Donald Palmer was appointed secretary of the Virginia Board of Elections by former Virginia Gov. Bob McDonnell in 2011. He is the commonwealth’s chief election official and the head of the state agency charged with the implementation and uniformity of state and federal election laws. He served as the Florida Department of State’s director of elections during the 2008 and 2010 election cycles. Since 2009, he has served on Election Assistance Commission advisory boards, including the Standards Board Executive Board and the Technical Guidelines Development Committee, representing the National Association of State Election Directors and the commonwealth. Prior to his tenure in Florida, he served as a trial attorney with the Voting Section in the U.S. Department of Justice’s Civil Rights Division, where he enforced federal voting laws and provided guidance to states on compliance. Early in his career, he was a U.S. Navy intelligence officer and judge advocate general deployed overseas onboard the U.S.S. John F. Kennedy, with tours of duty in Italy, Florida, and Washington, D.C. 

Editor’s note: Because the article was written before the 2014 General Assembly session, a brief note on the session’s actions is in order:

After the House and Senate conference committee concluded its report, the final language of the companion bills directed the State Board of Elections (SBE) to convene a working group to assist with the development of a system that provides for the secure electronic return of absentee military overseas ballots. The SBE secretary will appoint a group comprised of members with specific expertise to meet over the course of 2014 and 2015 and develop the electronic security measures, procedures, forms, and regulations necessary for smooth implementation of the ballot return program. The work group must report annually to the General Assembly beginning Jan. 1, 2016. The legislation retained a reenactment clause that the act amending §24.2-706 would not become effective unless reenacted during the 2016 General Assembly session. The conference report was agreed to unanimously by the Senate and with only one dissenting vote in the House. The bills were signed by the Senate president and House speaker shortly after adjournment and then by Gov. Terry McAuliffe in early April.

For more on the legislation, visit http://leg1.state.va.us/cgi-bin/legp504.exe?141+sum+SB11.

Overseas and military voting has always been an important issue in Virginia, because of numerous military installations and National Guard bases across the state.

Additionally, a large population of federal government employees, including military personnel and civilians, have permanent addresses in Northern Virginia and are deployed overseas for the U.S. government or other employers. Therefore, one of the pressing policy issues faced by Virginia election administrators regarding military or civilian employees serving overseas in remote areas is reducing a significant barrier to full participation in the voting process: the fact that the U.S. Postal Service is unable to guarantee the timely return of ballots from overseas or remote locations.

While domestic citizens are provided with multiple voting options, including early voting, in-person absentee voting, and Election Day precinct voting, an overseas service member or citizen has few options other than relying upon a time-challenged postal service for the expeditious transmission of ballots. As a result, some Virginia election officials have advocated for the use of the Internet as an innovative, fast, and reliable method for transmitting voting materials, including absentee-ballot requests and ballots for overseas voters.

Voters often wait until 30 days prior to an election before focusing on their preparations to vote. For domestic voters, various options help mitigate this procrastination, which is common among American voters. Unfortunately, when overseas or military voters wait until late in the process to request a ballot, receiving and returning the ballot in time is difficult. Without the use of email or other technologies, remote military and overseas voters have a much smaller margin of error for any delay in the process.

The small window of time and opportunity similarly applies to first responders and those impacted by emergency situations because the immediate call of duty undermines the ability of these responders to vote. In the event of natural disasters, the postal service does not have the flexibility or resources to adequately respond to the immediate needs of these voters. Election administrators can only do so much within the confines of the law, and the electoral system must be more flexible to allow the use of available technology to meet the needs of these voters. In emergency situations, the electronic transmittal and return of ballots will mitigate the negative impact on voters who are deployed as first responders.

In 2009, Congress took an important step to reduce the disenfranchisement of military and overseas voters with the Military and Overseas Voter Empowerment Act (MOVE Act).

