Introduction – Democracy Is Not A Spectator Sport

Watch the discussion that took place with @BruceAHeyman here. It focuses solely on how #Americansabroad can vote "Toronto Star virtual event: U.S. Election 2020: Why votes from abroad matter, and explaining the battle to overcome voter suppression" https://t.co/8yfc1ry1qM

— John Richardson – lawyer for "U.S. persons" abroad (@ExpatriationLaw) September 23, 2020

The 21st century has been notable for an evolving assault on representative democracy.

Examples include:

1. The rise of the head state who is to serve for life.

2. An unhealthy mass of power in the hands of political parties in general and small parts of the party in particular. Does the individual/local representative (Congressman or MP) even matter?

3. A sentiment that individual votes no longer matter or that they are no candidates worth voting for.

Variants of these themes are being played out all over the world.

In general, politicians operate on the principle that:

“The business of the public is none of the public’s business.”

COVID-19 – An Exacerbating Factor

The world was tumultuous before COVID-19. Governmental responses to COVID-19 have focussed citizens on their leaders.

It appears that the public is more inclined to fight back and is willing to use the electoral process to rid themselves of leaders they don’t like.

To put it simply:

1. The electorate is feeling the need to become more engaged (I am betting on a high voter turnout in the US election; and

2. Outside groups are working hard to leverage voter discontent (example the “Vote From Abroad” initiative organized by the Democratic Party).

Democracy is not a spectator sport.

The right to vote is valuable.

Governments, political parties and individual candidates recognize that their existence and viability depends on their receiving support as expressed in votes. Governments generally do NOT respect their citizens. But, they do respect the fact that their very existence depends on receiving votes.

Therefore: People should vote (some countries – for example Australia – have mandatory voting laws).

A Statutory Right To Vote Vs. A Constitutional Right To Vote

Canada – On April 17, 1982, Canadian citizens received on Constitutional right to vote as part of Canada’s Charter Of Rights. Specifically Section 3 of Canada’s Charter confirms that:

3. Every citizen of Canada has the right to vote in an election of members of the House of Commons or of a legislative assembly and to be qualified for membership therein.

In Canada Federal elections take place according the Canada Elections Act which is a Federal statute. The party affiliation of the individual candidate appears beside his/her name on the ballot.

The United States – U.S. Citizens do not (discussed extensively here) and have never had a constitutional right to vote. That said, there are provisions in the US constitution that guarantee that existing laws meet constitutional standards and statutory standards. The rules for voting in US Federal Elections take place according to State rules and procedures. Voter registration is carried out by each state. Each state has its own rules for determining what kind of connection to that state is sufficient to allow for voting in that state. (This is why there are some States where Americans abroad are denied the right to vote and some states where Americans abroad are allowed to vote.)

Voting And Americans Abroad – Uniformed and Overseas Citizens Absentee Voting Act (UOCAVA) of 1986

In simple terms, the Uniformed and Overseas Citizens Absentee Voting Act (UOCAVA) of 1986, is a Federal law that requires States to take steps to afford voting rights to “overseas citizens”, provided that those citizens would otherwise have the right to vote. In other words, if an individual, prior to moving overseas, had the right to vote in that particular state, then the State must make provision for that individual to vote in that State. Notice that this requirement does NOT presumptively apply to individuals who were born outside the United States.

uocavalaw

The Fair Voting Assistance Program – FVAP.Gov – A An Aid In Implementing The UOCAVA

FVAP.org is a tool to assist Military and Overseas Americans to request a ballot wherever they are. The general principle is that an individual is entitled to vote in the last State where he resided prior to moving overseas.

While writing this blog post I visited the FVAP site and do not find it to be an easy process. The site essentially links you out to the site maintained by the individual state. Determining eligibility to vote is time consuming and not (at least in some cases) particularly easy. Two important considerations are:

1. The FVAP site confirms that not all allow those who have “Never Resided In The US” to vote. For example Maine specifically allows for citizens who have never resided in the US to vote. Florida does NOT permit citizens who have never resided in the United States to vote.

2. Different States have different definitions of eligibility. The fact that the UOCAVA requires States to make provisions for Americans overseas does NOT mean that Americans overseas are given special treatment according to State law. Americans overseas are still required to meet the eligibility rules that are generally applicable in the State.

