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About 15,000 nonmilitary voters living abroad—who’ve indicated uncertainty about ever returning to the United States—will vote for president in the fiercely contested battleground of Pennsylvania, plaintiffs argue in a lawsuit over how overseas ballots will be counted.
A federal judge heard arguments Friday as the Pennsylvania Department of State argued for the dismissal of a case brought by six Republican members of the U.S. House of Representatives.
The plaintiffs contend that residents living abroad who want to vote in Pennsylvania elections should provide the same basic identification as residents who reside in the state.
This is at least the third lawsuit this year regarding overseas voting as Democrats ramp up calls for Americans living abroad to cast ballots for the Nov. 5 presidential election. The Republican National Committee also brought legal challenges to voting procedures in Michigan and North Carolina.
Vice President Kamala Harris, Democrats’ nominee for president, and former President Donald Trump, the Republican nominee, are locked in a dead head in each of the three states.
Pennsylvania has 19 electoral votes, Michigan has 15 electoral votes, and North Carolina has 16.
The litigation follows the U.S. Justice Department’s unsealing of a Sept. 27 indictment of Iranian nationals that accuses them of trying to meddle in the 2024 election while working for the Islamic Revolutionary Guard Corps. Iranian hackers previously produced a video demonstrating that stolen voter registration data could be used to exploit vulnerabilities in the overseas voting system.
The plaintiffs in the Pennsylvania case are U.S. Reps. Guy Reschenthaler, Dan Meuser, Glenn “G.T.” Thompson, Lloyd Smucker, Mike Kelly, and Scott Perry, all Republicans in the Keystone State.
Absentee ballot applications for American citizens living outside the United States include several boxes for checking as appropriate, with options to designate oneself as active-duty military or an eligible spouse or dependent.
Other options allow a U.S. citizen living outside the country to check a box saying, “I intend to return” or “my intent to return is uncertain.” In requesting an absentee ballot, a U.S. citizen also may say, “I have never lived in the United States.”
Democrats and many left-leaning media outlets have accused Republicans of seeking to suppress the votes of U.S. military personnel stationed overseas. That’s not the case, said Heather Honey, executive director of Election Research Institute, a watchdog organization whose lawyers represent the plaintiffs in this case.
Overall, Pennsylvania sent about 31,000 ballots to citizens living overseas, and of those about 5,000 are enlisted military, Honey said. Of the remaining 25,000, about 15,000 indicate they don’t intend to return to the United States, Honey said.
“We want 100% of military and [their] family members voting in every single election. If you are in the military, you have ID,” Honey told The Daily Signal.
She added that “our case is not asking anything of voters,” but instead asking the Pennsylvania Department of State to follow federal law on verifying legal voters.
In 2022, only 35% of overseas ballots nationally came from members of the military and their family members, according to the plaintiffs in Pennsylvania.
Lawyers for Pennsylvania argue that the GOP congressmen lack standing in the case and question the timing so close to an election.
Honey noted that the timing of the lawsuit, filed Oct. 7 in U.S. District Court for the Middle District of Pennsylvania, was in response to the Justice Department’s Sept. 27 announcement of its case alleging Iranian hacking of overseas voting data.
That federal complaint notes: “Foreign nations, in efforts to interfere with U.S. elections, could easily submit falsified FPCAs [Federal Post Card Applications] for ballots to unduly influence U.S. elections.”
It later adds: “As described in the U.S. Department of Justice indictment, Iranian nationals, in efforts to interfere with U.S. elections, demonstrated that bad actors could easily create and submit falsified FPCAs in Pennsylvania’s Nov. 5, 2024, federal elections.”
Also, Honey said, the six House members clearly have standing.
“As candidates for federal office, all these members of Congress have the right to a lawful election,” she said.
Reschenthaler, the lead plaintiff, argues that Pennsylvania made it easy for bad actors to exploit the system. He is a former Navy JAG Corps officer and former Pennsylvania state judge.