[1] In addition, the MOVE Act, an amendment to the Uniform and Overseas Citizens Absentee Voting Act (UOCAVA), was designed to alleviate some of the delays in sending absentee ballots to overseas locations (“Military and Overseas Voter Empowerment Act”). After evidence of delays, the federal law provided that state and local election officials must send absentee ballots by mail no later than 45 days prior to Election Day. The law was designed to take the first step in modernizing the method and reducing the time of ballot transmission, with uniform authorization for military and overseas voters to request and receive blank ballots by email or delivery via download from an official election website (“Military Voting Update: A Bleak Picture in 2012”). With the enactment of the new deadlines in the MOVE Act, a number of states have failed to meet the 45-day deadline to mail overseas ballots to voters. As a result of these missed deadlines, these states have seen litigation and consent decrees to enforce the deadlines[2] (“Military Voting Update: A Bleak Picture in 2012”).

Often the primary reason for the initial mailing delays is the logistical preparation and printing of the official ballot to be used by voters because many local election officials are reliant on vendors and printers for this service. Despite best efforts, the logistics of planning, testing, printing, and mailing paper absentee ballots can be delayed by human or printing errors at some stage of the process. Occasionally, legal fights over which candidates are eligible to appear on the ballot will also delay or threaten to delay the submission of a final ballot until the legal system makes a determination of the candidates to be on the ballot (Schultheis).

In many cases, an electronic ballot helps to overcome these logistical challenges because the transmittal of the ballot is nearly instantaneous and election officials may be able to modify the ballot until the last minute. As soon as the candidates are finalized by law or a court, the final design of the ballot is concluded, and the electronic copy of the ballot can be sent immediately to the military voters by email or made available on the official election website. As one military voting rights organization pointed out in its 2012 study, “electronic delivery options provided military voters with greater opportunities to vote” (Eversole 1).

Untimely return of military ballots remain the primary reason for ballots not being counted

One of the most significant areas of recurring voter disenfranchisement is deployed military personal or civilians serving their country in the more remote areas of the world. For a variety of reasons, the participation rates are significantly lower for these citizens as compared to voters in the United States. In 2010, studies showed that 15.8 percent, or 310,625 military voters, requested an absentee ballot, and of these persons, 4.6 percent voted (“2010 Election Administration and Voting Survey”). That study followed a pre-MOVE Act survey by the Election Assistance Commission (EAC) that indicated only 5.5 percent of military and overseas voters were able to cast an absentee ballot that was counted in an election (“The 2006 Election Administration and Voting Survey”).

The Federal Voting Assistance Program (FVAP) highlighted the fact that “the majority of voting failure for UOCAVA voters is not in registration or ballot counting, but in ballot transmission and return” (Stanley 4). The more shocking failures were that 77.6 percent of the failures were, in fact, ballots transmitted to the voter but not returned and that 13.4 percent of ballots were actually cast by a voter but not counted (Stanley 3). Similarly, the EAC analysis of data from the 2012 election found that almost four years after the MOVE Act, the primary reason for rejecting UOCAVA ballots was “a missed deadline/not received on time” (“Uniformed and Overseas Citizens Absentee Voting Act” 9).

The overall absentee ballot return rate for military and overseas voters was 67 percent, a much lower percentage than the domestic return rate of 91 percent for civilian absentee ballots (Stanley v). In Virginia, the domestic civilian return rate is closer to 99 percent (“Virginia 2012 Election Snapshot”). FVAP also reported that 17 percent of registered active duty military members requested an absentee ballot but never received the ballot (Stanley 26). The majority of “voting failures” in which the ballot wasn’t counted occurred in the transmission and return of the ballot. The FVAP’s high-level report was an explicit acknowledgment that the process of sending and returning absentee ballots by postal mail was simply broken, unable to meet the requirements of highly mobile military voters, and that the status quo was disenfranchising hundreds of thousands of voters (Stanley).

The reality of the data establishes the need for a reasonable alternative that uses available technology and the Internet to reduce voter disenfranchisement. It is of continuing concern to election officials that the delayed return of ballots leads to low return rates and the higher rejection of ballots received after Election Day.

GAO finds delays in overseas mail delivery

In 2004, the chief of operations for the Military Postal Service Agency recommended that absentee ballots should be sent at least 60 days before the state deadline to ensure receipt. The recommendation was based on two separate findings by the General Accounting Office (GAO). First, it takes 12-18 days for a ballot to make the “snail mail” trip to an overseas address in a combat zone. Even when the simple transmittal of 18 days is accounted for, there is no guarantee that the individual soldier will be immediately available to retrieve the ballot, vote his or her choice, and then return the ballot on the same day (“Operation Iraqi Freedom”).