I believe it’s likely that individuals would become quickly discouraged and quit in frustration.

See appendix A for a list of those states which do have voting provisions for those who have never lived in the United States.

Introducing VoteFromAbroad.org – Brought To You By “Democrats Abroad”

🇺🇸🇨🇦 Are you Geo-Blocked? You can’t access your state’s voting info website because you’re outside the US? We have help here! 🌎 https://t.co/6ipPHVAxhK Or you can contact our Helpdesk at https://t.co/xQ7dTErH2W for help. #demsabroadcanada #votefromabroad #novemberisnow #canada pic.twitter.com/Rk98qYk1fz

— Democrats Abroad Canada 🇺🇸🇨🇦 (@DemsAbroadCan) September 26, 2020

Vote From Abroad is a site designed to make it easier for Americans abroad to vote and for the Democratic Party to harvest information about Americans overseas. The site clearly succeeds on both counts.

The “magic” of the site is that instead (as does FVAP.gov) of linking you to a site maintained by the individual State, it appears to organize your information and then (presumably) interact with the State on your behalf. There is no doubt that “Vote From Abroad” has made it easier to for Americans overseas to vote. The site claims to be nonpartisan, but does explicitly ask (as part of the process) about your political affiliation.

The site very specifically and openly addresses the question of whether US citizens who have never lived in the United States are eligible to vote.

Can I register to vote if I’ve never resided in the US?

Yes! As a U.S. citizen living outside the U.S., federal law guarantees your right to vote in federal elections. See the answer to FAQ #1 (“I Live Outside The U.S., Am I Eligible To Vote In U.S. Elections?”) You will need to submit the Federal Post Card Application (FPCA) to register to vote and to request a ballot every calendar year. See FAQ #5 (“How Do I Register To Vote Or Request A Ballot As A U.S. Citizen Living Abroad?”)

When you fill out the FPCA–which VoteFromAbroad (VFA) will help you do–your “voting address” is the address of the last place your U.S. citizen parent lived in the U.S. If both of your parents are U.S. citizens, you may use the last U.S. address of either U.S. parent. See also FAQ #13 (“What Should I Use As My ‘Voting Address’?”)

If you are a civilian overseas voter, you will also see the question:“Are you abroad temporarily or indefinitely?” For most states, you will choose one of these three alternatives: “I intend to return”; My return is uncertain”; or “Never resided”. Depending on the state, “never resided” voters may receive only a federal ballot or may receive the full state and federal ballot.

However, the “Never Resided” category is not applicable for the 13 states–Alabama, Arkansas, Florida, Idaho, Illinois (non-military), Indiana, Louisiana, Maryland, Mississippi, Missouri, Pennsylvania, Texas and Utah–that require registered voters to have resided in the state for a set amount of time. If you are registering to vote in one of those states, you will choose between: “I intend to return” or “My return is uncertain.”

(In other words, they make it clear that there are 13 States who have no provision for those who have never resided in the United States to vote. In other words, there is a clearly defined group of Americans abroad who are (1) subject to the rules of US citizenship-based taxation, but (2) are disqualified from voting. This is fuel for the “Taxation without representation group”.)

Introducing The US Vote Foundation

The US Vote Foundation describes itself as:

US Vote is a private, nonprofit, nonpartisan public charity founded in 2005, incorporated in the state of Delaware. The foundation is fueled and run by volunteers (thank you, team!), funded by individual donations (thank you, dear voters) and private civic-oriented foundation project grants (thank you, dear funders). Self-sustaining revenue comes through licensees of US Vote’s Election Data and APIs, and its Hosted Solution – Voter Services. The foundation has no official connection to any government entity.

They specifically address the issue of voters who have never resided in the United States:

The Hidden American “Never Resided” Voter

Are you an American born abroad – a US citizen despite the fact that you never lived in the US? And does that mean you can cast a ballot in US elections? The answer is yes for some of you, and no, for others. How can that be?

A new policy brief from the Federal Voting Assistance Program (FVAP) clarifies how state laws affect the voting eligibility of Americans who were born abroad but have never resided in the United States. FVAP refers to members of this unique group as “never resided” voters. In 2016, they seem to have become a vocal group – voicing their complaints in writing to the FVAP, the Pentagon agency whose mission it is to implement the Uniformed and Overseas Citizens Absentee Voting Act (UOCAVA).

