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 1280

August 2012

Keep on Voting in New Hampshire, not Ohio

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

4.5—SCRA Protection from State/Local Tax Authorities
7.0—Military Voting Rights

Q:  I was born in a small town in New Hampshire in 1983 and graduated from high school in that town in 2001.  Three months later, 19 terrorists crashed four airplanes into three buildings and a field, and I decided to join the Coast Guard.  I have reenlisted twice, and I intend to remain on active duty at least until 2021, to qualify for retirement.  I am currently serving at a Coast Guard station in Ohio.

I have voted by absentee ballot in that small town in each major election since 2002.  Last year, my parents sold the house where I grew up and moved to Florida to retire.  I no longer have any relatives in that town, and there is no address in the town where I can receive mail.

Recently, I applied to the Town Clerk for an absentee ballot for the 2012 general election.  She responded, telling me that I am no longer eligible to vote in the town because my parents have moved away.  Is the Town Clerk correct?[1]

A:  No.  The Town Clerk is wrong, and I will contact the Secretary of State’s office to set her straight.  Your domicile of origin is the place where you lived and were domiciled before you entered active duty in 2001.  The current domicile of your parents is irrelevant.  It does not matter that you have no relatives currently living in the town or that you cannot receive mail in the town.  Your domicile remains that address where you grew up until you establish a new domicile of choice somewhere else or until you leave active duty, whichever comes first.

You will probably want to maintain your domicile in New Hampshire for the remainder of your military career, because New Hampshire is one of a handful of states that has no state income tax.  It will probably maintain that no-tax policy at least long enough for you to finish your military career.

Because you are currently serving on active duty within the United States, you have a choice.  You can register and vote at the place where you physically reside, by making that place your domicile, or you can vote by absentee ballot at the place that you consider “home”—your domicile.  Where you vote can have important collateral legal consequences, and it is important that you understand those consequences.  Don’t listen to “scuttlebutt” from “sea lawyers.”  Make an appointment to discuss this important issue with a military legal assistance attorney, and get the “straight scoop.”

If you need legal assistance on any civilian legal matter, you should contact the military legal assistance office at your base or station.  Call to make an appointment—do not expect to get legal assistance over the telephone.  If you do not know the location of a nearby military legal assistance office, go to: http://legalassistance.law.af.mil/content/locator.php. 

Like so much in the military today, legal assistance is “purple.”  As a member of the armed forces[2] on active duty, you are eligible for legal assistance at any military legal assistance office, not just a Coast Guard office.

If you are unable to make an appointment at a military legal assistance office, or if you get an “I dunno” response from a military legal assistance attorney, you may contact me by e-mail at SWright@roa.org or call me toll-free at 800-809-9448, extension 730.  As the Director of the Service Members Law Center, I am here during regular business hours and until 2200 Eastern Time Monday and Thursday evenings.  The point of the late-night availability is to make it convenient for active duty and Reserve Component service members to call me at a time when it is convenient for them, and when they are not at work at their civilian jobs or military duties.

Like every human being, each service member has one and only one domicile.  You are eligible to vote only at the place that constitutes your domicile, not at any other place.  This is not a matter of “pick a state, any state.”  You cannot simply designate a state because that state has a favorable tax policy (like no state income tax) or because you think that state will be “in play” in the 2012 election. 

For most people, the individual’s domicile is the house or apartment where the individual usually sleeps.  When Bob Jones (not on active duty) moves from New Hampshire to Ohio, he becomes an Ohioan on the very day that he moves into the new house or apartment in Ohio, unless he is in Ohio for a temporary purpose (like a three-month job assignment).  This is not a matter of Bob’s intent or preference.  He would probably prefer to remain a domiciliary of New Hampshire, because Ohio has a state income tax and New Hampshire has none.  But as a matter of law Bob becomes an Ohioan on the very day that he moves into the state.  From that day going forward, he must pay Ohio state income tax on his earnings, and he is eligible to vote in Ohio and not in New Hampshire.

