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 1159

LAW REVIEW 1159

Military Voting—Progress in South Carolina

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

7.0—Military Voting Rights

ROA congratulates Rear Admiral James J. Carey, a life member and past Naval Services Vice President, for his role in expanding voting rights for military and overseas voters.  Admiral Carey is the founder and Chairman of the National Defense Committee and a consultant on military and overseas voting rights for Pew Charitable Trusts.

On June 7, 2011, South Carolina Governor Nikki Haley signed the South Carolina Uniformed and Overseas Citizens Absentee Voters Act (SCUOCAVA), and Admiral Carey was there for the signing ceremony.  More importantly, he was instrumental in getting this legislation enacted, and similar legislation in other states.  The SCUOCAVA builds upon a federal law called the Uniformed and Overseas Citizens Absentee Voting Act (UOCAVA), which Congress enacted in 1986 and substantially amended in 2009.

Under UOCAVA, “absent uniformed services voters” and “overseas voters” are eligible to register by absentee process and vote by absentee ballot in primary, general, special, and runoff elections for federal office (President, United States Senator, and United States Representative).  Absent uniformed services voters are members of the uniformed services and Merchant Marine on active duty and voting-age family members of uniformed services and Merchant Marine members.  The service member or family member need not be absent from the United States or even from the state where he or she is eligible to vote.  For example, a United States Navy sailor from Arlington who is serving on active duty in Norfolk is an absent uniformed services voter for UOCAVA purposes.

UOCAVA also enfranchises overseas voters.  These are United States citizens of voting age who are absent from our country temporarily or permanently. 

As you can imagine, there are three time-consuming steps in absentee voting.  First, the absentee ballot request must travel from the voter to the local election official (LEO).  Second, the unmarked absentee ballot must travel from the LEO to the voter.  Finally, the marked ballot must travel from the voter to the LEO.  Each of these steps can take weeks if “snail mail” must be used, but only seconds if secure electronic means are authorized.  SCUOCAVA now authorizes the first two steps to be done electronically, for UOCAVA voters. 

As amended in 2009, UOCAVA requires that absentee ballots for federal elections be mailed or otherwise transmitted by the 45th day preceding Election Day.  The idea is to ensure that the service member has the opportunity to cast a ballot that really does get counted, no matter where the service of our country has taken that member.

SCUOCAVA now requires LEOs to transmit unmarked absentee ballots by the 45th day prior to Election Day, to UOCAVA voters, for state and local elections as well as federal elections.  If the LEO receives the absentee ballot request after the 45th day before Election Day, the LEO must transmit the unmarked ballot by the close of business on the next business day after receipt of the request.

South Carolina is one of a handful of states (mostly in the South) where a majority (not just a plurality) is necessary to get the nomination of a political party in a primary.  Whenever there are three or more candidates, it is possible that no candidate will receive a majority.  In such a situation, a second primary is held shortly after the first primary, and the top two vote-getters face off in the second primary.  For this situation, SCUOCAVA prescribes the “absentee instant runoff ballot” for the second primary, for UOCAVA voters.

For example, let us say that there are five candidates in my district, seeking the nomination of my party for the South Carolina House of Representatives.  My order of preference among these candidates is as follows:  Jones, Smith, Adams, Williams, and Cox.  On the instant runoff ballot, I rank the five candidates in this order.

Let us say that the top two vote-getters are Williams and Cox.  My instant runoff ballot is counted as a vote for Williams, because I ranked her above Cox on the ballot.  This is an innovative solution to a difficult problem.

Readers across the country:  Please contact your state legislators (in your state capitol), your state election official (the Secretary of State or State Board of Elections), and your LEO.  When were absentee ballots mailed or otherwise transmitted in 2010?  When are they expected to be available in 2012?  Has your state authorized the transmission of the unmarked ballot by secure and expeditious electronic means?  Or does your state still require that the ballot go to Afghanistan or elsewhere by snail mail? 

In a 1952 letter to Congress, President Harry S. Truman (one of the founders of ROA in 1922) said that military personnel “deserve above all others to exercise the right to vote in this election year.”  Those of us who have already served owe it to today’s service members to monitor the performance of our nation’s 7,500 LEOs.  In most states, the LEO is an elected official, like the County Clerk.  If local citizens like you are making inquiries about timely transmission of absentee ballots, the LEO has an incentive to ensure that every effort is made for those who serve our nation in uniform.  If the LEO has heard from no one on this issue, the overseas service member’s vote may fall through the crack again.