Military Voting and the Law: Procedural and Technological Solutions to the Ballot Transit Problem

Abstract

During the 2000 presidential election controversy in Florida, the ballots submitted by individuals living overseas—especially military voters—were seen as crucial to the election outcome as the margin of potential victory was so small that these ballots could turn the election from one candidate to the other. Headlines at the time noted that “Odds Against Gore Absentee Gains: Republican-Leaning Counties Appear to Have More Uncounted Overseas Ballots,” “Bush Lead Swells with Overseas Votes,” “Military Ballot Review is Urged,” and “How Bush Took Florida: Mining the Overseas Absentee Vote.” For many Americans, however, the controversy surrounding the votes of military personnel and overseas voters, despite its importance, may have seemed both bewildering and esoteric. The debate centered on minute details; whether or not certain overseas absentee ballots were valid and could therefore be counted if they lacked postmarks, were received within given time periods, had missing signature or were deficient in other statutorily required characteristics, that are beyond the interest of the typical individual. However, several key legal skirmishes were fought within the broader context of the recount battle concerning whether certain absentee ballots could be counted, the resolution of which could have swayed the outcome of the 2000 presidential election. Issues of equal protection, federalism and statutory interpretation played large roles in this litigation. The tension between allowing overseas votes to be counted and ensuring a fair election that complied with state law was at the heart of the debate and related litigation.