Order Code RS20764
Updated April 2, 2002January 30, 2003
CRS Report for Congress
Received through the CRS Web
The Uniformed and Overseas Citizens
Absentee Voting Act: Background and Issues
for the 107th Congress
Kevin J. Coleman
Analyst in American National Government
Government and Finance Division
Summary
Members of the military and U.S. citizens who live abroad are eligible to register
and vote absentee in federal elections under the provisions of the Uniformed and
Overseas Citizens Absentee Voting Act (UOCAVA) of 1986. The law was enacted to
improve absentee registration and voting for this group of voters and to consolidate
existing laws. Since 1942, several federal laws have been enacted to assist these voters:
the Soldier Voting Act of 1942 (amended in 1944), the Federal Voting Assistance Act
of 1955, the Overseas Citizens Voting Rights Act of 1975 (both the 1955 and 1975 laws
were amended in 1978 to improve procedures), and the Uniformed and Overseas
Citizens Absentee Voting Act of 1986. The law is administered by the Secretary of
Defense, who delegates that responsibility to the Director of the Federal Voting
Assistance Program at the Department of Defense (DoD).
The closeness of the 2000 presidential election focused attention on ballots received
received in Florida from military and overseas voters under the provisions of UOCAVA,
particularly the standards by which individual ballots were counted. After the election,
then- Secretary of Defense William S. Cohen directed the DoD Inspector General to
investigate issues with military and overseas ballots in the election; a report was issued
on June 22, 2001 ([http://www.dodig.osd.mil/audit/reports/fy01/01145sum.htm], pdf
version). This report will be updated ). More
recently, both the National Defense Authorization Act for FY2002 (P.L. 107-107; S.
1438) and the Help America Vote Act (P.L.107-252; H.R.3295) included provisions
concerning military and overseas voting. The President signed P.L. 107-107 on
December 28, 2001 and P.L. 107-252 on October 29, 2002. This report will be updated
periodically to reflect new developments.
Historical Overview
Several federal laws have been enacted since 1942 to enable those in the military and
and U.S. citizens abroad to vote in federal elections. The original law, the Soldier Voting Act
Act of 1942 (P.L.712-561), was enacted to guarantee federal voting rights for members
of the
armed forces during wartime. The law allowed members of the armed forces to vote for
for presidential electors, and candidates for the U.S. Senate and House, whether or not they
Congressional Research Service ˜ The Library of Congress
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they were previously registered and regardless of poll tax requirements. The law provided for
for the use of a postage-free, federal post card application to request an absentee ballot;
it also
instructed secretaries of state to prepare an appropriate number of “official war
ballots,”
which listed federal office candidates, as well as candidates for state and local office if
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office if authorized by the state legislature. The law “had almost no impact at all” as it
was enacted
on September 16, only weeks before the November general election.1
Congressional authority to regulate state voting procedures expired once the war
ended, as the law noted that its provisions applied “in time of war.” 2 The Soldier Voting
Act of 1942 was amended in 1944. Under congressional war powers, the 1942 law
mandated procedures for the states to permit service members to vote, but the amended
law of 1944 recommended that states follow such procedures. The law was amended
again in 1946 to include technical changes.
In 1951, President Truman asked the American Political Science Association
(APSA)
to study the military voting problem and make recommendations. APSA
completed its
study in 1952 and the President endorsed the association’s legislative
recommendations,
which were sent to Congress. Congress passed the Federal Voting
Assistance Act in 1955,
which recommended, but did not guarantee, absentee registration
and voting for members
of the military, federal employees who lived outside the U.S., and
members of civilian
service organizations affiliated with the armed forces. The law was
amended in 1968 to
include a more general provision for U.S. citizens temporarily
residing outside the U.S.,
expanding the number of civilians covered under the 1955 version of the law. The
Overseas Citizens Voting Rights Act of 1975 guaranteed absentee registration and voting
rights for citizens outside the U.S., whether or not they maintained a U.S. residence or
address and their intention to return was uncertain.
