Samuel F. Wright

Captain, JAGC, USN (Ret.)
Director, Service Members Law Center
(800) 809-9448, ext. 730
Your Subtitle text

Law Review 11107


December 2011

UOCAVA Protects Voting Rights of Overseas Americans

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

7.0—Military Voting Rights

Q:  I have enjoyed reading your “Law Review” articles about military voting and the Uniformed and Overseas Citizens Absentee Voting Act (UOCAVA).  Am I eligible to vote under this law?

I was born in 1950, in Alabama.  I graduated from college in 1972 and was commissioned a Second Lieutenant in the Army, via ROTC.  I served on active duty for four years and was released in 1976.  At that time I moved to Wisconsin to take a job for a major corporation.  I affiliated with the Army Reserve and retired in 2002 as a Colonel.  Last year, I turned 60 and started drawing my reserve retired pay.

I remained in Wisconsin until 2005, when the corporation sent me to the Republic of the Philippines (RP) to head the corporate operations there.  When I left Wisconsin, my intent was to spend the last five years of my corporate career in the RP and then return to Wisconsin. However, when I turned 60 and retired I decided to stay in the Philippines—my retired pay goes much further here.  I will likely live here for the rest of my life.

A:  You are eligible to vote under UOCAVA, but as an “overseas voter” and not as an “absent uniformed services voter.”  These terms, and many other terms used in UOCAVA, are defined in 42 U.S.C. 1973ff-6.  An absent uniformed services voter is a member of the uniformed services on active duty or the voting-age spouse or dependent of such a member.  You do not qualify because you are not on active duty.  42 U.S.C. 1973ff-6(1).

UOCAVA also accords the right to vote to U.S. citizens who are outside the United States temporarily or permanently.  42 U.S.C. 1973ff-6(5).  You are eligible to vote in Wisconsin, by absentee ballot, in primary, general, special, and runoff elections for federal office (President, United States Senator, and United States Representative), so long as you remain in the RP or elsewhere outside the United States, without regard to how long you have been away from Wisconsin and even if you have a firm intention never to return there.  42 U.S.C. 1973ff-1(a)(1).

Q:  Am I only eligible to vote for federal offices?  What about state and local offices?

That depends on your intent to return to Wisconsin.  During the five years that you were in the RP on assignment to the major corporation, and when you intended to return to Wisconsin upon completion of that five-year assignment, you were probably eligible to vote in Wisconsin by absentee ballot for all offices.  When you changed your mind and decided to stay in the RP long-term after retiring from the corporation, you probably lost the right to vote in Wisconsin for non-federal offices.

The traditional rule is that to be eligible to vote in a place you must be domiciled in that place.  You can maintain your domicile in Wisconsin while absent from the state, even for a period of years, so long as you intend to return to that state.  But to be eligible to vote by absentee ballot for federal offices only under UOCAVA you need not be domiciled in Wisconsin.  It is sufficient that you were domiciled in Wisconsin before you moved to an overseas location.  You may spend the next 35 years in the RP and die there in 2046, but so long as you do not renounce your U.S. citizenship you are eligible to vote in Wisconsin by absentee ballot, for federal offices, under UOCAVA.

Q:  Does my voting by absentee ballot have any effect on my liability to pay Wisconsin state income tax?  During my last five years with the corporation, while I was living and working in the RP, I continued paying Wisconsin state income tax, through withholding from my salary.  I also filed a Wisconsin state tax return for each year through 2010.  When I retired from the corporation and starting drawing my corporate retired pay, in late 2010, I did not arrange for withholding of state income tax from my retired pay.  My 2011 Wisconsin state income tax return is not yet due, but I am not planning to file such a return since I no longer consider myself to be a resident or domiciliary of Wisconsin.

A:  UOCAVA specifically provides:  “The exercise of any right under this subchapter shall not affect, for purposes of any Federal, State, or local tax, the residence or domicile of a person exercising such right.”  42 U.S.C. 1973ff-5 (emphasis supplied).

Thus, if you vote for federal offices only under UOCAVA, Wisconsin cannot use the fact of your vote as evidence establishing your liability to pay Wisconsin state income tax.  This does not mean that you are automatically exempt from having to pay Wisconsin state income tax, but the state tax authorities will have to prove your domicile and your liability to pay the tax without regard to your having voted for federal offices under UOCAVA.

On the other hand, if you cast an absentee ballot for all offices the State of Wisconsin would probably not be precluded from citing the fact of you having so voted as evidence of your domicile for state income tax purposes.  The Maryland Court of Appeals held:  “Evidence that a person registered or voted is admissible and ordinarily persuasive when the question of domicile is at issue.”  Comptroller of the Treasury v. Lenderking, 268 Md. 613, 619, 303 A.2d 402, 405 (1973). [1]

If your position is that you are no longer domiciled in Wisconsin and that you do not owe state income tax, it would be prudent for you to limit your voting to federal offices, under UOCAVA. 

[1] In Maryland, the Court of Appeals is the state’s high court—most states call the high court the Supreme Court, but not Maryland.