Semper Disqualified: The Incongruity between Federal and State Suffrage Protections for Certain Military Voters Seeking to Vote in State and Local Elections, and a Possible Legislative Remedy


It is axiomatic that members of the United States military forces at all levels and throughout the course of the nation’s history have fought for the essential freedoms which underlie the constitution – key among them the suffrage right. Over the course of its history, the suffrage right has seen controversy and change, which mirrored the social and political issues and changed realities of the country. As the right to vote has been extended to encompass more citizens, so too has the ability to serve one’s country as part of the military. In recognition of the importance of the right to vote, and the importance of serving as a member of the military, the absentee ballot has been embraced as a way to ensure that members of the military who have an established home can vote for federal officers while stationed overseas and at bases which are not in their home state. This method of voting has further been applied to military families stationed overseas and away from their homes. Indeed, recent federal legislation has provided members of the armed services and their families with further guarantees that the states where they are otherwise eligible to vote will timely provide them with absentee ballots for federal elections, and has provided states with a set of procedures which must be followed to ensure that each military ballot is properly processed in time to be counted for the relevant election. However, despite the federal and state constitutional and statutory protections guaranteed to members of the United States military and their families, there is a segment of the military population which is at risk of being disenfranchised. This article begins with an examination of the applicable state and federal constitutional provisions relating to the suffrage right and its relation to the military. It then examines state and federal statutory provisions enacted to protect voting rights in general and, where applicable, military voting rights in particular. As an outgrowth of both constitutional and statutory schemes, this article then examines federal and state case law as applied to military voters seeking to exercise their right to vote. While several aspects of case law are touched on, the primary focus of case law analysis in this article is on how state and federal courts have treated military voters seeking to vote in the state and locality to which they have been stationed. After delving into the background of the interrelation between members of the military and the suffrage right, the article then presents three hypothetical situations involving members of the military who, though conscientious and well-informed as to issues in elections, are nevertheless disenfranchised in the place in which they are stationed – and, in some of these situations, disenfranchised from state and local elections altogether. These situations are followed by a call for Congress to enact legislation – possibly referred to as the “Domestic Military Voting Rights Act” – in order to close this gap and ensure that members of the military are able to exercise their right to vote in the society in which they live, and that the society can benefit from allowing interested voters who protect the rights of all citizens, including suffrage, to vote. The article concluded that Congressional action in the form advocated is necessary not only to satisfy the equal protection clause, but to satisfy basic tenet of social responsibility and overall fairness.


Civil Rights and Discrimination | Constitutional Law | Law and Politics | Legislation | Military, War, and Peace | Public Law and Legal Theory

Date of this Version

August 2006