Second, other military priorities and duties may delay the delivery of ballots. As explained, the delivery to an individual military post office box may not be the end of the delivery process. In some cases, the delivery of the ballot to the voter may take additional weeks to complete. The absentee ballots, along with the other necessities of life, may still need to be driven or flown the last mile (or hundreds of miles) by truck or helicopter. In a perfect environment, these resupply convoys or airlifts may be conducted on a regular schedule. However, a combat zone is an environment of continual change and confusion. Realistically, ballots are not considered priority cargo when compared to the fuel, bullets, and beans necessary for combat operations. Despite the averages of 12-18 days, the GAO study found that nearly 25 percent of all mail took more than 18 days for delivery, and half the military personnel interviewed stated that it took more than four weeks to receive their mail and that they were entirely dissatisfied with the timeliness of mail delivery (“Operation Iraqi Freedom”).

Certain conclusions can be drawn from the GAO report, namely that the current method for transmitting absentee ballots is often insufficient to ensure all overseas military voters are provided the opportunity to vote. One way to remedy this situation would be a multimillion-dollar overhaul of the military postal system with the forwarding features found in the domestic mail service, which would reduce delays. However, a more efficient and reasonable option is to use available technologies to allow the electronic transmission of blank ballots and return of voted ballots, which would certainly mitigate the erratic delays of the postal service and add efficiencies to the electoral process.

Officials in Virginia use technology to increase access

Where possible under existing flexibility in Virginia election laws, the State Board of Elections (SBE) and local election officials have used technology to make the voting experience easier and more efficient. An example was shortening the often cumbersome process of requesting an absentee ballot by mail from an overseas location. In 2011, SBE adopted a regulation to allow the return of federal absentee request forms, otherwise known as Federal Post Card Application (FPCA) forms, by email. As a result, thousands of Virginia UOCAVA voters took advantage of this option to promptly request an absentee ballot electronically for the 2012 federal election.[3] Following up on this reform, SBE increased the ease and integrity of the registration process by working with the Virginia General Assembly to create the statutory framework for electronic registration with verification, otherwise called Online Voter Registration (OVR) (“§ 24.2-416.7. Application for voter registration by electronic means”).

With a Department of Motor Vehicles (DMV) identifier and Social Security number, a remote or absent military citizen is now able to complete and submit an electronic voter registration, which is approved only after verification of eligibility by the SBE and DMV databases and the local general registrar. In the future, this new verification and data exchange (including the voter’s signature) between the two state agencies may allow military and overseas citizens to use the OVR citizens’ portal also to submit an electronic federal or state absentee ballot request instead of relying on a lengthy mail delivery of a paper application[4] (“§ 24.2-458 (c). Application for voter registration by electronic means”). Section 24.2-701(A) authorizes SBE to “implement a system that enables eligible persons to request and receive an absentee ballot application electronically through the Internet” (“§ 24.2-701.”). Accordingly, new technologies and proven processes will allow SBE to consider this new feature for all voters eligible to vote on absentee ballots under existing Virginia law.[5]

Improving access for first responders and displaced persons

Another example of election administrators working within the election code to help deployed personnel or first responders was the experience of voting in the aftermath of Hurricane Sandy. Election Day was fast approaching when the hurricane hit the East Coast, and Virginia faced a number of issues, including power restoration and clean-up. First responders from different areas of Virginia were deployed to the destruction in the Northeast.

Some of the first responders deployed included two Virginia-based teams—Virginia Task Force 2, a Federal Emergency Management Agency urban search and rescue team; and the Virginia-1 Disaster Medical Assistance Team—along with fire and utility employees involved with power restoration and additional fire, police, and medical personnel. These first responders were notified in the middle of the night to deploy to the Northeast, leaving little or no time to vote absentee in-person at their local general registrar office. In coordination with local election officials, SBE enacted emergency provisions under Section 24.2-713 for the extension of absentee deadlines and expanded hours of operations for those emergency responders and for other citizens displaced by the storm. After the initial closing of offices, the hours of in-person absentee voting were extended in the localities to compensate for the days lost due to the closures. Often opening their doors before regularly scheduled business hours, the offices immediately provided absentee ballots to the individuals who were scheduled to deploy.

