Samuel F. Wright

Captain, JAGC, USN (Ret.)
Director, Service Members Law Center
(800) 809-9448, ext. 730
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Law Review 12117

December 2012

Good News on Military and Overseas Voting from Isle of Wight County, Virginia

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

7.0—Military Voting Rights

Thank you to the Honorable Lisa E. Betterton (General Registrar of Isle of Wight County, Virginia) for completing our questionnaire on military and overseas voting in the 2012 general election, and thank you especially for her 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.

Isle of Wight County is located in the Norfolk metropolitan area, and the population of the county is 35,270, according to the 2010 Census.  Some of the county’s residents commute to work at Naval Base Norfolk, one of the largest naval bases in the world.

The General Registrar reports that she received 98 Federal Post Card Applications (FPCAs)[1] requesting absentee ballots for the 2012 general election.  The Registrar sent out 98 ballots by e-mail or mail—none of the completed FPCAs were rejected.

As amended in 2009, UOCAVA requires local election officials (LEOs) to send out absentee ballots to UOCAVA voters at least 45 days before any primary, general, or special election that includes federal offices (President, United States Senator, or United States Representative).  For the general election held on November 6, 2012, LEOs were required to send out ballots by Saturday, September 22. 

Isle of Wight County has joined the 21st Century, transmitting unmarked absentee ballots to UOCAVA voters by e-mail, if the voter has requested e-mail transmission and has provided an e-mail address.  On September 19 (three days before the deadline), Isle of Wight County transmitted 37 unmarked ballots to UOCAVA voters by e-mail.  On September 20 (two days before the deadline), Isle of Wight County sent out 16 absentee ballots to UOCAVA voters by mail.

Of course, the LEO cannot send out an absentee ballot to a voter until the LEO has received the voter’s application for an absentee ballot, and not all of the completed FPCAs were received by September 19.  After that date, the General Registrar sent out an additional 37 unmarked ballots to UOCAVA voters by e-mail and another eight ballots by mail.

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 citation refers to title 42, United States Code, section 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 98 unmarked ballots that Isle of Wight County transmitted to UOCAVA voters, 79 of them came back on time, as marked ballots, and were counted.  There were no ballots that were received on time but rejected for procedural deficiencies (like the voter’s failure to sign the affidavit on the back of the ballot return envelope).  There were three ballots that came back late (after November 6) and were not counted.  Two ballots were returned unmarked (by the United States Postal Service) as undeliverable and 14 ballots did not come back.  Add up these numbers and you get 98, the number of completed FPCAs received.

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 Isle of Wight County in 2012. The county received eight completed FWABs and counted all eight.

Readers:  Please contact your own LEO to obtain this sort of information for your county or municipality.  If the questionnaire yields good news, as in Isle of Wight County in Virginia and Kane County in Illinois (Law Review 12113), please congratulate and thank the LEO. 

If the questionnaire shows problems (military and overseas voters being disenfranchised), please tell the LEO that we want to work with him or her to improve the performance in 2014 and beyond.

[1] We are using FPCAs as a marker for voters who are eligible to vote under a federal law called the Uniformed and Overseas Citizens Absentee Voting Act (UOCAVA).  We believe that UOCAVA voters almost always use the FPCA because it is readily available on-line and through Voting Assistance Officers in military units and at American embassies and consulates around the world, and because by federal law the UOCAVA voter is permitted to use the FPCA as a simultaneous absentee ballot request and voter registration application, if the individual is not already registered.  UOCAVA voters are active duty members of the United States uniformed services and their voting-age family members, whether inside or outside our country, and U.S. citizens outside our country temporarily or permanently.