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 1256

LAW REVIEW 1256

June 2012

Eleven California Counties Are Late in Sending
Absentee Ballots for 2012 Primary[1]

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

7.0—Military Voting Rights



California is conducting its 2012 primary this week, on Tuesday, June 5.  All counties should have mailed out their absentee ballots, to military and overseas voters, by April 21, to meet the 45-day rule (discussed below), but 11 counties[1] missed this important deadline.  As a result, the United States Department of Justice (DOJ) sued California, and California Secretary of State Debra Bowen settled the suit the same day it was filed. 

A story published in the North County Times on May 30, 2012 quotes San Mateo County elections manager David Tom to the effect that his county was on track to send out 739 overseas ballots on April 21, but at the last minute a County Board of Supervisors candidate had to be removed from the ballot.  Reprinting the ballots without that candidate’s name caused the county to miss the April 21 deadline.

What Mr. Tom should have done is to send out the ballots that he had, in order to meet the deadline.  Then, he should have sent new ballots, just for the one affected office, to the affected voters, along with a note explaining the need for a second ballot mailing limited to one office.

As amended in 2009, the Uniformed and Overseas Citizens Absentee Voting Act (UOCAVA) requires the states to transmit absentee ballots to UOCAVA voters not later than 45 days before any primary, general, or special election for federal offices.  Title 42, United States Code, section 1973ff-1(a)(8) [42 U.S.C. 1973ff-1(a)(8)].  The idea is to ensure that the brave men and women defending the rights we all enjoy should themselves enjoy the right to cast a ballot that really does get counted, no matter where the service of our country has taken them.

UOCAVA is a federal statute enacted in 1986.  It gives “absent uniformed services voters” and “overseas voters” the right to register and vote by absentee process in primary, general, special, and runoff elections for federal office (President, United States Senator, and United States Representative).  42 U.S.C. 1973ff-1(a)(1).  Uniformed services voters are active service members of the uniformed services[2] or Merchant Marine and their voting-age spouses and family members, whether within or outside the United States.  42 U.S.C. 1973ff-6(1).

In most places, absentee voting is still being conducted as it was during World War II—by shipping pieces of paper across oceans and continents by snail mail.  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).[3]  Second, the unmarked ballot must travel from the LEO to the voter, who is often thousands of miles away and at a place where mail service is slow and intermittent.  Third, the marked ballot must travel from the voter back to the LEO in the voter’s hometown. 

Military personnel on ships at sea or in places like Afghanistan do not have the opportunity to receive or send mail every day.  Their mail service is slow and intermittent.  Moreover, the individual service member does not control and often cannot predict his or her movements even a few days into the future.  A Soldier at Fort Bragg (North Carolina) on Monday may be in Afghanistan by Thursday.  A Soldier wounded in Afghanistan on Thursday may be at a military hospital in the United States by the following Monday.  Thus, the absentee ballot may be in Afghanistan while the Soldier is at the Walter Reed National Military Medical Center in Bethesda, Maryland.  Ballots need to go out by the 45th day before Election Day, so that all this can get sorted out in time for the Soldier to vote.

Readers:  Please contact your LEO and the LEOs in several nearby counties or municipalities.[4]  Please remind the LEO that absentee ballots must be printed and ready to mail by Saturday, September 22, for the November 6 general election.  Tell the LEO that you will be back on Monday, September 24, to ensure that the ballots have been mailed.  If you find that your LEO expects to miss or has missed the 45-day deadline, for whatever reason, please let me know right away.  My e-mail is SWright@roa.org.  My telephone is 800-809-9448, extension 730.



[1] The late counties were Contra Costa, Fresno, Modoc, San Diego, San Francisco, San Mateo, Shasta, Sierra, Tehama, Trinity, and Ventura Counties.  California has 58 counties.

[2] The uniformed services are the United States Army, Navy, Marine Corps, Air Force, and Coast Guard, plus the commissioned corps of the Public Health Service and the commissioned corps of the National Oceanic & Atmospheric Administration.  10 U.S.C. 101(a)(5).

[3] Under UOCAVA, the absentee ballot request can be submitted at any time during the calendar year of the election, even in January for the November general election.  UOCAVA explicitly overrides state “not earlier than” rules for the submission of the absentee ballot request, as applied to the UOCAVA voter.  See 42 U.S.C. 1973ff-3.

[4] In most states, election officials at the county level (or parishes in Louisiana) administer absentee voting.  In the New England states, Michigan, and Wisconsin, local officials at the city, town, or township level administer absentee voting.  Absentee voting is administered centrally, at the state level, in Alaska, Maine, and the District of Columbia.



[1] Please see Law Review 1202 (January 2012) for a detailed discussion of the absentee voting process for the active duty voter.  If you are on active duty, and if you have not already applied for an absentee ballot for the November 6 general election, do so now, or by July 4.  Submit a new application for the general election, even if you have already voted by absentee ballot in the primary this year. 

[1] The late counties were Contra Costa, Fresno, Modoc, San Diego, San Francisco, San Mateo, Shasta, Sierra, Tehama, Trinity, and Ventura Counties.  California has 58 counties.

[1] The uniformed services are the United States Army, Navy, Marine Corps, Air Force, and Coast Guard, plus the commissioned corps of the Public Health Service and the commissioned corps of the National Oceanic & Atmospheric Administration.  10 U.S.C. 101(a)(5).

[1] Under UOCAVA, the absentee ballot request can be submitted at any time during the calendar year of the election, even in January for the November general election.  UOCAVA explicitly overrides state “not earlier than” rules for the submission of the absentee ballot request, as applied to the UOCAVA voter.  See 42 U.S.C. 1973ff-3.

[1] In most states, election officials at the county level (or parishes in Louisiana) administer absentee voting.  In the New England states, Michigan, and Wisconsin, local officials at the city, town, or township level administer absentee voting.  Absentee voting is administered centrally, at the state level, in Alaska, Maine, and the District of Columbia.