Unconstitutional but entrenched: putting UOCAVA and voting rights for permanent expatriates on a sound constitutional footing

BC Kalt - Brook. L. Rev., 2015 - HeinOnline
Brook. L. Rev., 2015HeinOnline
Eligible voters who have left the United States permanently have the right to vote in federal
elections as though they still live at their last stateside address. They need not be residents
of their former states, be eligible to vote in state or local elections, or pay any state or local
taxes. Federal law-the Uniformed and Overseas Citizens Absentee Voting Act (UOCAVA)'-
forces states to let these former residents vote for the President, the Senate, and the House
this way. There are several constitutional problems with all of this. Congress heard about …
Eligible voters who have left the United States permanently have the right to vote in federal elections as though they still live at their last stateside address. They need not be residents of their former states, be eligible to vote in state or local elections, or pay any state or local taxes. Federal law-the Uniformed and Overseas Citizens Absentee Voting Act (UOCAVA)'-forces states to let these former residents vote for the President, the Senate, and the House this way. There are several constitutional problems with all of this. Congress heard about many of these problems in the hearings and debates that led to the passage of OCVRA (UOCAVA's predecessor, which first enfranchised permanent expatriates this way) in 1975.2 While supporting other parts of OCVRA, the Department of Justice and some members of Congress presented an aggressive constitutional case against forcing states to let permanent expatriates vote. 3 OCVRA's proponents responded with constitutional arguments of their own, 4 but the bill's passage t Professor of Law and Harold Norris Faculty Scholar, Michigan State University College of Law. Thanks to the participants in the MSU College of Law summer workshop, to Robert W. Bennett, John Fortier, Alan Gura, Mae Kuykendall, Michael Lawrence, and Jorge E. Souss for their helpful input; and to Barbara Bean, Jane Meland, and the rest of the research staff at MSU Law for truly outstanding research assistance.
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