OLR Research Report


December 22, 2008

 

2008-R-0641

ARMED SERVICES MEMBERS' ABSENTEE VOTING RIGHTS

By: Kristin Sullivan, Associate Analyst

You asked for a summary of (1) state and federal laws concerning absentee voting rights for armed services members who are deployed overseas and (2) proposals related to this issue.

SUMMARY

The Uniformed and Overseas Citizens Voting Act of 1986 (UOCAVA)(P.L. 99-410) requires U.S. states and territories to allow certain U.S. citizens to register and vote by absentee ballot in federal elections. State laws, including Connecticut's, authorize these individuals to register and vote absentee in state and local elections. U.S. citizens covered by UOCAVA include (1) members of the United States Uniformed Services and merchant marine, (2) their family members, and (3) U.S. citizens residing outside the country.

Congress is presently considering several proposals to amend UOCAVA, including one, S. 3073 that passed the Senate on October 1, 2008. Like some of the other bills, it establishes procedures to improve absentee ballot delivery to, and collection from, overseas military voters It also expresses the sense of Congress that the Department of Defense (DOD) should examine electronic voting to protect voter privacy and guard against voter fraud. In the wake of the 2008 federal election, Congress will likely consider additional proposals.

We found two proposals the Connecticut General Assembly considered over the last several years that, if passed, would have affected absentee voting for deployed armed services members and their families.

FEDERAL LAW

Congress passed UOCAVA in 1986. Generally, the law grants eligible citizens the right to (1) register and vote by absentee ballot in federal elections and (2) submit a "back-up" Federal Write-In Absentee Ballot (FWAB) if they have made a timely application for, but have not received, their state absentee ballot, subject to certain conditions.

As the presidential designee, the DOD secretary has administrative responsibilities for UOCAVA. He has delegated these to the Federal Voting Assistance Program (FVAP).

UOCAVA applies to “absent uniformed services voters.” They are (1) active duty U.S. uniformed services members, (2) merchant marine members, (3) their families, and (4) U.S. citizens residing outside the country. The “uniformed services” are the U.S. Army, Navy, Marine Corps, Air Force, and Coast Guard, as well as the Public Health Service Commissioned Corps and the National Oceanic and Atmospheric Administration Commissioned Corps.

Federal Responsibilities

The FVAP must ensure that state and local election officials are aware of the law's requirements. In addition, the FVAP must:

1. prescribe a standard federal post card application that qualified citizens may use to register to vote and apply for an absentee ballot;

2. prescribe the FWAB for use as a back-up in general elections for federal office by voters who make timely application for, but do not receive, state absentee ballots;

3. compile and distribute (a) descriptive material on state absentee registration and voting procedures and (b) to the extent practicable, facts relating to specific elections, including dates, offices involved, and ballot question text; and

4. report to the President and Congress by the end of a presidential election year on the effectiveness of assistance under UOCAVA (42 U.S.C. 1973ff).

State Responsibilities

UOCAVA requires every U.S. state and territory to allow eligible citizens to register and vote by absentee ballot in a general, special, primary, or runoff election for federal office. States must also:

1. accept and process valid voter registration and absentee ballot applications that are received at least 30 days before an election;

2. allow for simultaneous voter registration and absentee ballot application through use of the official federal post card form; and

3. permit eligible citizens to use the FWAB for general elections, unless they qualify for an exemption.

In addition, states must designate a central office as responsible for providing information to UOCAVA voters on voter registration and absentee voting procedures. In Connecticut, this is the Office of the Secretary of the State.

No later than 90 days after a general election, states must submit a report to the Election Assistance Commission (EAC). The report must include the total number of absentee UOCAVA ballots the state issued, received back, and recorded as cast. The report must be publicly available (42 U.S.C. 1973ff-1).

Federal Postcard Application

The federal postcard allows eligible citizens to simultaneously submit a voter registration and absentee ballot application. It also gives them the option to request that the application be considered as an absentee ballot application for the next two regularly-scheduled federal general elections. In that case, the state must provide an absentee ballot to the voter for those subsequent elections, unless the voter registers to vote in another state or asks to be removed from the voter registration list (42 U.S.C. 1973ff-3).

Federal Write-In Absentee Ballots

UOCAVA establishes uniformity among absentee voting procedures for federal offices by requiring states to accept the FWAB, unless they qualify for exemption. Eligible citizens may use the absentee ballot if they have made timely application for, but not received, a state absentee ballot two weeks before the election. The FVAP prescribes the FWAB and it is available through voting assistance officers at military installations, or at U.S. embassies and consulates. An online version, together with information and instructions, is available on the FVAP website (42 U.S.C. 1973ff-2).

Exemption. To qualify for the exemption, a state must require that state absentee ballots be available at least 90 days before the election to uniformed services voters who, by reason of active duty or service, are absent from the U.S. The ballots must also be available as soon as the Office of the Secretary of the State completes the official candidate list to individuals residing overseas, either permanently or temporarily, who are qualified to vote in their last place of U.S. residence (42 U.S.C. 1973ff-2(f)).