Summary of the Law
President Reagan signedThe current law, the Uniformed and Overseas Citizens Absentee Voting Act
(P.L. 99-410), the current law, on August 28, 1986.3 Its main provisions require states to:
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permit absent uniformed services voters,4
99-410), was signed into law by President Reagan on August 28, 1986.3 It was amended
in 2002 by the Help America Vote Act (P.L. 107-252) and the National Defense
Authorization Act of 2002 (P.L. 107-107). The main provisions of the law require states
to do the following:
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Permit absent uniformed services voters, their spouses and dependents,
and overseas voters who no longer maintain a residence in the U.S. to
register absentee (overseas voters are eligible to register absentee in the
jurisdiction of their last residence) and to vote by absentee ballot in all
elections for federal office (including general, primary, special, and runoff
elections);5
runoff elections). 4 The National Defense Authorization Act of 2002
1
U.S. Department of Defense, The Federal Voting Assistance Program, 11th Report ,
(Washington:
Dec. 1977), p. 2.
2
P.L. 56-393, Sec. 1.
3
42 U.S.C.§1973ff-ff-6.
4
Sec. 107 (1). An absent uniformed services voter is defined as follows: a member of a uniformed
service on active duty or a member of the merchant marine who, by reason of such active duty or
service in the merchant marine, is absent from the place of residence where the member is otherwise
qualified to vote; and a spouse or dependent of a member of a uniformed service or a member of
the merchant marine who is absent from his or her place of residence where he or she is otherwise
qualified to vote, because of the active duty or service of the member.
5
42 U.S.C.§1973ff-1(1).
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accept and process any valid voter registration application from an absent
uniformed services voter or overseas voter if the application is received
not less than 30 days before the election;6 and
accept the federal write-in absentee ballot for general elections for federal
office (provided the voter is registered, has made a timely request for a
state absentee ballot, the absentee ballot has not arrived with sufficient
time to return it, and the ballot is submitted from outside the U.S. or its
territories).7
(continued...)
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amended UOCAVA to permit a voter to submit a single absentee
application in order to receive an absentee ballot for each federal election
in the state during the year. The Help America Vote Act subsequently
amended that section of the law to extend the period covered by a single
absentee ballot application to the next two regularly scheduled general
elections for federal office. The Help America Vote Act also added a new
section that prohibits a state from refusing to accept a valid voter
registration application on the grounds that it was submitted prior to the
first date on which the state processes applications for the year.5
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Accept and process any valid voter registration application from an
absent uniformed services voter or overseas voter if the application is
received not less than 30 days before the election. The Help America
Vote Act amended that section of the law to require a state to provide to
a voter the reasons for rejecting a registration application or an absentee
ballot request.6
Furthermore, the law recommends that states accept the federal write-in absentee
ballot for general elections for federal office (provided the voter is registered, has made
a timely request for a state absentee ballot, the absentee ballot has not arrived with
sufficient time to return it, and the ballot is submitted from outside the U.S. or its
territories).7
The law also stipulates that voting materials be carried “expeditiously and free of
postage.” 8 It recommends that states accept the Federal Post Card Application (FPCA)
from uniformed services voters, their spouses and dependents, and overseas voters to
allow for simultaneous absentee registration and to request an absentee ballot. While all
states and territories accept the FPCA, some require that a voter submit the state
registration form separately in order to be permanently registered. Other recommendations
in the law suggest that states:9
4
(...continued)
uniformed service on active duty or a member of the merchant marine who, by reason of such
active duty or service in the merchant marine, is absent from the place of residence where the
member is otherwise qualified to vote; and a spouse or dependent of a member of a uniformed
service or a member of the merchant marine who is absent from his or her place of residence
where he or she is otherwise qualified to vote, because of the active duty or service of the
member.
5
42 U.S.C.§1973ff-1(1), as amended by section 1606 (b) of the National Defense Authorization
Act of 2002, and subsequently, by section 704 of the Help America Vote Act of 2002.
6
42 U.S.C.§1973ff-1(2), as amended by section 707 of the Help America Vote Act of 2002.suggest that states:9
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waive registration requirements for military and overseas voters who do
not have an opportunity to register because of service or residence;
send registration materials, along with an absentee ballot to be returned
simultaneously, if the FPCA is not sufficient for absentee registration;
expedite the processing of voting materials;
permit any required oath to be administered by a commissioned officer in
the military or by any official authorized to administer oaths under federal
law or the law of the state where the oath is administered;
assure mailing absentee ballots to military and overseas voters at the
earliest opportunity; and
provide for late registration for persons recently separated from the
military.
