Will the special election to fill David Cicilline's seat violate federal law?

The timeline required by state law creates a possible conflict with the Uniformed and Overseas Citizens Absentee Voting Act

Earlier today, Congressman David Cicilline, who has represented Rhode Island’s 1st congressional district since 2011, announced that he would resign from Congress, effective June 1. Accordingly, Governor Dan McKee will need to schedule a special election to fill Cicilline’s seat at some point this year. State law allows the Governor a reasonable amount of discretion in doing so, simply requiring that he schedule the election “at as early a date . . . as will be in compliance with the provisions of law in relation to this elections[.]”

Because Rhode Island hasn’t held a special congressional election since 1967(!), the legislature hasn’t had reason to revisit this statute very frequently; as such, with the exception of some minor tweaks, it hasn’t been materially modified since the mid-twentieth century.

While there are some general downsides to leaving statutes untouched for more than half a century, the failure to modify this statute might present a real problem for the conduct of the special election to fill Cicilline’s seat—because as the law stands, it mandates a timeline that may conflict with the federal Uniformed and Overseas Citizens Absentee Voting Act (UOCAVA).

UOCAVA was passed in 1986, and was drafted to give members of the United States military, as well as U.S. citizens residing overseas, the opportunity to participate in federal elections. It was modified in 2009 with the passage of the Military and Overseas Voter Empowerment (MOVE) Act. UOCAVA relevantly requires, among other things, that states allow qualified voters to receive an absentee ballot for primary and general elections 45 days prior to the date of the election. In effect, this requires that states have a final list of candidates at least 45 days prior to the primary election, and that 45 days elapse between the primary and general election.

But Rhode Island state law articulates a timeline that might violate both of these requirements. Candidate filing takes place on the 39th and 40th days prior to the special primary election (section 17-14-1 of Rhode Island General Laws), and the special primary election has to take place no later than 30 days before the special general election (section 17-15-3).

UOCAVA allows states to receive a hardship waiver, which exempts them from complying with these requirements, if “[o]ne or more of the following issues creates an undue hardship for the State”:

(i) The State’s primary election date prohibits the State from complying with subsection (a)(8)(A) [which establishes the 45-day requirement for transmitting absentee ballots]

(ii) The State has suffered a delay in generating ballots due to a legal contest.

(iii) The State Constitution prohibits the State from complying with such subsection.

In 2010, because Rhode Island’s September 14 primary election date prevented the state from transmitting general-election ballots to qualified overseas voters, the state received an exemption from the federal government, and sent write-in ballots to these voters instead.

In the context of a special election, the dates aren’t set in stone. The Governor issues a writ calling a special election, and the State Board of Elections sets the date for the primary election. State law only requires that the primary election take place “by the thirtieth day preceding the date fixed for the special [general] election,” so the Board could easily set a primary-election date far enough out from the general election that this isn’t an issue.

And in any event, it might be possible for Rhode Island to receive an undue-hardship waiver under UOCAVA. Admittedly, state law doesn’t literally mandate that the primary election take place 30 days before the general—it just has to be held by then. But if the State Board opted to set a primary-election date that didn’t allow for the full 45-day window for overseas absentee ballots, the state might be able to seek a waiver. The federal government can only grant such a request if qualified overseas voters are provided “sufficient time” to receive and submit the ballots they’ve requested. (I’m skeptical that such a waiver would be approved, given that the state’s primary-election date doesn’t actually “prohibit[] the State from complying.”)

But even if Rhode Island is able to get a waiver for the time period between the primary and general election, my read of UOCAVA’s undue-hardship-waiver provision wouldn’t allow the state to receive an exemption because of the date of candidate filing. It’s entirely possible for overseas voters to receive a blank absentee ballot for the general election, because they’re entitled to write in the name of the candidate or the political party they intend to vote for. It’s not possible to do the same in the primary election if the field of candidates isn’t settled within the 45-day window. And it’s not the “State’s primary election date” that would cause Rhode Island to be out of compliance—it’s the candidate filing date. There’s no authority in federal statutes for a waiver to be requested on that basis, much less granted.

However, Rhode Island has plenty of time to alter its statutes to comply with UOCAVA. Cicilline isn’t resigning his seat until June, and the General Assembly is currently in session. So it could push back the candidate-filing deadline to, say, 60 days before the special primary election, which would likely give the state enough time to send out absentee ballots within the 45-day window.

Given that Rhode Island hasn’t had to deal with a special congressional election since the passage of UOCAVA, it’s understandable that the legislature hadn’t revisited the candidate-filing deadline. But this is an easy fix that requires changing just a few words in the statute.