LAW REVIEW 958

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

Q: I read with great interest your Law Review 0955 (November 2009). I think that it is great that federal law now explicitly requires that absentee ballots be mailed at least 45 days before Election Day, so that military personnel will have time to vote, no matter where the service of our country has taken them. I am wondering how this new law applies to our mayoral election here in Atlanta.

Atlanta conducted its election for Mayor on Nov. 3, 2009. Georgia law requires that the winning candidate receive a majority (not just a plurality) of all votes cast. There were many candidates, so no candidate received a majority. On Dec. 2, Atlanta will conduct a run-off between the top two vote-getters. The run-off is just 29 days after the election, so there is no way to mail the ballots 45 days before the run-off. How does this new federal law apply to this sort of situation?

A: The federal law does not apply to Atlanta’s 2009 mayoral election, because there is no federal office on the ballot. The Uniformed and Overseas Citizens Absentee Voting Act (UOCAVA) accords the right to vote to two classes of persons: absent uniformed services voters and overseas voters. This federal law gives these people the right to vote by absentee process in primary, general, special, and runoff elections for federal office (President, United States Senator, and United States Representative).

UOCAVA as currently written is limited to federal elections because it is based on Article I, Section 4, Clause 1 of the Constitution, which reads: “The times, places, and manner of holding elections for Senators and Representatives shall be prescribed in each state by the legislature thereof; but the Congress may at any time by law make or alter such regulations.” Article I, Section 4, Clause 1 does not address non-federal elections.

Q: There are several thousand men and women from Atlanta serving in our Armed Forces in Iraq, Afghanistan, and all over the world. If even one of them wants to vote in the 2009 mayoral election and is prevented from doing so by the circumstances of his or her service, that is an injustice, in my opinion. Would it be constitutional for Congress to amend UOCAVA to make it apply to non-federal as well as federal elections?

A: In my opinion, yes. I believe that Congress has the constitutional authority to mandate the effective enfranchisement of servicemembers, in non-federal as well as federal elections, under Article I, Section 8, Clauses 11-16 (the war powers and military clauses), plus Article I, Section 8, Clause 18 (the “necessary and proper” clause), but as of yet Congress has not done so. The effort continues.

As I explained in Law Review 0917 (Apr. 2009), the Supreme Court has upheld the constitutionality of a federal law that protects members of the Armed Forces from duplicative state taxation of their personal property and income. See Dameron v. Brodhead, 345 U.S. 322 (1953). See also Rumsfeld v. Forum for Academic and Institutional Rights, 547 U.S. 47 (2006) (upholding the constitutionality of federal legislation requiring educational institutions to grant access to military recruiters).

I favor an amendment to UOCAVA protecting the voting rights of military personnel in non-federal as well as federal elections, and I believe that such a statute would pass constitutional muster. I would also include military family members and overseas U.S. Government employees (DOD civilians, State Department, Peace Corps, Central Intelligence Agency, Drug Enforcement Administration, etc.). These folks are also overseas on the nation’s business, not their own, and their service can involve significant personal risk. Please recall that three Drug Enforcement Administration agents were recently killed in action in Afghanistan.

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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