LAW REVIEW 1257
Federal Only or All Office Voting from Overseas?
By Captain Samuel F. Wright, JAGC, USN (Ret.)
7.0—Military Voting Rights
Q: I have enjoyed reading your “Law Review” articles about military voting and the Uniformed and Overseas Citizens Absentee Voting Act (UOCAVA). Am I eligible to vote under this law?
I was born in 1950, in Alabama. I graduated from college in 1972 and was commissioned a Second Lieutenant in the Army, via the Reserve Officers Training Corps (ROTC). I served on active duty for four years and was released in 1976. At that time I moved to Wisconsin to take a job for a major corporation. I affiliated with the Army Reserve and retired in 2002 as a Colonel. In 2010, I turned 60 and started drawing my reserve retired pay.
I remained in Wisconsin until 2005, when the corporation sent me to the Republic of the Philippines (RP) to head the corporate operations there. When I left Wisconsin, my intent was to spend the last five years of my corporate career in the RP and then return to Wisconsin. However, when I turned 60 and retired I decided to stay in the Philippines—my retired pay goes much further here. I will likely live here for the rest of my life.
A: You are eligible to vote under UOCAVA, but as an “overseas voter” and not as an “absent uniformed services voter.” These terms, and many other terms used in UOCAVA, are defined in 42 U.S.C. 1973ff-6. An absent uniformed services voter is a member of the uniformed services on active duty or the voting-age spouse or dependent of such a member. You do not qualify because you are not on active duty. 42 U.S.C. 1973ff-6(1).
UOCAVA also accords the right to vote to U.S. citizens who are outside the United States temporarily or permanently. 42 U.S.C. 1973ff-6(5). You are eligible to vote in Wisconsin, by absentee ballot, in primary, general, special, and runoff elections for federal office (President, United States Senator, and United States Representative), so long as you remain in the RP or elsewhere outside the United States, without regard to how long you have been away from Wisconsin and even if you have a firm intention never to return there. 42 U.S.C. 1973ff-1(a)(1).
Q: Am I only eligible to vote for federal offices? What about state and local offices?
That depends on your intent to return to Wisconsin. During the five years that you were in the RP on assignment to the major corporation, and when you intended to return to Wisconsin upon completion of that five-year assignment, you were probably eligible to vote in Wisconsin by absentee ballot for all offices. When you changed your mind and decided to stay in the RP long-term after retiring from the corporation, you probably lost the right to vote in Wisconsin for non-federal offices.
The traditional rule is that to be eligible to vote in a place you must be domiciled in that place. You can maintain your domicile in Wisconsin while absent from the state, even for a period of years, so long as you intend to return to that state. But to be eligible to vote by absentee ballot for federal offices only under UOCAVA you need not be domiciled in Wisconsin. It is sufficient that you were domiciled in Wisconsin before you moved to an overseas location. You may spend the next 35 years in the RP and die there in 2046, but so long as you do not renounce your U.S. citizenship you are eligible to vote in Wisconsin by absentee ballot, for federal offices, under UOCAVA.
Q: Does my voting by absentee ballot have any effect on my liability to pay Wisconsin state income tax? During my last five years with the corporation, while I was living and working in the RP, I continued paying Wisconsin state income tax, through withholding from my salary. I also filed a Wisconsin state tax return for each year through 2010. When I retired from the corporation and starting drawing my corporate retired pay, in late 2010, I did not arrange for withholding of state income tax from my retired pay. I did not pay Wisconsin state income tax or file a return for 2011 or so far in 2012. In January 2011 I sent a letter to Wisconsin’s tax department, informing them that as of the end of 2010 I was no longer domiciled in Wisconsin and that I would not be paying any further Wisconsin taxes. The tax department has not responded to or acknowledged my letter.
A: UOCAVA specifically provides: “The exercise of any right under this subchapter shall not affect, for purposes of any Federal, State, or local tax, the residence or domicile of a person exercising such right.” 42 U.S.C. 1973ff-5 (emphasis supplied).
Thus, if you vote for federal offices only under UOCAVA, Wisconsin cannot use the fact of your vote as evidence establishing your liability to pay Wisconsin state income tax. This does not mean that you are automatically exempt from having to pay Wisconsin state income tax, but the state tax authorities will have to prove your domicile and your liability to pay the tax without regard to your having voted for federal offices under UOCAVA.
On the other hand, if you cast an absentee ballot for all offices the State of Wisconsin would probably not be precluded from citing the fact of your having so voted as evidence of your domicile for state income tax purposes. The Maryland Court of Appeals has held: “Evidence that a person registered or voted is admissible and ordinarily persuasive when the question of domicile is at issue.” Comptroller of the Treasury v. Lenderking, 268 Md. 613, 619, 303 A.2d 402, 405 (1973).
If your position is that you are no longer domiciled in Wisconsin and that you do not owe state income tax, it would be prudent for you to limit your voting to federal offices, under UOCAVA.
Q: I have been voting by absentee ballot in Wisconsin in every federal election since I arrived here in the RP in 2005. I have been using the excellent wizard on the Federal Voting Assistance Program (FVAP) website, www.fvap.gov to complete the Federal Post Card Application (FPCA). That website asks me a series of questions and then gives me a completed form that is complete, correct, and legible, and it also provides me with the address of my local election official in Wisconsin. I sign the form and mail it in.
When I filled out my form to vote in the 2012 primary in Wisconsin (for President and for U.S. Representative only), I noticed that the FPCA form on the website has changed. Formerly, there were two categories on the form for overseas civilian voters like me: “U.S. citizen outside the United States temporarily” and “U.S. citizen outside the United States indefinitely.” On the new form, the two categories are “U.S. citizen outside the United States and I intend to return” and “U.S. citizen outside the United States and I do not intend to return.” Why was this change made? Who is responsible for this form? Which box should I choose? What effect does my choice of the box have on my receiving a full ballot as opposed to a ballot for federal offices only? What effect does my choice of the box have on my potential liability to pay Wisconsin state income tax?
A: Congress enacted UOCAVA in 1986, replacing two earlier laws. UOCAVA assigns important responsibilities to the “presidential designee” and one of those responsibilities is to design and revise the FPCA and other forms provided for by this law. In early 1988, as UOCAVA was going into effect, President Ronald Reagan designated the Secretary of Defense (SECDEF) as the “presidential designee.” That designation remains in effect because no subsequent president has chosen to change it.
In early 1988, SECDEF Frank Carlucci delegated all of the “presidential designee” powers, responsibilities, and discretion to the Director of the Federal Voting Assistance Program (FVAP), and that delegation is also still in effect.
This year, the FVAP Director chose (properly in my view) to exercise his authority and change the FPCA. I think that the distinction between “intend to return” and “do not intend to return” is more readily understandable than the inherently vague distinction between “temporarily” and “indefinitely.” But however the form is worded, there will be some who are confused and uncertain. It is not possible to put paragraphs of explanation on the form. The whole point is to make the form concise.
Since it is now your position that you intend not to return to Wisconsin and that you do not owe state income tax to Wisconsin, I suggest that you check the “do not intend to return” box. If you check that box, you should receive a ballot that is limited to federal offices. If you check the “intend to return” box you will likely receive a full ballot.
 Maryland’s Court of Appeals is the state’s high court.