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

I. 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.

II. 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 met with varying levels of success in making it easier for overseas and military voters to vote in state-run elections. (32)

Although a few scholars have argued that military voters have no problem voting, (33) data from numerous studies and analyses conducted since the 2000 election show that civilians living overseas and personnel in the uniformed services have a difficult time participating in the electoral process using the current paper-based absentee voting system. (34) In an examination of absentee voting in California, researchers found that UOCAVA voters were roughly two times more likely to not return a requested absentee ballot and approximately three times more likely to have that ballot challenged when compared to non-UOCAVA voters. (35)

This problem is not new. In 1942, 137,686 applications for federal "war ballots" were received, but only 28,051 of these ballots were cast in the election. (36) Contemporary accounts indicate that few military personnel voted using conventional state absentee voting procedures during World War II when personnel were dispersed all over the world. (37) The low response rate in 1942 was due to several factors that still present problems today. The main factor is simply the speed at which a paper ballot can be created, mailed to an overseas voter, filled out, and mailed back. (38) Such time scales are not conducive to some states' regulations about when voting materials become available, as a result of administrative processes or simply the schedule between primaries and general election, or the date by which they must be returned to an election official to be considered valid.

For example, the deadline for registering as a UOCAVA voter ranges from thirty days prior to an election in twenty-one states to absolutely no registration requirement in fifteen states. (39) Similarly, ballots have to be received prior to Election Day in several states, but can be received even after Election Day in fifteen states. (40) This variation can easily create confusion among overseas and military voters and impact the very ability of these voters to receive their ballots in time to return them for tabulation. (41) According to the Department of Defense's ("DoD") most recent survey of military and overseas voters, almost one-third of all military personnel and twenty percent of non-federally employed overseas civilians that did not vote in the 2000 election reported that they did not cast ballots because either they did not receive the ballot they requested, or they received the ballot too late for it to be returned in time. (42) News coverage noted that soldiers experienced significant problems in receiving mail in Iraq with some reporting not receiving mail up to four months after it being sent. (43) Such problems are symptomatic of a long history of balloting difficulties for military voters, much of which stems from the multi-layered structure of election law that often results in conflict between state and federal principles. (44)

III. CONFLICTING PRINCIPLES: STATE CONTROL VERSUS THE FEDERAL ROLE

Much of the conflict that arises concerning voting in the military results from the shared power that the federal and state governments have over federal elections, which has its roots in the U.S. Constitution. (45) Congress has broad power to regulate federal elections under the Elections Clause: "The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators." (46) Daniel R. Ortiz and Pamela S. Karlan note that "the Elections Clause has traditionally been interpreted [by the Supreme Court] to give Congress virtually plenary power over a wide range of aspects relating to congressional elections." (47) As early as 1879, the Supreme Court evaluated the power of Congress to enact legislation, in that case "The Enforcement Act" of 1870, which sought to ensure citizens had the ability to vote in federal elections conducted by states "without molestation." (48) An argument arose whether Congress could provide piecemeal changes to only some of the aspects of the state-run system or, should Congress want to have any effect at all, whether it needed to completely preempt state law and assume full control over the entire election process for federal offices. (49) The Court rejected this argument and established, pursuant to the Elections Clause, that:

 
   [Congress] may either make the regulations, or it may alter them. 
   If it only alters, leaving, as manifest convenience requires, the 
   general organization of the polls to the State, there results a 
   necessary co-operation of the two governments in regulating the 
   subject. But no repugnance in the system of regulations can arise 
   thence; for the power of Congress over the subject is paramount. It 
   may be exercised as and when Congress sees fit to exercise it. When 
   exercised, the action of Congress, so far as it extends and 
   conflicts with the regulations of the State, necessarily supersedes 
   them. (50) 

