Americans Helping Americans Abroad

By Doris L. Speer,
with Artemis Aburabi and Katelyn Mikysya[1]

Overview

The Uniformed and Overseas Citizens Absentee Voting Act (UOCAVA), enacted by Congress in 1986, requires that the U.S. states and territories allow U.S. military personnel, their families, and qualified U.S. citizens residing overseas, to register and vote absentee in elections for federal offices.[2] These citizens residing overseas are entitled to register and vote absentee using the address from the last state in which they were domiciled before leaving the United States.[3]

But some overseas U.S. citizens cannot vote at all. These persons are typically children of U.S. citizen parents who were born and raised abroad and, despite even having many connections with the United States, did not establish “residence” under a state law (the “Disenfranchised”).[4] UOCAVA doesn’t include them. However, in 38 states (and the District of Columbia), legislation has been enacted to extend the right to vote to the Disenfranchised who have a parent or legal guardian (and, in some cases, a spouse) who was last domiciled in that state:

  • 27 states permit the Disenfranchised to vote in both federal and state elections;
  • 10 states permit them to vote in only federal elections. These states are: Alaska, Connecticut, Delaware, Illinois, Minnesota, New York, New Hampshire, Rhode Island, Utah and Wisconsin;
  • Oregon is a special case: the Disenfranchised may vote only if they state that they intend to reside in Oregon, among other criteria.

But 12 states do not permit Disenfranchised U.S. citizens to register to vote from overseas in any election, whether federal or state. They are: Alabama, Arkansas, Florida, Idaho, Indiana, Louisiana, Maryland, Mississippi, Missouri, Pennsylvania, Texas and Wyoming.

UOCAVA

UOCAVA is a federal law which was established to guarantee the right to vote in federal elections for members of the U.S. Uniformed Services and merchant marine and their families, and U.S. citizens residing abroad. UOCAVA overrides state residency requirements to register and vote in federal elections and, at the state's option, state and local elections. It provides for the use of the Federal Post Card Application (FPCA) or the Federal Write-In Absentee Ballot (FWAB). Its implementation acknowledged the distinct challenges that these individuals face and addressed them by standardizing the ability for these individuals to exercise voting rights while abroad.

Overseas voters protected by UOCAVA fall into the following categories:

“(5) "overseas voter" means—

(A) an absent uniformed services voter who, by reason of active duty or service is absent from the United States on the date of the election involved;

(B) a person who resides outside the United States and is qualified to vote in the last place in which the person was domiciled before leaving the United States; or

(C) a person who resides outside the United States and (but for such residence) would be qualified to vote in the last place in which the person was domiciled before leaving the United States.”

In order for a U.S. citizen residing overseas to request a ballot, the citizen must fill out and submit the FPCA, or a state specific overseas voting registration form. Once complete, this form must be submitted to the state in which the citizen wishes to vote, and the state (assuming information on the form is correct) will send a ballot to him/her/they who fulfils the voting registration requirements. In emergency situations (if one might not receive a state’s ballot in time to send it back by the deadline) eligible overseas citizens may use a FWAB to both register (in some states) and vote. On the FPCA and the FWAB, those with established residency and are qualified to vote in a state are entitled to use their address of last domicile to fill out these forms, even if they no longer live in the state nor have a permanent address.

The Problem

UOCAVA protects the right to vote only to those who are or would be “qualified to vote in the last place in which the person was domiciled before leaving the United States.” Therefore, the statute does not protect the right to vote in federal elections for those who did not once have a U.S. domicile, i.e. the Disenfranchised U.S. citizens. In other words, the federal statute contains a “gap” and the states are not legally required to fill it. This is because states are in charge of voting, so where UOCAVA is silent, the individual states make their own rules.

Although 38 states (and the District of Columbia) have nevertheless filled this gap by allowing one to register to vote using a parent/legal guardian’s (or, in some cases, a spouse’s) last residential address, 12 states do not. Therefore, in these states, Disenfranchised U.S. citizens do not have a valid legal residence address to use in order to fill out the FPCA, the FWAB or any other absentee ballot application or voter registration form, and therefore cannot vote in either federal or state elections.