Because some military personnel were deployed so quickly, they were unable to cast a vote in Virginia, and the option of regular absentee voting was not realistic as the deadline for requesting a ballot was quickly approaching and mail delivery services were disrupted. Election officials began looking for alternatives. One example was the U.S.S. Wasp, a multipurpose amphibious assault ship that deployed on Oct. 30, 2012, from Norfolk, Va., to the New York coast to provide disaster relief (“USS Wasp”). SBE worked closely with the regional installation voting assistance officer in Norfolk to have emergency federal write-in absentee ballots flown from the U.S.S. Wasp to Virginia before Election Day.

Despite the emergency situation, the Virginia code did not authorize the SBE secretary to allow the electronic return of absentee ballot requests or ballots. While some ballots were returned by periodic surface transportation back to Virginia, this manual fix assisted only a percentage of the first responders. The herculean efforts by planes, trains, and automobiles should not be necessary when the use of email or facsimile would have otherwise accomplished the mission. Despite the efforts of state and local election officials, the inflexible election code kept many first responders and deployed military personnel from participating in the general election.

The technology military voters want and need

After the 2012 election, the FVAP conducted a survey of local election officials and military voters and found that more than a quarter-million active duty members in overseas locations are relying on electronic technologies to return their ballots in a timely manner. The survey found that a surprisingly high percentage of UOCAVA voters returned ballots by email or facsimile. Of the 683,689 absentee ballots received from UOCAVA voters, 68 percent (466,882) were received by postal mail, 10 percent (65,999) were received by facsimile, and 26 percent (179,920) were received by email. In sum, more than a third of all ballots were returned electronically (“2012 Post-Election Quantitative Voting Survey”).

This new reality is reflected in the practices and preferences of those serving overseas. One question in the survey of overseas active duty military members asked, “If you were to vote using an absentee ballot in the future, how would you prefer to return the absentee ballot?” In response, 47 percent responded that they preferred email, 24 percent preferred a website for uploading a ballot, and only 28 percent preferred the postal service (“2012 Post-Election Voting Survey”).

The growing preference for electronic returns is not surprising to those election officials who interact with the highly mobile and remote population of military voters primarily through email (“2012 Post-Election Voting Survey,” Question 23). More than 80 percent of all local election officials primarily use email to communicate with their UOCAVA voters. While serving in remote areas or deployed on naval ships, voters do not consider the postal service to be the first or even second option for returning ballots. In fact, it is the least preferred option. This preference reflects the realization by military and overseas voters that their primary concern is whether they are able to participate at all.

Virginia legislation on returns of ballots by email or secure electronic means

The issue of providing more flexibility to overseas and military voters to cast ballots has been a repeated subject of debate in the Virginia General Assembly. In the 2012 and 2013 sessions, there were multiple pieces of legislation to authorize the return of ballots by secure electronic means or directing the SBE to develop a pilot project that permits the return of ballots by email or other secure means (Anderson). The Senate Committee on Privileges and Elections Committee reported legislation that authorized the return of ballots by email to the full Senate for a vote in the full chamber (Puller). The Senate subsequently passed a number of military voting bills (40-0) authorizing the return of ballots by secure electronic means (McWater). Despite the support of veteran groups, the bill was never reported from committee to the full House of Delegates. However, in the 2013 session, the House of Delegates Committee on Privileges and Elections referred the bill to the Virginia Joint Commission on Technology and Science (JCOTS) for technical analysis and assistance in language development (McWater).

In 2013, the JCOTS Cyber Security Advisory Committee hosted a series of public meetings that involved SBE officials, local election officials, technical experts, and other interest groups, including security advocates and military voting access groups. The committee worked off of bipartisan language and voted unanimously on final language that recommended the return of ballots for military members by email or facsimile with an annual review of security measures and the use of secure Department of Defense (DoD) military networks and smart cards: Common Access Cards (CAC) that authenticate the identity of the individual (Wallmeyer).