Counting the Ballots. FWABs are submitted and processed according to state law. However, UOCAVA specifies that these ballots do not count when an absent uniformed services voter or overseas voter submits an absentee ballot application after (1) the state deadline or (2) 30 days before the general election. The federal ballots are declared invalid when a state election official receives a state absentee ballot by the state deadline, thus preventing an over vote. Finally, the law specifies that the ballot is void if an overseas voter submits a ballot from any location in the United States. (This provision does not apply to uniformed services voters.)

CONNECTICUT LAW

The Connecticut Constitution sets the qualifications of electors and the time, place, and manner for voting. Article VI, 7 authorizes the General Assembly to allow electors to vote by absentee ballot only if they are unable to appear at the polling place on the day of election due to (1) absence from their city or town of residence, (2) sickness or physical disability, or (3) the tenets of their religion, which forbid secular activity. The General Assembly exercised its authority by enacting CGS 9-135, which also permits any qualified elector to vote by absentee ballot if, among other things, the individual is in active service with the United States armed forces.

State law generally defines “armed forces” members in the same way as UOCAVA defines “uniformed services” members, though it includes Coast and Geodetic Survey members. This means active service members of the military, Coast Guard, Public Health Service, Merchant Marine, and Coast and Geodetic Survey can vote by absentee ballot.

Special Procedures for Members of the Armed Forces

Active duty armed forces members and their families who are living outside of the U.S. have many of the same rights under state law as they do under UOCAVA. The state has established certain procedures, applicable to these individuals, to make the voter registration and absentee ballot process less burdensome so that they may vote in federal and state elections, and referenda. In Connecticut, they have the right to:

1. apply to register to vote, in person or by mail, using a form prescribed by the secretary of the state or the federal postcard application (CGS 9-26);

2. register to vote until 5:00 p.m. on the last weekday preceding any regular election (CGS 9-25);

3. apply for and receive a blank absentee ballot to vote for all contested offices in a regular election, and receive one beginning 90 days beforehand (CGS 9-153e);

4. apply for and receive a blank absentee ballot to vote for all contested offices in a regular election or primary, together with lists of candidates and questions to be voted on, as soon as the lists are available (CGS 9-153f).

When registering to vote by mail, armed forces members and other citizens who are entitled to use the federal postcard application for absentee ballots do not have to provide identification normally required in the voter registration process such as valid photo identification, a copy of a bank statement, or the last four digits of one's Social Security number (CGS 9-23r).

Like other state residents, active duty members of the armed forces stationed overseas may receive an absentee ballot application from a town clerk via facsimile (CGS 9-140(b)). Likewise, they may apply for and receive a regular absentee ballot to vote for all contested offices in a regular election, primary, or a referendum question (CGS 9-135).

Counting Federal Write-In Absentee Ballots

Connecticut accepts the back-up FWAB even though it meets both standards for exemption under UOCAVA. The secretary of the state's “Procedure Manual for Counting Absentee Ballots” (Attachment I) sets out special procedures counting the FWABs, which are referred to as Overseas Ballots on the Moderator's Return. Namely, the manual directs town clerks to reject an individual's FWAB if he or she later submits a valid Connecticut absentee ballot that is counted. It also directs clerks to give to the registrars the name and address of individuals who return these ballots but are not on the voter registry list by the deadline, 5:00 p.m. on the day before the election. The registrars must add these names to the list of overseas voters whose names are not on the list, for each district, to be used on election night.

Counting Absentee Ballots

Absentee ballot counting procedures are designed to protect ballot security by verifying the integrity of voted ballots that are returned to the town clerk. Before and on election day, the registrars of voters check the names on the official checklist of the applicants who have returned ballots, including those who requested blank absentee ballots and those who requested regular absentee ballots. They must also keep a list of individuals to whom ballots were issued on the basis of a faxed state application or federal postcard application. The registrars mark “absentee” or “A” before the name of each voter who has already cast an absentee ballot, so that poll workers know that the person has already voted. If the name of an applicant returning a ballot is not on the official checklist, the registrars mark the outer envelope “rejected,” and the envelope is not opened and the ballot is not counted (CGS 9-140c). The “Procedure Manual for Counting Absentee Ballots” sets forth in greater detail the polling place procedures for counting absentee ballots.

PROPOSED BILLS

Congress is currently considering several proposals to amend UOCAVA. Table 1 provides information on the most recent. The majority include provisions to improve absentee ballot delivery to, and collection from, military overseas voters. These aspects of military overseas voting became more prominent during the 2008 federal election with armed services personnel serving in very remote locations and with increased interest in the application of Internet technology. Of the six proposals that the table describes, one, S. 3073, passed in the Senate and is now being considered by the House Committee on House Administration. The others have remained in committee.

