sing a "how-to-challenge-absentee-ballots-for-fun-and-political-advantage" memo, Democratic lawyers successfully disqualified approximately 1,400 overseas absentee ballots in Florida. Many of the targeted ballots were from military voters, and many of these were disqualified because they lacked postmarks as required by Florida law. But Florida's postmark requirement as applied may contradict federal law, in which case the Supremacy Clause of the Constitution mandates that the federal law be observed and that these votes be counted.

Florida law states that absentee ballots from qualified overseas voters are valid only if mailed with a postmark. Before those seeking to deny military men and women of their vote do a little disqualification dance, however, it is worth noting that the Florida statute is not the only law on the subject of overseas ballots. Pursuant to the Uniformed and Overseas Citizens Absentee Voting Act, Congress established that ballots from qualified military and overseas voters "shall be carried expeditiously and free of postage." Both of these requirements are important, and both potentially contradict — and thereby preempt — Florida law.

First, there is evidence that the Military Postal Service did not postmark the ballots in order to carry the ballots "expeditiously." Deputy Director of the Military Postal Service E. M. DuComm has attested that "there are instances when time constraints do not allow for proper postmarking/cancellation of mail…. The last flight may be departing ship and the mail has to get on it…. No one is going to refuse to take a letter or ballot at the last minute because they do not have time to postmark it. It could be weeks before they see mail service again." Waiting weeks would effectively deny the armed-service members of their votes, and would not meet the statutory requirement of expeditious carrying. Accordingly, to the extent that Florida's postmark requirement impairs the Military Postal Service from carrying out the expeditious requirement of the Uniformed and Overseas Absentee Voting Act and thereby contradicts the requirements of that Act, the Supremacy Clause requires that the federal law be adhered to and that the votes therefore be counted.

Second, the federal requirement that overseas ballots be carried free of postage raises a question of fact as to whether postage-free ballots actually carry a postmark. If the postal service does not require postmarks for or uniformly apply them to congressionally authorized postage-free mail, then the provision that ballots be mailed free of postage implicitly means free of postmarks as well. This result would also set up a conflict between federal and state law, and the Constitution would once again require the federal law to prevail and the ballots therefore to be counted.

Congress passed the Uniformed and Overseas Voting Act in order to maximize access to the polls by members of the armed forces and by citizens overseas. In addition to the mailing requirements, the Act recommends that states take a number of steps to make voting more accessible to overseas voters, including waiving registration requirements, expediting ballot processing, and allowing ballot oaths to be administered by commissioned officers. The cumulative effect of the Act is to take account of the difficulties of voting overseas, and to make reasonable accommodations to assure that these citizens have a genuine opportunity to vote. The application of Florida's postmark law was, by contrast, a blatant and coordinated attempt to capitalize on these same voting difficulties by those seeking to deny the men and women serving our country of their votes. To the extent that adherence to Florida's postmark law contradicts the requirements of federal law, the Constitution requires that the state law be preempted, and that the absentee votes disqualified by that law be counted.