Time to Move:
Overseas and Military Voter State Policy Innovation
Claire M. Smith, PhD
Research Director
Overseas Vote Foundation
Abstract
In October 2009, the most significant bill in decades regarding overseas and military voters was passed by the Senate. The Military and Overseas Voter Empowerment (MOVE) Act was implemented by the states for the first time during the 2010 elections, and dramatically changed the landscape of overseas voting. For example, in 2010, 48 states began emailing blank ballots to voters and 21 states accepted voted ballots via email. However, despite this federal mandate, a myriad of state policies still exist and 9 states and the District of Columbia had to apply for hardship waivers. This paper takes a closer look at the extensive voting policy movement that took place in 2009 and 2010 in the states in the wake of the MOVE Act. Why were some states more aggressive in passing reform than others? I examine this question in two ways. First, I measure state policy innovation with the UOCAVA State Policy Index (SPI). Then, statistical analysis is used measure the impact of partisan control, legislative professionalism and competitiveness on policy development. Second, I look at two specific cases (Alabama andMinnesota) as examples of states that did (or did not) successfully implement new policies.
This paper was prepared for presentation at the Midwest Political Science Association, Chicago, April 1, 2011.
Introduction
Nothing reflects our increasingly globalized world more than the rising numbers of Americans living abroad. Either due to military obligations, as members of the international workforce, as students, or by choice, anywhere between 4 to 6 million Americans live overseas. This has created one of modern democracy’s greatest challenges: the overseas voter. In response to the unique problems that voters living abroad face, Congress has passed several key pieces of federal legislation, such as the Uniformed and Overseas Citizens Absentee Voting Act (UOCAVA) in 1986.
Despite the efforts of legislators and election officials, statistics from the 2008 presidential election indicated that military and overseas citizens continued to experience problems when attempting to vote. In May 2009 Gail McGinn, the acting Under Secretary of Defense for Personnel and Readiness, reported to the US Committee on House Administration the following information regarding the 2008 election:
“Preliminary data from a forthcoming report on the 2008 election from the Congressional Research Service found that 72 percent of military absentee voters in the seven-state study successfully returned their ballot and had their votes counted. That is the good news. The bad news is that 28 percent of ballots were described as not returned (approximately 22%), rejected (approximately 3%) or returned as undeliverable (approximately 3%) by election officials from the seven states.”[1]
Furthermore, the Election Assistance Commission reported in 2008 that 7% of those ballots returned by overseas and military voter were rejected, with the primary reason being a missed deadline (Election Assistance Commission 2009, 11; hereafter EAC). In its 2008 Post-Election Survey, Overseas Vote Foundation found more than half (52%) of those who tried but could not vote, were unable to do so because their ballots were late or never arrived (Overseas Vote Foundation 2009a, 5; hereafter OVF).
In an effort to address these problems, the most significant bill in decades regarding overseas and military voters was passed by the Senate in October 2009. The Military and Overseas Voter Empowerment (MOVE) Act addressed several key issues meant to speed up the voting process, including the electronic transmission of blank ballots and mandating that blank ballots be sent 45 days before Election Day. The MOVE Act was to be implemented by the states during the 2010 elections.
However, despite this federal mandate, a myriad of state policies still exist and nine states and the District of Columbia had to apply for hardship waivers to the MOVE Act. This paper takes a closer look at the extensive voting policy movement that took place in 2009 and 2010 in the states. Why were some states more aggressive in passing reform than others?
I examine this question in two ways. First, I measure state policy innovation with the UOCAVA State Policy Index (SPI). Then, statistical analysis is used measure the impact of partisan control, legislative professionalism and competitiveness on policy development. Second, I look at two specific cases (Alabama and Minnesota) as examples of states that did (or did not) successfully implement new policies. What emerges from this analysis is not a story of election laws created out of partisanship, but rather states that were early adopters and those that simply did not have enough time in their legislative session to tackle this issue.
The Evolution of Overseas and Military Voting
The history of absentee and military voting stretches back to the Civil War. At that time, many states excluded absentee voters. Inbody (2009) argues that partisan politics, specifically the expectation that soldiers would vote for Republicans, prevented states with Democratic controlled legislatures (such as Illinois) from supporting military absentee voting during the Civil War. As a result, although several states created legislation to promote voting by soldiers stationed out-of-state, there was no comprehensive national legislation, and state barriers to absentee voting persisted through the 1940s.
In the 1940s, the US once again found itself at war and with large numbers of voters away from their polling place on Election Day. US involvement in World War II led to the first important piece of federal legislation, the Soldier Voting Act of 1942. Once again the bill was opposed by members of the Democratic Party, and voting in Congress was split along regional lines, as Southern members of Congress felt the new legislation violated states’ rights. Because little information was available about the impact of legislation and the turnout of voters, President Truman commissioned a report by the American Political Science Association (APSA). The report analyzed the experience of military voting in the 1944 and made policy recommendations. The report found that:
“The number of persons of voting age in the Armed Forces in 1944 was about 9,225,000. Of that number, 4,487,540 were reported as applying for ballots for the general election of that year and 2,691,160 sent in ballots that were counted. In that election about 60 percent of the civilians of voting age voted; nearly 50 percent of the servicemen of voting age were reported as applying for ballots and about 30 percent succeeded in voting. The service vote was 5.6 percent of the total popular vote for President, 48,025,684.”
