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iVoteIsrael
Can you tell me about voting from overseas and taxes in more legal terms?
 

This FAQ is part of the Ask Sam Series, sponsored by Samuel F. Wright, Captain, JAGC, USN (Ret.)  For voters who like to get down to the nitty gritty...


I left State A (a state with a very high state income tax) to move to Europe three years ago.  I will return to the United States, and probably to State A, at some point in the next decade or so, but I have no current intent to return at any specific time.  I have not voted, nor have I paid state income tax, since I moved to Europe three years ago, but I do want to vote in the 2008 Presidential election.
 

A friend of mine told me that if I vote by absentee ballot in State A in the 2008 Presidential election, State A will then be able to impose on me its state income tax, not just for 2008, but for the whole time since I left State A to move to Europe.  How does this work?  Does my voting by absentee ballot have any effect on my liability for state income tax?


The Federal law that applies here is called the Uniformed and Overseas Citizens Absentee Voting Act (UOCAVA).  This law was enacted in 1986 and is codified in title 42, United States Code, sections 1973ff through 1973ff-6 (42 U.S.C. 1973ff-1973ff-6).


UOCAVA gives “absent uniformed services voters” and “overseas voters” the right to vote in primary, general, special, and runoff elections for Federal office (President and Vice-President, United States Senator, and United States Representative).  UOCAVA’s final section defines eight terms used in this law, including those two terms.


Because you are not a member of one of the United States uniformed services or Merchant Marine, and you are not a family member of a uniformed services or Merchant Marine member, you do not qualify as an “absent uniformed services voter.”  You do, however, qualify as an “overseas voter” as defined by 42 U.S.C. 1973ff-6(5).  UOCAVA entitles you to vote by absentee ballot for Federal offices in the last place where you were domiciled within the United States, even if you have been away from the United States for many years and have no present intent to return (assuming, of course, that you have retained your United States citizenship).
 

UOCAVA is a floor and not a ceiling on your right to vote while overseas.  If State A, by state law, chooses to allow someone in your situation (gone from the state for several years and with no specific intent to return at a date certain) to vote a full ballot (including state and local offices), that would not violate UOCAVA.

 

UOCAVA provides as follows on the question of the effect of voting on tax liability:  “The exercise of any right under this title shall not affect, for purposes of any Federal, State or local tax, the residence or domicile of a person exercising such right.”  42 U.S.C. 1973ff-5.  Under Article VI, Clause 2 of the United States Constitution (commonly called the “Supremacy Clause”), a Federal statute (like UOCAVA) supersedes and overrides a conflicting state statute or state constitution.

 

If you vote FOR FEDERAL OFFICES under UOCAVA, it is unlawful for State A to use the fact of voting to establish your liability for the state income tax.  On the other hand, if you were to vote a FULL ballot (including state and local offices), it would be arguably permissible for State A to use the fact of voting as evidence of your liability for the state income tax.

 

I suggest that when you apply for an absentee ballot, you should make clear that you are only eligible to vote and only wish to vote for Federal offices, and request that the election official send you a ballot that is limited to Federal offices.  If the official nonetheless sends you a full ballot, you should only mark it for Federal offices.  Then, you should send the official a separate letter, in a separate envelope, and point out that you had requested a ballot that was limited to Federal offices and that you only marked your ballot for Federal offices.  (Do not include this letter in the same envelope with your marked absentee ballot, because notes accompanying absentee ballots are generally neither read nor preserved.)  Keep a copy of the absentee ballot request and the letter, just in case.

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