“This case is simple; the Pennsylvania Department of State is unlawfully diluting the rightful ballots of the brave men and women who serve our nation and their family members,” Reschenthaler said in a public statement.
“Unelected career bureaucrats have no right to ignore federal laws that secure our elections,” he said. “In the Navy JAG Corps, I made daily trips into the Red Zone in Baghdad; this is personal to me. I will always stand up for those in uniform who deserve to have their right to a secure election protected.”
A law called the Uniformed and Overseas Citizens Absentee Voting Act of 1986, or UOCAVA, allows U.S. citizens overseas to vote absentee in their state of residence.
Separately, the Help America Vote Act of 2002 established minimum standards for administering federal elections, such as verification of identity and eligibility for individuals who seek to vote.
Reschenthaler and the other plaintiffs contend that Pennsylvania Secretary of State Al Schmidt, also a Republican, acted without legal authority in directing county election officials not to attempt to verify the identity or eligibility of applications under UOCAVA for an absentee ballot.
Schmidt, an appointee of Gov. Josh Shapiro, a Democrat, is a former GOP election official in Philadelphia.
The Pennsylvania Department of State did not respond to inquiries for this story.
Democrats have mounted heavy opposition to the litigation.
In a letter last week to Defense Secretary Lloyd Austin, six House Democrats led by Rep. Chris Deluzio, D-Pa., said the lawsuit by six House Republicans is “threatening the right to vote for Americans overseas.”
The House Democrats’ letter invokes President Joe Biden’s executive order in March 2021, often called “Bidenbucks,” that directs federal agencies to partner with private nonprofits to boost voter participation and registration.
“Executive Order 14019 puts further steps in place to ensure service members’ right to vote,” the Democrats’ letter to Austin says. “While some of our colleagues are actively seeking to sow discord and misinformation, we urge you to carry out President Biden’s executive order and federal law to the best of your ability and ensure that all Americans have their constitutionally guaranteed right to participate in federal elections.”
Despite House Democrats’ assertion, though, there is little evidence that Republicans would have anything to gain from preventing military personnel from voting, since 61% of military veterans support Trump, according to a Pew Research poll released Sept. 30.
Further, Democrats who advocate more overseas voting on social media rarely invoke the military.
Social media from Democrats Abroad, an organization focused on turning out Democratic voters living outside the U.S., has taken aim at battleground states.
Democrats Abroad also has held online events, such as one called Ballotpalooza.
The lawsuit by the six House Republicans contends that the Pennsylvania Department of State effectively is trying to override two federal laws (UOCAVA and HAVA). Plaintiffs say this violates the Constitution’s supremacy clause.
The agency risks dilutions of military votes by allowing ineligible individuals abroad to vote by absentee ballot, the suit argues.
The federal indictment of the Iranian nationals Sept. 27 comes just three years after another indictment that accused Iranian nationals of breaching Alaska’s voter registration system. That breach resulted in the unauthorized download of private voter data such as Social Security numbers and driver’s license numbers for more than 100,000 registrants, the earlier indictment alleged.
Plaintiffs in the Pennsylvania case note the Iranian hackers used the Alaska data to create a video showing how they could corrupt the voting systems set up by the Uniformed and Overseas Citizens Absentee Voting Act of 1986.
The Help America Vote Act of 2002 requires states to match an applicant’s provided identification numbers with information in official databases before allowing an overseas resident to vote in a federal election.
The six House Republicans are asking the court to declare that the Pennsylvania Department of State violated HAVA with its directives exempting voters eligible under UOCAVA from first meeting the federal requirement for identity verification.
The lawmakers ask the court to order correction of the directives to meet minimum standards under the Help America Vote Act.
They also ask for a preliminary injunction instructing Pennsylvania’s election officials to provide directions to county election officials on legally mandated procedures to comply with federal and state law. This would include requiring verification of the identity and eligibility of applicants for overseas absentee ballots prior to accepting and counting those ballots.
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