Based on its review, the commission recommended, among other things, mailing absentee ballots 45 days before an election. The Federal Voting Assistance Act of 1955 was passed as a result of the APSA report, and, for the first time, provided support of civilian employees living abroad as well as military personnel. The Act also created the Federal Voting Assistance Program (FVAP), which is the federal government agency that is responsible for implementing UOCAVA and is a part of the Department of Defense.
Congress updated legislation in 1975 (the Overseas Citizens Voting Rights Act) to clarify reporting rights and procedures, and enacted the current law, the Uniformed and Overseas Citizens Absentee Voting Act (UOCAVA) in 1986. UOCAVA covers the following citizens:[2]
- all military voters who, by reason of active duty or service is from the jurisdiction of their legal voting residence, including those based in the United States or abroad,
- their family members,
- individuals residing outside the United States and qualified to vote in the last place in which they were domiciled before leaving the United States.
Identifying and counting the number of individuals coved by this definition is not simple. The US Census Bureau Census included approximately 580,000 federal employees and dependents (226,363 military personnel, 30,576 civilian employees, and 319,428 dependents of military and civilian employees) in their 2000 apportionments (U.S. Census Bureau 2001). The Department of Defense Personnel and Procurement Statistics reported that 283,589 military personnel and 42,992 civilian employees worked abroad as of December 2008 (Department of Defense 2009).[3] McDonald (2009) estimates that there are a total of 4,972,217 eligible UOCAVA voters.[4]
The UOCAVA Voting Process
For overseas and military voters, the voting process is comprised of four parts, each of which is regulated. First a voter must register and/or request a ballot by filling out and sending in the proper paperwork to the appropriate local election official (LEO) in the US. The Federal Post Card Application (FPCA) is the official federal government name given to the voter registration form used by voters eligible to vote under UOCAVA, and is the primary form for requesting registration and/or an absentee ballot from election officials. Some states, but not all, allow this form to be sent via fax and/or email. A few states still require citizens to either sign a state oath or provide additional forms of identification when registering to vote. Most, if not all, states require an original signature on file, or a signed original FPCA to send a ballot.
Second, the local election official (LEO) processes the request. If the voter has entered all of the correct information and submitted the form before the applicable deadline, then the LEO will send the voter a ballot. In 2008, 37 states and the District of Columbia permitted UOCAVA voters to receive the blank ballot via fax and 20 states allowed the delivery of the blank ballot via email.
Third, once the voter receives the ballot, she fills it out and mails it back to the US. In 2008, 26 states and the District of Columbia permitted the return of voted ballots via fax and 12 states allowed the return of the ballot via email. Traditional postal service remains, however, the predominant form of ballot return (OVF 2009a, 21). In addition to receiving the faxed or emailed ballot, most, if not all, states require an original signed ballot envelope or ballot affirmation in order to count the ballot. Finally, the election official receives and counts the completed ballot. Should a voter not get a ballot, she has the option of using a Federal Write-in Absentee Ballot (FWAB). The FWAB is an alternative, downloadable ballot, accepted by all states and territories, which can be used in federal elections.
The various steps can be extremely time-consuming and the process of voting can take anywhere from two weeks to two and a half months to complete (PEW 2009, 40). As a result of this lengthy process and traditional mailing methods, the number one reason UOCAVA voters continue to have problems is because they miss deadlines or do not receive their ballots on time (OVF 2009a, 5). A 2001 GAO report indicates that the variety of state and local requirements, lack of feedback from election officials and time constraints worried voters the most (GAO 2001, 3). In 2007 the EAC conducted a survey in order to investigate the UOCAVA voting experience, as well as attitudes towards electronic voting methods. In their analysis of the EAC data, Cain, MacDonald and Murakami (2008) found that overseas civilians found it more difficult to register than military voters. All voters voiced concerns about getting their ballots on time. These concerns are well founded as election officials have reported “missed deadlines” as the number on reason for ballot request and ballot rejection (OVF 2009a, 30, 31).
A New Federal Mandate: The MOVE Act of 2009
As a result of the continued problems faced by voters, policy makers on both the federal and state levels continued to propose and fine tune legislation throughout 2009. This culminated in the passage of the Military and Overseas Voter Empowerment (MOVE) Act in October 2009, which represented the first major policy change for overseas and military voters in more than a decade. The MOVE Act amended UOCAVA, and the key provisions of the Act targeted:
- technology (voter registration information online, options for electronic delivery of blank ballots, and ballot tracking systems),
- communications (use of email to communicate with voters), and
- election administration (transmission of blank ballots 45 days before Election Day).
