Who counts as an 'overseas voter'? Pentagon rewrites the answer ahead of election

In August, the Federal Voting Assistance Program (FVAP) released a policy paper stating that U.S. citizens born abroad who have never lived in the U.S. are not eligible to vote under the Uniformed and Overseas Citizens Absentee Voting Act (UOCAVA), a 1986 law that was drafted to protect the voting rights of active military members and all other citizens residing outside the U.S.

The Justice Department says the Secretary of Defense administers UOCAVA, a duty the Pentagon has delegated to FVAP. The program tracks how states handle registration and absentee voting not just for troops and military families, but for all overseas citizens, and works with states to make sure those voters can fully participate in federal elections.

The reversal ends access to the Federal Post Card Application (FPCA), Federal Write-In Absentee Ballot (FWAB), electronic ballot delivery, and the 45-day early ballot mailing. Twelve states already prohibit voting for U.S. citizens who have never lived in the U.S., and FVAP said that “several states” may have wrongly let these citizens vote despite those laws, though the paper doesn’t name those states.

“Those of us who care about election integrity are very grateful that Secretary Hegseth has made these long overdue revisions that make sure that UOCAVA is not being abused by those who want to ignore the plain language of the federal law,” Cleta Mitchell, an attorney who specializes in campaign finance, election, and ethics law, told Just the News.

Defining an "overseas voter"

Mitchell referred to a seemingly obscure federal statute that defines an overseas voter by the place they were domiciled “before leaving the United States.” Thus, a person who has never lived in the U.S. cannot specify any particular state and is not permitted to register and vote. 

The 38 states that permit, in part or in full, so-called "never-resided" voting may still allow such a person to vote, but they must go through regular state absentee procedures, not UOCAVA. The FVAP stated that state officials should “immediately review and correct” their guidance.

“There is nothing in the federal statute that allows a person who has never resided in a state to be able to register and vote in that state,” Mitchell said, adding that Congress would need to change the statute in order for never-resided voters to qualify.

Narrowing the law's applicability: a contrary view

J. Christian Adams, an attorney who serves on the U.S. Civil Rights Commission, told Just the News that it is up to the states to ultimately decide who votes in their elections, and that the FVAP’s paper can only deny federal services to never-resided voters.

“People might not like the idea that people who’ve never been in the United States are getting to vote, but the statutes need to change if people don’t like that,” he said.

“And it’s pretty easy to change state laws if folks don’t like it one way or another,” he added.

In 2017, the FVAP published a report saying that nearly 11,600 never-resided citizens were registered to vote as of 2016, and stated that such citizens could register at their parent’s previous U.S. address. That paper stated that UOCAVA “does not specifically address” never-resided citizens and left eligibility to the states.

Twelve states — Alabama, Arkansas, Florida, Idaho, Indiana, Louisiana, Maryland, Mississippi, Missouri, Pennsylvania, Texas and Wyoming — do not allow never-resided citizens to register to vote in any election, federal or state. 

Twenty-six states — Arizona, California, Colorado, Georgia, Hawaii, Iowa, Kansas, Kentucky, Maine, Massachusetts, Michigan, Montana, Nebraska, Nevada, New Jersey, New Mexico, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Vermont, Virginia, Washington, West Virginia — allow these citizens to vote in federal and state elections. 

Ten states — Alaska, Connecticut, Delaware, Illinois, Minnesota, New York, New Hampshire, Rhode Island, Utah and Wisconsin, as well as the District of Columbia allow never-resided citizens to vote only in federal elections. 

In Oregon, never-resided citizens can vote only if they claim they intend to reside in Oregon or if they have a close family member who is permitted to vote and last resided in Oregon.

A "quiet offensive" to one, a security of election integrity to another

Calling it a "quiet offensive," The Washington Sun reported this month that the "never-resided" citizens have been targeted by the Trump administration and Republican National Committee (RNC), with the latter arguing in court against allowing such citizens to vote. The outlet reported that the RNC has filed lawsuits challenging never-resided voters in eight states and won in North Carolina. The online publication is largely sponsored by Robert Allbritton, the founding publisher of Politico.

In the North Carolina case, Special Superior Court Judge Hoyt agreed with the RNC's argument. The Carolina Journal quoted Hoyt as writing: “Persons who have never resided in North Carolina and who are only eligible to register and vote in North Carolina because they satisfy the definition of a ‘covered voter’ in N.C. Gen. Stat. § 163-258.2(1)(e) of North Carolina’s Uniform Military and Overseas Voters Act are not eligible to register and vote in any North Carolina election contest, including state or federal contests.”

The RNC and North Carolina Republican Party took a victory lap over the decision.

“This ruling confirms the state constitution forbids voting by individuals who have never lived in North Carolina,” North Carolina Republican Party Chairman Jason Simmons said in a statement following the ruling. “The Court of Appeals and Supreme Court decisively ruled on this previously and the decision reaffirms the common-sense principle only North Carolina citizens can vote in North Carolina elections.”

“This is a clear win for fair and lawful elections,” Republican National Committee Chairman Joe Gruters said at the time. “The court upheld the North Carolina Constitution and made clear that only North Carolina residents can vote in the state. The RNC will keep fighting to ensure that only eligible citizens can vote.”