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Brooklyn Law Review

Brian C. Kalt

Abstract

Eligible voters who have left the United States permanently have the right to vote in federal elections as though they still live at their last stateside address. They need not be residents of their former states, be eligible to vote in state and local elections, or pay any state or local taxes. Federal law—the Uniformed and Overseas Citizens Absentee Voting Act (UOCAVA)—forces states to let these former residents vote for President, the Senate, and the House this way. There are several constitutional problems with all of this. Congress heard about many of these problems in the hearings and debates that led to the passage of OCVRA (UOCAVA’s predecessor, which first enfranchised permanent expatriates this way) in 1975. When UOCAVA replaced OCVRA in 1986, no one in Congress revoiced the constitutional objections. Millions of votes have been cast under OCVRA and UOCAVA in federal elections, including many by the subset of voters—permanent expatriates—whose inclusion in the law is so constitutionally problematic. There seems to be little prospect of anyone going to court now to challenge a law under which so many people have been enjoying the right to vote for so long. Politically, if not legally, UOCAVA is entrenched.

Nevertheless, the law’s constitutional problems remain. First, UOCAVA flouts the clear standards that the Constitution sets for voter eligibility in congressional elections. Second, UOCAVA is not an appropriate use of Congress’s Fourteenth Amendment enforcement power, especially in light of recent Supreme Court case law. Third, it causes problems with proper congressional apportionment. Fourth, UOCAVA sits in uneasy proximity to the continued disenfranchisement of U.S. citizens who live in Washington, D.C., and the territories. Indeed, citizens who move from a state to one of these places lose their right to vote in federal elections (other than for President in D.C.). If U.S. citizens who leave the country permanently have voting rights that are so sacrosanct, it is odd that these other U.S. citizens, living on U.S. soil, do not. OCVRA and UOCAVA’s constitutional problems are not mere technicalities, and they should be fixed rather than ignored. This need for reform is particularly important because of the constitutional principles that UOCAVA breaches: limited federal power, federalism, and equality. But citizens’ ability to vote is important, too. OCVRA enfranchised permanent expatriates as part of a larger, decades-long struggle to strengthen the core of American constitutional democracy—the spirit that animated OCVRA was a worthy and legitimate one. The proper response to UOCAVA’s constitutional problems, and the one that this article ultimately seeks, is not to disenfranchise permanent expatriates, but rather to find a better, more constitutionally suitable way to enfranchise them. Only Congress can put permanent expatriates’ voting rights on a sound constitutional footing, doing justice both to these citizens and to the Constitution.

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