A key factor for determining an overseas citizens’ voting eligibility is whether they meet the residency requirements of the state in which they are seeking to vote. For a “never resided” voter, their “Voting Address” is determined by their parent’s last address in the US. If their parents are from two different states, then the “never resided” voter can choose in which state they wish to vote. Imagine the decision if one parent’s last address was in Nevada and the other’s in Florida. FVAP exposes that in this case, the decision is actually made for the voter, because Nevada accepts a “never resided” voter, and Florida does not.

The gross inequities across the states on this issue of whether “never resided” voters can vote are made plain in the policy brief. Thirty-six number of states allows these voters to cast ballots. What about the others? In their policy brief, FVAP highlights that “….many of the never resided citizens, or their family members, who received the unfortunate news that they would not be allowed to vote in the election felt very passionately about their rights to vote and did not fully understand the process.” Furthermore, the brief points out that this contingent of “never resided” voters will continue to increase as an additional 3.1M Americans born overseas attain voting age.

FVAP cannot mandate that states who do not allow “never resided” citizens to vote pass laws to accomodate these voters, however, this new policy brief is an important step in a forward direction. U.S. Vote Foundation applauds this brief and the communication and discussion it inspires. Broadening our collective understanding of this issue is in itself, some measure of progress. State election officials and legislators need this type of background to inform their electoral reform efforts.

As of February 28, 2017, the following states allow these citizens, who are 18 years or older and were born abroad, but have never resided in the United States, to vote absentee under the protections of UOCAVA:

Alaska – A U.S. citizen who has never resided in the U.S. and has a parent or legal guardian that was last domiciled in Alaska is eligible to vote as a federal voter and may vote for federal offices only.

Arizona – A U.S. citizen who has never resided in the U.S. and has a parent or legal guardian that was last registered to vote in Arizona is eligible to vote in Arizona.

California – A U.S. citizen who has never resided in the U.S. and has a parent or legal guardian that was last domiciled in California is eligible to vote in California as long as he or she has not registered or voted in another State.

Colorado – A U.S. citizen who has never resided in the U.S. and has a parent, legal guardian, spouse or civil union partner that was last domiciled in Colorado is eligible to vote in Colorado.

Connecticut – A U.S. citizen who has never resided in the U.S. and has a parent or legal guardian that was last domiciled in Connecticut is eligible to vote as a federal voter and may vote for federal offices only.

Delaware – A U.S. citizen who has never resided in the U.S. and has a parent or legal guardian that was last domiciled in Delaware is eligible to vote as a federal voter and may vote for federal offices only.

District of Columbia- A U.S. citizen who has never resided in the U.S. and has a parent or legal guardian that was last domiciled in the District of Columbia is eligible to vote in District of Columbia.

Georgia – A U.S. citizen who has never resided in the U.S. and has a parent or legal guardian that was last registered in Georgia is eligible to vote in Georgia.

Hawaii – A U.S. citizen who has never resided in the U.S. and has a parent or legal guardian that was last domiciled in Hawaii is eligible to vote in Hawaii.

Illinois – A U.S. citizen who has never resided in the U.S. and has an Active Duty parent or legal guardian that was last domiciled in Illinois is eligible to vote in Illinois.

Iowa – A U.S. citizen who has never resided in the U.S. and has a parent or legal guardian that was last domiciled in Iowa is eligible to vote in Iowa.

Kansas – A U.S. citizen who has never resided in the U.S. and has a parent or legal guardian that was last domiciled in Kansas is eligible to vote in Kansas.

Kentucky – A U.S. citizen who has never resided in the U.S. and has a parent or legal guardian that was last domiciled in Kentucky is eligible to vote in Kentucky.

Maine- A U.S. citizen who has never resided in the U.S. and has a parent or legal guardian that was last domiciled in Maine is eligible to vote in Maine.

Massachusetts – A U.S. citizen who has never resided in the U.S. and has a parent or legal guardian that was last domiciled in Massachusetts is eligible to vote in Massachusetts.

Michigan – A U.S. citizen who has never resided in the U.S. and has a parent, legal guardian or spouse that was last domiciled in Michigan is eligible to vote in Michigan as long as he or she has not registered or voted in another State.

