How Congress and Trump Can Ensure Election Integrity from Overseas Voters

Congress needs to amend the Uniformed and Overseas Citizens Absentee Voting Act (UOCAVA) to close vulnerable loopholes and ensure overseas voters are held to the same identification standards as stateside residents. If Congress fails to act, President Donald Trump should order the Federal Voting Assistance Program (FVAP) to include an ID requirement on the Federal Postcard Application (FPCA). 

Although a small percent of overseas Americans vote, these numbers matter in swing states like Pennsylvania where a tiny amount of electoral fraud could determine which party controls the Senate or the White House. Even in dark blue states like Washington, overseas ballot fraud could shift the outcome of close Congressional districts, determining the balance of power in the House of Representatives.

Vulnerabilities in the Counting of Overseas Ballots

This year in Pennsylvania, it took the Democrat-majority state Supreme Court two weeks to stop illegal ballot counting in some Democrat-majority counties before incumbent Senator Bob Casey (D) conceded to David McCormick. The continued counting of ineligible ballots cut McCormick’s Election Day lead dangerously close. This happens frequently in Democratic strongholds, where they just happen to receive enough mail-in ballots after Election Day to push the Democrat candidate over the top.

This came after Pennsylvania Secretary of State Al Schmidt ordered local election officials not to try to verify the eligibility of UOCAVA applicants, essentially advertising the state to domestic vote fraudsters and bad foreign actors.

In Skagit County, Washington, several Republican election observers reported “hundreds and hundreds” of UOCAVA ballots being counted for Democratic candidates at a 9–1 rate over Republicans, according to Skagit County Republican Party and WAGOP Election Integrity Committee Chairman Bill Bruch.

Lax Washington guidelines on UOCAVA voter verification raise questions on the eligibility of many of these votes. According to the Washington Secretary of State’s Office, “military and overseas voters are exempt from the regular voter registration deadlines,” “the last day to register and request a ballot is Election Day,” and “even if you are not registered, you may still vote and send in a ballot because your signature on the declaration attests to your eligibility and constitutes registration.”

Washington is not a swing state, and WA-02 is not a close Congressional District, but Kamala Harris only won Skagit County by 6,191 votes, improving on Biden’s 2020 performance—part of the mere 11 percent of counties she improved on nationwide.

In 1986, then-President Ronald Reagan signed UOCAVA to provide basic standards and requirements for registering and counting the votes of overseas Americans. It also provides an emergency backup ballot, the Federal Write-In Absentee Ballot (FWAB) for UOCAVA-eligible Americans if states fail to send them a state ballot in a timely manner.

Although the U.S. is more known for its immigration than its emigration, the State Department estimated in 2020 that nine million U.S. citizens lived abroad, and around 4.4 million of them were eligible to vote. These American citizens should be allowed to exercise their right to vote. UOCAVA, however, leaves open considerable loopholes for potential fraud, which noncitizens who have never resided in the U.S. and ineligible U.S. residents can easily exploit.

(Read more: Pennsylvania Secretary of State Prevents Counties from Verifying Overseas Voters)

UOCAVA Vulnerabilities

The most glaring vulnerability of UOCAVA is that it lets states grant American citizens who have never set foot on American soil the same vote as someone who has never left American soil. This is morally repugnant. People who have never lived in a state should not be allowed to dilute the votes of that state's residents just because they have a family member who once lived there. An anchor baby could grow up in a foreign country, raise a child in that country, and that child could one day vote in the state in which their anchor baby parent was born even though they have never been to the U.S., hold no allegiance to the U.S., and speak no English. 

Unlike the Motor Voter Law of 1993, UOCAVA provides basic parameters but gives states considerable leeway to craft their voting laws for overseas voters. Thirty-eight of them allow never-residing U.S. citizens to vote absentee. 

Requirements vary state-by-state. Only seven of the 38 prevent never-residers from registering to vote if they have previously registered in a different state—California, Michigan, Montana, Nebraska, Nevada, South Dakota, and Virginia.

In some of these states, UOCAVA voters are only allowed to vote in federal elections. They include Alaska, Connecticut, Delaware, Illinois, Minnesota, New York, Rhode Island, Utah, and Wisconsin. Illinois provides the special favor to the never-resided whose parents are active-duty military by allowing them to vote in state elections. 

In some states, a parent or legal guardian’s former residence is sufficient. In Arizona, the parent or legal guardian must be registered to vote in that state, precluding voting by these never-resided voters if their Arizonan parents are deceased. Colorado, Michigan, Oregon, South Dakota, and Utah allow a person to use their spouse or civil union partner’s last home state to register.

This year, the Republican National Committee belatedly filed lawsuits challenging this aspect of UOCAVA. But because of the leeway the federal government gives states in implementing the law, judges in North Carolina and Michigan dismissed cases in which the RNC argued against never-residers being allowed to vote.

Election integrity activist Cleta Mitchell told Steve Bannon on his War Room podcast that she believes American citizens who have never resided in the US should be issued a Washington, DC ballot. This is a sensible solution for the handful of never-resided U.S. citizens abroad who do not have dual citizenship. But for Americans with dual citizenship who have never lived in the U.S., they should not be granted the right to vote in American elections—in D.C. or anywhere—until they take up residence somewhere in the country.

UOCAVA doesn’t require proof of citizenship—much less photo ID.

For UOCAVA voters, it’s all about the honor system. The threat of perjury prosecution provides the only deterrent. But even if UOCAVA perjury were detected, it would be difficult to prove, and if it's a foreign suspect, it’s questionable whether even an allied country would extradite one of its citizens for allegedly committing perjury on the FPCA.

