Voting is for All Americans, Including Those Living Abroad
On this, there is no doubt: Americans who are serving their country abroad or living overseas retain their right to vote.
Approximately 4.8 million U.S. citizens live overseas, and 2.9 million of them are eligible to vote, according to U.S. Citizens Abroad and Their Voting Behaviors in 2018. That year, about three-quarters of the 1.3 million active duty military servicemembers and 600,000 related family members were eligible to vote absentee with special protections because they were stationed away from their voting residence, according to the 2018 Report to Congress from the Department of Defense's Federal Voting Assistance Program (FVAP).
And yet far fewer of these Americans vote than stateside citizens. In the 2018 midterm elections, the Overseas Citizen Population Analysis Report (and it’s graphical summary) show that 4.7% of overseas voters cast ballots in the 2018 midterms (the most recent election to be summarized). A stateside citizen was 13 times more likely to vote than an overseas citizen. While 4.7% may sound shockingly low, overseas voting in 2018 was up 30% over 2014—the last comparable election. Data for the 2020 election will be out in the fall.
While there is also no doubt that states run elections, Congress twice in modern times has stepped in with federal legislation to make it easier for overseas citizens to vote. In 1986, Congress enacted the Uniformed and Overseas Citizens Absentee Voting Act (UOCAVA), and in 2009 the Military and Overseas Voter Empowerment Act (MOVE) amended federal law and added even more protections for these voters. Between the two laws, overseas citizens, known as UOCAVA voters, can use a universally accepted federal form to register to vote and request an absentee ballot (the Federal Post Card Application) and can use a “Federal Write-In Absentee Ballot,” known as a FWAB, as a fail-safe voting method if they don’t receive a regular ballot on time. State laws can and do go above and beyond.
So, what’s standing in the way of voting for servicemembers, expats and overseas citizens? In the Overseas Citizen Population Analysis Report, 31% responded with “didn’t want to vote,” and 69% indicated they “couldn’t complete the process.” For the two-thirds of voters who had practical issues with voting, maybe there are state policies that could help?
NCSL asked our friends and colleagues who know more than we do about voting for overseas Americans: Taylor Lansdale and Casandra Hockenberry at The Council of State Governments’ (CSG) Overseas Vote Initiative, and Heather Eudy and David Beirne at FVAP.
The top line: “We can’t lose sight that our military and overseas voters are busy with their lives and the process needs to be as seamless as possible,” Beirne, the director of FVAP, says. When asked what states can do, Beirne responded with this: “Customer service is key. Whether it is our military serving away from home or Americans residing overseas, this separation creates a vacuum of information. We always encourage election officials to offer positive reinforcement and communication back to the voter: 'Yes, we received your application! Yes, we received your ballot! Yes, your ballot was counted!'”
If only it were a question of adopting a positive attitude. Instead, obstacles and solutions vary on a voter-by-voter basis, and a state-by-state basis. The needs of a high-tech American worker in Singapore are dramatically different than those of a sailor deployed for months aboard a U.S. Navy vessel. In Singapore, connectivity and finding printers and postage aren’t likely to be a problem. On the ship, email access may be limited, and physical mail may be delivered just once every two weeks. “What makes it more challenging is that UOCAVA voters are highly mobile, and often living in austere or hostile environments,” said Lansdale, from CSG.
The core question is, how to get ballots to and from the voter? Relying on mail has risks. Postal delivery schedules at home have slowed down, and how well the mail works around the globe varies country-by-country. Whether a volunteer with Doctors Without Borders can access a stamp is a question. Short Stories from Overseas Voters from the Center for Civic Design (CCD) tells tales from 17 overseas voters. One CCD research participant from Mexico said “We just take it in good faith that it [the ballot] will arrive and be counted. Who knows if that's true or not? We do our part on our end.”