Minnesota – A U.S. citizen who has never resided in the U.S. and has a parent or legal guardian that was last domiciled in Minnesota is eligible to vote as a “federal voter” and may vote for federal offices only.

Nebraska – A U.S. citizen who has never resided in the U.S. and has a parent that was last registered in Nebraska is eligible to vote in Nebraska as long as he or she has not registered or voted in another State.

Nevada – A U.S. citizen who has never resided in the U.S. and has a parent or legal guardian that was last domiciled in Nevada is eligible to vote in Nevada as long as he or she has not registered or voted in another State.

New Hampshire – A U.S. citizen who has never resided in the U.S. and has a parent or legal guardian that was last domiciled in New Hampshire is eligible to vote in New Hampshire.

New Jersey – A U.S. citizen who has never resided in the U.S. and has a parent, legal guardian, spouse, partner in a civil union, or domestic partner that was last domiciled in New Jersey is eligible to vote as an overseas federal election voter and may vote for federal offices only.

New Mexico – A U.S. citizen who has never resided in the U.S. and has a parent or legal guardian that was last domiciled in New Mexico is eligible to vote in New Mexico.

New York – A U.S. citizen who has never resided in the U.S. and has a parent or legal guardian that was last domiciled in New York is eligible to vote as a federal voter and may vote for federal offices only.

North Carolina – A U.S. citizen who has never resided in the U.S. and has a parent or legal guardian that was last domiciled in North Carolina is eligible to vote in North Carolina.

North Dakota – A U.S. citizen who has never resided in the U.S. and has a parent or legal guardian that was last domiciled in North Dakota is eligible to vote in North Dakota.

Ohio – A U.S. citizen who has never resided in the U.S. and has a parent or legal guardian that was last domiciled in Ohio is eligible to vote in Ohio.

Oklahoma – A U.S. citizen who has never resided in the U.S. and has a parent or legal guardian that was last domiciled in Oklahoma is eligible to vote in Oklahoma.

Oregon – A U.S. citizen who has never resided in the U.S. is eligible to vote if they intend to reside in Oregon, have a parent, legal guardian, or spouse that is a military or overseas voter under Oregon law, and that parent, legal guardian, or spouse last resided in Oregon.

Rhode Island – A U.S. citizen who has never resided in the U.S. and has a parent or legal guardian that was last domiciled in Rhode Island is eligible to vote as a federal voter and may vote for federal offices only.

South Carolina – A U.S. citizen who has never resided in the U.S. and has a parent or legal guardian that was last domiciled in South Carolina is eligible to vote in South Carolina.

South Dakota – A U.S. citizen who has never resided in the U.S. and has a parent, legal guardian or spouse that was last domiciled in South Dakota is eligible vote in South Dakota as long as he or she has not registered or voted in another State.

Tennessee – A U.S. citizen who has never resided in the U.S. and has a parent or legal guardian that was last domiciled in Tennessee is eligible to vote in Tennessee.

Vermont – A U.S. citizen who has never resided in the U.S. and has a parent or legal guardian that was last domiciled in Vermont is eligible to vote in Vermont.

Virginia – A U.S. citizen who has never resided in the U.S. and has a parent or legal guardian that was last domiciled in Virginia is eligible to vote in Virginia as long as he or she has not registered or voted in another State.

Washington – A U.S. citizen who has never resided in the U.S. and has a parent or legal guardian that was last domiciled in Washington is eligible to vote in Washington.

West Virginia – A U.S. citizen who has never resided in the U.S. and has a parent or legal guardian that was last domiciled in West Virginia is eligible to vote in West Virginia.

Wisconsin – A U.S. citizen who has never resided in the U.S. and has a parent or legal guardian that was last domiciled in Wisconsin is eligible to vote as a federal voter and may vote for federal offices only.

Wyoming – A U.S. citizen who has never resided in the U.S. and has a parent or legal guardian that was last domiciled in Wyoming is eligible to vote in Wyoming.

Some States allow voting in Federal Elections and others in Federal and State Elections. Voting for candidates for Federal offices does not affect your Federal or State tax liability. Voting for candidates for State or local offices could affect your State income tax liability depending on the laws of your State. If you are concerned how your response may affect your State tax status, consult legal counsel, a U.S. tax advisor or your State tax authorities.

