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Participation in an election by qualified voters who are permitted to mail in their ballots.
The Uniformed and Overseas Citizens Absentee Voting Act (42 U.S.C.A. § 1973 ff et seq.) covers absentee voting in presidential elections, but the states regulate absentee voting in all other elections. According to Article I, Section 4, of the U.S. Constitution, "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 … make or alter such Regulations, except as to the Places of ch[oo]sing Senators."
Originally created to accommodate overseas military service personnel in World War I, absentee voting has since expanded to include all those expecting to be absent from their precincts on election day. The right to vote, even by absentee ballot, is no trifling concern. A state may restrict it only to the extent that doing so serves a compelling state interest such as preventing Fraud.
Although all states allow absentee voting, the procedures and qualifications vary from state to state. For example, the amount of time that an application for an absentee ballot must precede the election can vary. In Minnesota, it is one day (M.S.A. § 203B.04). In Louisiana, it depends on the voter. For example, a voter who goes in person to apply for an absentee ballot must do so between 12 and 6 days before the election (LSA-R.S. 18:1309[a]); a voter who registers for an absentee ballot by mail must get the registration form to the registrar not more than 60 days and not less than 96 hours before the election (LSA-R.S. 18:1307[b]); military personnel must return the application not more than 12 months and not less than 7 days before election day (LSA-R.S. 18:1307[c]).
Many states allow absentee voters to vote again on election day if they are present in the state. If voters so choose, they may change their votes. Officials in states that allow this practice count the absentee ballots after the poll ballots have been counted, and any duplicate absentee ballots are simply disregarded. This is the case in Minnesota (M.S.A. § 203B.13[3a]). In Louisiana, however, a person who has voted by absentee ballot may not vote again on election day (LSA-R.S. 18:1305). In 1977, Louisiana amended its law to allow absentee voters to change their votes on election day, but in 1980, it changed the law again to prohibit the practice.
In any state, to cast an absentee ballot, citizens must be eligible voters and have a reason for being unable to vote at the polls. Between August 1, 1991, and November 30, 1992, Minnesota experimented with allowing voters to cast absentee ballots without explanation, but this practice was discontinued on January 1,1994. All states allow persons with permanent disabilities and military personnel to cast votes by absentee ballot. Other valid reasons for voting in absentia include illness, temporary disability, and religious observances or practices. In Louisiana, any person age 65 or older may vote by absentee ballot.
All states require that the application for an absentee ballot be requested before election day, but this rule has some exceptions. In Minnesota, for example, a health care patient who becomes a resident or patient in a health care facility on the day before the election may vote by absentee ballot on election day if she or he telephones the municipal clerk by 5:00 p.m. the day before the election (M.S.A. § 203B.04). Each county enlists election judges to deliver absentee ballots to hospitalized voters (M.S.A. § 203B.11).
Some people have had to fight for the right to vote by absentee ballot. In Cepulonis v. Secretary of the Commonwealth, 452 N.E. 2d 1137, 389 Mass. 930 (Mass. 1983), Richard Cepulonis and Kevin Murphy, two Massachusetts residents and long-term prisoners in the Walpole Massachusetts Correctional Institution, asserted their right to vote by absentee ballot. Cepulonis, eligible for Parole in 1997, and Murphy, eligible for parole in 1985, attempted to vote from prison in 1982. City officials in Worcester told Cepulonis that he could not vote by absentee ballot without registering in person; officials in Boston told Murphy the same.
Cepulonis and Murphy filed suit together in superior court, asking for a Class Action on behalf of Massachusetts prisoners and a judicial declaration that the class of prisoners be declared eligible to vote by absentee ballot. The judge denied the requests, holding specifically that prisoners who did not register to vote prior to their imprisonment, and prisoners who are not imprisoned in the city of their domicile, may not register to vote by absentee ballot because they must register to vote in person. The absentee voting statutes of Massachusetts contained no provision for voter registration of Massachusetts prisoners through the postal service.
Cepulonis and Murphy asked the Massachusetts Supreme Judicial Court to review the case; on August 15, 1982, the court denied the request. On October 21, Cepulonis and Murphy moved for a court order allowing prisoners to vote in the November 2 elections; the Massachusetts high court denied this request as well. Cepulonis and Murphy then filed a motion for injunctive relief—a court order—with the U.S. Supreme Court. Justice william j. brennan jr. denied the motion Without Prejudice, which meant that Cepulonis and Murphy were free to bring the matter before the Court in the future. Justice John Paul Stevens referred the case to the full bench of the Supreme Court, which, after consideration, refused to command Massachusetts to institute procedures enabling incarcerated residents to vote by absentee ballot.
Undaunted, Cepulonis and Murphy applied directly to the Massachusetts Supreme Judicial Court for review of the case; the court granted the application. On April 4, 1983, Cepulonis and Murphy argued that Massachusetts's failure to install an absentee registration procedure for incarcerated residents deprived those residents of their state the constitutional right to vote in state elections. Although some states had chosen to prohibit convicted criminals from voting in elections, Massachusetts had not.
The court began the analysis in its opinion by discussing the case law of Massachusetts on the subject of voting. Without exception, the precedents held that voting laws should be interpreted to facilitate voting, and not to impair or defeat the right to vote. In light of this principle, the court announced that it agreed with Cepulonis and Murphy: the Massachusetts statutory scheme was denying deserving citizens a state constitutional right.
The court then examined the Massachusetts statutory scheme and observed that some eligible prisoners could vote, whereas others could not. The absentee voting laws of Massachusetts provided that prisoners incarcerated in the municipality of their domicile, if already registered, could vote by absentee ballot. On the other hand, registered voters incarcerated in a municipality other than their own could not register for absentee ballots. Furthermore, prisoners who were adult registered voters before they were incarcerated could vote, but prisoners reaching the age of majority while incarcerated could not vote. These distinctions were Arbitrary and, according to the court, unconstitutional.
