evacuated to an Air Force hospital in Germany, and then to the Walter Reed Army Medical Center in DC.  The ballot is in Afghanistan, and SGT Brown is in DC.  By the time the ballot catches up with him, Election Day likely will have passed.  SGT Brown is permitted to use the FWAB to vote.  It would be unlawful for the local election official to reject the ballot based on the DC postmark on the ballot return envelope.

When you receive your regular absentee ballot, you should immediately mark it and return it to your local election official, even if Election Day has passed.  If you receive your unmarked ballot in Nov. 2011, a year after the election, mark it and send it back.  Of course, absentee ballots that late will not be opened, so send a separate letter to your local election official, in a separate envelope, and say that you applied for the ballot in June 2010 and received it in Nov. 2011.  Copy your U.S. Senators, your U.S. Representative, and your state senator and representative (in your state capitol).  Make the point that you wanted to vote in 2010, for state and local offices as well as federal offices, but your local election official, the United States Postal Service, and the Military Postal Service Agency could not figure out a way to make it possible for you to receive your ballot in time to vote.

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