ABSENTEE VOTING

ABSENTEE VOTING

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. § 1973ff 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 pre-
venting 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[1]). 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][1]); a voter who registers
for an absentee ballot by mail must get the reg-
istration form to the registrar not more than 60
days and not less than 96 hours before the elec-
tion (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. InLouisiana, any person age 65 or older may voteby absentee ballot.All states require that the application for anabsentee ballot be requested before election day,but this rule has some exceptions. In Minnesota,for example, a HEALTH CARE patient whobecomes a resident or patient in a health carefacility on the day before the election may voteby absentee ballot on election day if she or hetelephones the municipal clerk by 5:00 P.M. theday before the election (M.S.A. § 203B.04[2]).Each county enlists election judges to deliverabsentee ballots to hospitalized voters (M.S.A. §203B.11[3]).

Some people have had to fight for the rightto vote by absentee ballot. In Cepulonis v. Secretaryof the Commonwealth, 452 N.E.2d 1137, 389Mass. 930 (Mass. 1983), Richard Cepulonis andKevin Murphy, two Massachusetts residents andlong-term prisoners in the Walpole MassachusettsCorrectional Institution, asserted theirright to vote by absentee ballot. Cepulonis, eligiblefor PAROLE in 1997, and Murphy, eligible forparole in 1985, attempted to vote from prison in1982. City officials in Worcester told Cepulonisthat he could not vote by absentee ballot withoutregistering in person; officials in Boston toldMurphy the same.

Cepulonis and Murphy filed suit together insuperior court, asking for a CLASS ACTION onbehalf of Massachusetts prisoners and a judicialdeclaration that the class of prisoners bedeclared eligible to vote by absentee ballot. Thejudge denied the requests, holding specificallythat prisoners who did not register to vote priorto their imprisonment, and prisoners who arenot imprisoned in the city of their domicile, maynot register to vote by absentee ballot becausethey must register to vote in person. The absenteevoting statutes of Massachusetts containedno provision for voter registration of Massachusettsprisoners through the postal service.

Cepulonis and Murphy asked the MassachusettsSupreme Judicial Court to review the case;on August 15, 1982, the court denied therequest. On October 21, Cepulonis and Murphymoved for a court order allowing prisoners tovote in the November 2 elections; the Massachusettshigh court denied this request as well.Cepulonis and Murphy then filed a motion forinjunctive relief—a court order—with the U.S.Supreme Court. Justice WILLIAM J. BRENNAN JR.denied the motion WITHOUT PREJUDICE, whichmeant that Cepulonis and Murphy were free tobring the matter before the Court in the future.Justice JOHN PAUL STEVENS referred the case tothe full bench of the Supreme Court, which,after consideration, refused to command Massachusettsto institute procedures enabling incarceratedresidents to vote by absentee ballot.

Undaunted, Cepulonis and Murphy applieddirectly to the Massachusetts Supreme JudicialCourt for review of the case; the court grantedthe application. On April 4, 1983, Cepulonis andMurphy argued that Massachusetts’s failure toinstall an absentee registration procedure forincarcerated residents deprived those residentsof their state the constitutional right to vote instate elections. Although some states had chosento prohibit convicted criminals from voting inelections,Massachusetts had not.

The court began the analysis in its opinionby discussing the case law of Massachusetts onthe subject of voting. Without exception, theprecedents held that voting laws should be interpretedto facilitate voting, and not to impair ordefeat the right to vote. In light of this principle,the court announced that it agreed with Cepulonisand Murphy: the Massachusetts statutoryscheme was denying deserving citizens a stateconstitutional right.The court then examined the Massachusettsstatutory scheme and observed that some eligibleprisoners could vote, whereas others couldnot. The absentee voting laws of Massachusettsprovided that prisoners incarcerated in themunicipality of their domicile, if already registered,could vote by absentee ballot. On theother hand, registered voters incarcerated in amunicipality other than their own could notregister for absentee ballots. Furthermore, prisonerswho were adult registered voters beforethey were incarcerated could vote, but prisonersreaching the age of majority while incarceratedcould not vote. These distinctions were ARBITRARYand, according to the court, unconstitutional.

The court then cited relevant case law thatheld that Massachusetts must prove the existenceof a compelling STATE INTEREST when itdenies a fundamental right such as voting. Thestate argued that the registration laws existed intheir present form to prevent voter fraud. Thecourt countered by pointing out that Maine,New York, Vermont, Georgia, and Pennsylvaniahad all seen fit to permit prisoners domiciled in their states to register as absentee voters. Thisshowed that it was possible to create a systemallowing eligible prisoners to vote by absenteeballot.

The state also argued that prisoners not registeredto vote had had the opportunity to registerbefore incarceration. Requiring the state tosupply special absentee voting procedures to disinterestedcitizens seemed unnecessary. However,failure to register to vote beforeincarceration did not mean that prisoners whowere otherwise eligible should be denied theright to vote, and, according to the court, no caselaw supported such a denial.

