What to know about Republican challenges to overseas and military voting

In the final weeks before Election Day, Republican groups have filed lawsuits in the swing states of Michigan, North Carolina and Pennsylvania that challenge the validity of ballots cast by U.S. citizens living abroad, including members of the U.S. military.

Passed in 1986, a federal law known as the Uniformed and Overseas Citizens Absentee Voting Act has required states to allow military members and their family members, plus other so-called UOCAVA voters, to cast absentee ballots in federal elections.

More than 938,000 UOCAVA voters had ballots counted in the 2020 general election. And for this fall’s election, Pennsylvania has sent more than 25,000 ballots to overseas voters, according to the Pennsylvania Department of State.

The election rules states put in place for overseas voting have remained uncontroversial for decades — until now.

With absentee voting underway, election officials and other voting experts are raising concerns that these legal challenges may discourage eligible voters from casting ballots and sow the grounds for questioning the upcoming results.

What Republicans are arguing in court about overseas voters

In Pennsylvania, a group of six Republican members of the U.S. House of Representatives — all of whom voted against certifying the swing state’s presidential electoral votes in 2020 — first filed a federal lawsuit in September.

They argue that Pennsylvania’s election rules — which do not require eligible overseas voters to show identification when registering or, if voting for the first time in a federal election in the state, turn in a copy of their ID with their absentee ballot — skirt identity verification requirements for voters registered by mail under a federal law known as the Help America Vote Act.

That law, however, specifically exempts overseas voters from having to provide a document proving their identity. When registering to vote in federal elections, overseas voters have to either provide their driver’s license number or the last four digits of their Social Security number, or report that they have neither so that a state can assign them a unique ID number. But federal law defers to states to determine whether the information provided is “sufficient” according to their state laws.

In the two other lawsuits, filed this month, the Republican National Committee is questioning the eligibility of specific categories of overseas voters, who, the RNC argues, do not meet requirements under Michigan and North Carolina’s state constitutions for voters to be residents.

To comply with UOCAVA’s requirements, North Carolina’s election rules allow absentee voting by citizens who were born outside the U.S. and whose parent or legal guardian’s former residence is in the state. Michigan’s secretary of state has issued similar guidance: “A United States citizen who has never resided in the United States but who has a parent, legal guardian, or spouse who was last domiciled in Michigan is eligible to vote in Michigan as long as the citizen has not registered or voted in another state.”

“North Carolinians and Michiganders should not have their votes canceled by those who’ve never lived in the state in the first place – plain and simple,” Michael Whatley, the RNC’s chair, said in a statement.

But the state election offices named in these lawsuits point out that these rules have been in place for years to help minimize barriers that can keep U.S. citizens from exercising their right to vote.

“The plaintiffs have challenged a state law that allows US citizens living abroad to vote in North Carolina elections when these voters’ only residential connection to a US state is through their parents’ former residence in North Carolina. Otherwise, these US citizens have no other way to vote in US elections,” Patrick Gannon, a spokesperson for the North Carolina State Board of Elections, said in a statement.

Angela Benander, a spokesperson for the Michigan Department of State, noted that among the citizens whose voting rights the RNC is “targeting” are the “children of active-duty military service members who are making sacrifices for our freedoms.”

Former President Donald Trump, however, has been focusing his criticism on overseas voters who are not connected with the military. In a September post on his social media platform, the Republican presidential nominee appeared to reference the Democratic National Committee’s new voter-registration push among U.S. citizens living abroad, saying without evidence that Democrats “want to dilute the TRUE vote of our beautiful military and their families.”

Why the timing of these lawsuits is raising concerns

Many legal experts do not expect these cases to go anywhere. Apart from any legal arguments, they point to procedural problems — including the timing of these lawsuits.

“What’s kind of boggling about these lawsuits is that none of the systems that they are challenging about these voters are new,” says Danielle Lang, senior director of the Campaign Legal Center’s voting rights program. “The RNC is not unfamiliar with election laws. These aren’t new to them, and yet they’re raising these questions at the very last minute before an election. It seems like they’re trying to raise questions rather than answer them.”

During a hearing last week in the Michigan lawsuit, Judge Sima Patel of the state's Court of Claims said the RNC’s “biggest hurdle” is bringing this case weeks after election officials started sending out ballots to UOCAVA voters.

Attorneys are now waiting for rulings from the Michigan judge and the Pennsylvania case’s federal judge, who also held a hearing last week. A hearing in the North Carolina lawsuit is scheduled for Monday.

With about two weeks left before the end of voting, many election watchers are concerned that these legal challenges are laying groundwork for questioning the ballots of eligible voters.

“We are right now in a cycle of spectacularly invented controversy, where the problems aren’t real problems but fuel an outrage machine,” says Justin Levitt, a constitutional law professor at Loyola Law School, who has served as a Justice Department official and in the Biden administration as a White House voting rights policy adviser.

In a statement, Matt Heckel, a spokesperson for the Pennsylvania Department of State, compared the GOP lawmakers’ case to efforts during the previous presidential election.

“This challenge appears to be a continuation of the unfounded litigation in state and federal court filed in 2020 in an effort to sow confusion and ultimately to throw out the votes of millions of Pennsylvanians and overturn the results of that legitimate election,” Heckel said. “Those efforts failed then, and these latest dishonest efforts will also fail.”

How these lawsuits could affect overseas voting

Even if these lawsuits are ultimately tossed out of the courts, Lang of the Campaign Legal Center is concerned about the costs of this controversy on eligible voters living abroad.

“I can promise you that military and overseas voters reading these newspaper articles are very anxious about their vote,” Lang says. “They may feel confused. They may feel like their vote isn’t going to count. And so what’s the point? And I certainly hope that’s not the case, but I fear that it may be.”

While the main federal law about overseas voting is usually associated with the military, a survey by the U.S. Election Assistance Commission shows that uniformed service members made up about 42% of registered UOCAVA voters in 2020.

“Undercutting confidence in our free and fair elections by disenfranchising our service men and women is unacceptable,” Democratic Rep. Pat Ryan of New York, who served two tours in Iraq as a battalion intelligence officer in the U.S. Army, wrote in a letter last week to Defense Secretary Lloyd Austin, who is charged with carrying out UOCAVA.

In a statement, Pentagon spokesperson Maj. Gen. Patrick Ryder said Austin “believes that service members serving overseas, eligible family members and U.S. citizens overseas have the right to vote, and DOD will continue to work to help them do so.”

In court filings for all three lawsuits, the Republican groups have asked the courts to at least order election officials to set aside the returned ballots of UOCAVA voters and not count them in the final election results until the voters’ eligibility can be confirmed.

But election officials warn that would introduce a new process that could bring confusion and disrupt an already-tense period for election workers, who are under public pressure to report accurate vote tallies as soon as possible.

Kathy Boockvar, who used to oversee elections in Pennsylvania as secretary of the commonwealth, notes that the swing state’s election rules allow UOCAVA voters’ ballots to be received up to seven days after Election Day.

“It’s a sort of ripe time for the intentional insertion of distrust and conspiracy theories and tearing down faith in our electoral process,” Boockvar said last week during a press briefing organized by Issue One, a democracy-focused advocacy group. “There's so many protections in place. This is such a critical right for our American citizens overseas and in the military. Adding this doubt and intentional fueling of distrust is just another example of exactly what we don't need.”

Tom Bowman contributed reporting. Edited by Benjamin Swasey