However, it's not that hard for non-citizen who never set foot in the U.S. to easily register to vote, as 

FPCA and FVAP require only the last four digits of one's social security number or driver's license number. Many states give applicants the option to select 'None' if they claim to lack both.Screengrab from Georgia's FVAP pageAs Restoration News reported before the election, in 2020, federally-indicted Iranian hackers downloaded 100,000 Alaskan voters’ private voter data and uploaded a video in which they filled out a UOCAVA voter registration form.

Recently, the North Carolina Board of Elections threw out a challenge from the state GOP over UOCAVA votes not including photo ID, which the state requires for stateside voters. The problem is that the Help America Vote Act (HAVA) exempts UOCAVA voters from having to comply with state photo ID requirements.

Democrats and minority activist groups endlessly whine that photo ID requirements prevent poor minorities from voting because some don’t drive or allegedly lack the necessary agency to obtain a valid photo ID. This point is moot for overseas Americans because to leave the country in the first place, they have to possess a valid passport. The DoD issues active-duty servicemembers the Uniformed Services Identification (USID) card, which includes the holder's photo. Non-U.S. citizen servicemembers' USID cards are color-coded blue, which would clearly mark them as ineligible to vote if they tried to register.

UOCAVA Voters Don’t Need a Connection to the State in which They Vote

UOCAVA does not require overseas voters to show proof the state they’re registering in was the last state in which they or their relation resided. Residents in non-swing states could as easily as the Iranian hackers register in a swing state to make their presidential vote more valuable. 

UOCAVA also doesn’t make voters show proof they live overseas, which invites fraud from in-state procrastinators. In Arizona, for instance, the absentee ballot request deadline ends 11 days before the election, but the UOCAVA deadline extends until the polls close on Election Day. Someone who missed the absentee ballot request deadline could just fill out a UOCAVA ballot. 

Election integrity doesn’t just mean ensuring only US citizens vote—or even that only residents in their respective states vote there. It must also include states enforcing their qualification and registration requirements. If a non-felon resident of a state procrastinates past the state’s registration deadline—and that state doesn’t allow them to register late and cast a provisional ballot—that resident should have to wait till the next election cycle to vote.

Finally, UOCAVA does not prevent states from allowing voting online through a “secure” portal, despite multiple studies showing online voting systems as notoriously insecure. Currently, seven states allow UOCAVA voters this option.

This is very different from allowing UOCAVA voters to send a digital version of their ballot by fax or email, which states should be allowed to continue to permit, provided the rest of UOCAVA's verification loopholes are fixed.

(Read more: COMMENTARY: Our Elections Are Not OK)

UOCAVA Solutions

Congress can fix the vulnerabilities in overseas voting that open the door to domestic electoral fraud, foreign electoral interference, and distrust among the American people by implementing the following three reforms. It's also important to note that nothing prevents responsible state governments from making these changes until Congress can pass legislation to reform UOCAVA. 

1. Do not allow never-residers to vote in any state and require proof that overseas citizens last lived where they claim.

If a person has never lived in a state, no state should consider them a resident just because one of their parents lived there. The current situation absurdly allows never-residers to pick a state if they have parents from different states that allow never-residers to vote. If a never-resider has a parent from Alaska, another from Oregon, and a spouse from Colorado, they can pick which of the three states they want to vote in. If a never-resider holds dual citizenship, they should be denied the right to vote in American elections until they establish residence in the U.S. If a never-resider holds only U.S. citizenship, these stateless citizens' votes should go to D.C., as Cleta Mitchell suggests.

Congress needs to also amend UOCAVA to ensure rogue Secretaries of State like Schmidt do not abuse their authority and deny local election officials the right to verify that UOCAVA voters resided where they claim. Secretaries of State should also have to provide all necessary state records to local registrars to verify overseas registrants' previous addresses under penalty of litigation. Any UOCAVA registrant whose previous address cannot be locally verified should not be allowed to vote.

2. Require proof of ID and citizenship.

A federal fix to UOCAVA should mandate that overseas voters have to provide the same type of ID as in-state residents. If Congress does not or cannot pass a nationwide photo ID requirement, the UOCAVA requirement should at least mirror the state’s requirement. Even in a non-photo ID state like Washington, UOCAVA voters should not get special treatment. However, as previously mentioned, every overseas American has a photo ID. Forcing even non-photo ID states to require this of UOCAVA voters would be both sensible and reasonable.

Louisiana attorney Daniel Street argues Trump can amend this aspect of UOCAVA if Congress fails to act through the Administrative Procedure Act by changing the FPCA "which the law requires states to accept, to include proof of citizenship."

3. Require proof of residency overseas

No state should take an alleged citizen's word on anything when it comes to voting. The threat of perjury charges alone does not create a strong enough deterrent. If a person claims to live overseas, in addition to proving their U.S. citizenship, they should also have to prove overseas residency. This can be a utility bill from the last two months or a bank statement mailed to an address going back two months.

UOCAVA gives states too much leeway to register and process overseas votes, opening a gap to potential electoral fraud and voter distrust. President Trump should insist that Congress fix the loopholes in this law by mandating states prove overseas voters once resided in those respective states, require proof of ID and citizenship, and require proof that the voter lives overseas. These three solutions would be easy to pass, painless to implement, and simple to enforce. They would ensure military servicemembers and U.S. civilians abroad don't have their votes diluted by fraudulent foreigners and ineligible Americans and that stateside voters don't have to wonder whether UOCAVA votes are illegally tilting the balance of close elections. 

(Read more: Trump’s Secret Weapon: American Voters Living Overseas)