Note: you are never required to vote for all races listed on the ballot you receive. If you receive a full ballot with Federal, State and local elections listed, you can choose to cast your vote in only the Federal races. If you are indefinitely overseas, with no current plans to return, US and Overseas Vote recommend you stick to voting at the Federal level (President, Vice President, US House of Representatives and US Senate) only.

Ready to register to vote from overseas, need information regarding your state’s deadline, or have a question? US Vote and Overseas Vote are here to help you.

This article was co-authored by Andee Goldman, Overseas Vote Outreach and Social Media Volunteer and Susan Dzieduszycka-Suinat, President and CEO, U.S. Vote Foundation.

Summary:

1. Americans overseas who have previously lived in the United States are likely to be able to vote (provided that they can meet the general qualifications in the last State where they resided.

2. Americans overseas who have never lived in the United States (meaning they were born to a US citizen parent) may (provided their parent is/was eligible) be able to vote in 37 states. They are not eligible to vote in 13 States.

To be clear it is NOT true that US citizenship is a guarantee of the right to vote in US elections.

In Part 2 I will discuss the current movement to encourage Americans overseas (those who are still US citizens) to vote. Should individuals who do NOT reside in a country have the right to vote in that country’s elections? I recently considered this question in a discussion with Professor Ronan MaCrea.

John Richardson – Follow me on Twitter @ExpatriationLaw

Appendix A

Never Resided in the U.S.?

In some states, U.S. citizens who were born abroad — and have never resided in the United States — are eligible to vote absentee.

If your state is not listed, contact your election office to check whether you’re eligible. The following states allow these citizens to vote absentee:

Alaska
A U.S. citizen who has never resided in the U.S. and has a parent or legal guardian that was last domiciled in Alaska is eligible to vote as a federal voter and may vote for federal offices only.
Arizona
A U.S. citizen who has never resided in the U.S. and has a parent or legal guardian that was last registered to vote in Arizona is eligible to vote in Arizona.
California
A U.S. citizen who has never resided in the U.S., and has a parent or legal guardian who last resided in California, is eligible to vote in California, as long as the parent or legal guardian has not registered or voted in another state.
Colorado
A U.S. citizen who has never resided in the U.S. and has a parent, legal guardian, spouse or civil union partner that was last domiciled in Colorado is eligible to vote in Colorado.
Connecticut
A U.S. citizen who has never resided in the U.S. and has a parent or legal guardian that was last domiciled in Connecticut is eligible to vote as a federal voter and may vote for federal offices only.
Delaware
A U.S. citizen who has never resided in the U.S. and has a parent or legal guardian that was last domiciled in Delaware is eligible to vote as a federal voter and may vote for federal offices only.
District of Columbia
A U.S. citizen who has never resided in the U.S. and has a parent or legal guardian that was last domiciled in the District of Columbia is eligible to vote in District of Columbia.
Georgia
A U.S. citizen who has never resided in the U.S. and has a parent or legal guardian that was last registered in Georgia is eligible to vote in Georgia.
Hawaii
A U.S. citizen who has never resided in the U.S. and has a parent or legal guardian that was last domiciled in Hawaii is eligible to vote in Hawaii.
Illinois
A U.S. citizen who has never resided in the U.S. and has a parent or legal guardian that was last domiciled in Illinois is eligible to vote in Illinois for federal offices only.