In the 2014 session, the proposed law reached a higher level of visibility, with both the state Senate and House of Delegates moving closer to the passage of legislation that would have allowed the secure electronic return of ballots by overseas military voters. The legislation required the Virginia State Board of Elections to convene a working group, to include the chief information officer of the commonwealth, chief information security officer of the commonwealth, and local election officials, to assist with security measures. After weeks of negotiation on appropriate language, different versions of the final bill separately passed the two chambers. The Senate requested and the House acceded to a conference committee to iron out the differences on whether the legislation should include a reenactment clause in 2016. At the time of publication, the final language and date of effective implementation had not been resolved.[6]

A growing movement of states to authorize return of ballots electronically

By 2012, 28 states allowed for either emailing or faxing voted ballots, with Arizona providing a Web-based system that allowed the uploading of ballots marked by a voter and scanned into a format to be uploaded into the election system servers. In 2013, this trend continued with a number of states exploring ways to either allow the electronic return of ballots or provide additional days in the process for return of mailed paper ballots from overseas military voters (“Electronic Transmission of Ballots”). While a majority of the country has already allowed some method of returning ballots electronically, depending on the circumstances of the voter overseas, election administrators typically avoid the thorny debate over Internet voting. Many military and overseas voters and advocates are supporters of Internet voting because there may not be many scanners in remote areas, which would impede emailing or uploading scanned ballots for submission to election officials.

Internet voting is more controversial because it involves a voting system that tabulates and counts votes online. Such a voting system would need to be tested and certified at the federal and state level, if applicable, like any other voting system to ensure that it is resistant to attack or manipulation. There have been a few Internet voting pilot projects in West Virginia (“West Virginia’s Internet Voting Pilot Program Featured In Pew Center Newsletter”) and Florida (Clarkson). However, most states have avoided the fight and have instead opted for allowing voter ballots to be returned by attachment via email, by facsimile, or by uploading to a secure election server.

Conclusion

Overseas and deployed military personnel need an effective and reliable means to communicate their ballot choices on time so that their votes can be counted. Often, the civilian and military postal system does not adequately do the job for the many voters whose ballots are lost or delayed past key election deadlines. Internet voting that involves tabulation of votes online needs to be further developed with pilot projects that are tested and improved. However, in this technological era, the use of the Internet must remain the ally, not the enemy, of election professionals seeking to increase the access of these voters and ensuring the maximum security and integrity of the voting process. The military CAC system provides the enhanced security of the DoD server system while verifying and authenticating the identity of the voter.

In the end, policymakers are presented with a fundamental policy choice to determine what is more important: the ability of our deployed military to fully participate in the electoral process or the decision to remain paralyzed by an obsessive quest for perfect security that often ignores “for the good” in the quest for “the perfect.” This paper has shown that the current absentee voting system using the postal service is by no means perfect. The postal service often fails remote voters, and our deployed military and civil servants deserve the opportunity to use email or secure electronic return of ballots to preserve their right to vote.

