Election Officials Need to Help Protect Voters Caught Up in Foreclosure in 2010

09/01/2010 12:14 pm ET | Updated May 25, 2011

Foreclosure remains a serious problem in the United States.  According to RealtyTrac, there were 2.3 million foreclosure filings in 2008, another 2.8 million filings in 2009, and there will be an estimated 3.1 million foreclosure filings in 2010.  With almost two voting-age adults on average per household, this increasing problem – which often takes months, or even years, to sort out for each homeowner – could affect the ability of millions of people to vote if steps are not taken to minimize its impact.  

Fair Elections Legal Network has published a report, entitled Lose Your Home, Keep Your Vote: How to Protect Voters Caught Up in Foreclosure, that urges election officials to interpret state law and issue clear guidance in ways that would protect voters in residential limbo this November.  FELN has also published helpful state guides to inform voters of their rights.

Foreclosure affects voting because one must reside or be deemed to have a residence in a state in order to vote.  The foreclosure process throws a voter’s residency into doubt.  Voters who have received foreclosure notices may (a) continue to live in their home, (b) be forced out but be legally entitled to return under a right of redemption, (c) be permanently displaced and forced to live in temporary housing, or (d) find a new permanent home.  Each situation may be treated differently under state election law, often making it unclear what a person’s voting residency is during this difficult period. 

Voters in the foreclosure process who remain in their homes should have no voting problems but, in past elections, they have been put at risk by partisans filing or threatening to file direct challenges to their voting rights, or by attempts to intimidate them into staying away from the polls.  In the charged political atmosphere of 2010, such threats could arise again.

Voters forced out of their foreclosed homes can have difficulty documenting their residency if they need to update or change their registration on or before Election Day.  If a voter has no stable new residence – for example, if he or she is staying with in-laws or friends – it may be difficult to obtain the types of official documents with the voter’s name and current address that are often needed to update their voter registration to the address of the temporary housing.  Voter registration deadlines may also expire while foreclosed homeowners deal with residential uncertainty. 

Foreclosure is not spread equally among the electorate.  It disproportionately affects minority homeowners, and thus, minority voters.  A 2008 study, for example, found that middle and upper-income African Americans were at least twice as likely as middle and upper-income whites to receive sub-prime loans in metro areas across the country, even though credit scores and other financial measures were comparable.  Sub-prime home loans are much more likely to default and be subject to foreclosure. 

Foreclosures are also not spread equally throughout the country.  The most heavily-impacted states – like Florida, Nevada, Arizona, California, Illinois, Ohio, and Michigan – are several times worse off than the average state.  If even some of the voters in foreclosed homes are disenfranchised, it could affect numerous elections in 2010.

The solution to this crisis is to establish clear guidelines in every state that will protect the franchise of citizens thrown into residential uncertainty by the foreclosure process.  Voters should not lose their right to vote simply because they have lost their homes.

First, Secretaries of State should publicly state that voters who retain any connection to their foreclosed home at the time of the election may vote from that address if registered, and that challenges to those voters at the polls will not be tolerated.  Confusion and partisan threats ought to be eliminated by forceful and clear action. 

Second, states should consider ways to accommodate voters forced from their homes as elections approach.  There are millions of Americans who face residential uncertainty on Election Day, but whose franchise we protect.  For example, members of the military and voters living overseas are allowed under federal law to register to vote in the jurisdiction of their last U.S. residence, even if they retain no connection to it.  Voters away from a jurisdiction can cast absentee ballots, even if they are absent for an extended period.  College students can register and vote where their parents reside, regardless of whether they intend to return to that jurisdiction.   

States should apply the same accommodations to voters affected by foreclosure.  The residency, identification, and registration deadline problems for those in foreclosure could be solved if we treated them like military and overseas voters and allowed them to continue to vote where their foreclosed home is located until they have established a new permanent residence and changed their voter registration.  A voter’s franchise would thus be protected during the period of uncertainty that foreclosure entails.  This is the simplest, and fairest, solution.

In many states, this approach is already the law.  In California, for example, voters are entitled to retain their “domicile” at their former address until they have established a new one.  A temporary residence does not necessarily qualify.  Only when they have chosen a more permanent address will it supplant their former domicile at their foreclosed home.  At least 16 additional states – Alabama, Arkansas, Colorado, Georgia, Illinois, Indiana, Kentucky, Maryland, Mississippi, Montana, North Carolina, North Dakota, Oklahoma, Oregon, Pennsylvania, and Tennessee – appear to define voting residency in a similar way.  If Secretaries of State were to clarify those laws, as California’s has been, it would enable foreclosure victims to vote using their old home address while they face residential uncertainty. 

Alternatively, Secretaries of State must issue clear guidance to voters dealing with foreclosure on how they can update their voter registrations – in many cases up through Election Day – depending on their particular circumstances, and vote this November.


To download our report and other materials, please visit