Overseas voters – now a bloc that could be crucial for Democrats – targeted by GOP lawsuits in battleground states
By Tierney Sneed, Alayna Treene and Edward-Isaac Dovere, CNN
(CNN) — An overseas ballot process that has long been seen as sacrosanct by both parties, due to its connection to US military members serving in foreign countries, is the target of multiple GOP-backed lawsuits filed in recent days.
The new legal assault comes as ballots cast by Americans abroad have become very favorable for Democrats and could be crucial in getting Vice President Kamala Harris over the finish line.
In addition to the new lawsuits filed by Republicans in Pennsylvania, North Carolina and Michigan, former President Donald Trump has suggested without evidence that the overseas vote is a source of fraud, even as he has made entreaties to Americans abroad with a campaign promise of lowering their taxes.
There are about 6.5 million eligible American voters living, serving and studying overseas, with about 1.6 million of them in battleground states, and more in tight House districts. Those votes could be decisive: The 2020 election was decided by 44,000 votes over four states.
More than 1.2 million ballots were sent abroad in 2020 and nearly 890,000 were eventually counted, according to a report by the US Election Assistance Commission.
Democrats have painted new GOP legal challenges as an attack on the franchise of service people who are putting their lives on the line for the country by serving abroad, though the civilian expat community is more centrally in the crosshairs of the Republican lawsuits. Election officials also say that last-minute changes to election procedures with ballots already sent out would not only disenfranchise voters but lay the groundwork to falsely cast doubt on the results.
Lawyers for Michigan Secretary of State Jocelyn Benson, a Democrat, accused Republicans in a court filing of seeking “to harass the Secretary and sow doubt about the integrity of the election.”
In Pennsylvania, GOP congressmen are asking the court to set aside all ballots cast from overseas, including those from military voters, for further verification. The Republican National Committee, which is behind the lawsuits in Michigan and North Carolina, made similar requests for certain overseas ballots in those states to be segregated, foreshadowing the possibility for post-election fights to get those ballots tossed if the margins are tight.
The Republicans will have to overcome several procedural issues that have been raised about their cases. But any court order setting overseas ballots aside to be counted later, after the disputes are resolved, risks giving Trump the appearance of a lead on Election Night that would likely be diminished once those ballots were added into the results. Key to Trump’s strategy in his efforts to overturn the election in 2020 was to argue that ballot-counting should stop after Election Day, before election officials had finished processing the Democratic-heavy mail-in vote.
GOP officials say that they’re trying to obtain clarity from courts about what they’ve described as legal conflict in how those states are handling those ballots, as it’s not entirely clear how many ballots would be tossed if they were to prevail in their cases.
“Regardless of the number impacted…we want every single legal vote to be counted properly, and counting illegitimate votes dilutes that and cancels it,” one RNC official told CNN.
A hearing in the Michigan case is scheduled in Detroit on Thursday, while a federal judge will hear arguments on the Pennsylvania lawsuit on Friday in Harrisburg. A hearing in the North Carolina lawsuit is scheduled for next week.
Less than half of overseas voters are military
The process for uniformed and civilian citizens abroad to cast ballots was established by the federal law known as Uniformed and Overseas Citizens Absentee Voting Act, or UOCAVA, which has enjoyed bipartisan support in the nearly four decades it’s been on the books.
The law is most associated with military voters, which are traditionally thought of as right-leaning, though that population is not as conservative as it once was. More significant to the political dynamics at play, however, is how the civilian overseas vote has eclipsed military voters abroad.
Members of the military made up only 42.3% of those registered to vote under UOCAVA during the 2020 election, according to the EAC report.
Only a quarter of the ballots transmitted abroad by Michigan in 2020 went to military members, according to the report, and likewise in Pennsylvania and North Carolina, military members made up a minority of the overseas voters receiving ballots from those states in 2020.
“As it turns out, there are more overseas civilian voters than there are military voters,” said Michael McDonald, a University of Florida political science professor. Research he’s done on Maine and Colorado voters has shown that the UOCAVA vote in those states has had a sizable Democratic-lean.
Democrats Abroad, which is made up of thousands of Americans living, serving and studying around the world, has been phone banking, texting and emailing its database since January, according to its international chair, Martha McDevitt-Pugh, urging members to request ballots and giving them instructions on how to get them in.
“We are millions of voters who can affect the outcome of elections,” said McDevitt-Pugh.
The Democratic effort caught the attention of Republicans, a person familiar with the litigation told CNN, prompting lawsuits challenging the legality of a subset of those ballots.