Thus, Congress may enact regulations and inject federal law into whatever limited aspects of state election procedures it deems necessary. This Congressional discretion clearly leaves open the door for more regulation of the conduct of federal elections and, in fact, would allow Congress to completely federalize such elections and override the patchwork of local election laws throughout the country if it desired to create true uniform standards and procedures for military and other overseas voters. (51)

Such power has continually been reiterated by the Supreme Court. In 1932, the Court again reviewed the Election Clause's grant of power to Congress to regulate the time, place, and manner of federal elections and stated:

 
   It cannot be doubted that these comprehensive words embrace 
   authority to provide a complete code for congressional elections, 
   not only as to times and places, but in relation to notices, 
   registration, supervision of voting, protection of voters, 
   prevention of fraud and corrupt practices, counting of votes, 
   duties of inspectors and canvassers, and making and publication of 
   election returns; in short, to enact the numerous requirements as 
   to procedure and safeguards which experience shows are necessary in 
   order to enforce the fundamental right involved. And these 
   requirements would be nugatory if they did not have appropriate 
   sanctions in the definition of offenses and punishments. All this 
   is comprised in the subject of "times, places and manner of holding 
   elections." (52) 

Such power includes the authority to regulate congressional primary elections, as they are a "necessary step" in choosing federal officeholders. (53) As recently as 1997, the Supreme Court has reaffirmed congressional supremacy in overriding state election procedures as they apply to federal elections. (54) One key characteristic of all of these cases is that Congress has not yet exercised its plenary power to completely dictate how federal elections take place, but has instead provided incremental and targeted regulation to address specific perceived problems with state-run elections. Congress' exercise of such power to centralize and unify the laws and procedures relevant to voting in federal elections would certainly be one means by which military voting could be facilitated to a greater degree than the patchwork of state laws currently in place, by either mandating time frames for sending and receiving ballots or enacting compulsory technological solutions that obviate the ballot transit issue.

One aspect of elections that Congress cannot regulate at all is who is eligible to vote in federal elections. The right to determine who is eligible to vote in federal elections is granted to the states under Article I, Section 2 and the Seventeenth Amendment of the U.S. Constitution. (55) Each states that "the [e]lectors in each [s]tate shall have the [q]ualifications requisite for [e]lectors of the most numerous [b]ranch of the [s]tate [l]egislature." (56) The Constitution charges the states, not the federal government, with setting voter eligibility requirements for federal elections, including the voting eligibility for military personnel. (57) Prior to universal military suffrage in 1971, (58) states and localities were reticent to allow military voters--especially military voters stationed overseas--to participate in elections because of the enfranchisement issues it raised. (59) Two examples illustrate this point. First, until the mid-1800s, several states only allowed property owners to vote, thus disenfranchising landless individuals serving in the military; (60) second, although African-Americans were able to serve in the military and were often forced to serve through the compulsory draft, they were denied voting rights by states that had Jim Crow laws and all-white primary elections. (61) In both cases, individuals served their nation, often by force, yet state laws governing elections prevented their participation in the electoral process. Only through constitutional amendment has state discrimination against black voters, female voters, poor voters, and individuals aged eighteen through twenty ended. (62) These four amendments have, over time, simplified the process of addressing the problems associated with voting by military personnel, as allowing military members to vote no longer sets a bad precedent by enfranchising those 'unwanted' classes of voters who happen to be serving in the military. (63)

The combination of Congress' incremental exercise of its regulatory authority over federal elections and the interplay between federal and state control over elections, often rooted in attempted disenfranchisement, resulted in very slow progress in the expansion of both the right and ability of military voters to cast ballots in federal elections. (64) Often wars or other major military mobilizations drove the improvements that ultimately occurred in both the enfranchisement and procedural aspects of military voting. (65)

