2010 Enforcement of the MOVE Act

By Tracy Russo

The Justice Department recently submitted a mandatory report to Congress summarizing the unprecedented efforts undertaken to protect the voting rights of military and overseas voters for the November 2, 2010, Federal general election through its enforcement of the Military and Overseas Voter Empowerment (MOVE Act), which amended the Uniformed and Overseas Citizens and Absentee Voting Act (UOCAVA).

Through the aggressive enforcement of the MOVE Act, the Attorney General initiated litigation or out-of-court agreements in 11 states, 2 territories and the District of Columbia.  As a result of the Department’s actions, thousands of military and overseas voters had a reasonable opportunity to cast their vote this year despite the failure of some election officials to timely send their ballots.

The Department’s actions included:

Enforcement actions in States that were denied and granted waivers:

The MOVE Act requires states to transmit validly-requested absentee ballots to UOCAVA voters no later than 45 days before a Federal election when the request has been received by that date, except where the state has been granted an undue-hardship waiver for the election pursuant to the Act.  The Department of Defense (DoD) is responsible for approving or denying requests for waivers.  This year, DoD issued the following determinations on 11 waiver applications:

Denied Waivers: Alaska, Colorado, the District of Columbia, Hawaii, the U.S. Virgin Islands, and Wisconsin.

Approved Waivers: Delaware, Massachusetts, New York, Rhode Island and Washington.

Immediately following the waiver determinations, the Justice Department’s Civil Rights Division advised the six jurisdictions that were denied waivers of plans to take court action, if necessary, to enforce compliance with the 45-day mailing requirement.  The Department filed a lawsuit against Wisconsin, which was resolved by a consent decree filed with the complaint, and reached agreements with the remaining five jurisdictions (Alaska, Colorado, District of Columbia, Hawaii and the U.S. Virgin Islands) to ensure that military and overseas voters had enough time to submit ballots for the upcoming election.

New York was granted a waiver by DoD, and failed to issue ballots in numerous counties across the state by the October 1, 2010, deadline allowed by the waiver.  In order to ensure that military and overseas voters had the opportunity to participate in the November 2010 election, the Department filed a lawsuit against New York and reached an agreement in the form of a consent decree to provide additional time, until November 24, 2010, for receipt of ballots.

Enforcement actions in States that did not seek waivers:

In advance of the 45-day deadline, the Department contacted each of the remaining states and territories that did not seek waivers to remind them of the MOVE Act’s ballot transmission deadline, to inquire whether any ballot delays were anticipated, and to request that they confirm to the Voting Section that their localities had timely transmitted their UOCAVA ballots. The Department subsequently  filed and resolved lawsuits or obtained out of court memorandum or letter agreements to enforce the 45-day requirement with Guam, Illinois, New Mexico, Kansas, Mississippi, Nevada and North Dakota.

Other litigation:

The Department concluded its 2008 litigation against the Commonwealth of Virginia upon the Federal district court’s recent entry of a Consent Decree requiring remedial measures for future Federal elections.

The brave men and women who serve our nation in the military deserve to know that they will have access to the ballot and that their votes will be counted, regardless of where they are stationed.  The Department is committed to assessing the causes of the states’ failures to timely mail ballots to military and overseas voters last year, and requiring states to take the steps needed to ensure compliance with UOCAVA for future Federal elections.