Ultimately, the court held that Massachusettsprisoners must be given the means to votein state elections. The Massachusetts absenteevoting statutes were unconstitutional to theextent that they prevented incarcerated, eligibleMassachusetts voters from registering to vote.The court refrained from giving the vote toCepulonis and Murphy, and instead left the jobof revising the Massachusetts absentee votinglaws to the legislature.

The issue of absentee voting became a particularlycontested topic during the 2000 presidentialelection, when every vote was needed todetermine the ultimate outcome. The seat ofcontroversy was Florida, where a recountbecame necessary in several counties becausethe vote was so close. Between November andDecember, Democrat AL GORE and RepublicanGEORGE W. BUSH appealed to the state SupremeCourt and even the U.S. Supreme Court (BUSHV. GORE, 531 U.S. 98 [U.S. 2000]) over whetheror not ballots should be recounted. For example,lawsuits filed by Florida’s DEMOCRATIC PARTYinvolved the counting of absentee ballots inSeminole and Martin Counties (Taylor v.MartinCounty Canvassing Board, 773 So.2d 517 [2000];Jacobs v. Seminole County Canvassing Board, 773So.2d 519 [2000]). The party alleged thatRepublicans were allowed to correct mistakes insome voter absentee ballots, while Democratswere not given the same chance. In SeminoleCounty, Republican officials added missingvoter identification numbers at the county electionoffice, while in Martin County an electionsupervisor let Republican workers take homeapplication forms and add missing voter identificationnumbers. The stakes were high becausethe 15,000 absentee votes in Seminole Countyand the 10,000 in Martin County contributed toBush’s razor thin majority over Gore.

The two state circuit judges who reviewedthe issues decided that, despite irregularities, theballots should be counted. On appeal, theFlorida Supreme Court upheld these rulings.The court, although acknowledging that therewere irregularities in the process, concluded thatthere was no evidence of fraud, gross negligence,or intentional wrongdoing.

The use of absentee ballots can complicateelections when a candidate resigns or dies duringthe last days of a campaign. The 2002 U.S.Senate elections in New Jersey and Minnesotaillustrated these complications and led to litigationover whether new absentee ballots could beissued to include a substitute candidate.

The New Jersey Republican candidate for theSenate asked the U.S. Supreme Court to overturna state supreme court ruling that DemocratFrank Lautenberg’s name could replace SenatorRobert Torricelli on the November ballot. Torricelli,who had admitted to ethical violations andbeen censured by the Senate, dropped his reelectionbid after public opinion polls indicated thathe would lose decisively.New Jersey Republicansasked the Supreme Court to keep Torricelli’sname on the ballot, arguing that there would bedelays in delivering military ballots, whichwould violate the 1973 Uniformed and OverseasCitizens Absentee Voting Act. In addition, theycontended that the state supreme court orderviolated the DUE PROCESS rights of military personneland citizens who had already receivedballots and voted. Unlike the 2000 presidentialelection controversy, the Supreme Court refusedto intervene. Lautenberg went on to win theelection.

The Minnesota elections in 2002 werethrown into turmoil when Democratic SenatorPaul Wellstone was killed in a plane crash just 10days before the election. An estimated 104,000absentee ballots had been distributed and manyhad already been returned to county electionofficials before Wellstone’s death. In reviewingthe state’s election laws, the SECRETARY OF STATEconcluded that county elections could not mailout new absentee ballots. This meant that thousandsof absentee ballots that contained votesfor Wellstone would not count for the substitutecandidate, former vice president Walter Mondale.

The state Democratic Party filed an emergencyelection appeal with the state supremecourt, arguing that new ballots should be issued immediately and that Minnesota voters should be able to vote absentee using modern meanssuch as fax and E-MAIL. The court held oralargument on the Thursday before the electionand issued an order later that day, ruling thatvoters could request new absentee ballots bemailed to them but they had to be returned tocounty voting officials by the following Tuesday.The court did not authorize any electronicmeans as suggested by the Democrats. Countyofficials began to print ballots but the tightdeadline made it certain that many voters, suchas college students living far away, did not havetime to request, receive, and return their ballots.In the end, Republican candidate Norm Colemanbeat Mondale by a close but comfortablemargin.

The Minnesota absentee ballot case illustrateshow absentee voters may risk having theirvote not count if an unusual chain of eventsunfolds before an election. Technology thatwould enable voters to use the INTERNET to votecould someday be an avenue for modernizingabsentee voting.

FURTHER READINGS

Booth, Michael. 2002. “Republicans Sue in N.J. Federal Court to Block Senate Ballot Substitution.” New JerseyLaw Journal (October 7). Logan, Michele. 1993. “The Right To Write-in: Voting Rightsand the First Amendment.” Hastings Law Journal 44 (March): 727-751.McCauley, William T. 2000. “Florida Absentee Voter Fraud: Fashioning an Appropriate Judicial Remedy.” Universityof Miami Law Review 54 (April).“No New Lifeline for Gore: Florida High Court Will NotHear Absentee Cases.” December 12, 2000. Availableonline at <www.abcnews.com> (accessed May 28,2003).“Supreme Court Asked to Block Lautenberg: N.J. RepublicanCandidate Files Appeal.” 2002. Washington Post (October5).

CROSS-REFERENCES
Elections; Prisoners’ Rights; Voting.