The GOP’s Lawsuit Against Overseas and Military Voters Failed, But Why Is It Even a Thing?

By Jen Kirby | October 31, 2024 | 10:10am

Photo by Allison Joyce/Getty Images

Elections 2024 Election

The GOP’s Lawsuit Against Overseas and Military Voters Failed, But Why Is It Even a Thing?

Election season can have familiar beats: lawn signs, the exact same political attack ad airing every time you watch a show, the “I Voted” sticker you get after finally submitting your ballot. But printing out a ballot in a London post office, then realizing half the ballot was cut off, then scrambling to find a friend who can print it out for you does not follow typical U.S. voting traditions. But this is the plight – well, my plight – of an overseas voter. There are nearly 3 million of us American citizens living abroad who are eligible to vote, along with about 1.4 million U.S. service members and hundreds of thousands of their spouses, according to the Federal Voting Assistance Program (FVAP).

This year, these voters have already become the targets of Republican election challenges.

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On Tuesday, a U.S. District Court judge threw out a suit led by six Republican House members who argued that Pennsylvania election administrators had directed local election officials to exempt military and overseas voters from verification requirements. These Congressmen, along with PA Fair Elections, a right-wing group that has spread election misinformation, alleged that ineligible voters – including potentially bad foreign actors – could cast ballots, and they sought to segregate all overseas and absentee ballots until voters’ identities could be verified.

Pennsylvania’s top election officials pushed back, saying the rules around overseas and military voters had been in place for years, and the state had issued updated guidance in 2022 and 2023. By now, Pennsylvania had already started mailing out thousands of absentee ballots, and rule changes at this late stage could confuse and potentially disenfranchise voters. The judge agreed, saying these House Republicans (who’d also run and won federal office while these same rules were in place) had failed to “fully flesh out” how it would even be possible to segregate overseas and military ballots. The judge also called the plaintiff’s allegation of a tainted voter pool “wholly speculative.”

“An injunction at this late hour would upend the Commonwealth’s carefully laid election administration procedures to the detriment of untold thousands of voters, to say nothing of the state and county administrators who would be expected to implement these new procedures on top of their current duties,” Judge Christopher C. Connor, a George W. Bush appointee, wrote in his opinion.

This Pennsylvania case was one of three pre-election lawsuits targeting military and overseas voters – better known as UOCAVA voters, for the Uniformed and Overseas Citizens Absentee Voting Act of 1986, which established the federal rules for these voters, though states have discretion in how they manage their elections. The Republican National Committee also filed lawsuits in Michigan and North Carolina that challenged the registration of U.S. citizens overseas who’d never lived in the state. Both Michigan and North Carolina – along with quite a lot of other red, blue, and purple-y states – allow Americans who have lived abroad and have a parent or legal guardian who last lived in that state to also register there. Both of those cases were dismissed, and the courts denied the RNC’s attempt to expedite the appeal. A Michigan judge called it an “11th-hour attempt to disenfranchise voters.” A lawyer for the Republicans in the Pennsylvania case said Tuesday that they’re “considering all options for appeal.”

The lawsuits have failed on the legal merits so far, but they may succeed in more insidious ways by muddying up the legitimacy of these overseas votes among those already primed to distrust the electoral system – specifically, Donald Trump and his supporters and allies who are reusing and refining their 2020 election denialism playbook. In 2024, Trump and his campaign softened their stance against mail-in and early voting, an apparent recognition that convincing Republicans it was full of fraud was actually leaving votes on the table.

But UOCAVA votes have been the exception to this, and Trump has accused Democrats of “getting ready to CHEAT!”

“They are going to use UOCAVA to get ballots, a program that emails ballots overseas without any citizenship check or verification of identity whatsoever,” Trump wrote on Truth Social in September. Trump allies are both boosting and bringing coherency to his rants.

Military and overseas voters can often feel like the election afterthoughts, but in this era of extraordinarily tight elections won or lost on the margins, every vote truly matters. Pennsylvania, a state both Kamala Harris and Donald Trump need to win the Electoral College, had about 28,000 UOCAVA voters in 2020, according to a survey from the U.S. Election Assistance Commission. That’s about 0.4 percent of the state’s electorate – and we’ve all seen the polls lately. Arizona and Georgia each have about 18,000 registered UOCAVA voters in 2020; Joe Biden won both of those states by about 11,000 votes.

Democrats have made legitimate efforts this year to increase overseas voter participation in the 2024 election. The Democratic National Committee invested about $300,000 in this initiative, the first time it has done so. “This election will be won on the margins, and every single vote counts. That’s why the DNC announced an innovative investment in Democrats Abroad in order to register and earn the votes of the millions of Americans living and serving overseas,” DNC Deputy Communications Director Abhi Rahman said in a statement. Democrats Abroad, which is officially part of the DNC, is leading these efforts. The GOP has Republicans Overseas, but they’re more like College Republicans than an arm of the Republican National Committee, so while they’re promoting the GOP abroad and referring overseas voters to register and vote, it’s a much looser, informal operation.

