Appendix A

State Waiver Guidance

I. Background 

The Uniformed and Overseas Citizens Absentee Voting Act (UOCAVA) requires States to transmit 

absentee ballots to uniformed services voters and overseas voters not later than 45 days prior to 

an election for Federal office (the “45-day-prior requirement”), including all general, special, 

primary (including Presidential preference primaries), and run-off elections.1 UOCAVA requires

chief State election officials to request waivers from the Presidential Designee2 if they are unable 

to comply with this requirement due to an undue hardship. UOCAVA authorizes the Presidential 

Designee to grant a waiver only to those States requesting a waiver under one of three 

circumstances: 

1. The State’s primary election date prohibits the State from complying with 52 U.S.C. 

§ 20302(a)(8)(A); 

2. The State has suffered a delay in generating ballots due to a legal contest; or

3. The State Constitution prohibits the State from complying with 52 U.S.C. 

§ 20302(a)(8)(A).

3

The Presidential Designee, after consultation with the Attorney General, shall approve such a 

request if the Presidential Designee determines that each of the following requirements is met: 

1. One or more of the three above-referenced issues creates an undue hardship for the State; 

and

2. The State’s comprehensive plan4 presented in support of its request provides absent 

uniformed services voters and overseas voters sufficient time to receive and submit 

absentee ballots in time to be counted in the Federal election.

The Federal Voting Assistance Program (FVAP),5 after consultation with the representative of the 

Attorney General, provides the following guidance on this undue hardship waiver process. A 

State considering a waiver application is encouraged to contact FVAP well in advance to discuss 

potential alternatives. While not required, such a communication may assist State officials in 

determining the eligibility to seek a waiver, identify ways to ensure a complete waiver 

application, and examine possible alternatives to seeking a waiver. 

 

1 52 U.S.C. § 20302(a)(8)(A).

2 52 U.S.C. § 20302(g)(1). The Secretary of Defense was designated the Presidential Designee by Executive Order 12642 (June 8, 1988), 53 Fed. 

Reg. 21,975. The Secretary of Defense has delegated this authority to the Under Secretary of Defense (Personnel & Readiness) through

Department of Defense Directive (DoDD) 5124.02. For purposes of this memorandum, the term "Presidential Designee" includes those officials 

exercising authority delegated by the Secretary of Defense.

3 52 U.S.C. § 20302(g)(2)(B).

4 52 U.S.C. § 20302(g)(1)(D).

5 DoDI 1000.04.
II. Scope of Waiver Authority

UOCAVA authorizes the Presidential Designee to issue a waiver only in situations in which a 

State faces an undue hardship caused by one or more of three specific circumstances. Since 

Congress enacted the 45-day-prior requirement in amendments to UOCAVA found in the 2009 

Military and Overseas Voter Empowerment (MOVE) Act, States have had the opportunity to 

conform their election laws to UOCAVA’s requirements and thus avoid the likelihood of any type 

of circumstance arising that interferes with compliance with the 45-day-prior requirement. The 

Presidential Designee’s determination of whether an undue hardship has arisen will take into 

account the extent to which such efforts have been made.

A. First Undue Hardship Situation: Primary Election Date, 52 U.S.C. § 20302(g)(2)(B)(i). 

Prior to the 2009 MOVE Act amendment to UOCAVA, some States held primary elections 

that were too late to allow for the general election ballots to be finalized in time to 

transmit them prior to the 45-day deadline. 52 U.S.C. §20302(g)(2)(B)(i) authorizes 

issuance of a waiver of the 45-day-prior requirement for a general election where this 

specific circumstance exists. 

Any waiver application submitted for a general election, based in whole or in part on the 

primary election date, should describe all efforts the State has undertaken since 2009 to 

conform its election statutes and rules to UOCAVA’s requirements and why those efforts 

have failed. 

B. Second Undue Hardship Situation: Legal Contest, 52 U.S.C. § 20302(g)(2)(B)(ii). The 

second circumstance under which the Presidential Designee is authorized to consider a 

waiver of the 45-day prior requirement is where a legal contest, such as a contested 

primary election, has caused a delay in generating ballots. This provision recognizes that 

legal proceedings can sometimes be unpredictable and cause unexpected delays in 

finalizing ballots. In evaluating whether a legal contest has created an undue hardship, the 

Presidential Designee will consider the extent to which the contest is of an unusual nature 

or length as well as whether the contest could have been foreseen and accounted for when

creating the State’s election calendar.