The 12 States

The 12 states that do not allow the Disenfranchised to vote are shown in purple below.

disenfranchised map

Alabama Arkansas Florida Idaho Indiana Louisiana
Maryland Texas Mississippi Missouri Pennsylvania Wyoming

The situation has been improving a bit: In 2023, New Jersey and Utah passed legislation in order to expand UOCAVA to protect the voting rights of their Disenfranchised U.S. citizens, and Illinois, which had previously allowed only military dependents to vote, expanded its law to permit all Disenfranchised to vote in federal elections.

AARO’s Advocacy

Because they are U.S. citizens and have the obligations of such, it is normal to expect that these persons be guaranteed the right to vote in federal elections.

The Disenfranchised must still file their federal tax declaration and their Report of Foreign Bank and Financial Accounts (FBAR) each year, males over 18 must register for selective service, and they have a host of other obligations and responsibilities as U.S. citizens. But these U.S. citizens are unable to exercise the basic civil right of voting. Their inability to vote in federal elections constitutes U.S. taxation without representation, which violates a fundamental basis upon which the United States was founded.

From the 14th and 15th Amendments asserting the voting rights of African Americans, to the 1920 adoption of the 19th amendment giving women the right to vote, to the Indian Citizenship Act (Snyder Act) establishing voting rights for American Indians and Alaskan Native Americans in 1924, to the 1964 Civil Rights Act, and, finally the 1986 UOCAVA, enfranchising the Disenfranchised is the last battle in defining American democracy.

Amending UOCAVA to include the Disenfranchised appears to be the most effective course to pursue in order to provide uniform federal voting rights for all citizens, including the Disenfranchised.[5] AARO believes that either of the following two approaches could be proposed to resolve the problem:[6]

Either change section (5)(C) of UOCAVA as follows (suggested new language in bold):

(C) a person who resides outside the United States, who may or may not have established residency in the United States, and (but for such residence) would be qualified to vote in the last place in which the person or the person's U.S. citizen parent or legal guardian was domiciled before leaving the United States.

Or add a new section (5)(D) to UOCAVA:

(D): a person who resides outside the United States and has not established residency in the United States and (but for such residence) would be qualified to vote in the last place in which the person's U.S. citizen parent or legal guardian was domiciled before leaving the United States.

Federal election regulations for all overseas Americans should be consistent across all 50 states. Addressing this issue is essential to uphold a basic pillar of democracy in the U.S.: Voting.

Citations to the statutes herein can be found in the Bibliography.


[1] Artemis Aburabi and Katelyn Mikysya, AARO 2024 interns, conducted initial research and worked on initial drafts. 

[2] In 2009, the Military and Overseas Voter Empowerment Act ("MOVE Act"), amended UOCAVA to establish new voter registration and absentee ballot procedures that states must follow in all federal elections.

[3] U.S. citizens residing overseas who had established residence in a state, even with no intent or unclear intent to return, may vote in both federal and state elections in 31 states; in 19 states plus the District of Columbia these persons may vote only in federal elections - no “down ballot” voting. See the Federal Voting Assistance Program, or the FVAP, for details.

[4] The FVAP uses the term “never resided” as well as “have never established residence.”

[5] AARO believes that a single, federal approach would be more effective than trying a state-by state approach in 12 different states. We understand that this federal advocacy approach would only address federal voting rights and not the “down ballot” voting rights of the Disenfranchised in these 12 states, nor the 10 states in which their right to vote in state elections is prohibited, nor the special case. These are matters of state law, which AARO generally does not address in its advocacy. This paper is also not intended to address the inability of “down ballot” voting of U.S. citizens who have once established residency in the United States, as that is also a state issue. AARO may decide at a later stage to advocate at the state level for down ballot voting using a focused state-by-state strategy.

[6] These two proposals were provided to AARO by the Democrats Abroad, which had advocated (unsuccessfully) for one of them to be included in “The John Lewis Voting Rights Act of 2021.” Although either of these proposed clauses would be a good start to resolving the problem, there are many ways to draft the legislation. AARO will work as necessary with the appropriate persons in Congress to find suitable language.