In the final weeks before Election Day, Republican groups have filed of Michigan, North Carolina and Pennsylvania that challenge the validity of ballots cast by U.S. citizens living abroad, including members of the U.S. military.
Passed in 1986, a federal law known as the has required states to allow military members and their family members, plus other so-called UOCAVA voters, to cast absentee ballots in federal elections.
More than 938,000 UOCAVA voters had in the 2020 general election. And for this fall鈥檚 election, Pennsylvania has sent more than 25,000 ballots to overseas voters, .
The election rules states put in place for overseas voting have remained uncontroversial for decades 鈥� until now.
With absentee voting underway, election officials and other voting experts are raising concerns that these legal challenges may discourage eligible voters from casting ballots and sow the grounds for questioning the upcoming results.
What Republicans are arguing in court about overseas voters
In Pennsylvania, a group of six Republican members of the U.S. House of Representatives 鈥� all of whom the swing state鈥檚 presidential electoral votes in 2020 鈥� first filed in September.
They argue that Pennsylvania鈥檚 鈥� which do not require eligible overseas voters to show identification when registering or, if voting for the first time in a federal election in the state, turn in a copy of their ID with their absentee ballot 鈥� skirt identity verification requirements for voters registered by mail under a federal law known as the .
That law, however, specifically exempts overseas voters from having to provide a document proving their identity. When registering to vote in federal elections, overseas voters have to either provide their driver鈥檚 license number or the last four digits of their Social Security number, or report that they have neither so that a state can assign them a unique ID number. But federal law defers to states to determine whether the information provided is 鈥渟ufficient鈥� according to their state laws.
In the two other lawsuits, filed this month, the Republican National Committee is questioning the eligibility of specific categories of overseas voters, who, the RNC argues, do not meet requirements under and 鈥檚 state constitutions for voters to be residents.
To comply with UOCAVA鈥檚 requirements, North Carolina鈥檚 allow absentee voting by citizens who were born outside the U.S. and whose parent or legal guardian鈥檚 former residence is in the state. Michigan鈥檚 secretary of state has issued : 鈥淎 United States citizen who has never resided in the United States but who has a parent, legal guardian, or spouse who was last domiciled in Michigan is eligible to vote in Michigan as long as the citizen has not registered or voted in another state.鈥�
鈥淣orth Carolinians and Michiganders should not have their votes canceled by those who鈥檝e never lived in the state in the first place 鈥� plain and simple,鈥� Michael Whatley, the RNC鈥檚 chair, said in a statement.
But the state election offices named in these lawsuits point out that these rules have been in place for years to help minimize barriers that can keep U.S. citizens from exercising their right to vote.
鈥淭he plaintiffs have challenged a state law that allows US citizens living abroad to vote in North Carolina elections when these voters鈥� only residential connection to a US state is through their parents鈥� former residence in North Carolina. Otherwise, these US citizens have no other way to vote in US elections,鈥� Patrick Gannon, a spokesperson for the North Carolina State Board of Elections, said in a statement.
Angela Benander, a spokesperson for the Michigan Department of State, noted that among the citizens whose voting rights the RNC is 鈥渢argeting鈥� are the 鈥渃hildren of active-duty military service members who are making sacrifices for our freedoms.鈥�
Former President Donald Trump, however, has been focusing his criticism on overseas voters who are not connected with the military. In a September post on his social media platform, the Republican presidential nominee appeared to reference the Democratic National Committee鈥檚 among U.S. citizens living abroad, saying without evidence that Democrats 鈥渨ant to dilute the TRUE vote of our beautiful military and their families.鈥�
Why the timing of these lawsuits is raising concerns
Many legal experts do not expect these cases to go anywhere. Apart from any legal arguments, they point to procedural problems 鈥� including the timing of these lawsuits.
鈥淲hat鈥檚 kind of boggling about these lawsuits is that none of the systems that they are challenging about these voters are new,鈥� says Danielle Lang, senior director of the Campaign Legal Center鈥檚 voting rights program. 鈥淭he RNC is not unfamiliar with election laws. These aren鈥檛 new to them, and yet they鈥檙e raising these questions at the very last minute before an election. It seems like they鈥檙e trying to raise questions rather than answer them.鈥�
During a hearing last week in the Michigan lawsuit, the RNC鈥檚 鈥渂iggest hurdle鈥� is bringing this case weeks after election officials started sending out ballots to UOCAVA voters.
Attorneys are now waiting for rulings from the Michigan judge and the Pennsylvania case鈥檚 federal judge, who also held a hearing last week. A hearing in the North Carolina lawsuit is scheduled for Monday.
With about two weeks left before the end of voting, many election watchers are concerned that these legal challenges are laying groundwork for questioning the ballots of eligible voters.
鈥淲e are right now in a cycle of spectacularly invented controversy, where the problems aren鈥檛 real problems but fuel an outrage machine,鈥� says Justin Levitt, a constitutional law professor at Loyola Law School, who has served as a Justice Department official and in the Biden administration as a White House voting rights policy adviser.
In a statement, Matt Heckel, a spokesperson for the Pennsylvania Department of State, compared the GOP lawmakers鈥� case to efforts during the previous presidential election.
鈥淭his challenge appears to be a continuation of the unfounded litigation in state and federal court filed in 2020 in an effort to sow confusion and ultimately to throw out the votes of millions of Pennsylvanians and overturn the results of that legitimate election,鈥� Heckel said. 鈥淭hose efforts failed then, and these latest dishonest efforts will also fail.鈥�
How these lawsuits could affect overseas voting
Even if these lawsuits are ultimately tossed out of the courts, Lang of the Campaign Legal Center is concerned about the costs of this controversy on eligible voters living abroad.
鈥淚 can promise you that military and overseas voters reading these newspaper articles are very anxious about their vote,鈥� Lang says. 鈥淭hey may feel confused. They may feel like their vote isn鈥檛 going to count. And so what鈥檚 the point? And I certainly hope that鈥檚 not the case, but I fear that it may be.鈥�
While the main federal law about overseas voting is usually associated with the military, a survey by the shows that uniformed service members made up about 42% of registered UOCAVA voters in 2020.
鈥淯ndercutting confidence in our free and fair elections by disenfranchising our service men and women is unacceptable,鈥� Democratic Rep. Pat Ryan of New York, who served two tours in Iraq as a battalion intelligence officer in the U.S. Army, wrote in , who is charged with carrying out UOCAVA.
In a statement, Pentagon spokesperson Maj. Gen. Patrick Ryder said Austin 鈥渂elieves that service members serving overseas, eligible family members and U.S. citizens overseas have the right to vote, and DOD will continue to work to help them do so.鈥�
In court filings for all three lawsuits, the Republican groups have asked the courts to at least order election officials to set aside the returned ballots of UOCAVA voters and not count them in the final election results until the voters鈥� eligibility can be confirmed.
But election officials warn that would introduce a new process that could bring confusion and disrupt an already-tense period for election workers, who are under public pressure to report accurate vote tallies as soon as possible.
Kathy Boockvar, who used to oversee elections in Pennsylvania as secretary of the commonwealth, notes that the swing state鈥檚 allow UOCAVA voters鈥� ballots to be received up to seven days after Election Day.
鈥淚t鈥檚 a sort of ripe time for the intentional insertion of distrust and conspiracy theories and tearing down faith in our electoral process,鈥� Boockvar said last week during a press briefing organized by Issue One, a democracy-focused advocacy group. 鈥淭here's so many protections in place. This is such a critical right for our American citizens overseas and in the military. Adding this doubt and intentional fueling of distrust is just another example of exactly what we don't need.鈥�
contributed reporting. Edited by
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