The Federal Overseas Voting Law (UOCAVA) Is Unconstitutional
posted by Brian Kalt
I live in East Lansing, Michigan, and I vote in federal and state elections accordingly. If I were traveling, working, or even living overseas temporarily, I would still vote in East Lansing, Michigan, as an absentee. Being away for a bit, without giving up my permanent Michigan residence, would not deprive me of my vote.
But say that I move overseas, with no intention of ever returning to the U.S. I sell my house in East Lansing. I burn my Michigan driver’s license. I forswear ever drinking Vernors again. I have no contact with anyone back home, and I don’t pay any taxes there. I cannot vote in state elections, because I’m not a Michigander anymore. But under the federal Uniformed and Overseas Citizens Absentee Voting Act (UOCAVA), I can still vote in federal elections, for the rest of my life. Despite my utter lack of ties to my old home, UOCAVA requires Michigan to let me vote as though I still lived in the Eighth District of Michigan. I can vote for U.S. representative, U.S. senator, and for president as though I were a Michigan resident.
Not only is that weird, it’s unconstitutional.
Article I, § 2, cl. 1, one of the very first provisions in the Constitution, provides that the people who elect a state’s representatives in Congress “shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature.” In other words, you aren’t allowed to vote for the U.S. House unless you are allowed to vote for the state House. The Seventeenth Amendment does the same for senators: you aren’t allowed to vote for the U.S. Senate unless you are allowed to vote for the state House.
So right away, there’s a problem. Even assuming that Congress can force states to let permanent expatriates vote in their old homes, it seems unconstitutional that Congress does so for federal elections and not state legislative elections. The two electorates are supposed to be congruent, and Congress has violated that requirement.
Presidential elections are more complicated, but the case for UOCAVA is no stronger. In contrast to the electorate for House and Senate, the electorate for president is not defined in the Constitution. This does not give Congress authority to expand the franchise, though. Quite the opposite, it gives the states more leeway to define voter qualifications, or indeed to not have popular voting for president at all. Of course, every state currently uses popular voting, but they can choose different rules at the margins for things like letting felons vote, or (not to assume my conclusion) defining residency.
That said, several constitutional amendments give Congress some control over who votes. For instance, Congress has the explicit power to enforce the amendments that guarantee voting rights—state and federal—based on race, sex, and age. More complicated, but more relevant to UOCAVA, is the Fourteenth Amendment. The Fourteenth Amendment precludes states from violating broad rights like “due process,” which contains multitudes. Section Five of the amendment empowers Congress to enforce these rights. The Supreme Court must agree, however, that what Congress is addressing is really a Fourteenth Amendment violation. Moreover, the Court must agree that the remedy Congress provides is “congruent and proportional” to the violation.
Defenders of UOCAVA typically claim that UOCAVA is a congruent and proportional response to a violation of the right to travel. I disagree.
The right to travel and reside abroad is fundamental and is well-established in the case law. It came up in Oregon v. Mitchell. The federal law in that case allowed states to impose reasonable pre-election registration deadlines—up to thirty days, but no more than that. The Supreme Court agreed that if a state’s electoral system disenfranchised people who arrived more than thirty days before the election, the state’s law violated the Constitution. Conversely, they said, the federal law barring such state laws was justifiable as a protection of the right to travel. Congress further decreed that when voters moved within thirty days of the election and could not register in their new homes, their old states had to let them vote as though they were still residents. The Court agreed that this was appropriate too.
The distinctions with our case are illuminating. The law in Mitchell lets former residents vote in their old states for thirty days after they leave; UOCAVA lets them vote there forever. The people protected in Mitchell are residents of their new states and would be able to vote there if not for the tight timing. They are voters who get to avoid a temporary hiccup. The people protected in UOCAVA are not residents of any state and would be unable to vote if not for UOCAVA. They are nonvoters who are made into voters. As one court put it, the federal statute in Mitchell “was not intended to abrogate the power of the states to enact bona fide residency requirements.” Clearly, the same cannot be said for UOCAVA, which by its design obliterates bona fide residency requirements.