The Federal Voting Assistance Program
The Federal Voting Assistance Act of 1955 called for the President to designate the
head of an executive department to be responsible for and coordinate the federal functions
described in the law. President Eisenhower designated the Secretary of Defense, who
delegated the responsibility to the Assistant Secretary of Defense for Public Affairs, as
coordinator of the Federal Voting Assistance Program (FVAP). Under the current law,
the Director of the Federal Voting Assistance Program administers the FVAP for citizens
covered by the Uniformed and Overseas Citizens Absentee Voting Act. This office
publishes the Voting Assistance Guide, a compilation of state requirements and practices
with respect to the federal law (including information on possible tax liability incurred in
6
42 U.S.C.§1973ff-1(2).
7
42 U.S.C.§1973ff-1(3).
8
The United States Postal Service domestic mail manual notes that “To be mailable without
prepayment of postage, the balloting materials must be deposited at a U.S. post office, an overseas
overseas U.S. military post office, or an American Embassy or American Consulate.”
9
42 U.S.C.§1973ff-3.
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some states based on residence, as determined by voter registration). The FVAP office
also maintains a toll free phone number to provide assistance to voters and to military and
federal government personnel who are responsible for implementing the law; the office
also maintains a website at [http://www.fvap.gov].
Issues in the 2000 Election
Among the controversies in Florida during the 2000 election was the issue of
absentee ballots from military and overseas voters. The controversy in Florida centered
on two issues—the requirement that ballots must be postmarked by election day and the
deadline for counting them (10 days after election day)—neither of which is specifically
addressed in the federal law. Because the law left such details to the states, postmark
requirements and deadlines for returning ballots vary by state (as is the case with most
aspects of registration and voting).
Postmarks. The UOCAVA requires that voting materials “shall be carried
expeditiously and free of postage,” and there is no stated requirement that ballots need to
have a postmark.10 Florida state law requires that ballots must be postmarked by election
day, and some ballots were reportedly not counted because they lacked a postmark or the
postmark was illegible.11 In any case, Florida’s postmark requirement is not unique.
Thirteen states require absentee ballots to have a postmark in order to be counted, and two
states require that a ballot must be postmarked the day before election day.12 In a number
of cases, the state requires that ballots must be received by election day, but will count a
ballot received after that time if it is postmarked by election day.
Deadline for Counting Absentee Ballots. A second issue in Florida concerned
the deadline for receiving military and overseas ballots. According to news reports, some
ballots were not counted because they were received after Florida’s deadline.13 The state’s
requirement that military and overseas ballots must be received by county election officials
within 10 days of election day is a comparatively late deadline. Most states (35) require
that such ballots must be received by election day, and four states require that these ballots
be returned before election day. The issue of mail delays is particularly relevant for
military and overseas voters, who may otherwise have made every effort to have their
ballots counted (S. 1261, summarized below, includes a provision concerning a uniform
10
39 U.S.C. §3406. DoD postal regulations require postmarking of all mail, but the Deputy
Director of the Military Postal Service noted that “there are instances when time constraints do not
allow for proper postmarking/cancellation of mail....The last flight may be departing ship and the
mail has to get on it.... No one is going to refuse to take a letter or ballot at the last minute because
they do not have time to postmark it. It could be weeks before they see mail service again.” Robert
Alt, “Florida is Wrong,” [http://www.nationalreview.com/alt/alt112000.shtml], visited Nov. 21,
2000.
11
Brent Kallestad, “Counties skirmish over overseas absentee ballots,” Associated Press,
[http://www.herald.com/content/archive/news.elect2000/decision/045744.htm], visited Nov. 27,
2000.
12
13
Federal Voting Assistance Program, Voting Information News, Oct., 2000. pp. 2-4.
MSNBC, “Military votes, hand recounts still at issue,”
[http://www.msnbc.com/news/492686.asp], visited Nov. 21, 2000.