The alternative to mailing ballots is delivering them electronically. The MOVE Act required that states provide voters a way to electronic request and receive their absentee ballots. This can be accomplished by sending PDFs of the ballot and even the envelope as email attachments, or by allowing the voter to develop online portals to allow voters to access voting materials. Nevada, Vermont and Wisconsin have “one-stop self-service portals” for voters to get these election materials, including blank ballots. (See page 8 of CSG’s Examining the Sustainability of Balloting Solutions for Military & Overseas Voting.)
In some states, the electronic return of voted ballots is permitted—and raises security concerns. Thirty-one states allow voters some electronic method for returning their voted ballots, either by email delivery, fax or through a web portal. All rely on internet transmission.
For years the National Institute for Standards and Technology (NIST) has cautioned against using the internet to transfer voted ballots. If states do want to investigate further, Mitigating Risks for UOCAVA Voting is a good read. The key tension is between “security, security, security” and “innovation matters too,” Hockenberry says.
Online portals in some states also provide an alternative to email transmission of ballots. California provides a Remote Accessible Vote by Mail system. With these, voters need to be able to get to a computer, but from there they can receive the ballot electronically, mark it online, and print it for return. They cannot be returned electronically.
The needs of UOCAVA voters are well understood, but that doesn't mean there is a viable marketplace for solutions. The UOCAVA market is simply too small on its own to be attractive to a wide array of technology vendors. (To be fair, Democracy Live and Voatz are two companies that have worked for years to crack the ballot transmission market and solve the security issues at the same time.) That’s why federal funding a decade ago was provided to states to try various methods. Whether more grants will come again is anybody’s guess.
Regardless of the methods available in states, under the guidance of the Federal Voting Assistance Program and the Services, most military units have a voting assistance officer designated to help voters navigate the complications associated with requesting, receiving and voting a ballot. And FVAP helps non-military voters navigate these complicated waters as well. Overseas Vote, an initiative of the nonprofit U.S. Vote Foundation, serves a similar function.
What can policymakers do to smooth out voting? CSG and FVAP—like NCSL—do not make recommendations on policy choices, but we can point to what some states are doing.
- Dedicate funding for any of these technical things. Some states have used federal HAVA grants.
- Ask your local election officials how they serve UOCAVA voters and what their ideas are to ease the burden on these voters (and possibly on themselves).
- Regardless of whether your state requires absentee ballots to arrive at the election office by Election Day or within a window after Election Day to be counted, a special exception can be made for UOCAVA ballots, or just from ballots from military voters. This accounts for the vagaries of mail delivery. Rhode Island did this in 2019 with HB 5765 and SB 628.
- In states that use primary runoffs, instant runoff voting (also known as ranked choice voting) reduces the burden to participate. Instead of sending one ballot for the primary, and a separate ballot for the primary runoff if one is called for, just one ballot is sent with instructions for the voter to indicate their first, second, etc. choices. If their first-choice candidate doesn’t make it to the general election, their second choice will be counted. Georgia did so this year, and South Carolina did so in 2017.
- Extend the length of time an application—especially the Federal Post Card Application—is good to a full election cycle (two years). In some states, a new request is required every year; in others the request is permanent. Beirne thinks the sweet spot for the very mobile overseas population is a full cycle. In 2020, Wyoming extended the request for a calendar year, rather than for a single election.
- Call on CSG, FVAP or NCSL for testimony, policy impact statements or policy analysis.
From the Chair
This month we spoke with Massachusetts Senator Barry R. Finegold (D), who has represented the Second Essex and Middlesex District since 2019. He previously served in the Senate from 2011 to 2015 and in the House from 1997 to 2011.
Why were you selected to co-chair the Joint Committee on Election Laws? What do you like about the role?
I think it was my experience as a former selectman [city council member] that led me to be selected for this role, and I like it because this committee has so much impact on so many important issues. In a small way, I helped play a role in 2020 having the highest turnout in a primary and general election in the history of Massachusetts.
Massachusetts has extended some of the voting changes adopted during the COVID-19 pandemic, namely expanding mail voting, through June 2021. Will any temporary changes be made permanent?