More directly, the right to travel plays out differently in the two cases. The right to travel or move within the United States—the issue in Mitchell—is much stronger than the right to travel or move abroad, which the Court has allowed to be restricted in many more ways. There is a limited constitutional right to go abroad, in other words, and the Constitution lets the government impose costs on the exercise of that right. Benefits that aren’t tied to residence in a certain place (social security, for instance) are one thing, but things tied to residence are different. 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. So too are the members of the electoral college who, state by state, elect the president. Permanent expatriates who vote in their old states are not counted as residents of the state for any other purpose, including state taxes, jury duty, or voting in state elections. They are not counted in the determination of how many representatives and electoral votes the state gets.
Even if it would violate permanent expatriates’ right to travel and live abroad for their states to bar them from voting, UOCAVA is probably not a “congruent and proportional” response to that violation. Temporary expatriates with a permanent address back home might have a claim that their constitutional right to travel is violated if they are disenfranchised. It is hard to argue that this justifies giving permanent expatriates the vote as well.
A further congruence problem is that UOCAVA gives permanent expatriates the wrong kind of vote. Even to the extent that these people have a continuing interest in being represented in the federal government, it is hard to see how that interest translates into voting for a representative and senators from a place where they no longer live. As already noted, members of Congress represent places as they represent people. The vote that UOCAVA provides permanent expatriates is mismatched if the point is to have their interest as expatriates represented. (If that isn’t the point—if we are assuming instead that expatriates should be represented if they have a continuing interest in the places they used to live—then the point would be moot, because it would be fair to use some sort of residency requirement to gauge somebody’s continuing interest in the community.)
UOCAVA’s defenders could note that presidents, at least, represent the whole country rather than individual constituencies. Moreover, the interests of expatriates are protected most directly by the watchful eyes of the president’s diplomatic corps and embassies, not by anything Congress does. But we do not have a simple popular vote of all citizens to elect the president. Presidential elections are carried out on a state-by-state basis, and votes for president are cast by voters as citizens of various states, and then by electoral-college members who represent each state. Until and unless the electoral college is abolished, presidential votes under UOCAVA are just as problematically un-geographical as congressional votes under UOCAVA are.
One final absurdity in UOCAVA’s design provides the most damning evidence that there are no constitutional rights being protected here. There are plenty of U.S. citizens who don’t get to vote. Residents of Washington, D.C. participate in presidential elections, but only because of a constitutional amendment. Resident citizens of Puerto Rico, Guam, and other possessions cannot vote for president or Congress at all, despite being U.S. citizens.
This sets up a truly odd incongruity. If an American citizen moves to North Korea with no intention of ever coming back, UOCAVA gives him the right to keep voting in federal elections. If he instead moves to Puerto Rico, he cannot vote at all. So much for the right to travel.
The courts have upheld UOCAVA’s lack of coverage for people who move to Puerto Rico, which deflates the argument that UOCAVA is needed to redress a constitutional violation. If you can lose your “right” to vote for president or Congress by moving from Michigan to Puerto Rico, then your right to travel and your right to vote must not amount to much. If Michigan can take away your vote in that situation without violating the Constitution, surely it can take away your vote if you move to North Korea without running afoul of the Constitution. If there is no constitutional violation, then Congress has no power to barge in and overrule Michigan in the name of defending your purported Fourteenth Amendment rights. The right to travel does not justify UOCAVA.
Think that this stuff doesn’t matter? Consider the 2000 presidential election in Florida. While pregnant chad dominated the news coverage, the less prominent issue of overseas ballots decided the election. Twice. After the initial, uncontroversial recounts, George W. Bush had a slim lead of three hundred votes. He owed his lead to overseas voting; tens of thousands of overseas ballots had arrived early enough to be counted on Election Day, and Bush’s advantage among them was more than three hundred votes. Florida law allowed ten more days for overseas ballots to arrive, so there were still thousands of votes to count. Bush added a relatively whopping 739 net votes to his lead from these late-arriving overseas votes. After all of this (and all of the other recount convolutions), Bush’s victory was declared by a margin of 537 votes. The overseas votes had saved Bush again.