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The Federal Overseas Voting Law (UOCAVA) Is Unconstitutional

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20 Responses

  1. Adam says:

    It may be unconstitutional, but I’m more impressed that you used “Michigander” in your blog posting. I think this is the first time I’ve seen that term in a blog posting. Woohoo!

  2. A.J. Sutter says:

    For what it’s worth: I moved to Japan about 2 years ago from San Jose, CA, and don’t have any present intention to return to US. However, when I wanted to register for the 2008 election, I had to do so through the Santa Clara County (CA) board of elections. (I declared, by the way, my lack of intention to return to US.) The absentee ballot I was sent included measures not only for state offices such as state legistature and executive positions, but even ballot measures and local races pertinent to the San Jose neighborhood where my last address was, e.g. for the Evergreen local school board.

    I haven’t checked the UOCAVA, but in my California experience there seems to have been de facto compliance with Article I, § 2, cl. 1 of the US Constitution. If de facto compliance is indeed the norm, that might explain why (I presume, since you don’t mention and I haven’t checked) there haven’t yet been challenges to the law. Is Michigan different in fact?

    I admit it felt a bit weird to be asked to vote on micro-local issues; I generally abstained on those. Perhaps the reason for these being on the absentee ballot, though, include:

    @ US and the state (a) have an interest in hoping I will change my mind someday about being a permanent expat, and (b) they figure I most likely would return to where I came from, so for both of these reasons they want to keep me engaged with local issues; and/or

    @ it might be problematic to have separate absentee ballots for people who say they want to return and people who say they don’t. (Consider, too, that some people in each group probably will change their minds in the future.)

  3. Brian Kalt says:

    A.J.,

    If every state chose to do what you describe California as doing, there would be no problem. Indeed, states are perfectly free to choose to define residency as including people in your situation. The problem is not expats voting, the problem is Congress forcing states to let expats vote.

    UOCAVA provides, incidentally, for a simple federal ballot for people to use. In states where the expats can only vote in federal elections, or where it is not feasible to get the regular ballot (which includes state races) out to the expat, the simple federal ballot is used.

    In your example, California still could, saying that it lets expats vote in state and local elections because Congress forced inclusion in federal elections, and the state didn’t want to then violate the symmetry requirement. I theorize in more detail in my book about why states have not challenged this law. The bottom lines are: (1) this is also the law that provides for overseas military voting, and it would be politically tricky to try to extricate military voters from the challenged permanent expats; (2) I’m guessing that states don’t mind having their proper roles usurped–at least not at the margins.

    Your last point, about distinguishing between people who intend to return and those who don’t, is at the root of the problem. Predecessor laws to UOCAVA covered only people who would otherwise be qualified to vote, but just happened to be abroad for the moment. Rather than get into the issues of proving who was going to return and who wasn’t (which in theory would only require maintaining a permanent address, but in practice could get harder to prove), Congress just said that everyone should be allowed to vote.

    Personally, I don’t think that’s a good enough reason, but that’s just me.

    Anyway, thanks so much for your data point–as I write this up, it helps to have individual perspectives like that.

  4. A.W. says:

    Brian

    i concurr completely. When i was in law school i refused to vote for anything besides president on moral grounds. i was a texan going to school with connecticut with the intention to live in the DC area after school. It didn’t seem right to have any say whatsover in Texan issues, because i didn’t intend to return, or CT issues, because i didn’t intend to live with the consequences of my decision for any appreciable time. I have no respect for people who leave this country for good and then think they somehow retain the right to meddle in our affairs.

    That’s a policy argument, rather than a pure legal one, but i wanted to get that off my chest.

  5. Jason says:

    Professor Kalt:

    Once again you find some of the most interesting things to write about. I’m quite the fan.

    Jason

  6. jt says:

    UOCAVA is perfectly consistent with Michigan law.

    Michigan allows a U.S. overseas citizen who is 18 years old, not registered to vote anywhere else in the U.S. and who is a spouse or dependent of a Michigan resident to register and vote in Michigan elections even though they have never established Michigan residency.

    Michiganders can relax.

  7. Brian Kalt says:

    jt, my whole point is that Michigan does that only because UOCAVA forces it to.

  8. A.J. Sutter says:

    Brian, could you please expand on the facts a little? It’s not immediately obvious why California has “chosen” to let me vote, but Michigan would be “forced” to let you vote. How are the situations different? Do Michigan absentee ballots not include state and local offices?

  9. John says:

    Doesn’t this ignore the effect of Art. I, Sect. 4, giving Congress broad authority to pass laws trumping requirements Sect. II would otherwise mandate? (See Black’s opinion in Oregon v. Mitchell.)

  10. Brian Kalt says:

    A.J., sorry for the confusion I caused by not reading jt’s comment closely enough. Here’s the scoop. UOCAVA forces states to let permanent expats vote in federal elections. A state, having already been forced to let the permanent expats vote in federal elections, might choose to maximize symmetry and let those same folks vote in state and local elections. But that doesn’t mean that the state wouldn’t rather bar those folks from voting altogether, if they had the option.