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deadline). As the DoD Inspector General’s report on the 2000 election noted, “FVAP
recognizes the potential problems associated with the States’ timelines for absentee ballots
and has encouraged the States to use a 45-day timeline,” meaning that an absentee ballot
is mailed to a voter 45 days before the election.14
The total number of federal absentee ballots counted in Florida was 2,490. The
number of absentee ballots submitted is difficult to determine because some were counted
with regular ballots if they arrived by election day, and those that arrived after election day
were counted only if they were received by November 17 (Florida’s deadline for counting
overseas and military ballots). A survey by the St. Petersburg Times estimated that over
22,000 absentee ballots were mailed to military and overseas voters, but it was not known
how many were returned.15 Furthermore, the Miami Herald reported that Florida officials
mailed two ballots to military and overseas voters who sent in absentee ballot requests:
one ballot was due on November 7 (this ballot was sent to any eligible voter who
requested an absentee ballot), and the other was due on November 17 (the ballot for
military and overseas voters).16 According to press reports and the Florida Secretary of
State’s office, 1,527 military and overseas ballots were rejected and 2,490 were counted;
if these totals are accurate, 4,017 military and overseas ballots were returned in Florida.17
107th Congress Legislation
The Defense Authorization Act for FY2002 (P.L. 107-107; S. 1438) included a
number of military voting provisions and was signed into law by the President on
December 28, 2001. The law: 1) requires an annual review of the voting assistance
program and a report to Congress; 2) guarantees state residency for military personnel
who are absent because of military duty; 3) continues the online voting pilot project begun
for the 2000 elections; 4) simplifies the voter registration and absentee ballot application
process, including a provision that permits a voter to make a single absentee ballot request
for all elections (primary and general) during the year; 5) permits the use of DOD facilities
as polling places if they had previously been used for that purpose since 1996 or were
designated for use by December 2000.
In addition to the provisions contained in the Defense Authorization Act, the House
approved a bill with military and overseas voting provisions in December 2001. H.R. 3295
was introduced on November 14, 2001 and reported by the House Administration
Committee on December 10; the House passed the bill on December 12. The bill would:
14
U.S. Department of Defense, Office of the Inspector General, “Audit Report: Overseas Absentee
Ballot Handling in DOD,” Report No. D-2001-145 (June 22, 2201), p. 22.
15
Sean Holton and Jim Leusner, “Nobody Has Full Count of Overseas Absentees,” Orlando
Sentinel, [http://orlandosentimel.com/automag...00-11-16/ASECelabsent161116000.html], visited
Nov. 28, 2000.
16
Meg Laughlin, “Military vote drive may benefit Republicans,”
[http://www.herald.com/content/arch...ws/elect2000/decision/103345b.htm], visited Nov. 27, 2000.
17
Vote totals are from the Florida Secretary of State’s website,
[http://enight.dos.state.fl.us/report.asp?Date=001107], visited Dec. 21, 2000, and the number of
rejected ballots is from MSNBC, “Military votes, hand recounts still at issue,”
[http://www.msnbc.com/news/492686.asp],visited Nov. 21, 2000.
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1) require the Inspector General of the Department of Defense to report to Congress
annually on voting assistance programs; 2) require the Secretary of Defense to ensure
postmarking of absentee ballots; 3) require states to designate a single office to facilitate
military and overseas voting, report registration and voting statistics, use a standard oath
for election materials, and accept the post card form as an absentee ballot request for all
elections in the state during the two subsequent federal election cycles.
The Senate began floor debate on S. 565 (substitute amendment) on February 13.
The bill was withdrawn after a second attempt to invoke cloture failed on March 4 (5144). Under a unanimous consent agreement announced on March 22, the Senate will take
up the bill again soon after it returns on April 8. With respect to military and overseas
voting, S.Amdt 2858 (Allard) was offered and approved by voice vote on February 13. It
would clarify the standard by which military absentee ballots may be invalidated; maximize
voting access for those who recently left the uniformed services; prohibit the refusal of
absentee applications because of early submission; and require distribution of copies of the
military and overseas voting law to all jurisdictions in each state. Senator Rockefeller
submitted S.Amdt. 2944,which would provide for a study of permanent overseas voter
registration; designate a single office in each state to administer the law; require public
reporting of the number of ballots sent and returned by military and overseas voters; and
require studies on the use of a standard oath and eliminating notarization requirements.
