Amanda Klekowski von Koppenfels (University of Kent, Brussels School of International Studies)
Introduction
Could US citizens living overseas cast the deciding ballots in the 2020 general presidential election? In short, the answer is yes. Past elections show their ballots making a difference in several key races, and, with more overseas votes than ever expected this year, they could yet be the deciding factor.
Overseas Americans have had the right to vote in federal elections since 1976, although it was only twenty years ago that their potential was recognised, with the 2000 presidential election ultimately decided by 537 votes in Florida. With the admissibility of overseas absentee ballots playing a deciding role in favor of President Bush in that election, overseas voters emerged into focus.
The Right to Vote as a US Citizen within the Federal System
Not counted as a distinct constituency, as are external voters in France or Italy, overseas Americans’ votes are counted in towns and cities across 50 states, meaning that there are up to 50 different registration and voting deadlines, policies, procedures and styles of ballot. Some 37 states allow US citizens born abroad, who have never resided in the US, to cast a ballot in their parent’s place of last residence. Individual US citizens’ right to vote from abroad is – in principle, at least – guaranteed; they are, however, not seen as an emigrant diaspora nor are they understood as an integral part of the American nation as an emigrant population.
Given the federal nature of the US system, and the administration of the federal elections by the 50 states, there cannot be, as there is in the case of Romania or France, centrally organised polling stations at embassies or consulates. Sending ballots to their respective states and local election offices by mail (or email or fax) or returning to vote in person are the only options overseas Americans have, although they also can, until early October, return their ballots to a US Embassy for return to the United States, but that ballot must be already voted and sealed. The administration of elections is delegated to the 50 states, with state law governing elections, and federal law is only able to issues uniform mandates in the case of a concern about equality, per the 14th amendment to the US Constitution.
Voting Assistance in 2020
Insofar, get out the vote (GOTV) efforts for overseas Americans are immensely complicated. In 2020, the GOTV support has surpassed all previous years. Voting assistance volunteers with www.votefromabroad.org, (VFA) a non-partisan voting website established by Democrats Abroad, share recently learned details with each other as they assist yet one more voter from Pennsylvania avoid the feared “naked ballot” or how to fold a New York ballot. VFA held an online “drop-in” voting assistance helpdesk on Sundays since July 2020, shifting to every day in the last weeks of the contest, helping voters send in the ballots, track them, and fill out and send in the emergency “FWAB” (Federal Write-In Absentee Ballot) in the case of a missing ballot.
The Federal Voting Assistance Program (FVAP), of the Department of Defense, charged with facilitating overseas voting for military and civilian voters, trains voting assistance officers and provides voluminous information on the 50 states’ laws and procedures. In 2020, more than ever before, they both, along with numerous candidates, including Joe Biden and Kamala Harris, have reached out to overseas Americans, answering their questions, and asking them to vote.
Legislative Changes since 2000
The category of the “UOCAVA” voter was created in 1986, with the Uniformed and Overseas Citizens Absentee Voting Act (UOCAVA), which amended the 1975 Overseas Citizen Voting Rights Act. The UOCAVA Act introduced the standardised FPCA (Federal Post Card Application) absentee ballot request and the FWAB, allowing for a back-up ballot option.
After the 2000 election, marred by the rejection of numerous absentee ballots in Florida, increased awareness of challenges for overseas civilians and military in voting led to increased support for upholding the rights of overseas citizens to vote. The 2002 Help America Vote Act (HAVA), invoking the 14th amendment, mandated that overseas absentee ballots, civilian and military, must be tabulated separately from domestic absentee ballots, with the newly-established Election Assistance Commission in charge of tabulation. This change was significant in that it allowed a measure of the potential impact of overseas votes on elections – which, in turn, enabled Democrats Abroad, in particular, to reach out to political candidates.
Numerous studies, from Democrats Abroad, the Overseas Vote Foundation and the federally mandated reports to Congress from FVAP all showed that late arrival of ballots to local election offices was the primary reason that overseas ballots were not counted. The 2009 Military and Overseas Voter Empowerment Act (MOVE) sought to remedy this, mandating that ballots must be sent to overseas voters at least 45 days prior to an election, and allowing states to both send blank ballots and receive voted ballots by email (19 allow this) or fax (an additional 7 allow faxed ballots).