C. Third Undue Hardship Situation: Constitutional Conflict, 52 U.S.C. 

§ 20302(g)(2)(B)(iii). States have had the opportunity to resolve any conflicts between 

their constitutions and the 45-day prior requirement in the years since that requirement 

was imposed by the MOVE Act. Any waiver application submitted based on a 

constitutional conflict should describe all efforts the State has undertaken since 2009 to 

conform its constitution to UOCAVA’s requirements and why those efforts have failed.

D. Authority to Request a Waiver: Only a chief State election official is authorized to request 

a waiver from the Presidential Designee. Although waiver applications need not apply to 

the entire State, all applications must be submitted by the chief State election official. For 

example, if a chief State election official believes an election jurisdiction within the State 

will be unable to transmit ballots at least 45 days before the election (based on one of the 

three waiver categories above), but that such failures will not extend statewide, the chief 

State election official is nevertheless the only official authorized to seek a waiver. When 
submitting a waiver request due to a legal contest, a State must clearly identify which 

specific jurisdiction(s) are affected. For example, a request based on a legal contest 

involving candidates in one Congressional District of a State would only apply to requests 

for ballots from UOCAVA voters in that district. The waiver, if granted, would apply only 

to those ballots. 

III. Waiver Application Requirements

A. Minimum Submission Requirements: UOCAVA requires that a State’s 45-day waiver 

application include the following information: 

1. A recognition that the purpose of UOCAVA’s 45-day-prior requirement is to allow 

UOCAVA voters enough time to vote and have their votes counted in an election for 

Federal office.

2. An explanation of the hardship that indicates why the State is unable to comply with 

the 45-day-prior requirement; 

3. The number of days prior to the Federal election at issue that the State will require the 

UOCAVA ballots to be sent to UOCAVA voters; and

4. A comprehensive plan that includes (a) the steps the State will take to ensure 

UOCAVA voters have time to receive, mark, and submit their ballots in time to have 

them counted in the election, (b) why the plan provides sufficient time to vote as a 

substitute for sending the ballots 45 days prior to the election, and (c) the underlying 

factual information to support the explanation in (b).6

 

B. Timing: A waiver application based on the primary election date or a constitutional 

conflict (52 U.S.C. § 20302(g)(2)(B)(i) or (iii)) must be received by FVAP no later than 

90 days before the subject election for Federal office. The Presidential Designee is 

required to approve or deny the waiver request no later than 65 days prior to the Federal 

election for which the waiver is sought. 

A waiver application based on a legal contest must be submitted “as soon as 

practicable,”7 and the Presidential Designee is required to approve or deny the waiver 

request within five business days of receipt of the waiver request. A State should contact 

FVAP informally as soon as it becomes apparent that a legal contest may interfere with 

the State’s ability to transmit ballots on time. 

FVAP staff will acknowledge date of receipt of all submissions. For all waiver 

applications, if a waiver request is denied before the statutory application deadline, a 

State may resubmit a revised waiver request so long as it is submitted by the statutory 

application deadline and addresses the reason(s) for the denial of the initial waiver 

request.

 

6 52 U.S.C. § 20302(g)(1)(A). 7 52 U.S.C. § 20302(g)(3)(B).
If the Presidential Designee, or FVAP staff, request supplemental information, whether 

before or after the statutory waiver application deadline, any response should be made as 

soon as possible, as failure to do so could result in denial of a waiver request. 

Unsolicited supplementary information submitted by a State after the application deadline 

will be considered where practicable.

C. Method of Submission: States may submit waiver applications by postal mail, but all 

applications should also be submitted by email to vote@fvap.gov. Email transmission 

provides an immediate, confirmed time of application receipt. Digital signature is 

sufficient for this application. 