The court then cited relevant case law that held that Massachusetts must prove the existence of a compelling State Interest when it denies a fundamental right such as voting. The state argued that the registration laws existed in their present form to prevent voter fraud. The court countered by pointing out that Maine, New York, Vermont, Georgia, and Pennsylvania had all seen fit to permit prisoners domiciled in their states to register as absentee voters. This showed that it was possible to create a system allowing eligible prisoners to vote by absentee ballot.
The state also argued that prisoners not registered to vote had had the opportunity to register before incarceration. Requiring the state to supply special absentee voting procedures to disinterested citizens seemed unnecessary. However, failure to register to vote before incarceration did not mean that prisoners who were otherwise eligible should be denied the right to vote, and, according to the court, no case law supported such a denial.
Ultimately, the court held that Massachusetts prisoners must be given the means to vote in state elections. The Massachusetts absentee voting statutes were unconstitutional to the extent that they prevented incarcerated, eligible Massachusetts voters from registering to vote. The court refrained from giving the vote to Cepulonis and Murphy, and instead left the job of revising the Massachusetts absentee voting laws to the legislature.
The issue of absentee voting became a particularly contested topic during the 2000 presidential election, when every vote was needed to determine the ultimate outcome. The seat of controversy was Florida, where a recount became necessary in several counties because the vote was so close. Between November and December, Democrat al gore and Republican george w. bush appealed to the state Supreme Court and even the U.S. Supreme Court (bushv. gore, 531 U.S. 98 [U.S. 2000]) over whether or not ballots should be recounted. For example, lawsuits filed by Florida's Democratic Party involved the counting of absentee ballots in Seminole and Martin Counties (Taylor v. Martin County Canvassing Board, 773 So. 2d 517 ; Jacobs v. Seminole County Canvassing Board, 773 So. 2d 519 ). The party alleged that Republicans were allowed to correct mistakes in some voter absentee ballots, while Democrats were not given the same chance. In Seminole County, Republican officials added missing voter identification numbers at the county election office, while in Martin County an election supervisor let Republican workers take home application forms and add missing voter identification numbers. The stakes were high because the 15,000 absentee votes in Seminole County and the 10,000 in Martin County contributed to Bush's razor thin majority over Gore.
The two state circuit judges who reviewed the issues decided that, despite irregularities, the ballots should be counted. On appeal, the Florida Supreme Court upheld these rulings. The court, although acknowledging that there were irregularities in the process, concluded that there was no evidence of fraud, gross negligence, or intentional wrongdoing.
The use of absentee ballots can complicate elections when a candidate resigns or dies during the last days of a campaign. The 2002 U.S. Senate elections in New Jersey and Minnesota illustrated these complications and led to litigation over whether new absentee ballots could be issued to include a substitute candidate.
The New Jersey Republican candidate for the Senate asked the U.S. Supreme Court to overturn a state supreme court ruling that Democrat Frank Lautenberg's name could replace Senator Robert Torricelli on the November ballot. Torricelli, who had admitted to ethical violations and been censured by the Senate, dropped his reelection bid after public opinion polls indicated that he would lose decisively. New Jersey Republicans asked the Supreme Court to keep Torricelli's name on the ballot, arguing that there would be delays in delivering military ballots, which would violate the 1973 Uniformed and Overseas Citizens Absentee Voting Act. In addition, they contended that the state supreme court order violated the due process rights of military personnel and citizens who had already received ballots and voted. Unlike the 2000 presidential election controversy, the Supreme Court refused to intervene. Lautenberg went on to win the election.
The Minnesota elections in 2002 were thrown into turmoil when Democratic Senator Paul Wellstone was killed in a plane crash just 10 days before the election. An estimated 104,000 absentee ballots had been distributed and many had already been returned to county election officials before Wellstone's death. In reviewing the state's election laws, the Secretary of State concluded that county elections could not mail out new absentee ballots. This meant that thousands of absentee ballots that contained votes for Wellstone would not count for the substitute candidate, former vice president Walter Mondale.
The state Democratic Party filed an emergency election appeal with the state supreme court, arguing that new ballots should be issued immediately and that Minnesota voters should be able to vote absentee using modern means such as fax and E-Mail. The court held oral argument on the Thursday before the election and issued an order later that day, ruling that voters could request new absentee ballots be mailed to them but they had to be returned to county voting officials by the following Tuesday. The court did not authorize any electronic means as suggested by the Democrats. County officials began to print ballots but the tight deadline made it certain that many voters, such as college students living far away, did not have time to request, receive, and return their ballots. In the end, Republican candidate Norm Coleman beat Mondale by a close but comfortable margin.
The Minnesota absentee ballot case illustrates how absentee voters may risk having their vote not count if an unusual chain of events unfolds before an election. Technology that would enable voters to use the Internet to vote could someday be an avenue for modernizing absentee voting.
Booth, Michael. 2002. "Republicans Sue in N.J. Federal Court to Block Senate Ballot Substitution." New Jersey Law Journal (October 7).
Logan, Michele. 1993. "The Right To Write-in: Voting Rights and the First Amendment." Hastings Law Journal 44 (March): 727-751.
McCauley, William T. 2000. "Florida Absentee Voter Fraud: Fashioning an Appropriate Judicial Remedy." University of Miami Law Review 54 (April).
"No New Lifeline for Gore: Florida High Court Will Not Hear Absentee Cases." December 12, 2000. Available online at <www.abcnews.com> (accessed May 28,2003).
"Supreme Court Asked to Block Lautenberg: N.J. Republican Candidate Files Appeal." 2002. Washington Post (October 5).