Iowa
A U.S. citizen who has never resided in the U.S. and has a parent or legal guardian that was last domiciled in Iowa is eligible to vote in Iowa.
Kansas
A U.S. citizen who has never resided in the U.S. and has a parent or legal guardian that was last domiciled in Kansas is eligible to vote in Kansas.
Kentucky
A U.S. citizen who has never resided in the U.S. and has a parent or legal guardian that was last domiciled in Kentucky is eligible to vote in Kentucky.
Maine
A U.S. citizen who has never resided in the U.S. and has a parent or legal guardian that was last domiciled in Maine is eligible to vote in Maine.
Massachusetts
A U.S. citizen who has never resided in the U.S. and has a parent or legal guardian that was last domiciled in Massachusetts is eligible to vote in Massachusetts.
Michigan
A U.S. citizen who has never resided in the U.S. and has a parent, legal guardian or spouse that was last domiciled in Michigan is eligible to vote in Michigan as long as he or she has not registered or voted in another state.
Minnesota
A U.S. citizen who has never resided in the U.S. and has a parent or legal guardian that was last domiciled in Minnesota is eligible to vote as a “federal voter” and may vote for federal offices only.
Montana
A U.S. citizen who has never resided in the U.S., and has a parent that was last registered in Montana, is eligible to vote in Montana as long as he or she has not registered or voted in another state.
Nebraska
A U.S. citizen who has never resided in the U.S. and has a parent that was last registered in Nebraska is eligible to vote in Nebraska as long as he or she has not registered or voted in another state.
Nevada
A U.S. citizen who has never resided in the U.S. and has a parent or legal guardian that was last domiciled in Nevada is eligible to vote in Nevada as long as he or she has not registered or voted in another state.
New Hampshire
A U.S. citizen who has never resided in the U.S. and has a parent or legal guardian that was last domiciled in New Hampshire is eligible to vote in New Hampshire.
New Jersey
A U.S. citizen who has never resided in the U.S. and has a parent or legal guardian that was last domiciled in New Jersey is eligible to vote in New Jersey.
New Mexico
A U.S. citizen who has never resided in the U.S. and has a parent or legal guardian that was last domiciled in New Mexico is eligible to vote in New Mexico.
New York
A U.S. citizen who has never resided in the U.S. and has a parent or legal guardian that was last domiciled in New York is eligible to vote as a federal voter and may vote for federal offices only.
North Carolina
A U.S. citizen who has never resided in the U.S. and has a parent or legal guardian that was last domiciled in North Carolina is eligible to vote in North Carolina.
North Dakota
A U.S. citizen who has never resided in the U.S. and has a parent or legal guardian that was last domiciled in North Dakota is eligible to vote in North Dakota.
Ohio
A U.S. citizen who has never resided in the U.S. and has a parent or legal guardian that was last domiciled in Ohio is eligible to vote in Ohio.
Oklahoma
A U.S. citizen who has never resided in the U.S., and has a parent or legal guardian who was last domiciled in Oklahoma, is eligible to vote in Oklahoma using the parent’s or guardian’s last address in Oklahoma.
Oregon
A U.S. citizen who has never resided in the U.S. is eligible to vote if they intend to reside in Oregon, have a parent, legal guardian, or spouse that is a military or overseas voter under Oregon law, and that parent, legal guardian, or spouse last resided in Oregon.
Rhode Island
A U.S. citizen who has never resided in the U.S. and has a parent or legal guardian that was last domiciled in Rhode Island is eligible to vote as a federal voter and may vote for federal offices only.
South Carolina
A U.S. citizen who has never resided in the U.S. and has a parent or legal guardian that was last resided in South Carolina is eligible to vote in South Carolina.
South Dakota
A U.S. citizen who has never resided in the U.S. and has a parent, legal guardian or spouse that was last domiciled in South Dakota is eligible vote in South Dakota as long as he or she has not registered or voted in another state.
Tennessee
A U.S. citizen who has never resided in the U.S. and has a parent or legal guardian that was who domiciled in Tennessee is eligible to vote in Tennessee.
Vermont
A U.S. citizen who has never resided in the U.S. and has a parent or legal guardian that was last domiciled in Vermont is eligible to vote in Vermont.
Virginia
A U.S. citizen who has never resided in the U.S. and has a parent or legal guardian that was last domiciled in Virginia is eligible to vote in Virginia as long as he or she has not registered or voted in another state.
Washington
A U.S. citizen who has never resided in the U.S., and has a family member who was last domiciled in Washington, is eligible to vote in Washington.
West Virginia
A U.S. citizen who has never resided in the U.S. and has a parent or legal guardian that was last domiciled in West Virginia is eligible to vote in West Virginia.
Wisconsin
A U.S. citizen who has never resided in the U.S. and has a parent or legal guardian that was last domiciled in Wisconsin is eligible to vote as a federal voter and may vote for federal offices only.
Wyoming
A U.S. citizen who has never resided in the U.S. and has a parent or legal guardian that was last domiciled in Wyoming is eligible to vote in Wyoming.