D. Presidential Designee’s Process: The Under Secretary of Defense for Personnel and 

Readiness (USD(P&R)), acting on authority delegated by the Secretary of Defense,

reviews States’ waiver applications, consults with the representative(s) of the Attorney 

General, and determines whether State applications meet the requirements for a one-time 

undue hardship waiver under UOCAVA.

8

 

The State’s waiver request consists of the original waiver request and any subsequent 

supplementary information provided, whether contained in the post-application 

discussions between the chief State Election Official and FVAP or in written responses or 

materials provided. In addition to the waiver application, only those communications 

made with or provided to FVAP officials will be considered as part of the waiver request. 

Although not mandated, using the attached cover sheet template (Appendix B) will 

facilitate prompt analysis of a State’s waiver request by the Presidential Designee.

Approval or denial of a waiver request will be made in writing to the State from 

USD(P&R). The response will contain an explanation and rationale for the decision 

predicated on the assertions made by the State in its waiver request. FVAP will also 

deliver electronic copies of those decision letters as soon as possible and will call chief 

State election officials to relay any decision.

IV. Presidential Designee’s Evaluation of Waiver Applications

A. Undue Hardship: A State must explain in its application why one of the three enumerated 

issues under 52 U.S.C. § 20302(g)(2)(B) creates an undue hardship that prohibits the 

State from complying with the 45-day-prior requirement. The simple existence of one of 

the enumerated issues does not automatically mean that the State suffers an undue 

hardship.9 Legislative inaction, logistical difficulties, inconveniences, or added costs 

arising from compliance with 52 U.S.C. § 20302(a)(8)(A) may not, on their own, create 

an undue hardship. A finding by the Presidential Designee as to whether an enumerated 

issue creates an undue hardship depends on: 

1. The type of election for which the waiver is requested;

2. The impact of complying with the 45-day-prior requirement on all of the State’s 

voters and on the election for Federal office; 

 

8 52 U.S.C. § 20302(g)(2).

9 52 U.S.C. § 20302(g)(1)(B).
3. How much time has passed since the condition was first created; 

4. Other emergent circumstances, such as a ballot legality challenge; 

5. The time still available to the State or local election official to remedy the issue 

without a waiver; and 

6. The alternatives available to the State or locality to remedy the issue without the need 

for a waiver.

B. The Comprehensive Plan: In order to receive full consideration, a State’s comprehensive 

plan presented in support of its waiver request should demonstrate that UOCAVA voters 

will be provided sufficient time to receive, mark, and return absentee ballots they have 

requested in time to be counted in the Federal election. The State must explain how its

plan provides UOCAVA voters sufficient time to vote as a substitute for transmitting 

ballots at least 45 days before election day. The comprehensive plan will be evaluated 

against several criteria, and the analysis of whether a State’s plan provides sufficient time 

will consider the totality of circumstances presented in the comprehensive plan. Among 

the issues the Presidential Designee considers are the total time a voter has to receive, 

mark, and return the ballot and have it counted (both before and after Election Day); the 

number and accessibility of alternative methods provided for ballot transmission and 

return (if applicable); and any other measures that may improve the likelihood a 

UOCAVA voter will be able to receive, mark, and return the ballot and have it counted. 

1. Total Ballot Transit Days: The plan must specify the total number of days a UOCAVA

voter whose ballot is transmitted by mail or electronic means will have to receive, mark, 

and return the ballot and have the ballot counted in the election (including the number of 

days before and after Election Day). Absent a waiver, UOCAVA requires States to 

transmit absentee ballots 45 days prior to Election Day. Thus, the Presidential Designee 

will consider the extent to which the State’s plan provides at least a 45-day total transit 

period for UOCAVA ballots by accepting ballots voted by Election Day, but returned by 

postal mail for some period of time after Election Day. The plan should indicate whether 

the State has administrative or other authority to extend the receipt deadline for ballots 

returned by mail by at least the number of days the ballots will be sent beyond the 45th

day prior to the election. For example, if, because of the applicable undue hardship, the 

ballots cannot be sent until 10 days after the 45-day prior deadline, the State should 

indicate whether it will accept and count otherwise valid ballots returned by mail at least 

10 days after Election Day (provided they are voted by the state’s required deadline). 