Under a federal law called the Servicemembers Civil Relief Act (SCRA), active duty military personnel are treated differently with respect to the determination of domicile and liability for state income tax and personal property tax, and voting rights.  For example, you moved from New Hampshire to New Jersey, for basic training, when you joined the Coast Guard in late 2001, and you have lived in several states in the decade since, as the Coast Guard has transferred you from one duty station to the next.  Unlike Bob Jones, you do not automatically become a domiciliary (legal resident) of each new state where you move, as assigned by the Coast Guard.  Under the SCRA, you are exempt from having to pay Ohio state income tax and personal property tax on your automobile unless you become an Ohioan, and moving to Ohioan to be within a reasonable commuting distance of your military assignment does not make you an Ohioan automatically

You can change your domicile while you are on active duty, but to do so you must simultaneously have a physical presence in the state (within the United States) to which you wish to change and the intent to make that place home.  Your physical presence in Ohio, pursuant to military orders, does not alone make you an Ohioan.  Your absence from New Hampshire, even for many years, does not destroy your New Hampshire domicile, so long as you remain on active duty and do not establish a new domicile in some other state. 

Why are you treated differently from civilian Bob Jones with respect to the determination of domicile?  Congress has decided that active duty service members should be treated differently, because they do not choose where to live.  Yes, Bob Jones may have been transferred to Ohio by his employer, but if he does not want to move he can quit his job.  You do not have that option.  If you fail to go to your appointed place of duty in Ohio, you are guilty of a military criminal offense called “unauthorized absence.”

But you cannot have it both ways.  If you register to vote in Ohio you will lose your SCRA protection and will be required to pay Ohio state income tax and personal property tax.  Be sure that you understand all the consequences before you change your domicile from New Hampshire to Ohio.  Make an appointment to discuss this matter with a military legal assistance attorney or contact me by e-mail or telephone.

Q:  I know the Town Clerk, and she knows me.  Her daughter was one of my high school classmates, and we dated for three years.  I broke up with her in April of our senior year and took another girl to the senior prom.  More than a decade has passed, and I am now married to somebody else, but the Town Clerk and her daughter are still mad at me.

Also, there was only one other service member from our little town, and she retired from the Marine Corps last year.  The Town Clerk apparently figures that if she can get rid of me she can get out of the absentee voting business altogether.

A:  You have a constitutional right to vote in that town.  If the Town Clerk abridges your right to vote, the Town Clerk is guilty of a federal felony.  I will be happy to explain this to her.

Q:  Last year, I married Mary Smith, who has spent her whole life in Ohio, near the Coast Guard station where I serve.  Mary has never served in the military and she has never been to New Hampshire.  She has a great job and is making substantially more money than I make in the Coast Guard.   We live together in an apartment near her job and the Coast Guard station.  Is Mary eligible to register to vote in my New Hampshire home town?  Can Mary utilize my immunity from Ohio state income tax?

A:  No.  Each human being has one and only one domicile.  Mary did not take up your New Hampshire domicile by marrying you.  Although you live together in the same apartment, you are domiciled in New Hampshire and she is domiciled in Ohio.  This may seem anomalous, but this situation is very common in military families.

Mary must pay Ohio state income tax on her salary from her civilian job.  Under the SCRA, Ohio is precluded from considering your military income in determining the rate at which Mary’s salary will be taxed.  You and Mary can file a joint federal income tax return, but then she will need to file a separate Ohio return.  This can get tricky.  Consult an expert tax counsel.


[1] This factual scenario is based on an amalgamation of several situations of which I am aware and some poetic license.

[2] The term “armed forces” is defined in section 101(a)(4) of title 10 of the United States Code.  The armed forces are the Army, Navy, Marine Corps, Air Force, and Coast Guard.  Don’t let anybody tell you that the Coast Guard is any less of an armed force than the Army.