Military voting and the law: procedural and technological solutions to the ballot transit problem.

• Author: Alvarez, R. Michael

1. INTRODUCTION

   It is axiomatic that members of the military, particularly those involved in conflict overseas, should be provided with the opportunity to exercise their franchise. Unfortunately, throughout history military personnel have been prevented from doing so due to both procedural and logistic hurdles, resulting in their franchise being effectively "hollow." These difficulties came to the forefront of public awareness during the 2000 presidential election controversy in Florida when the ballots submitted by individuals living overseas--especially military voters--were seen as crucial to the election outcome as the margin of potential victory was so small that these ballots could turn the election from one candidate to the other. (1) Headlines at the time included: "Odds Against Gore Absentee Gains; Republican-Leaning Counties Appear to Have More Uncounted Overseas Ballots," (2) "Bush's Lead Swells with Overseas Votes," (3) "Military Ballot Review Is Urged," (4) and "Examining the Vote; How Bush Took Florida: Mining the Overseas Absentee Vote." (5)

   For many Americans, however, the controversy surrounding the votes of military personnel and overseas voters, despite its importance, may have seemed both bewildering and esoteric. The debate centered not on the rather uncontroversial proposition that military members living overseas should have the right to vote, but on minute details: whether certain overseas absentee ballots were valid, and could therefore be counted, if they lacked postmarks; whether ballots were properly received within statutorily defined time periods; and whether ballots were legitimate if missing a signature or lacking other statutorily defined characteristics. (6) Such matters are likely beyond the interest of the typical American.

   Despite the apparent focus on minutia, these legal skirmishes fought within the broader context of the recount battle impacted substantive issues concerning whether military absentee ballots could be counted, the resolution of which swayed the outcome of the 2000 presidential election. (7) Issues of equal protection, federalism, and statutory interpretation played important roles in this litigation and highlighted not only the plight of military voters in exercising their right to vote but also the delicate, and often times difficult, balance between federal and state election laws. (8) The tension between allowing overseas votes to be counted, as required by federal law, and ensuring a fair election that complied with state law was at the heart of the debate and related litigation. (9)

   This tension is not new and, as it relates to military voting, has centered for years on the laws and procedures that individuals are required to follow before they can vote. (10) The often competing federal and state statutory frameworks put in place to govern voting are critically important because they ultimately determine who can vote, in what manner they can vote, and the requirements that such votes must meet in order to be counted. (11) In the past, many states used hurdles, such as poll taxes, reading tests, and flat-out intimidation to systematically exclude minorities and the poor from voting. (12) Such "procedural limitations" were implemented to make it more difficult, if not impossible, for targeted populations to vote even when they were serving their country in the military. (13) Allowing more military personnel to vote and attempts at governing the mechanisms for doing so at the federal level came into conflict with the right of states to determine how elections were conducted in the states. (14) More recently, however, the effective expansion of voting rights in America overall, and granting the right to vote to those eighteen years and older in particular, have removed many of these improper procedural limitations and significantly broadened the pool of potential voters, particularly among those in the military. (15)

   One difficultly in expanding the pool of potential voters is the added burden of dealing with a voting population that is spread across the globe in highly inaccessible areas. (16) Such "logistical challenges" necessitated new rules to facilitate voting for those in the military living overseas. (17) Indeed, logistical challenges related to military voting have moved to the forefront and various laws now seek to provide pragmatic solutions to logistical military voting problems. (18) As seen in both 2000 and 2004, however, these pragmatic solutions have not been a panacea and logistical difficulties remain. If such problems are not addressed, the ability of military members to have an effective franchise will be just as "hollow" as it was when procedures intentionally kept military members from voting. (19) To address such problems, the federal government must either attempt a similarly wide-ranging effort as it did during the civil rights era including the potential for completely federalizing the process, a daunting task requiring both resources and political capital, or find a less interventionist solution that still facilitates military voting to a higher degree than is currently available. (20)

   The most promising means of accomplishing the goal of facilitating military voting without such a large undertaking is using technology to overcome the logistical problems in overseas voting. (21) Increased access to and use of technology have provided an opportunity to address such problems while still maintaining the federalist system of election laws. (22) Technology may ultimately be the means of resolving this tension and ensuring that not only do military voters have the ability to exercise their constitutionally guaranteed right to vote, but states can ensure fair elections that comply with their individualized election laws. Thus, in many ways, military voting may need to become part of the e-government revolution, with technology used to address bureaucratic and logistic failures while still maintaining acceptable governmental systems. (23) Such technological solutions, however, are not universally accepted and have not yet solved all of the potential issues with military voting. (24)

   In this Article, we examine how the issue of military voting has changed over time from one beset by procedural difficulties, often intentional with states changing election laws to promote military voting only within a given set of parameters and to restrict voting by those deemed unworthy of the franchise, to a logistical and technological issue that focuses on how new technologies can fully facilitate military voting. Part II of this Article will briefly outline the scope of the military and overseas voting issue. Part III will outline and address the conflicting statutory frameworks between federal and state election laws. Part IV will discuss the history of military voting from the beginning of America to the most recent conflicts. Part V will analyze recent problems and legal disputes arising from the logistical problems associated with military voting and local election laws. Part VI will discuss recent attempts to use technology to solve these problems with varying levels of success. Finally, Part VII will discuss the lessons learned from these attempts and look to the future of military and overseas voting in light of the upcoming 2008 presidential election.

   We argue that major wars have spurred changes in the election process and that, after universal military suffrage was achieved, the federal role in military voting has moved to the forefront. Furthermore, such actions by the federal government create the possibility that centralized and concerted efforts to facilitate military voting may ultimately prove to be the solution to the logistical problems still affecting the process. We note, however, that such laws have a fundamental problem: these efforts to promote military voting still require the acquiescence and participation of the state and local governments who run the elections, whose cooperation is not always forthcoming. We assert that, while federal statutory schemes and enforcement are steps in the right direction, they may ultimately be just as "hollow" as previous attempts to facilitate military voting because of the need for multiple state and local entities to change their election laws. Finally, we argue that technological solutions, particularly centralized and uniform efforts, are likely the best means of both ensuring that military voting rights are substantively upheld while still maintaining the multi-layered election system based primarily on state law. The alternative is a complete federalization of the electoral process, something that Congress has been historically unwilling to contemplate.

2. THE SCOPE OF THE ISSUE

   Estimates indicate that there are between six and seven million Americans who are overseas, in the Armed Forces, or dependents of Armed Forces members residing abroad. (25) These American citizens include soldiers stationed in places such as Iraq and Afghanistan, who are currently fighting the war against terrorism; missionaries working in remote regions of the world; younger Americans studying abroad: and Americans who work overseas, building economic opportunities in the global economy. (26) Each of these populations present their own challenges for voting officials, but military voters are often the most difficult to reach because of the logistical problems associated with sending ballots to mobile individuals operating in potentially inaccessible and hostile areas. The U.S. Congress has passed various statutes for decades in an attempt to facilitate the process for overseas and military voting (27) including the Soldier's Vote Act of 1942, (28) the Federal Voting Assistance Act of 1955, (29) the Overseas Citizens Voting Rights Act of 1975, (30) and the currently operating law that superseded them all, the Uniformed and Overseas Citizens Absentee Voting Act ("UOCAVA"). (31) Such attempts have...