Table 1: Proposals to Amend UOCAVA

Bill

Major Provisions

Status and Latest Congressional Action

H.R. 7265

Fixing the Federal Voting Assistance Program Act of 2008

n requires the presidential designee responsible for carrying out federal functions under UOCAVA (currently the DOD secretary) to have experience in election administration and be approved by the Senate

n establishes the Overseas Voting Advisory Board to conduct studies and issue reports on various issues, including the ability of U.S. citizens who reside outside of the U.S. to register to vote and vote in elections

10/3/2008: referred to the Committee on House Administration and the Committee on Rules

S. 3073

An Act to Amend the Uniformed and Overseas Citizens Absentee Voting Act

(Related bill: H. R. 5673)

n directs the DOD secretary to establish procedures for (1) collecting absentee ballots of military overseas voters in elections for federal office and (2) delivering the ballots to the appropriate state election officials

n requires the secretary to (1) ensure that the ballots are delivered prior to the close of the polls on the date of the election; (2) carry out delivery requirements through a contract with an express mail services private provider, which must include a mechanism for ballot tracking; and (3) take steps to ensure that the voters are able to cast their votes in a private and independent manner, and that vote contents remain private

n expresses the sense of Congress that the DOD should (1) utilize existing and emerging technologies to enhance the ability of members of the Armed Forces to meaningfully participate in elections and have their votes counted and (2) continue to closely examine the option of electronic voting, with the objective of protecting voter privacy and guarding against voter fraud

10/1/2008: passed in Senate

10/2/2008: referred to House Committee on House Administration

H.R. 7248

Military and Overseas Voting Enhancement Act

n requires states to accept and process absentee ballots that eligible voters under UOCAVA submit to an express mail provider by the day before election, as long as the ballot is received within 10 days after the election

requires the presidential designee to reimburse overseas uniformed services voters for the costs of using an express mail provider to transmit a ballot

10/2/2008: referred to the House Committee on House Administration

H.R. 5673

Military Voting Protection Act of 2008

n directs the defense secretary to establish procedures for collecting absentee ballots of military overseas voters in federal elections and for delivering the ballots to the appropriate state election officials

n requires the secretary to (1) ensure that the ballots are delivered before the polls close; (2) contract with a private air transportation provider to carry out these delivery requirements and include a mechanism for ballot tracking; and (3) take steps to ensure that voters are able to cast their votes in a private and independent manner, and that vote contents remain secret until tabulated by state election officials

4/1/2008: referred to the House Committee on House Administration

H.R. 4237

Overseas Voting Practical Amendments Act of 2007

n prohibits states from refusing to accept balloting materials for specified reasons, including that they are not printed on a post card, do not include certain information, are not notarized or witnessed by an authorized official, are not delivered by the U.S. Postal Service, or do not meet certain other nonessential requirements

n permits voters to request absentee ballots in all subsequent elections

n applies UOCAVA to individuals who have never resided in the United States (whose parents are overseas voters);

11/15/2007: referred to House Oversight and Government Reform

H.R. 4173

OVERSEAS Vote Act

n prohibits a state from refusing to accept or process any otherwise valid absentee ballot submitted by an absent uniformed services voter or overseas voter on the grounds that the envelope in which the ballot is submitted is not notarized or witnessed by a notary public or other official authorized to administer oaths

n repeals the requirement to apply for state absentee ballot as a condition for use of a federal write-in absentee ballot

n directs the Election Assistance Commission (EAC) to establish and operate a program of grants to eligible nonpartisan organizations for activities to (1) assist overseas civilian voters in voting in federal elections and (2) increase turnout by providing them with information in advance of an election on how to cast absentee ballots

11/14/2007: referred to the Committee on House Administration and the Committee on Foreign Affairs

Since 2000, the Connecticut General Assembly has considered many bills concerning absentee ballots and voting. We found two that, if passed, would have directly affected deployed active duty armed forces members and their families. Table 2 lists and summarizes those bills.

Table 2: Connecticut Proposals

Bill

Relevant Provisions

Status

HB 5376 (2001)

An Act Concerning the Absentee Ballot Process

n eliminates the requirement that an absentee ballot applicant who faxes the application to the municipal clerk also mail the original of the application to the clerk

Died in committee after a public hearing

sHB 6592 (2003)

An Act Concerning The Implementation and Administration of the “Help America Vote Act”

n requires that the Federal Post Card Application be an application through two regular federal elections and prohibits rejection of an absentee ballot application from military personnel because it is submitted too early

n requires town clerks to notify an applicant if the clerk rejects a voter registration request or an absentee ballot application from a person in the military or overseas and give the reason for the rejection

n extends to overseas voters the opportunity to use the 90-day blank ballot. Under current law, the ballot with just the offices listed is available only to the military and their families.

Died on the House calendar after earlier passing the House and Senate with amendments

HYPERLINKS

Federal Voting Assistance Program website, http://www.fvap.gov/, last visited December 15, 2008.

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