Comprehensive plans that include extended ballot receipt deadlines should maximize the 

number of days before an election that ballots are transmitted to ensure time to receive 

and mark ballots by Election Day.

2. Ballot Transmission Methods: The Presidential Designee will consider the extent to 

which the plan includes any alternative transmission method(s) available to UOCAVA

voters for obtaining and/or returning ballots in addition to postal mail, such as facsimile, 

email, online posting of blank ballots, or other means. UOCAVA requires all States to 

provide at least one method of electronic transmission of the blank ballots in conjunction 

with the 45-day prior transmission of ballots. As a general rule, a State’s comprehensive 

plan should provide more than one method of electronic or other expedited transmission 
in order to mitigate the harm from sending ballots later than the 45th day before the 

election. The consideration and potential use of commercial contract courier services or 

priority mail treatments also should be addressed in the comprehensive plan. This is 

important because although some UOCAVA voters may benefit from available electronic 

transmission options, States must ensure that all UOCAVA voters who elect to receive 

and/or return paper ballots by postal mail have sufficient time to receive, mark, and return 

them in time to be counted. This is necessary both to accommodate voters with limited 

access to the internet or to electronic equipment, and to permit voters the option 

guaranteed by UOCAVA to receive and return their ballots through regular mail to avoid 

any concerns they may have related to electronic transmission, such as the security or 

secrecy of their ballot. 

To inform the analysis of the impact of the available transmission options, the plan 

should also include, if available, a description of the universe of affected UOCAVA voters 

for the subject Federal election, including the total number of voters, broken out by type 

of voter (i.e. uniformed services voters with APO and FPO addresses; uniformed services 

voters at a street address within the United States; and overseas civilian voters) and their 

requested transmission method. The plan should provide a full explanation as to how 

UOCAVA voters may access any online ballot or ballot delivery system(s) if available. 

Also, copies of the directions given to voters, voter education materials for voters to gain 

access to online ballot or ballot delivery system(s) to supplement the explanation will 

help to further analysis. 

3. Additional measures to provide sufficient time: The Presidential Designee will 

consider any additional efforts made by the State that improve the likelihood a UOCAVA

voter would be able to receive, mark, and return the ballot and have it counted, such as, 

for example, efforts to contact UOCAVA voters directly or by other means to alert them of 

the option for electronic transmission and to solicit contact information. Providing copies 

of any notices and instructions (planned or already disseminated) to UOCAVA voters 

related to the potential delay in sending ballots may be helpful. 

4. Comprehensive Plan Implementation: A description of which State or local officials 

will be responsible for carrying out the comprehensive plan and how the State will ensure 

compliance. Further, the comprehensive plan must detail how the State will monitor and 

enforce local compliance, and how it will inform FVAP and the Department of Justice 

(DOJ) Voting Section of any problems in implementing the comprehensive plan as 

proposed. 

V. Reporting and Evaluation 

To ensure States comply with any granted waiver agreement, and to evaluate the effectiveness of 

the comprehensive plan, States must agree to provide FVAP pre- and post-election reports and 

evaluations, which must include the following: 

A. Certification: In order to receive full consideration, the chief State election 

official should, by the date prescribed in the waiver approval letter (usually the 
calendar day after the deadline specified), certify that ballots were transmitted to 

UOCAVA voters on the date and in the manner described in the waiver 

application, as well as provide: 

1. the numbers of ballots sent to absent uniformed services voters with APO 

and FPO addresses; 

2. the number of ballots sent to uniformed services voters at a street address 

within the United States; 

3. the number of ballots sent to overseas civilian voters; and 

4. a breakdown of further details about each of the above categories showing 

ballots sent by fax or email, provided through any online ballot delivery 

system(s), and sent by postal mail or by private courier. 

