“Unconstitutional But Entrenched: Putting UOCAVA and Voting Rights for Permanent Expatriates on a Sound Constitutional Footing”

Brian Kalt has posted this draft on SSRN (forthcoming, Brooklyn Law Review).  Here is the abstract:

For decades, eligible voters who have left the U.S. permanently have had the right to vote in federal elections as though they still lived at their last stateside address. The federal law known as UOCAVA forces their former states to let them vote for President, Senate, and House this way. There are several serious constitutional problems with this. Most problematic among them is that UOCAVA sits in uneasy proximity to the continued disenfranchisement of U.S. citizens who live in Washington, D.C., and the territories. Citizens who move from a state to one of these places lose their right to vote in federal elections (other than for President in D.C.). If U.S. citizens who leave the country permanently have voting rights that are so sacrosanct, it is odd that these other U.S. citizens, living on U.S. soil, do not.

This Article provides some history and context on overseas voting, explores the many reasons why UOCAVA’s enfranchisement of permanent expatriates is unconstitutional, and considers why those constitutional arguments have never seen the inside of a courtroom. It concludes with some suggestions for reformulating UOCAVA to avoid constitutional problems while duly respecting the entrenched voting rights of permanent expatriates. While there are multiple options that would be effective, the most plausible solution uses the opportunity for constitutional reform created by the National Popular Vote Interstate Compact.

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