IV: A HISTORY OF MILITARY VOTING

A. Starting at the Beginning: The Revolutionary War Before there was even a United States or a Constitution, there was a war and debate over whether individuals who had fought that war should be eligible to vote, despite legal barriers to their participation in the political process. (66) Many observed at the time that to deny men who had fought for their country's cause the right to vote was a significant injustice, and "'every man in the country who manifests a disposition to venture his all for the defense of its liberty, should have a voice in its council.'" (67) During the Revolutionary War, state militia associations, which were typically comprised of working class individuals, agitated for the abolition of certain restrictions on suffrage such as property or landholding requirements. (68) In many states, including Georgia, Maryland, New Jersey, New York, North Carolina, Vermont, and Pennsylvania, the franchise was expanded to include many more working class individuals. (69) Many other states did not change their laws governing the franchise during the war, even though this created a situation where many of the men who served in the state's militia during the war were unable to participate in the political process within their state or benefit politically from the freedoms for which they were fighting. (70) Thus, the key issue related to voting in the Revolutionary War and its immediate aftermath was not how individuals voted--the methods or procedures used--but rather who could vote. (71)

Over the next eighty years, the rights of military voters were a relatively low priority in many states, (72) although there was further incremental expansion of the franchise. Between the Revolutionary War and the Civil War, the United States engaged in only two major conflicts--the War of 1812 and the Mexican American War--and many smaller military actions such as fighting the Barbary pirates. (73) The War of 1812 once again raised the issue of military voting in the context of "fairness" and led to a further extension of the franchise through the relaxation of property ownership requirements. (74) But significant change in military voting would not occur until the Civil War, as the nation would undergo the largest military mobilization in its history, where half of all Northern men of military age and nearly seventy-five percent of all Southern white men were serving in the army or navy. (75) With this large a percentage of the population serving in the military, pressures to improve voting rights for military personnel were bound to come to the forefront. (76)

B. The Civil War and the 1864 Presidential Election

Although it is now taken for granted, the election of 1864 was an amazing phenomenon. No nation had ever held a general election in the middle of a war, much less a Civil War. (77) There had never been a similar situation where there was, in essence, a referendum on an ongoing war where all citizens, including those doing the fighting, could participate. (78) Two critical questions arose in this first effort to enfranchise military personnel to vote in the election. First, by what procedures could Union soldiers participate in the 1864 election? Second, would the military vote have any direct impact on the outcome of the 1864 election?

Laws governing the participation of military voters varied from state to state, but in nineteen Northern states, military men could vote using absentee procedures, creating one of the first instances of remote voting in America. (79) Several Northern states, including Indiana, did not allow absentee voting, in part because such laws had been blocked by Democrats who feared the soldier vote. (80) To accommodate these military voters, President Abraham Lincoln exercised his power as commander-in-chief and called for a cessation of military operations prior to the election to allow military personnel from affected states to go home and vote. (81) As a result, Democrats charged that many of the voters who came home to Indiana to cast their ballots were actually residents of other states, although there were also documented cases of fraud, such as two Democratic commissioners from New York in charge of collecting soldier votes convicted for stuffing the ballot box. (82)

The 1864 election centered around one issue: war and peace. (83) Democrats, led by former Union General George B. McClellan, were seen as the party of peace (although the question of whether peace could come only if the South recognized the Union divided Democrats throughout the election campaign). (84) By contrast, Lincoln's position was clear: the war would continue until the South capitulated. (85) Because the 1864 election took place after a string of decisive military victories by Union forces, including the destruction of Atlanta, many in the military viewed the Democrats' position of seeking peace without conditions as being unfaithful to the troops. (86) This characterization was enhanced by Republican efforts to link Northern Democrats with anti-war and anti-Union activities. (87) Letters from Union soldiers suggested that they thought a Democratic victory would bring shame and dishonor on soldiers who had sacrificed for the Union cause. (88)

Lincoln recognized that the military vote could be critical to his re-election and maintaining a Republican majority in Congress. (89) In the twelve states where civilian and military votes were counted separately, Lincoln won seventy-eight percent of the military vote. (90) Although military voters were key members of the Lincoln electoral coalition, there is some controversy regarding their importance. Some scholars argue that the …