Works Cited

  • Anderson, Richard. “HB 1057 Absentee voting; procedures for military and overseas voters.” Virginia’s Legislative Information System, 2012. Web. 29 Nov. 2013.
  • Clarkson, Hay, et al. “Software Review and Security Analysis of Scytl Remote Voting Software.” Florida Division of Elections, 19 Sep. 2008. Web. 21 Feb. 2014.
  • Eversole, Eric. “Military Voting in 2010: A Step Forward, But A Long Way To Go.” Military Voter Protection Project. Chapman University, n.d. Web. 29 Nov. 2013.
  • “Electronic Transmission Service.” Federal Voting Assistance Program (FVAP.gov), Sep. 2013. Web. 29 Nov. 2013.
  • “Electronic Transmission of Ballots.” National Conference of State Legislatures, 27 Jun. 2013. Web. 10 Dec. 2013.
  • McWater, Jeffery. “SB 82 Absentee voting; military and overseas voters.” Virginia’s Legislative Information System, 2012. Web. 29 Nov. 2013.
  • “Military and Overseas Voter Empowerment Act.” Subtitle H-Military Voting. H. 2647-130, n.d. Web. 8 Jan. 2014.
  • “Military Voting Update: A Bleak Picture in 2012.” A Military Voting Update. Military Voter Protection Project and AMVETS Legal Clinic at Chapman University, 27 Aug. 2012. Web. 29 Nov. 2013.
  • “Operation Iraqi Freedom Long-standing Problems Hampering Mail Delivery Need to Be Resolved.” Report to Congressional Committees. United States General Accounting Office, Apr. 2004. Web. 29 Nov. 2013.
  • Puller, Linda. “SB 830 Absentee voting and procedures; SBE to provide to military overseas, secure electronic ballots.” Virginia’s Legislative Information System, 2012. Web. 29 Nov. 2013.
  • “SB 82 Absentee voting; military and overseas voters.” Virginia’s Legislative Information System, 2013. Web. 29 Nov. 2013.
  • Schultheis, Emily. “Judge Rules Against Rick Perry’s Virginia Ballot Suit.” Politico, 13 Jan. 2012. Web. 29 Nov. 2013.
  • Stanley, Clifford. “Eighteenth Report: 2008 Post Election Survey Report.” Federal Voting Assistance Program (FVAP.gov), Mar. 2011. Web. 29 Nov. 2013.
  • “The 2006 Election Administration and Voting Survey: A Summary of Key Findings.” U.S. Election Assistance Commission, Dec. 2007. Web. 29 Nov. 2013.
  • “Uniformed and Overseas Citizens Absentee Voting Act.” U.S. Election Assistance Commission, Jul. 2013. Web. 29 Nov. 2013.
  • USS Wasp (LHD-1).” Wikipedia, n.d. Web. 20 Feb. 2014.
  • “Virginia 2012 Election Snapshot.” The PEW Charitable Trust, n.d. Web. 3 Feb. 2014.
  • Wallmeyer, Lisa. “Overseas Military Voting.” Commonwealth of Virginia Division of Legislative Services, Aug. 2013. Web. 29 Nov. 2013.
  • “West Virginia’s Internet Voting Pilot Program Featured In Pew Center Newsletter.” West Virginia Secretary of State, 21 May 2010. Web. 21 Feb. 2014.
  • “2010 Election Administration and Voting Survey: A Summary of Key Findings.” U.S. Election Assistance Commission, Dec. 2011. Web. 29 Nov. 2013.
  • “2012 Post-Election Voting Survey DataVoting Help for Uniformed Service Members, Their Families, and Citizens Living Outside the United States.” Federal Voting Assistance Program (FVAP.gov), 2012. Web. 29 Nov. 2013.
  • “§ 24.2-458 (c). Application for voter registration by electronic means.” Virginia General Assembly Legislative Information System, 2013, Web. 29 Nov. 2013.
  • “§ 24.2-416.7. Application for voter registration by electronic means.” Virginia General Assembly Legislative Information System, 2013, Web. 21 Feb. 2014.
  • “2012 Post-Election Qualitative Voting Survey of Local Election Officials.” Federal Voting Assistance Program (FVAP.gov), Mar. 2013. Web. 29 Nov. 2013.
  • “2012 Post-Election Quantitative Voting Survey.” Human Resources Strategies Assessment Program (HRSAP). Federal Voting Assistance Program (FVAP.gov), 2 May 2013. Web. 29 Nov. 2013.

 


  1. See Codified at 42 USC §§ 1973ff et seq. effective November 2010, P.L.
  2. According to a study by [the] Military Voter Protection Project (MVPP), 14 states and the District of Columbia failed to comply with the 45-day deadline in mailing ballots in the 2010 cycle.
  3. See regulation allowing electronic FPCA for registration under 24.2-701
  4. See Virginia Code 24.2-458(C) enacted in 2012 as part of UMOVA.
    “The electoral board shall ensure that the system described in subsection C of § 24.2-455 is capable of accepting the submission of both a federal postcard application and any other approved military-overseas ballot application sent to the appropriate election official. The voter may use the system or any other approved method to apply for a military-overseas ballot.”
  5. See § 24.2-504 “Persons entitled to have name printed on ballot” and “§ 24.2-455. (Effective until July 1, 2014) Role of Secretary of State Board of Elections.”
  6. See an update on military voting legislation this session at http://leg1.state.va.us/cgi-bin/legp504.exe?141+sum+HB759 and http://leg1.state.va.us/cgi-bin/legp504.exe?141+sum+SB11