B. A post-election report detailing: 

1. the number of ballots from each of the above groups returned in time to be 

counted; 

2. the number of ballots from each of these groups returned too late to be 

counted; 

3. a breakdown of further details about each of the above categories showing 

ballots returned by fax or email, ballots returned by voters through any 

online ballot delivery system(s), and sent back by postal mail or by private 

courier; 

4. any feedback, whether positive or negative, received from voters about 

any elements of the State’s comprehensive plan; 

5. analysis of how implementation of the comprehensive plan on which the 

waiver was based impacted the return of voted ballots in the affected 

jurisdictions; and 

6. analysis that demonstrates the effectiveness of the comprehensive plan, 

including information showing quantitatively the results of the 

comprehensive plan, and how the plan provided UOCAVA voters sufficient 

opportunity to receive, mark, and return their ballots in time to have them 

counted, sufficient to serve as a substitute for the 45-day-prior 

requirement.

7. a description of how the State plans to resolve the underlying issue that led 

to the need to seek a waiver prior to the next election for Federal office, 

including steps already taken, to be taken, timelines, and any supporting 

documentation. 

VI. Assistance

For additional assistance, please contact FVAP at vote@fvap.gov, or 1-(800) 438-8683. 

Frequently asked questions and answers (Appendix C), attached, will be updated as necessary on 

the FVAP website at the waiver page.
Appendix B 

Suggested Template Cover Page for a State Undue Hardship Waiver Request

1. State Name ( ) and postal abbreviation ( )

2. Chief State Election Official (CSEO)

First Name: Last Name: 

Title: 

Address: 

Address: 

City: State: Zip: +4: 

Email: Phone: Fax: 

 

Signature (digital signature accepted): Date:

3. Preferred State Election Contact:

First Name: Last Name: 

Title: 

Address: 

Address: 

City: State: Zip: +4: 

Email: Phone: Fax: 

4. Acknowledgment of UOCAVA voters’ right to vote 

(State) recognizes that the purpose of 52 U.S.C. §20302(a)(8)(A) is to allow absent uniformed 

services voters and overseas voters sufficient time to vote in an election for Federal office.

Type initials: Date: 

5. Type of hardship claimed (check one)

 52 U.S.C. §20302(g)(2)(B)(i) Undue hardship due to a late primary. 

 52 U.S.C. §20302(g)(2)(B)(ii) Undue hardship due to a legal challenge 

 52 U.S.C. §20302(g)(2)(B)(iii) Undue hardship caused by a State constitutional prohibition. 

6. Please indicate the location in the package that contains the State’s explanation for the 

necessity of the waiver request. 

7. On what date(s) will the State require ballots to be available and sent?

8. Please indicate the location in the package that contains the State’s explanation of how 

the comprehensive plan provides sufficient time for UOCAVA voters, who have timely 

submitted an absentee ballot request, to receive, mark, and return their ballots in time 

to have those ballots counted. 

9. If requesting a 52 U.S.C. §20302(g)(2)(B)(i) and/or (g)(2)(B)(iii) waiver, explain why 

there has not been a resolution of this issue(s) between the 2009 enactment of the 

MOVE Act and the date of this waiver request. 
Appendix C 

Frequently Asked Questions (FAQs) About UOCAVA’s Hardship Waiver Provisions

April 20, 2022 

1. What requirements can be waived?

The Uniformed and Overseas Citizens Absentee Voting Act (UOCAVA) requires 

States1 to send absentee ballots to those voters covered by UOCAVA 45 days before 

an election for Federal office. The UOCAVA waiver process allows States to request 

of the UOCAVA Presidential Designee2 a waiver for a particular Federal election of 

the requirement to send out absentee ballots to UOCAVA voters who have an 

application for an absentee ballot already received by the appropriate elections office 

no later than 45 days prior to Election Day. This is the only State requirement under 

UOCAVA that can be waived.

2. For what reasons can a State request a waiver? 

Congress has specified three circumstances that may cause an undue hardship that 

could prevent a State from meeting its obligation to UOCAVA voters, and in which a 

State may request a waiver. These reasons are: (a) a primary election date that 

prohibits a State from complying, (b) a delay in generating ballots due to a legal 

contest, or (c) a State constitutional provision that prohibits compliance.3 

 

3. When can a State apply for a waiver? 

For requests arising from a late primary date or a State constitutional issue, a State 

may apply for a waiver at any time, up to the statutory deadline of 90 days before an 

election for Federal office. 