We’re hopeful that we can make early voting and vote-by-mail permanent. Our role is to make voting as easy and accessible as possible. When as many voters as possible participate, democracy wins, and that’s what we all try to fight for.
What have your election priorities been for the 2021 session?
We want to establish same-day voting registration, and we want to try to do a campaign finance bill that allows working mothers to use campaign funds for child care. In general, our priorities are to make sure there’s more access for people to vote.
What aspect of Massachusetts’ elections makes you the proudest?
That we have as much participation as we do. Even though we have one of the latest primaries in the country, we still have an incredible amount of participation. The more people that vote, the more we have democracy, and that’s what our Founding Fathers wanted us to do.
This interview has been edited for length and clarity.
How many states have time limits in voting booths?
Twenty-four states limit the time that voters can spend in the voting booth. Eight states—Arkansas, California, Kansas, Ohio, Rhode Island, South Dakota, Tennessee and Wyoming—limit voters to 10 minutes, and seven states—Hawaii, Massachusetts, Mississippi, Oklahoma, South Carolina, Utah and Wisconsin—draw the line at five minutes. The longest limit is 15 minutes in Colorado; the shortest is two minutes in Kansas and New Jersey.
Some states offer voters additional time if no one else is waiting to cast a ballot. In Mississippi and Oklahoma, for instance, voters have 10 minutes, rather than five, if there’s no queue. Colorado also allows the secretary of state to extend the state’s 15-minute limit if the ballot is particularly long—often an issue in states with many ballot measures for voters to wade through.
Please note: These time limits do not apply to voters who need assistance.
If you’d like a 50-state table with citations, please email us at email@example.com.
Supreme Court Upholds Arizona Voting Laws
The Supreme Court on Thursday, July 1, upheld two Arizona voting laws in a 6-3 vote. AZ Rev Stat § 16-122 prohibited votes cast at the wrong precinct from being counted, and HB 2023 (2016) placed restrictions on ballot collection, making exceptions for family and household members, caregivers and election officials. Read more on NCSL's blog.
Alabama Prohibits Double Voting
With the enactment of HB 167, Alabama joins 11 other states that explicitly prohibit voting in more than one state. The legislation also makes voting more than once at any election a Class A misdemeanor or a Class C felony. See NCSL’s double voting webpage for more information.
Promoting Elections and Civics
The Council of State Governments has a new resource on how states can use funds from the American Rescue Plan (ARP) Act on elections and civics. The ARP provides approximately $1.8 billion that can be used to enhance election practices and promote civic education and inclusion.
RCV in NYC
In June, New York City held primary elections for mayor and other citywide offices using ranked choice voting (RCV). With RCV, voters rank each candidate in order of preference and a candidate must gain a majority of votes cast (50% + 1) to win. Rob Richie, the president and C.E.O. of FairVote, wrote an opinion piece about the NYC election as the biggest RCV election in American history and spelling out how voters can—if they want to—vote strategically. Counting in NYC's election is ongoing. To learn more about RCV, check out NCSL’s webpage.
DOJ Addresses Voting Rights
Attorney General Merrick Garland delivered an address on voting rights on June 11. Garland outlined the actions the Department of Justice (DOJ) will take to enforce federal voting laws, including doubling the number of employees in the DOJ’s Civil Rights Division. Check out a fact sheet here.
Election Case Challenging Georgia Law
Putting Garland’s commitment into action, the Department of Justice brought a lawsuit challenging Georgia’s newly enacted voting law, which makes several changes, including requiring ID to request and return absentee ballots, establishing guidelines for ballot drop boxes and more. The DOJ’s case argues that these changes will have a disproportionate effect on specific voters and violates the Voting Rights Act. Georgia’s Secretary of State Brad Raffensperger calls the case a “political stunt,” and says he expects Georgia to prevail in court.
