Absentee Voting

Participation in an election by qualified voters who are permitted to mail in their ballots.

The Uniformed and Overseas Citizens Absentee Voting Act (42 U.S.C.A. § 1973ff et seq.) covers absentee voting in presidential elections, but the states regulate absentee voting in all other elections. According to Article I, Section 4, of the U.S. Constitution, "The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each state by the Legislature thereof; but the Congress may … make or alter such Regulations, except as to the Places of ch[oo]sing Senators."

Originally created to accommodate overseas military service personnel in World War I, absentee voting has since expanded to include all those expecting to be absent from their precincts on election day. The right to vote, even by absentee ballot, is no trifling concern. A state may restrict it only to the extent that doing so serves a compelling state interest such as preventing fraud.

Although all states allow absentee voting, the procedures and qualifications vary from state to state. For example, the amount of time that an application for an absentee ballot must precede the election can vary. In Minnesota, it is one day (M.S.A. § 203B.04[1]). In Louisiana, it depends on the voter: for example, a voter who goes in person to apply for an absentee ballot and vote must do so between twelve and six days before the election (LSA-R.S. 18:1309[a][1]); a voter who registers for an absentee ballot by mail must get the registration form to the registrar not more than sixty days and not less than ninety-six hours before the election (LSA-R.S. 18:1307[b]); military personnel must return the application not more than twelve months and not less than seven days before election day (LSA-R.S. 18:1307[c]).

Many states allow absentee voters to vote again on election day if they are present in the state. If voters so choose, they may change their votes. Officials in states that allow this practice count the absentee ballots after the poll ballots have been counted, and any duplicate absentee ballots are simply disregarded. This is the case in Minnesota (M.S.A. § 203B.13[3a]). In Louisiana, however, a person who has voted by absentee ballot may not vote again on election day (LSA-R.S. 18:1305). In 1977, Louisiana amended its law to allow absentee voters to change their votes on election day, but in 1980, it changed the law again to prohibit the practice.

In any state, to cast an absentee ballot, citizens must be eligible voters and have a reason for being unable to vote at the polls. If citizens know they will be absent from their voting precincts on election day, they may vote by absentee ballot. Between August 1, 1991, and November 30, 1992, Minnesota experimented with allowing voters to cast absentee ballots without explanation, but this practice was discontinued on January 1, 1994.

All states allow persons with permanent disabilities and military personnel to cast votes by absentee ballot. Other valid reasons for voting in absentia include illness, temporary disability, and religious observances or practices. In Louisiana, any person age sixty-five or older may vote by absentee ballot.

All states require that the application for an absentee ballot be requested before election day, but this rule has some exceptions. In Minnesota, for example, a health care patient who becomes a resident or patient in a health care facility on the day before the election may vote by absentee ballot on election day if she or he telephones the municipal clerk by 5:00 p.m. the day before the election (M.S.A. § 203B.04[2]). Each county enlists election judges to deliver absentee ballots to hospitalized voters (M.S.A. § 203B.11[3]).

Some people have had to fight for the right to vote by absentee ballot. In Cepulonis v. Secretary of the Commonwealth, 452 N.E.2d 1137, 389 Mass. 930 (Mass. 1983), Richard Cepulonis and Kevin Murphy, two Massachusetts residents and long-term prisoners in the Walpole Massachusetts Correctional Institution, asserted their right to vote by absentee ballot. Cepulonis, eligible for parole in 1997, and Murphy, eligible for parole in 1985, attempted to vote from prison in 1982. City officials in Worcester told Cepulonis that he could not vote by absentee ballot without registering in person, and officials in Boston told Murphy the same.

Cepulonis and Murphy filed suit together in superior court, asking for a class action on behalf of Massachusetts prisoners and a judicial declaration that the class of prisoners be declared eligible to vote by absentee ballot. The judge denied the requests, holding specifically that prisoners who did not register to vote prior to their imprisonment, and prisoners who are not imprisoned in the city of their domicile, may not register to vote by absentee ballot because they must register to vote in person. The absentee voting statutes of Massachusetts contained no provision for voter registration of Massachusetts prisoners through the postal service.

Cepulonis and Murphy asked the Massachusetts Supreme Judicial Court to review the case; on August 15, 1982, the court denied the request. On October 21, Cepulonis and Murphy moved for a court order allowing prisoners to vote in the November 2 elections; the Massachusetts high court denied this as well. Cepulonis and Murphy then filed a motion for injunctive relief—a court order—with the U.S. Supreme Court. Justice William J. Brennan, Jr., denied the motion without prejudice, which meant that Cepulonis and Murphy were free to bring the matter before the Court in the future. Justice John Paul Stevens referred the case to the full bench of the Supreme Court, which, after consideration, refused to command Massachusetts to institute procedures enabling incarcerated residents to vote by absentee ballot.

Undaunted, Cepulonis and Murphy applied directly to the Massachusetts Supreme Judicial Court for review of the case; the court granted the application. On April 4, 1983, Cepulonis and Murphy argued that Massachusetts's failure to install an absentee registration procedure for incarcerated residents deprived those residents of their state constitutional right to vote in state elections. Although some states had chosen to prohibit convicted criminals from voting in elections, Massachusetts had not.

The court began the analysis in its opinion by discussing the case law of Massachusetts on the subject of voting. Without exception, the precedents held that voting laws should be interpreted to facilitate voting, and not to impair or defeat the right to vote. In light of this principle, the court announced, it agreed with Cepulonis and Murphy: the Massachusetts statutory scheme was denying deserving citizens a state constitutional right.

The court then examined the Massachusetts statutory scheme and observed that some eligible prisoners could vote, whereas others could not. The absentee voting laws of Massachusetts provided that prisoners incarcerated in the municipality of their domicile, if already registered, could vote by absentee ballot. On the other hand, registered voters incarcerated in a municipality other than their own could not register for absentee ballots. Furthermore, prisoners who were adult registered voters before they were incarcerated could vote, but prisoners reaching the age of majority while incarcerated could not vote. These distinctions were arbitrary and, according to the court, unconstitutional.

The court then cited relevant case law that held that Massachusetts must prove the existence of a compelling state interest when it denies a fundamental right such as voting. The state argued that the registration laws existed in their present form to prevent voter fraud. The court countered by pointing out that Maine, New York, Vermont, Georgia, and Pennsylvania had all seen fit to permit prisoners domiciled in their states to register as absentee voters. This showed that it was possible to create a system allowing eligible prisoners to vote by absentee ballot.

The state also argued that prisoners not registered to vote had had the opportunity to register before incarceration. Requiring the state to supply special absentee voting procedures to disinterested citizens seemed unnecessary. However, failure to register to vote before incarceration did not mean that prisoners who were otherwise eligible should be denied the right to vote, and, according to the court, no case law supported such a denial.

Ultimately, the court held that Massachusetts prisoners must be given the means to vote in state elections. The Massachusetts absentee voting statutes were unconstitutional to the extent that they prevented incarcerated, eligible Massachusetts voters from registering to vote. The court refrained from giving the vote to Cepulonis and Murphy, and instead left the job of revising the Massachusetts absentee voting laws to the legislature.

In a connected case, the Superior Court of Norfolk County awarded attorneys' fees to Cepulonis and Murphy. This decision was upheld by the Supreme Judicial Court of Massachusetts in 1986 (Cepulonis v. Registrars of Voters, 488 N.E.2d 1166, 396 Mass. 808).

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