States seeking to request a waiver due to a legal contest that delays generation of the 

printing of absentee ballots must apply “as soon as practicable.” It may be premature: 

however, to seek a waiver for a legal contest until closer to the transmission deadline 

or before the court has issued its ruling. 

4. How long will it take to know if a waiver request has been approved or denied?

Under UOCAVA, the Presidential Designee is required to respond to a waiver request 

based on a legal contest that has caused a delay in generating absentee ballots4 within 

5 business days of receipt of that request.5

 

For waiver requests received no later than 90 days prior to a Federal election, if the 

waiver is requested based on either a late primary date6 or a State constitutional 

issue,7 the Presidential Designee has until 65 days prior to the Federal election to 

 

1 As defined by UOCAVA, State here means “a State of the United States, the District of Columbia, the Commonwealth of Puerto Rico, Guam, 

the Virgin Islands, and American Samoa.” 52 U.S.C. § 20310(6). 

2 The Secretary of Defense has delegated this designation to the Deputy Under Secretary of Defense for Personnel Readiness. 

3 52 U.S.C. § 20302(g)(2)(B)(i)-(iii) 

4 52 U.S.C. § 20302(g)(2)(B)(ii)

5 52 U.S.C. § 20302(g)(3)

6 52 U.S.C. § 20302(g)(2)(B)(i)

7 52 U.S.C. § 20302(g)(2)(B)(iii)
respond. For requests received well before the statutory deadline, FVAP will seek to 

facilitate a response to a State’s request in a timely manner.

5. May a waiver be amended after submission?

Yes. Prior to the statutory deadline for submission, a State may amend a waiver 

request that has been previously submitted either on its own initiative or in response 

to a request for additional information from FVAP. Subsequent to the statutory 

deadline for a submission, a State may amend its waiver request in response to a 

request for additional information from FVAP. However, a State seeking to amend its 

waiver request on its own initiative after formally submitting the request should first 

consult with FVAP. Such an amendment may prevent FVAP from responding to the 

waiver request by 65 days before an election for Federal office or within 5 business 

days as required under 52 U.S.C. §20302(g)(3).

6. If a waiver request is denied, is it possible to reapply?

Yes. If the basis for the hardship request is due to a late primary date or a State 

constitutional prohibition, a State may reapply subsequent to receiving a denial of its 

waiver request if the new request is still made before the statutory last date of 90 days 

prior to a Federal election. A State may also reapply subsequent to a waiver being 

denied if the basis for the hardship request is due to a delay in generating ballots due 

to a legal contest. In either case, the reapplication must otherwise meet the statutory 

requirements of a waiver request and cure the deficiencies that caused the initial 

denial.

7. How long will this waiver last?

As stated under UOCAVA, a waiver is only valid for the specific election for Federal 

office for which the waiver was requested.8

 A State needs to apply for a new waiver 

for each subsequent election for Federal office for which it believes it has appropriate 

grounds under the statutory language. Please note that grounds for a waiver request 

for one election, and the State’s comprehensive plan to cure the hardship that is part 

of that request, may not necessarily be grounds for a waiver in a subsequent election.

8. Are there ways that States may be able to avoid the need for a waiver? 

Some States may encounter scheduling problems that delay the printing of official 

ballots by the 45th day prior to an election, but not all States in such a situation will 

necessarily require an undue hardship waiver. In certain past instances, States were 

able to send UOCAVA voters the photocopied, camera-ready, or PDF versions of the 

certified final ballot by the 45th day prior to the election. Timely transmittal of such a 

ballot, although not yet “printed,” if accepted by the State as an official ballot, 

satisfies the 45-day-prior requirement of UOCAVA and eliminates the need for a 

waiver. If such copies of the official ballot are used, a State should ensure appropriate 

instructions are included with the ballot to advise voters that it is an official ballot that 

will be accepted if otherwise timely and validly cast. During discussions with FVAP, 

some States also determined they could shorten their primary certification and ballot 

generation process to meet the 45-day-prior requirement. These examples are 

provided as suggestions for possible resolutions to some scheduling problems related 

to printing official ballots. A State unsure as to whether these or any other approaches 

 8 52 U.S.C. § 20302(g)(4)
might alleviate the need for a waiver request should contact the Federal Voting 

Assistance Program.