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 12113

November 2012

Good News on Military and Overseas Voting from Kane County, Illinois

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

7.0—Military Voting Rights

I have asked ROA members and others to contact their local election officials (LEOs) to obtain statistics about military and overseas absentee voting in the 2012 general election.[1]  We have good news from Kane County, Illinois, a major suburban county southwest of Chicago.  Kane County has a population of 515,269, according to the 2010 Census.

The Honorable John A. Cunningham, County Clerk of Kane County, has most graciously provided information to respond to our questionnaire.  Kane County received 593 absentee ballot applications, for the 2012 general election, from UOCAVA (Uniformed and Overseas Citizens Absentee Voting Act) voters—these are active duty members of the uniformed services (Army, Navy, Marine Corps, Air Force, and Coast Guard, as well as the commissioned corps of the Public Health Service and the commissioned corps of the National Oceanic and Atmospheric Administration) or Merchant Marine and their voting-age family members, whether within or outside the United States, as well as voting-age U.S. citizens who are outside our country temporarily or permanently. 

In 2009, Congress enacted the Military and Overseas Voter Empowerment Act (MOVE Act), which amended UOCAVA in several important ways.  The most important was to add an explicit requirement that each state mail out ballots to UOCAVA voters (military and civilian) by the 45th day preceding any primary or election for federal offices.  This is title 42, United States Code, section 1973ff-1(a)(8)(A), or 42 U.S.C. 1973ff-1(a)(8)(A).  In 2012, LEOs should have sent out absentee ballots on or before September 22, which was 45 days before the November 6 general election.

I am most pleased to note that Kane County beat this deadline by two days, sending out 266 UOCAVA ballots on September 20.  Of course, the LEO cannot send a ballot to a voter until the LEO has received the individual’s application for a ballot.  An additional 327 UOCAVA voters submitted their applications after September 20, and those ballots were sent out as soon as possible after the applications were received.

There is an important lesson to be learned here.  UOCAVA voters should be encouraged to apply early for their absentee ballots, in order to take advantage of the statutory requirement that LEOs send out unmarked absentee ballots not later than the 45th day before Election Day.  UOCAVA explicitly overrides state “not earlier than” rules for a UOCAVA voter to submit his or her absentee ballot request:  “A State may not refuse to accept or process, with respect to any election for Federal office, any otherwise valid voter registration application or absentee ballot application (including the postcard form prescribed under section 1973ff of this title) submitted by an absent uniformed services voter during a year on the grounds that the voter submitted the application before the first date on which the State otherwise accepts or processes such applications for that year submitted by absentee voters who are not members of the uniformed services.”  42 U.S.C. 1973ff-3.

This means that if you are an active duty member of the uniformed services or the voting-age family member of such a member (within or outside the United States), you are permitted by federal law to submit your absentee ballot request at any time during the calendar year of the election (even in January for the November general election) without regard to state “not earlier than” rules.  Under Article VI, Clause 2 of the United States Constitution (commonly called the “Supremacy Clause”), federal law trumps conflicting state laws and state constitutions. 

Many service members are reluctant to submit their absentee ballot requests early in the year because they do not know where they will be, and what mailing address they will be using, in the weeks leading up to the November general election.  I recognize that the service member does not control and often cannot predict his or her movements even a few days into the future.  My advice is that you submit your absentee ballot request early in the year and then establish contact with the LEO by e-mail or telephone.  If you are transferred or deployed, you should notify the LEO as soon as possible of your new ballot mailing address.

Of the 593 absentee ballots sent out to UOCAVA voters, 483 of them came back on time and were counted.  No ballots came back late, at least as of November 19, and no ballots that came back on time were rejected for other reasons.

Kane County reports that four ballots were returned by the United States Postal Service as undeliverable.  In each instance, the County Clerk was able to contact the applicant, obtain a better mailing address, and resend the ballot.

Section 1973ff-2 of UOCAVA (42 U.S.C. 1973ff-2) provides for the Federal Write-in Absentee Ballot (FWAB).  The UOCAVA voter who has applied for the regular absentee ballot but has not received it is permitted to submit a completed FWAB.  The FWAB is limited to federal offices in the general election.  For each federal office, the voter marks the FWAB by writing in the name of the favored candidate or by expressing a party preference, like “Democratic nominee” or  “Republican nominee.”  This is an unsatisfactory ballot, but it beats being wholly disenfranchised.

In past elections, there have been reports of LEOs rejecting many completed FWABs based on various technicalities.  Happily, that was not the case in Kane County in 2012.  The county received 20 completed FWABs and counted all 20. 

I am most pleased with these statistics, and I congratulate County Clerk John A. Cunningham for his efforts to facilitate the enfranchisement of the brave young men and women from that county who are away from home and prepared to lay down their lives in defense of our country.

Readers—please contact your LEO to obtain this information for your county or municipality.  If the questionnaire yields good news, like in Kane County, please congratulate and thank the LEO.  If the questionnaire yields bad news, please tell the LEO that we want to work with him or her to improve the performance in 2014 and beyond.

 



[1] There are more than 7,500 LEOs nationwide.  Only Alaska, Maine, and the District of Columbia administer absentee voting centrally at the state level.  In the other 48 states, absentee voting is administered by officials at the county level, or parishes in Louisiana, except for the New England states, Michigan, and Wisconsin, where absentee voting is administered by officials at the city, town, or township level.  There are 1,851 LEOS in Wisconsin alone, and another 1,500 in Michigan.  The title of the LEO varies (County Clerk, County Recorder, County Registrar, Supervisor of Elections, Town Clerk, etc.), but you can figure it out.