In lawsuits filed in North Carolina and Michigan, the Republican National Committee is focused on state laws that extended UOCAVA’s scope by establishing that US citizens abroad who never lived in those states can still vote if their parents or legal guardians lived there before leaving the country. (Michigan additionally extends this tie to spouses of former residents of the state).
They argue those laws run afoul of provisions in the states’ constitutions requiring residency to vote.
“North Carolinians and Michiganders should not have their votes canceled by those who’ve never lived in the state in the first place – plain and simple. This is illegal and we will stop it. While Democrats want an election system that disregards the law, we are committed to election integrity across the country,” GOP Chairman Michael Whatley said in a statement last week.
However, Democrats and state officials counter that the North Carolina and Michigan constitutions give those state legislatures flexibility to expand voter eligibility to beyond just those who have lived in those states for a certain amount of time.
In Michigan, the Republicans are asking that guidance from Benson, a frequent target of GOP lawsuits, be changed to instruct local officials that they cannot accept overseas ballots by so-called “never residents.”
Her office says that there is no practical way of distinguishing ballots that come from overseas voters who have never resided in those states, and even if there was, reworking the procedures at this point would be impossible – an argument also made by the North Carolina election officials who are being sued by the RNC.
“The time to challenge the rules for voter eligibility is well before an election, not after votes have already been cast,” Patrick Gannon, a spokesperson for the North Carolina Board of the Elections told CNN, noting that the law in question was passed by state lawmakers more than 13 years ago.
Pressed on the timing of the lawsuits, which were filed after election officials began sending out overseas ballots, a second RNC official claimed that much of their election integrity litigation is being decided in the weeks before Election Day.
“Just because, maybe theoretically, it’d be better if we can file earlier, we’re still going to fight in court if we think election laws are being broken, regardless of what’s happening,” the official told CNN, adding that there were election cases being decided during this period before the 2022 midterms.
GOP congressmen suing their own state
In the Pennsylvania case, the dispute is over how overseas ballots are being vetted.
Republican members of the US House have sued in federal court over how Pennsylvania election officials are processing the applications from overseas citizens and are asking for a court order that would segregate those ballots for further verification.
The congressional plaintiffs all voted in favor of rejecting the 2020 election state certifications in Joe Biden’s favor, despite a lack of evidence of fraud. Democrats, who intervened in the case, argue that the Republican lawmakers’ request could disenfranchise “tens of thousands” of overseas voters, including those in uniform.
Rep. Pat Ryan, running for reelection in upstate New York, led several of his fellow veteran Democratic colleagues in putting together a letter this week addressed to Defense Secretary Lloyd Austin warning that members of the military are at risk of having their votes infringed.
“I didn’t think they could be even more disrespectful of veterans than Trump has been, yet somehow they’ve gone even further in insulting and trying to disenfranchise veterans and military families,” Ryan told CNN, calling the moves “stunning” and “a disgrace.”
Ryan, who voted from Iraq in 2008 nearing the end of his 15-month second combat zone deployment, called the procedures a “well-oiled process that happens all the time and has been happening for many decades.”
He noted that each unit had a voting assistance officer and that everyone’s identity had been verified many times long before they filled out their ballots.
If election denialism is the goal, Ryan said, “putting our active duty troops in the middle of that traitorous behavior is beyond the pale.”
“These people are risking their lives for our country. They deserve to know now that their vote will be protected and counted,” he said.
The lawyers who brought the lawsuit on behalf of the Republicans did not respond to CNN’s inquiry, but in their complaint, they claim that Pennsylvania has “implemented an illegal election structure that creates vulnerabilities and the opportunity for ineligible ballots to dilute valid ballots from military service members.”
Those involved in the RNC cases in Michigan and North Carolina stressed that those legal challenges were not directed at military ballots but civilians who never lived in those states.
“By allowing overseas voters who never lived in Michigan or North Carolina to vote there, they are violating the state constitutions and jeopardizing eligible votes,” Claire Zunk, the RNC’s election integrity communications director, said in a statement. “Our lawsuit does not in any way affect military voters’ right to vote, which is protected by federal law under UOCAVA. We are fighting to protect the votes of military voters and overseas citizens to be counted properly, and not canceled by ineligible votes.”
McDevitt-Pugh, the Democrats Abroad chair, said that, with laws about taxation, Social Security and health care affecting her and other Americans living overseas, “being able to vote and having a voice is really important to us.”
She said that she feared that even the challenges being raised might drive down the number of people who returned their ballots.
“They’re meant to open the door to challenge the election afterward, they’re meant to intimidate voters,” she told CNN.
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