The Uniformed and Overseas Citizens Absentee Voting Act (UOCAVA) was previously codified and cited as 42 U.S.C. §§ 1973ff -1973ff-7, but there was an editorial reclassification of UOCAVA by the Office of the Law Revision Counsel of the United States House of Representatives that became effective on September 1, 2014. The UOCAVA is now codified as 52 U.S.C. §§ 20301-20311, under a new title, “Voting and Elections,” the subtitle, “Voting Assistance and Election Administration,” and as Chapter 203, “Registration and Voting by Absent Uniformed Services Voters and Overseas Voters in Elections for Federal Office.”
Provisions similar to 52 U.S.C. §§ 20301-20311 were contained in subchapters I–D and I–E (§§ 1973cc et seq. and §§ 1973dd et seq.) of chapter 20 of title 42 prior to repeal by Pub. L. 99–410, and then in subchapter I–G (§§ 1973ff et seq.) of chapter 20 of title 42 prior to the September 1, 2014 editorial reclassification of UOCAVA.
Among its key provisions, UOCAVA provides for an application called the Federal Post Card Application (FPCA) that qualified applicants can use to both register to vote and request an absentee ballot simultaneously.
UOCAVA also allows for the use of a “back-up” ballot for federal offices called the Federal Write-In Absentee Ballot (FWAB). Subject to certain conditions, this ballot may be cast by UOCAVA covered voters who have made timely application for, but have not yet received, their regular ballot from their state or territory.
UOCAVA has been amended on several occasions, with the most recent major amendments found in the Military and Overseas Voter Empowerment Act of 2009 (MOVE).
In 2009, MOVE, a subtitle of the National Defense Authorization Act (NDAA) for Fiscal Year 2010, amended UOCAVA to establish new voter registration and absentee ballot procedures which states must follow in all federal elections. The majority of these new procedures were implemented by the time of the November 2010 general election. As amended by MOVE, UOCAVA requires state officials to: 1) provide UOCAVA covered voters with an option to request and receive voter registrations and absentee ballot applications electronically; 2) create electronic delivery options for the transmission of blank absentee ballots to UOCAVA covered voters; 3) transmit validly and timely requested absentee ballots to UOCAVA covered voters no later than 45 days before a federal election; 4) implement safeguards to ensure that the privacy of the voter’s identity and other personal data associated with registering and voting under UOCAVA procedures is protected; 5) implement safeguards to ensure that electronic transmission procedures protect the security and integrity of the balloting process; 6) accept otherwise valid voter registration applications, absentee ballot applications, voted ballots, or FWABs without regard to state notarization requirements or restrictions on paper and envelope type; and 6) allow UOCAVA covered voters to track the receipt of their absentee ballots through a free access system.
MOVE also amended UOCAVA to expand the acceptance of the FWAB to all elections for federal office as of December 31, 2010.
UOCAVA - Section By Section
Section 20301 -- Federal Responsibilities, 52 U.S.C. § 20301
This section of UOCAVA requires the President to designate the head of an executive department to have responsibility for UOCAVA’s federal functions. On June 9, 1988, President Reagan issued Executive Order 12642 which designated the Secretary of Defense as the individual responsible for administering UOCAVA. Executive Order 12642 also granted the Secretary of Defense the authority to delegate UOCAVA responsibilities to others within the Department of Defense (DOD). The DOD’s Federal Voting Assistance Program (FVAP) is tasked with administering UOCAVA on behalf of the Secretary of Defense.
The Secretary of Defense is tasked with 11 federal UOCAVA duties under Section 20301, 52 U.S.C. § 20301. Specifically, the Secretary of Defense is required to:
- consult with state and local election officials and educate these officials on UOCAVA’s requirements;
- create an official post card form to be used by qualified military members, mariners part of the USMM, commissioned officers of PHS and NOAA, eligible family members associated with these three groups, and overseas citizens to both register to vote and request an absentee ballot simultaneously;
- handle the creation, implementation, and administration of the FWAB program for UOCAVA covered voters;
- create an envelope design for absentee ballots;
- compile and distribute materials and facts on specific elections and state absentee voter registration and voting procedures.
- prepare a report for Congress and the President on UOCAVA’s effectiveness after each Presidential election;
- prescribe a standard oath to be used in connection with certain official UOCAVA documents;
- implement procedures to collect and deliver absentee ballots of UOCAVA covered voters;
- protect the privacy rights of UOCAVA covered voters and safeguard the information contained in all completed absentee ballots cast at DOD locations or facilities;
- develop portals and programs to provide UOCAVA covered voters with voter registration and absentee ballot information; and
- work with the Election Assistance Commission (EAC) and each state’s chief election official to develop standards for reporting and storing state absentee ballot data.