First-Time Tennessee Voters Must Vote in Person
In a split 2-1 decision on June 22, the 6th U.S. Circuit Court of Appeals panel reinstated a Tennessee law requiring first-time voters in the state to vote in person. Judge Julia Smith Gibbons wrote, “because of advancements in COVID-19 vaccinations and treatment since this case began, the COVID-19 pandemic is unlikely to pose a serious threat during the next election cycle.”
Harassment of Election Officials
Two reports have been released addressing an increase in harassment of election officials. A June 2021 report by the California Voter Foundation found that the majority of election officials studied reported experiencing death threats, other threats and/or abusive language, in addition to heightened trauma, stress and anxiety. A report from the Bipartisan Policy Center and the Brennan Center for Justice found that one in three election officials reported feeling unsafe and one in six reported having been threatened due to their job. See the four-page fact sheet for an overview.
Election Legislation Analysis
A recent Bloomberg article breaks down this year’s election legislation in a series of excellent visualizations. The infographics offer an innovative way to see which states proposed and enacted election changes and whether those changes would—based on the authors’ categorizations—restrict or expand voting access. While NCSL does not categorize bills as “restrictive” or “expanding,” we do provide a full list of 2021 election enactments here.
Court Voids Mississippi’s Ballot Initiative Process
The Mississippi Supreme Court ruled 6-3 to nullify the state’s ballot initiative process. The Court held that the Mississippi Constitution requires signatures from five congressional districts for an initiative petition to qualify for the ballot. Because the Magnolia State currently only has four congressional districts, no initiative can qualify for the ballot, and the initiative process is effectively eliminated. A special election to fix and therefore reinstate the process is under consideration.
Monthly Dose of Cybersecurity
Austin, Tex.—Hart InterCivic announced plans to partner with Microsoft on a new software security tool, ElectionGuard, and integrate it into one of the election vendor’s voting systems. The open-source tool provides third parties with a way to validate election results and supplies voters with a unique code to track and verify their encrypted vote.
Columbus, Ohio—The Ohio Board of Voting Machine Examiners has prohibited wireless capabilities and connectivity in voting equipment following guidance from the U.S. Election Assistance Commission (EAC). The EAC’s updated Voluntary Voting System Guidelines 2.0 requires that a voting system be incapable of broadcasting a wireless network.
Michigan Releases 2020 Election Report
The Michigan Senate Oversight Committee’s report on the 2020 elections found no evidence of widespread or systematic fraud in the state’s elections. The Committee concluded that citizens should be confident the election outcomes represent the true votes cast by the people of Michigan. If you know of similar reports from your states, please send them along.
Celebrating First-Time Voters
One of the NCSL election team’s colleagues, Jenna Bannon, served as a poll worker during 2020’s elections. She reported that the polling place where she worked in Jefferson County, Colo. made a special effort to celebrate new voters. Election judges would announce, “We have a first-time voter!” and everyone in the room would clap and cheer. In fact, when a 76-year-old man who had never voted before arrived to cast his first ever ballot, everyone gave him a standing ovation.
From the NCSL Elections Team
Ready for a summer slowdown? Not at NCSL! Check out these upcoming election events:
- NCSL will host a webinar, What is an Election Audit?, on July 20 at 2 p.m. ET. Join us to learn where election audits fit within the wider universe of audits, how other states manage election audits, and what legislative options policymakers have to ensure audits are as effective and accurate as possible. Register here.
- NCSL Base Camp, Aug. 3-5, is a virtual event for legislators and legislative staff to learn about current policy issues. The elections team has a full schedule planned, including a Shark Tank-style panel, and several others about redistricting and the census. Register here.
- NCSL Legislative Summit, Nov. 3-5 in Tampa, Fla. The elections team has another exciting line-up for Summit, including sessions on absentee/mail voting, how 2020 changed elections and more. Register here.
Questions, comments, concerns or research requests? Please get in touch.
—Mandy Zoch, Wendy Underhill and Christi Zamarripa