LAW REVIEW 11112
Why Can’t the Military Voters All Register to Vote Here on Base?
By Captain Samuel F. Wright, JAGC, USN (Ret.)
7.0—Military Voting Rights
Q: I have been appointed the Voting Assistance Officer (VAO) for a military unit currently stationed at a large military base here in the United States. This is complicated, because we have personnel from more than 40 states in this unit. I have what I think is a bright idea, but I wanted to run it by you. Instead of passing out Federal Post Card Applications (FPCAs) and encouraging service members to apply for absentee ballots from local election officials in their hometowns all over the country, I propose to pass out state voter registration forms. I want to encourage personnel in our unit to register to vote right here, using the military quarters or the off-base apartments where they physically reside as their home addresses. I think that our votes will be much more noticeable if they are cast in three voting precincts, in and around this base, rather than spread all over the country in absentee ballots. And if we vote right here we won’t have to depend upon the United States Postal Service, which may lose or delay some of the ballots. If we all register here, we can vote in person on Election Day or during the early voting period leading up to Election Day. What do you think of this idea?
A: Thank you for giving me the opportunity to explain why this is a terrible idea. If you proceed with this idea, you risk causing service members in your unit to have to pay hundreds or thousands of dollars in state and local taxes that they otherwise can lawfully avoid.
In 1992, shortly before the 1992 presidential election, a young Army judge advocate (Albert R. Veldhuyzen) and I wrote an article titled “Domicile of Military Personnel for Voting and Taxation Purposes.” The article was published in the September 1992 issue of The Army Lawyer, the official publication of the Judge Advocate General of the Army. A few days after the 1992 general election, I received a frantic telephone call from an Air Force legal assistance attorney at Offutt Air Force Base in Nebraska.
A zealous but ill-informed VAO at Offutt AFB had encouraged several hundred Air Force personnel to register to vote in Nebraska, and most of them voted in person on Election Day. The county tax assessor (an Air Force retiree who was most familiar with these matters) compared the voter registration list with the list of military personnel who had claimed exemption from paying personal property tax on their automobiles and motorcycles, based on the Soldiers’ and Sailors’ Civil Relief Act (SSCRA). The assessor sent a notice to these service members, informing them that they were now required to pay the county’s personal property tax, because they had registered and voted locally. Many of the personnel who had received that notice were lined up at the legal assistance office, seeking advice as to how to respond.
The legal assistance attorney and I had a long chat, and we were at a loss as to how to advise these service members to proceed. Our concern was that the next shoe to drop would relate to Nebraska state income tax and that would be an even greater tax bill in most cases.
Every human being has one and only one domicile. Your domicile determines where you are eligible to vote, and it also determines where you must pay state income tax and personal property tax. You cannot simultaneously be domiciled in Florida for tax purposes and in Nebraska for voting purposes.
Domicile is a legal conclusion—this is not a matter of “pick a state, any state.” If you vote, it must be in the state where you are domiciled. You don’t get to pick a state, just because you like its tax policy (no state income tax) or just because you think that state will be closely contested in the presidential election.
When a civilian (Bob Jones) moves from Florida to Nebraska, he immediately becomes a domiciliary of Nebraska, unless the move was for a temporary purpose (like a three-month job assignment). Bob would probably prefer to remain a Floridian, as Florida has no state income tax, but Bob does not get that choice. He becomes a Nebraskan on the very day that he moves into the new house or apartment in Nebraska, and he must pay Nebraska state income tax starting on that day.
Joe Smith moved from Florida to Nebraska when he enlisted in the Air Force and was assigned to duty at Offutt AFB. Because he is on active duty in the armed forces, Joe is treated differently from Bob, a civilian. Joe does not automatically become a Nebraskan just by moving there, in compliance with his military orders. Joe can become a Nebraskan if he wants; to do so, he must simultaneously have a physical presence in Nebraska for a significant time (like three-year PCS orders to Offutt AFB) and the intent to make Nebraska his home. Neither physical presence/absence alone nor intent alone is sufficient to create a new domicile or to destroy an old domicile, for a member of the armed forces on active duty.
It is entirely fair and logical that Joe Smith (a service member) is treated differently from Bob Jones (a civilian) in this respect. Bob Jones can choose to move or not to move, while Joe Smith does not have that choice. Bob may have been transferred by his employer, but he can always choose to quit. If Joe fails to go to his appointed place of duty at Offutt AFB, Joe is guilty of the military criminal offence of unauthorized absence.
In 2003, Congress enacted the Servicemembers Civil Relief Act (SCRA), as a long-overdue rewrite of the SSCRA, which dates back to 1917. The SCRA provides as follows concerning domicile and tax liability:
A servicemember shall neither lose nor acquire a residence or domicile for purposes of taxation with respect to the person, personal property, or income of the servicemember by reason of being absent or present in any tax jurisdiction of the United States solely in compliance with military orders.
50 U.S.C. App. 571(a)(1).
As applied to Joe Smith, this means that federal law exempts him from having to pay Nebraska state income tax on his Air Force salary or personal property tax on his automobile so long as Joe is not domiciled in Nebraska. Renting an apartment or even buying a house in Nebraska does not make Joe a Nebraskan—he needs to have a place to sleep that is within a reasonable commuting distance of his duty station at Offutt AFB, since he cannot commute from Florida.
If Joe registers to vote or votes in Nebraska, he loses his SCRA protection—he will have to pay Nebraska state income tax and personal property tax if he votes in Nebraska. The Maryland Court of Appeals has held, “Evidence that a person registered to vote 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)
As the VAO, it is your job to provide service members the forms and information that they need to vote, whether in person or by absentee ballot. Since you are not a lawyer, you are not qualified to advise a service member as to which state constitutes his or her domicile, or as to the collateral legal consequences of registering to vote locally rather than voting by absentee ballot in his or her hometown. If the service member is uncertain as to these issues, you should assist that member in making an appointment with a military legal assistance attorney.
 Instead of distributing FPCAs and using the voluminous Voting Assistance Guide to assist voters in completing the form, I suggest that you refer these voters to www.fvap.gov. This is the website of the Federal Voting Assistance Program in the Department of Defense. The website includes a well-designed wizard that will assist the individual voter in completing the FPCA in a manner that is correct, complete, and legible.