Other bills in the 107th Congress include H.R. 159 (Riley), which would prohibit
states from excluding a military voter’s absentee ballot because it was improperly or
fraudulently cast, unless the state finds “clear and convincing evidence of fraud.” H.R. 311
(Vitter), also would prohibit states from excluding such absentee ballots unless there is
evidence of fraud, and would direct the Secretary of Defense to prepare a plan for
electronic voting for uniformed services voters. H.R. 492 (Bachus) would similarly
prohibit states from excluding absentee ballots unless there is evidence of fraud, and would
direct the Secretary of Defense to conduct a study to improve voting under the law. In
the Senate, S. 17 (Daschle) includes provisions that would clarify state residency issues
for purposes of voting and would extend the UOCAVA to state and local elections. S. 28
(Gramm) would amend the Uniformed and Overseas Citizens Absentee Voting Act by
extending the law’s provision to include state and local elections, as well as federal
elections. S. 122 (Campbell) and S. 470 (Bond) would prohibit states from excluding an
absentee ballot from a uniformed services voter unless there is evidence of fraud. S. 154
(Shelby) would amend the existing law to ensure uniform treatment of military and
overseas ballots and would authorize the use of buildings on military installations as polling
places. S. 381 (Allard) would amend UOCAVA to maximize access for military voters
and those recently separated from the armed services. S. 467 (Roberts) would provide
grants to states to adopt the federal write-in ballot and would require uniform treatment
in the states of such absentee ballots. S. 479 (Cleland) would amend the Soldiers and
Sailors Relief Act concerning residence requirements and voting and would extend the
provisions of UOCAVA to state and local elections. S. 738 (Smith) would amend the
Voting Rights Act of 1965 to include a provision that protects the voting rights of
members of the Armed Forces. S. 731 (Nelson) would amend the Soldiers and Sailors
Relief Act concerning residence requirements and voting and would extend the provisions
of UOCAVA to state and local elections. S. 1261 (Rockefeller) would simplify registration
procedures, eliminate the need to request an absentee ballot for each election, and require
states to count military and overseas ballots that are received within 14 days of the
election, signed by the voter, and dated not later than the day before the election
9
42 U.S.C.§1973ff-3.
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waive registration requirements for military and overseas voters who do
not have an opportunity to register because of service or residence;
!
send registration materials, along with an absentee ballot to be returned
simultaneously, if the FPCA is not sufficient for absentee registration;
!
expedite the processing of voting materials;
!
permit any required oath to be administered by a commissioned officer
in the military or by any official authorized to administer oaths under
federal law or the law of the state where the oath is administered;
!
assure mailing absentee ballots to military and overseas voters at the
earliest opportunity; and
!
provide for late registration for persons recently separated from the
military.
In addition to the amendments to UOCAVA mentioned above, the Help America
Vote Act of 2002 does the following:
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requires the Secretary of Defense to establish procedures to provide time
and resources for voting action officers to perform voting assistance
duties; establish procedures to ensure a postmark or proof of mailing date
on absentee ballots; requires secretaries of the armed forces to notify
members of the last day for which ballots mailed at the facility can be
expected to reach state or local officials in a timely fashion; requires that
members of the military and their dependents have access to information
on registration and voting requirements and deadlines; and requires that
each person who enlists receives the national voter registration form;
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amends UOCAVA to require each state to designate a single office to
provide information to all absent uniformed services voters and overseas
voters who wish to register in the state;
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amends UOCAVA to require states to report the number of ballots sent
to uniformed services and overseas voters and the number returned and
cast in the election; and
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amends UOCAVA to require the Secretary of Defense to ensure that state
officials are aware of the requirements of the law and to prescribe a
standard oath for voting materials to be used in states that require such
an oath.
The Defense Authorization Act for FY2002 also included provisions that: 1) required
an annual review of the voting assistance program and a report to Congress; 2) guaranteed
state residency for military personnel who are absent because of military duty; 3)
continued the online voting pilot project begun for the 2000 elections; and 4) permitted
the use of DOD facilities as polling places if they had previously been used for that
purpose since 1996 or were designated for use by December 2000.
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The Federal Voting Assistance Program
The Federal Voting Assistance Act of 1955 called for the President to designate the
head of an executive department to be responsible for and coordinate the federal functions
described in the law. President Eisenhower designated the Secretary of Defense, who
delegated the responsibility to the Assistant Secretary of Defense for Public Affairs, as
coordinator of the Federal Voting Assistance Program (FVAP). Under the current law,
the Director of the Federal Voting Assistance Program administers the FVAP for citizens
covered by the Uniformed and Overseas Citizens Absentee Voting Act. This office
publishes the Voting Assistance Guide, a compilation of state requirements and practices
with respect to the federal law (including information on possible tax liability incurred in
some states based on residence, as determined by voter registration). The FVAP office
also maintains a toll free phone number to provide assistance to voters and to military and
federal government personnel who are responsible for implementing the law; the office
also maintains a website [http://www.fvap.gov].