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 1297

October 2012

Federal Write-in Absentee Ballot

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

7.0—Military Voting Rights

Q:  I am a Soldier on active duty, currently serving in Afghanistan.  I took your advice and applied for my absentee ballot, for the November general election, back in June, but now we are just 34 days away from the presidential election, and I still don’t have my ballot.  Here in Helmand Province, our mail is slow and intermittent.  What do I do now?

A:  I suggest that you go to www.heroesvote.org and complete the Federal Write-in Absentee Ballot (FWAB).  Section 1973ff-2 of title 42 of the United States Code (42 U.S.C. 1973ff-2) provides for the FWAB—all states are required to process and count the FWAB.  By federal law, the FWAB is limited to federal offices (President, United States Senator, and United States Representative).  You mark this ballot by writing in the names of your favored candidates or by expressing a party preference (“Democratic nominee” or “Republican nominee”) for each office.  At the www.heroesvote.org website, you can find information about the candidates running in your home state. 

Federal law limits the FWAB to federal offices, but federal law is a floor and not a ceiling on your rights as a military voter.  Some states permit you to use the FWAB to vote for non-federal offices as well.  You can find all the information you need at www.heroesvote.org. 

Q:  Casting my ballot for President, United States Senator, and United States Representative is certainly better than being wholly disenfranchised, but I am really interested in voting for our State House of Representatives.  My older sister is running for that office, and the election is expected to be very close.  If she loses by one vote and my ballot for her is not counted, I probably won’t get invited to her house for Christmas.  Help!

A:  I suggest that you go ahead and submit your FWAB now—doing so does not mean that you are giving up on your regular absentee ballot, which includes non-federal as well as federal offices.  When you receive your regular ballot, you are permitted and indeed encouraged to mark it and send it in.  Just include a note to the effect that you have already submitted the FWAB.  If your marked regular ballot arrives back home in time, it will be counted and your FWAB will be set aside. 

Whenever you receive your regular absentee ballot, even next summer, you should mark the ballot and send it back to your local election official (LEO) back home.  You should also send the LEO a separate letter, in a separate envelope, complaining that your ballot was late.  This ballot will not be counted, if received months after the election, but at least you can make the point that you wanted to vote for non-federal as well as federal offices and that you were prevented from doing so by the circumstances of your military service and by the LEO’s failure to get you your ballot on time.

Q:  My good friend in my Army unit here in Afghanistan has not applied for an absentee ballot, but now that the election is just 34 days away he wants to vote.  Is it too late for my friend to submit a completed FWAB?

A:  Your friend needs to complete and submit the Federal Post Card Application (FPCA) and send it in along with this completed FWAB.  The federal law provides as follows concerning the submission of the completed FWAB:  “The Presidential designee [the Secretary of Defense, who has delegated this responsibility to the Director of the Federal Voting Assistance Program] shall prescribe a Federal write-in absentee ballot (including a secrecy envelope and mailing envelope for such ballot) for use in general, special, primary, and runoff elections for Federal office by absent uniformed services voters and overseas voters who make timely application for and do not receive State absentee ballots.”  42 U.S.C. 1973ff-2(a)(1) (emphasis supplied).

 If your friend’s home state is applying this federal law literally and has not enacted a federal law that goes above the federal floor, your friend’s marked FWAB will not be counted if his request for a regular absentee ballot is received after the voter registration deadline, and that deadline varies from 10 to 30 days before Election Day.  However, many states have provided, by state law, for the military or overseas voter to submit the FWAB without first having submitted the FPCA.  At this point your friend has nothing to lose by marking and completing the FPCA and the FWAB.  If he does so, it is possible that his ballot will not count, but if he does not do so it is certain that his vote will not be recorded in 2012.