Since 1942, Congress has repeatedly taken steps to ensure that citizens abroad can access their right to vote. Under the Uniformed and Overseas Citizens Absentee Voting Act (UOCAVA), enacted in 1986, states must allow military personnel and other U.S. citizens to vote in federal elections by absentee ballot in their former state of residence. Each state must implement the law because they handle their own election administration, and states have multiple levels of security to ensure only eligible citizens can vote from abroad. That includes identification requirements, such as Social Security or similar numbers, as well as other checks.
In Reschenthaler v. Schmidt, six Republican members of Congress and PA Fair Elections — a group that has shared baseless theories about voter fraud — sued Pennsylvania state officials in federal court, alleging that Pennsylvania is unlawfully refusing to verify the identities and eligibility of citizens voting overseas. But the complaint has no specific allegations to show that Pennsylvania’s process is susceptible to abuse, and it does not accurately reflect how federal and state law are implemented to verify eligibility for overseas voters. The plaintiffs have asked the court for an emergency order requiring Pennsylvania’s election officials to set aside ballots from overseas and apply an additional process for determining voters’ eligibility before counting those votes.
The defendants have objected to the plaintiffs’ request for emergency relief and are seeking to have the case dismissed.
On October 18, the Brennan Center and co-counsel O’Melveny & Myers LLP and Myers, Brier & Kelly LLP, filed an amicus brief in support of the defendants on behalf of nonpartisan organizations and impacted overseas voters. Amici are American Citizens Abroad, the Association of Americans Resident Overseas, Blue Star Families, the Federation of American Women’s Clubs Overseas, the U.S. Vote Foundation, and seven individual overseas voters. To ensure that the voices of military and overseas voters are represented in a case that could effectively disenfranchise them — and to show how this lawsuit is part of the broader context of efforts to sow chaos, distrust, and confusion ahead of the 2024 General Election — the brief makes three points.
First, the brief shows how the plaintiffs’ lawsuit conflicts with longstanding federal efforts to make it easier for overseas citizens to vote. For decades, Congress has passed laws to ensure that citizens can exercise their voting rights from abroad, including UOCAVA. The relief plaintiffs seek would jeopardize overseas citizens’ fundamental right to vote.
Second, the brief points to how this lawsuit only seeks to add to the existing difficulties overseas voters face. Plaintiffs have asked the court to segregate UOCAVA ballots until a voter’s identity can be verified. But, as the brief explains, doing so would affect voters ranging from troops deployed in combat zones to citizens residing in countries with infrequent mail service. Such voters, who have already managed to jump through multiple procedural hoops to vote from overseas, could potentially be disenfranchised by the relief that plaintiffs seek.
Third, the brief argues that this lawsuit is a part of an insidious, concerted movement by election deniers to weaponize the judicial process to introduce doubt about the 2024 election. This movement has led to several lawsuits challenging state election systems less than six months before the 2024 election, including two lawsuits filed this month in Michigan and North Carolina that have unsuccessfully attempted to challenge overseas voter laws. As the brief argues, allowing this case to move forward could disenfranchise American voters and undercut public confidence in elections — and risk using the courts to do so.
On October 29, the court dismissed the case. Summarizing its decision, the court wrote that the plaintiffs “delayed too long to file their action, they lack standing, they have failed to join indispensable parties, and they have failed to articulate a viable cause of action."