    What I missed was that jt was saying that Michigan lets permanent expats vote in state and local elections as well as federal ones. I don’t think that’s right, but I can’t say that I am positive.

    jt, do you have a citation or link that you can direct me to on that one? All I have seen says that only people who reside in Michigan and are temporarily away (and their spouses and dependents) can vote in local elections, not that permanent expats can.

    John, I did ignore that point, because my post had gone on quite long enough, I thought. But your point is a very incisive and important one. My short answer (which I cover in more depth in my book chapter) is that Justice Black’s position has never been adopted by a majority of the Court, and I don’t think it is the best reading of that clause. The clause gives Congress the power to regulate the “manner” of congressional elections, but I take manner to be about procedures, not about defining the electorate. And even if “manner” did include that, it wouldn’t extend to presidential elections, in which the “manner” is left to the states.

  11. Alan Gura says:

    Interesting. I wrote an article about the unconstitutionality of this law for the Texas Review of Law & Politics back in 2001.

  12. Brian Kalt says:

    Alan! How are you? Yes, and a fine article it was. For what it’s worth, I draw heavily upon it in the book chapter on which this post is based.

  13. jt says:

    My earlier post was pasted from the FVAP (federal voting assistance program) web site and was not (blush) based on statutory research. I do not know the provenance of the FVAP statement or whether MI does this by statute or regulation or just does it. If by statute, I think there is no constitutional issue. More boradly, my untutored thinking is that everyone — those whose homes have been foreclosed or hwo are washed away by hurricanes — has domicile in a particular place (voting precinct) until she establishes domicile in another particlar place. If not, I don’t know that UOCAVA necessariy must be read as allowing persons not eligible under state law to vote. It has specific limitations to comply with state law voter qualification requirements in most – but not all– of the definitions, and a court might well read that requirement into the act as a whole — at least in the context of a facial challenge. If not, in real life there probably remains the problem of finding someone who has, in effect, renounced her ties to Michingan and yet continues to vote there and is willing to so testify.

  14. Alan Gura says:

    Doing fine, Brian, thanks. Glad you found the article useful. It seemed to be an obscure issue even at the time. But I don’t see any willingness to litigate it, both parties think they can game the system the way it is, and nobody wants to be “against voting,” although allowing unauthorized voters dilutes the votes of everyone else…

  15. Brian Kalt says:

    jt, I went to the FVAP site, and I can’t deduce from the statement whether they mean that expats can vote in state and local elections or not. I don’t think that they can.

  16. Jens says:

    “And voting is tied to residence in a state, by tradition, by law, and by the Constitution. Representatives and senators, for whom UOCAVA lets expatriates vote, are supposed to represent particular places, or at least people in particular places.”

    The last sentence is a non sequitur for me. Elections are based on a regional system, ok. But that does not mean that the Senate and the House as a whole represent the People. And that means that people who do not fit in the regionalised model have to be put just somewhere. And that is then the region to which the person in question has the closest ties (as further defined by some abstract, manageable criteria like last place of residence).

    I think the view on this issue might be influenced by nationality law: The US have mainly ius solis law (I think the ius sanguinis component requires registration?), so you define the electorate by the connection with the soil. For countries with ius sanguinis nationality law, it’s just “the people”.

  17. Brian Kalt says:

    Jens, let me put it this way. My senators represent the people of the state of Michigan, not the people of the state of Michigan plus the people who used to live in Michigan minus the ones who moved from here to somewhere else where they can vote. Just the people of the state of Michigan. I just think that’s part of the fundamental structure of the Senate that the Constitution establishes, and I don’t think that Congress has the power to change that through ordinary legislation. Michigan does, uncoerced, but not Congress.

  18. Jens says:

    “My senators represent the people of the state of Michigan,”

    And you loose Michigan citizenship if you leave Michigan? So at least state citizenship comes only with the soil, but not with the blood? I mean, the notion of separate “state peoples” stems from the fact that the states entered the union with their sovereignty intact, right?

    It’s just all a bit surprising and interesting to me. I think the constitutions of the German Länder generelly do not provide for a separate state citizenship, and article 33 paragraph 1 of the Basic Law provides: “Every German has the same citizenship rights and duties in every Land.”

    Well, I think I got the crucial points: That the US constitution leaves competences for voting laws for federal elections with the states. The only other example for that I can think of right now is the direct elections of the members of the European Parliament. Interestingly, you can vote in any (one) member country whose nationality you have or (exclusive or) where you have your permanent residence.

    Btw, an expatriate Austrian who has no specific connection to any Austrian municipality can vote for the Vienna magistrate (in voting district 1). At least that’s what a bi-national colleague told me, I haven’t checked.

  19. Brian Kalt says:

    Jens,

    Section One of the Fourteenth Amendment begins “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”

    So yes, I think that residence does carry a lot of weight when it comes to state citizenship.

  20. citizenw says:

    Some of the issues raised here also relate to problem of the lack of voting and representation in DC. If one moves from a State to a foreign country, one can still vote and be represented in that State of origin, indefinitely, but if one moves from a State to Washington DC, which is arguably not the one of the States, one can no longer vote and be represented in the State of origin. There exists an ironic incongruity here, which the Courts have refused to recognize.

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