LAW REVIEW 1193
Military Voting: One Step Forward and Two Steps Back
By Captain Samuel F. Wright, JAGC, USN (Ret.)
7.0—Military Voting Rights
The United States Election Assistance Commission (EAC) has released its report on military and overseas voting in the 2010 general election, and the news is not good. We were expecting progress in 2010, based on the 2009 enactment of the Military and Overseas Voter Empowerment Act (MOVE Act), including a new explicit federal statutory requirement that every state mail out absentee ballots by the 45th day preceding the election. Instead of progress, we see regression.
According to the EAC, our nation’s 7,500 local election officials (LEOs) sent out 335,319 unmarked absentee ballots to overseas military personnel (APO and FPO addresses) for the 2010 general election, but only 107,774 of those unmarked ballots were filled out and submitted, and only 100,557 of those ballots were counted. This means that the disenfranchisement rate was in excess of 70%.
As we approach the start of the 2012 presidential election year, I make the following suggestions for military absentee voters:
a. Apply early for your absentee ballot.
The Uniformed and Overseas Citizens Absentee Voting Act (UOCAVA) now explicitly requires your LEO to have absentee ballots printed and ready to mail by the 45th day prior to Election Day, but the LEO cannot send you a ballot until he or she has received your properly completed application for a ballot. Under UOCAVA, a federal law, you can apply as early as January for the November general election. See 42 U.S.C. 1973ff-3. This section of UOCAVA explicitly supersedes state “not earlier than” rules for the submission of the absentee ballot request. I invite your attention to Article VI, Clause 2 of the United States Constitution, commonly known as the Supremacy Clause. Federal law trumps conflicting state law. Regardless of what your state law may provide, you have the right to, and you should, apply for your absentee ballot early in 2012.
b. Establish and maintain contact with your LEO.
Who is your LEO? Find out the name, telephone number, and e-mail address. And keep in contact with that official to ensure that he or she has the correct address to send you your absentee ballot.
If you visit your home town on leave, call upon the LEO in uniform. Military personnel are overwhelmingly serving in certain areas of high military concentration (Northern Virginia, Tidewater Virginia, San Diego, San Antonio, etc.). Outside these military areas, folks seldom see military personnel in uniform. Let the LEO know that you are serving in our nation’s armed forces and that you still call that community home.
Do you still have a parent or other relative living in your home town? If so, keep that relative posted as to your whereabouts, and give that relative a limited power of attorney to apply for absentee ballots or make inquiries about your ballot, on your behalf. Ask that relative to call upon the LEO from time to time.
c. Don’t apply for an absentee ballot if you don’t want to vote.
I am shocked that 2/3 of the absentee ballots sent to overseas military personnel never came back. Why would a service member go to the trouble of applying for an absentee ballot and then not mark and return the requested ballot? It does not make sense.
d. Mark and return your ballot no matter how late you receive it.
If you receive your absentee ballot for the 2010 general election this month, a year after Election Day, mark and return the ballot. Of course, a ballot received a year after the election will not be opened, much less counted, but at least you can make the point that you wanted to vote and that you were disenfranchised by factors beyond your control.
In this situation, you should also send a separate letter in a separate envelope to the LEO. I applied for my absentee ballot in May 2010, six months before the election. I received the ballot in November 2011, 12 months after the election. You must do better in getting me a ballot in time for me to vote!
e. Use the Federal Write-in Absentee Ballot.
UOCAVA provides the Federal Write-in Absentee Ballot (FWAB) for the military or overseas voter who has timely applied for a regular absentee ballot but has not received it. You mark the ballot by writing in the names of your favored federal candidates, or you express a party preference (“Republican nominee” or “Democratic nominee”) for each federal office.
If you are a member of the armed forces or a military family member, you can submit the FWAB from either within or outside the United States. If you are not on active duty and not a military family member, and if you are voting under UOCAVA as an “overseas voter” you must submit the completed FWAB from an address outside the United States. See 42 U.S.C. 1973ff-2(b)(1).
You need not give up on the regular absentee ballot to submit the FWAB. If you submit the completed FWAB and then receive your regular absentee ballot (which includes non-federal as well as federal offices), you are permitted and indeed encouraged to complete and submit the regular absentee ballot as well. See 42 U.S.C. 1973ff-2(d). The LEO is responsible for ensuring that only one ballot is counted, and that will be the regular ballot if it arrives on time.
f. Keep in touch with the Federal Voting Assistance Program.
The Director of the Federal Voting Assistance Program (FVAP), in the Department of Defense, is responsible for the federal responsibilities under UOCAVA. The current FVAP Director is Bob Carey, a Captain in the Navy Reserve and life member of ROA. His e-mail is Bob.Carey@fvap.gov. You can reach the FVAP toll-free at 800-438-VOTE or DSN 425-1854. I also invite your attention to their excellent website, www.fvap.gov.
 Except in Maine, Alaska, and the District of Columbia, absentee voting is conducted by local officials at the county, parish (Louisiana), city, town, or township level, and there are more than 7,500 such offices nationwide.
 That means that 7,217 ballots were rejected because they arrived too late or because of some other technical failure, like the voter’s failure to sign the affidavit on the back of the ballot return envelope.
 Under UOCAVA, the FWAB is limited to federal offices (President, United States Senator, and United States Representative) in the general election, but some states have by state law expanded the use of the FWAB to include non-federal offices and elections other than the biennial general election.