The Democrats’ bet – which is still a bet – is that non-military overseas voters tend to lean Democratic, and more of them are living and studying abroad, especially in this post-Covid, “digital nomad” world. Traditionally, military voters made up the bulk of UOCAVA voters, but that has changed, especially as the U.S. has pulled back from overseas military commitments in recent years. The 2016 election was the first presidential race where more regular citizens requested ballots than military members. That divide grew in 2020. The conventional wisdom has also been that military ballots tend to lean Republican, but 2020 suggested a more even split between Biden and Trump. So while potentially denying the votes of the men and women in uniform serving our country would traditionally be a political non-starter (Al Gore learned the hard way), the makeup of the overseas vote might be changing writ large, which may be why the GOP is all of a sudden worried about Iranians mailing in fake ballots from abroad.

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In a razor-thin race, anywhere you can pad the margins is probably a reasonable strategy. But while there may be a lot of eligible voters overseas, turnout has traditionally been quite low; just 3.4 percent voted in 2022 (compared to 62.5 percent voter turnout in the U.S.). In 2020, overseas turnout was about 8 percent. About 900,000 of 1.2 million ballots were returned in 2020, though more than 40 percent of UOCAVA voters are registered in three not-exactly-swing-states: California, Florida, and Washington.

It seems a fair bet that those states won’t see that many lawsuits challenging their overseas vote.

Because these Republican lawsuits are working twofold: an effort to challenge potentially Democratic votes, but if that fails, it still inserts an idea into the body politic – that overseas voters may not really be American citizens, and since election officials aren’t bothering to even check, how can you even trust the outcome of this election?

Some of the misinformation manifests because the UOCAVA process is unfamiliar to most normie voters, and it can be pretty complicated. It used to be a lot harder, but in 2009, Congress passed the bipartisan Military and Overseas Empower Act (MOVE), which required states to transmit ballots at least 45 days before a federal election, and also allowed for some e-mail transmission of ballots, so they could be printed out and returned. It was designed to expand, and protect, the vote of overseas and military voters.

“One of the great things about all this legislation, it was all bipartisan, and it really was a feather in the cap of the Congress people who sponsored these laws – and it wasn’t a partisan issue at all,” said Susan Dzieduszycka-Suinat, President and CEO U.S. Vote Foundation and the Overseas Vote Initiative, a nonpartisan nonprofit organization. “This is the first time ever, in this year, that this has been dragged into the election disinformation realm, purely for the interests of sowing chaos after the election.”

But the UOCAVA process can still be challenging and expensive – and a lot more can go wrong along the way. UOCAVA voters request their ballots through what’s called the Federal Post Card Application, which must be filled out with all the verifiable information – last address, IDs, signatures. “All of these things that we have to do, which are really quite the same. We also sign on the penalty of perjury that we’re American citizens,” Dzieduszycka-Suinat said.

Most states require the ballots to be returned by mail, and so that means voters depend on postal systems of varying reliability, or have to pay for services like DHL. Voters often have the option of dropping their ballots off at the U.S. embassy, which will deliver them by diplomatic pouch, but embassy officials make no guarantees on delivery date. Because ballots do have to be mailed early, because if it gets lost, or doesn’t arrive by the deadline, or if there’s an issue, if you’re on a military base in Japan, or studying in Jakarta, your options are pretty limited.

“People are stationed in all sorts of challenging environments around the world, depending what your assignment is, whether you’re in the military or if you’re civilian,” said Bridgett A. King, an associate professor of politics at the University of Kentucky, who researches election administration and voting.

“If we think about the costs associated with registering for the ballot, getting the ballot, filling out the ballot, and then sending the ballot back again using that very tight window – if it’s your first time, or if you’re in a place [where] your access to American media or information is limited, you can imagine how challenging that might be, even if you really, really, really want to participate, be engaged in the democratic process,” King added.

If you want to vote from overseas, you can’t really wing it, so the timing of the GOP lawsuits – had they been successful – would have made it extremely difficult to communicate any changes to voters. Military and elections advocates pointed out that these lawsuits could raise doubts among overseas and military voters about whether their votes will even count – and given that, for many, it takes a lot more effort and maybe expense to vote overseas, people may just drop out of the process.

“These procedures have been in place, in many cases, not just for years, but for decades,” said David Becker, Executive Director of the Center for Election Innovation and Research. “And we’re now seeing attacks on the military and overseas voting process that, even if they were correct, should have been brought way before they were, so that military voters could navigate the processes. It is way too late right now. And in addition, these legal and factual claims are without merit.”

But they don’t necessarily need to have merit if they’re part of a larger effort to cast doubt over the election outcome before America even has it. Trump’s refusal to accept the 2020 results created an entire infrastructure devoted to election “integrity,” turning what should be a nonpartisan issue – access to safe and secure and fair elections – into something that looks more like a pro-Trump political operation.

All this does is further damage the U.S. electoral system, and, again, no one knows how the vote is going to shake out – here in America, or overseas. The UOCAVA vote may break for Harris, or it could break for Trump, but it may be as divided as the rest of the American electorate seems right now. Donald Trump recently promised to get rid of double taxation for overseas residents, which was its own last-minute political grab for overseas votes. Mark Crawford, President of Republicans Overseas Foundation and Vice President for Legislative Affairs, has been working on this taxation issue for some time, says it’s one of the big issues all Americans overseas care about, regardless of party. The other, he says, is national security. “Nobody wants to be bombed,” he said of overseas voters. “Nobody wants to pay taxes for the same thing.”