The MOVE Act required states to implement these provisions in time for the 2010 mid-term election. States unable to meet the 45-day pre-election ballot transit deadline were required to file a request for a waiver, first in consultation with the U.S. Attorney General and with approval provided by the Department of Defense. By August 2010, 24 states had passed measures to establish state-level compliance with the MOVE Act, and by the end of the year 32 states and the District of Columbia had passed new laws. 12 states had not proposed any legislation in time for the 2010 election. Five states (AL, KS, PA, WA, and WI) all introduced legislation which failed to pass the state legislature. These results are summarized below in Table 1.
TABLE 1: MOVE ACT RELATED LEGISLATION IN THE STATES, 2010
No Legislation Proposed / Legislation Proposed, Failed to Pass Legislature / Legislation Pending / Legislation EnactedAlaska / Alabama / New Jersey / Florida
Arkansas / Kansas / Georgia
Colorado / Pennsylvania / Hawaii
Maryland / Washington / Idaho
Montana / Wisconsin / Illinois
Nevada / Indiana
New Mexico / Iowa
North Dakota / Louisiana
Oregon / Maine
Rhode Island / Michigan
South Carolina / Minnesota
Texas / Mississippi
Missouri
Nebraska
New Hampshire
New York
North Carolina
Ohio
Oklahoma
South Dakota
Tennessee
Utah
Vermont
Virginia
West Virginia
Wyoming
Arizona
California
Delaware
Massachusetts
Connecticut
Kentucky
Although the MOVE Act covered several policy areas, for the purposes of this study, I will focus my analysis on options for electronic delivery of blank ballots and on the 45 day transmission deadline.
The first issue, the electronic delivery of blank ballots, received special attention in the 2009 Pew study “No Time to Vote,” in which the Pew Center on the States analyzed the amount of time it takes to complete the UOCAVA voting process and compared this to state regulationsthat affect voting time, such as registration deadlines, ballot transmission times, and voting deadlines. It adjusted this base number according to the electronic transmission opportunities that a state provides and created a measure of “days available to vote.” According to these measures, the “best” state, New Mexico, provides 46 extra days to vote. Citizens from the “worst” state, Oklahoma, do not have enough time to vote; in fact, they would need an extra 26 days to vote.
In an attempt to give voters more time to vote, Sections 577 and 578 within the MOVE Act mandated that states provide voters with an option for online blank ballot delivery (i.e. email or downloadable ballots). It did not specify or require any form of online voted ballot return. Many states, including Minnesota and Texas, improved their existing systems by supplementing the new technologies they had put in place over the previous election cycle. Separately, new pilots for “Internet Voting” were launched in West Virginia and the District of Columbia.
The maps below show how states used technology in the 2010 elections to distribute blank ballots, and in some cases to receive voted ballots. As we can see, there was a remarkable increase in the use of electronic transmission methods for delivery of blank ballots. In 2010, all 50 states provided for the transmission of a blank ballot in an electronic form (mainly email or online download). This use was up from 20 states in 2008. Only two states, Alaska and Rhode Island, offered blank ballots via fax as their only electronic delivery method. Several states place restrictions on the use of email. For example, Colorado only allows military voters to receive ballots via email and not overseas civilians.
Figure 1: Technology and the Transmission of Blank Ballots in 2010
As seen below in figure 2, only 24 states permitted voters to return their voted ballots via fax and email in 2010. 19 states still required that voters return completed ballots using traditional postal methods.
Figure 2: Technology and the Return of Voted Ballots in 2010
The second primary feature of the MOVE Act was the mandate to mail blank ballots 45 days before Election Day. The call for the 45-day window to send blank ballots dates back to the Truman administration. Sixty years later, the MOVE Act finally mandated that this recommendation be implemented by all states. This legislative requirement had an immediate impact. In 2010, 40 states had either legislation in place or created new legislation mandating a 45 day total ballot transit time, up from 28 states in 2008.
Unfortunately, by August 2010 it became clear that not all states would be able to comply with the September 18, 2010 deadline. Ten states, Washington DC and the Virgin Islands applied for waivers. Five waivers were approved (DE, MA, NY, RI, WA), while six were denied (AK, CO, HI, WI, DC and the Virgin Islands). Maryland withdrew its waiver request. The majority of these states extended their ballot receipt deadlines in order to create a 45 day transmission window and to comply with the MOVE Act.
Measuring State Policy Innovation
As discussed above, although UOCAVA and the MOVE Act provide federal guidelines to the states, every state creates its own legislation regulating each step of the voting process. Despite their complexity, legislation for Americans living abroad can be divided into two primary dimensions, registration and balloting. Some of these initiatives make it easier for voters to participate (such as allowing a ballot to be sent via fax), whereas others create barriers to voting (for example ballot notarization and/or witness requirements). Because some policies make the voting process easier and some more difficult and therefore these policy dimensions can be measured. By measuring the restrictiveness of voting legislation (i.e. does a policy make it easier to vote), it is possible to create a UOCAVA State Policy Index.