Under UOCAVA, each state also has 11 duties. Those duties, found at Section 20302, 52 U.S.C. § 20302, require each state to:
- permit UOCAVA covered voters to vote by absentee ballot in federal elections;
- accept and process any timely received voter registration and absentee ballot applications from UOCAVA covered voters.
- permit UOCAVA covered voters to use a FWAB to vote in general elections for federal office;
- permit qualified military members, mariners part of the USMM, commissioned officers of PHS and NOAA, eligible family members associated with these three groups, and overseas citizens to use the official post card form to both register to vote and request an absentee ballot simultaneously;
- use the standard oath created by the Secretary of Defense in connection with certain official UOCAVA documents;
- (and 7): establish procedures for UOCAVA covered voters to request and receive, by electronic or United States Postal Service delivery means, voter registration and absentee ballot applications, as well as absentee ballots;
- transmit validly requested absentee ballots to UOCAVA covered voters, subject to certain timing exclusions and limitations;
- establish a written plan for absentee ballots to timely be made available to UOCAVA covered voters in the event of a runoff election for a federal office;
- carry out the Secretary of Defense’s procedures for accepting and processing completed absentee ballots from UOCAVA covered voters; and
- provide the Election Assistance Commission (EAC) with data on UOCAVA ballots not later than 90 days after each general election for federal office.
The remaining sections of UOCAVA address the following topics:
- Section 20303, 52 U.S.C. § 20303, sets forth the procedures associated with, and the processing of, FWABs;
- Section 20304, 52 U.S.C. § 20304, sets forth the procedures for collecting marked absentee ballots, including FWABs, from UOCAVA covered voters, and the procedures for delivering such ballots to election officials;
- Section 20305, 52 U.S.C. § 20305, details the Secretary of Defense’s responsibility to develop portals and programs to provide UOCAVA covered voters with voter registration and absentee ballot information;
- Section 20306, 52 U.S.C. § 20306, prohibits a state from refusing to accept or process any otherwise valid voter registration or absentee ballot application submitted by a uniformed services voter because such registration or application was submitted earlier than the first date upon which that state accepts such registrations and applications from non-UOCAVA covered absentee voters who are not members of the uniformed services;
- Section 20307, 52 U.S.C. § 20307, permits the Attorney General (AG) to file suit in any appropriate federal district court to enforce UOCAVA, and gives the AG the authority to seek declaratory or injunctive relief. Finally, Section 20307 requires the AG to submit an annual report to Congress on any civil action brought by the United States under UOCAVA during the preceding year;
- Section 20308, 52 U.S.C. § 20308, contains reporting requirements and calls for the Secretary of Defense to, by March 31st of each year, submit an annual report to Congress on the FVAP, UOCAVA covered voters, and state and federal efforts to uphold the requirements of UOCAVA;
- Section 20309, 52 U.S.C. § 20309, states that exercising rights under UOCAVA shall not affect, for purposes of any federal, state, or local tax , the residence or domicile of the person;.
- Section 20310, 52 U.S.C. § 20310, contains the definitions for certain terms used in UOCAVA; and
- Section 20311, 52 U.S.C. § 20311, permits the Secretary of Defense to create one or more pilot programs to study the use of new election technology that could benefit UOCAVA covered voters.
UOCAVA Case Examples
- United States v. State of Illinois: The Department’s most recent UOCAVA case was filed on April 6, 2015, ensured that military and overseas citizens in Illinois had sufficient time to vote in special elections for filling vacancies in the United States House of Representatives. The Department entered into a consent decree that ensured that special elections to fill a recent vacancy in an Illinois congressional district were scheduled so that absentee ballots were sent by the 45th day before the special primary and the following special election as UOCAVA requires. The agreement, which was approved by the court on April 14, 2015, also provided that the State will pursue a permanent change to state law to ensure compliance with UOCAVA in the future. In 2015, the State adopted legislation designed to ensure compliance in all future special elections for United States House of Representatives.
- United States v. West Virginia: On December 22, 2014, West Virginia was ordered by a court to count UOCAVA ballots that may have been received after election day and include them in the final vote totals for the November 4, 2014 Federal general election following suit by the Civil Rights Division. The case remedied violations of UOCAVA that arose after the State had transmitted ballots to military and overseas voters by in October of 2014 which was not at least 45 days before the November 4, 2014 Federal election. On October 31, the Department filed a complaint alleging that West Virginia had violated UOCAVA by failing to ensure that final absentee ballots were transmitted to UOCAVA voters at least 45 days in advance of the November 4, 2014 Federal general election.