Overseas American Population?
Counting overseas Americans raises a number of challenges. US citizens do not register at a place of residence in the United States; many are dual citizens and are recorded by their host countries under other citizenships. The US is an international outlier in taxing income earned abroad by overseas Americans. Some file tax returns from domestic US addresses; others do not earn income and do not file tax returns. The World Bank estimates 2.2 million, the US State Department estimates 9 million US citizens living overseas and the FVAP estimates 4.8 million civilian Americans living overseas (in addition to 1.3 million military and members of their families).
The FVAP draws on the 4.8 million (and 2.9 million estimated to be of voting age), set against the 135,000 ballots returned by civilian overseas voters to estimate a 4.7% turnout among civilian overseas Americans in the 2018 midterm election. A similar calculation in 2016, of 365,854 civilian overseas ballots returned, would result in a 12.6% turnout – on par with external voting situations in other countries. This tabulation may not be complete, and also does not take into account overseas voters who may have sent in domestic absentee ballots or returned to the US to vote in person. Insofar, we know a minimum number of overseas absentee ballots, but this does not tell the whole story.
Past Elections
In 2016, at least 630,000 ballots were returned by UOCAVA voters with about 3% of those rejected nationally, most often for being returned after the deadline, but also missing or mismatched signature. In 2008, which also had a higher turnout among domestic voters, 880,000 ballots were returned (civilian and military votes were not yet tabulated separately).
In 2008, Democrat Al Franken ultimately won the Minnesota Senate seat with a margin of 312 votes, with 11,255 UOCAVA ballots counted. In Alaska, Democratic Senator Mark Begich won his seat by just under 4,000 votes, with 12,103 UOCAVA votes counted, noting that he had made a particular effort to reach out to overseas voters.
Domestic absentee ballots have also always been counted on and after Election Day – in 2016, at the close of Election Day, each candidate had just under 60 million votes, with President Trump holding a lead of just over 200,000 votes. In addition to domestic and overseas ballots, small voting districts sometimes hand count votes – all of which takes time. By the time votes had been counted, another 9 million had been tallied; Hillary Clinton led in the popular vote by nearly 3 million, but lost in the Electoral College. Absentee votes certainly played a role in the popular vote total.
While we do know – since 2004 – how many UOCAVA ballots have been returned, we do not know the content of their votes. However, a closer look at the preliminary vote count in several states in the 2016 presidential election might give an indication, showing that overseas absentee ballots have a clear impact on vote totals – and, in the case of close elections, outcome.
| 2016 Presidential Election | |||
| Preliminary vote difference (before all absentee votes counted) | Overseas military and civilian absentee ballots | Final vote difference | |
| Michigan (R) | 13,080 | 17,187 | 10,704 |
| New Hampshire (D) | 2,701 | 5,170 | 2,736 |
| Wisconsin (R) | 27,257 | 6,633 | 22,648 |
| Pennsylvania (R) | 68,236 | 22,328 | 44,292 |
| Florida (R) | 114,455 | 81,338 | 112,911 |
Source: New York Times.
Potential Impact of Overseas Votes in 2020
Florida is once again a potential election-tipping state. Having received the most UOCAVA ballots in 2016 of any state (81,338, of which 52,300 from military and 29,038 from civilian), Florida is likely again to see the most absentee ballots. With polling showing a close race between the two presidential candidates, overseas absentee ballots in Florida may yet play a key role.
In Georgia, the Senatorial race between Jon Ossoff (D) and David Perdue (R) is virtually tied. Georgia received 13,548 from UOCAVA voters in 2016, and overseas ballots may well play a role in determining the outcome of this Georgia Senate race. In both Florida and Georgia, absentee ballots must be received by 7 PM on Election Day, and those can be pre-processed, meaning that final results should come quickly.
Overseas American ballots will only make a difference in close elections – but with many elections closer than ever, overseas voting advocates continue to support every overseas vote. They may yet make the difference.