DOJ Responds to Accusation of Stalling on MOVE Act for Voters in Military

The Department of Justice denied accusations by former voting section attorneys who say states are being encouraged to use waivers to bypass the new federal Military and Overseas Voter Empowerment (MOVE) Act.

The accusations prompted Sen. John Cornyn (R-Texas) to write a letter to Attorney General Eric Holder, dated July 26, demanding answers and requesting specific information about how the agency was going to enforce the MOVE Act provision that requires states to send military and overseas voters absentee ballots 45 days prior to elections.

Assistant Attorney General Ronald Weich responded with a letter dated July 30.

"The Department of Justice is firmly committed to ensuring that our men and women serving in the uniformed services and living overseas have the opportunity to vote and to have their votes counted. Any suggestion to the contrary is simply untrue," the letter stated.

"The Department strongly supported the goals of the MOVE Act, which established additional protections for UOCAVA voters. Since its enactment, the Department has devoted significant resources to ensuring successful nationwide implementation of the MOVE Act, including forming a team of attorneys to monitor state compliance with the Act's requirements and monitoring new state legislation."

"The Department of Justice is regularly consulting with the Federal Voting Assistance Program at the Department of Defense regarding state compliance with the MOVE Act and waiver applications for the November 2010 election. Additionally, we have sent letters to every state seeking to determine their plans for coming into compliance with the MOVE Act by the November 2010 general election, and are working to help each state comply. The Department is fully prepared to file suit against states that do not come into compliance, but as with all statutes it enforces, DOJ seeks to ensure compliance without time-consuming or expensive litigation whenever possible."

As of Wednesday afternoon, 12 states had submitted waiver applications, Bob Carey, Federal Voting Assistance Program director told through a spokeswoman.

The states are: Hawaii; New York; Delaware; Virgin Islands; Alaska; Washington; Maryland; Washington, D.C., Massachusetts; Wisconsin; Rhode Island and New Hampshire.

A Colorado secretary of state spokesman said Colorado also will be filing a waiver application by the end of the day.

“It is DOD's responsibility to approve or deny the state waiver requests by August 29, 2010. FVAP and DOJ will continue to work together with all of the states on the waiver process,” Carey said.

The MOVE Act, enacted last October, ensures that servicemen and women serving overseas have ample time to get in their absentee ballots. The result of the DOJ's alleged inaction in enforcing the act, former voting section attorneys Eric Eversole and J. Christian Adams told, could be that thousands of soldiers' ballots will arrive too late to be counted.

Cornyn raised those concerns at a meeting with Defense Department officials two weeks ago, and then in a letter to Attorney General Holder, in which he cited minutes from the 2010 winter meeting of the National Association of Secretaries of State (NASS), during which Rebecca Wertz, deputy chief of the DOJ's voting section, told state election officials that the legislative language regarding waivers is not completely clear.

According to the meeting's minutes, obtained by, Wertz said, “that the DOJ is working to find effective ways to disseminate any information guidance that can help states with different questions about MOVE interpretation. She invited questions and dialogue from states, and said that litigation is always the last resort.”

Cornyn wrote in his July 26 letter to Attorney General Holder, “If these are the positions of the DOJ, then they fly in the face of the clear statutory language, undermine the provisions in question, and jeopardize the voting rights of our men and women in uniform ... The comments by the DOJ official, as reported in the NASS minutes, appear to ignore Congress’ clear legislative language and could facilitate the disenfranchisement of our men and women in uniform.”

He called on Holder to provide him with a state-by-state breakdown based on expected compliance to the MOVE Act’s 45-day requirement.

In the Assistant Attorney General’s response to Sen. Cornyn, those comments were also addressed, “The statements referenced in your letter that have been attributed to Department personnel were taken out of context or misinterpreted. There should be no misunderstanding: we fully enforce the law.”

But Weich did not provided Cornyn with the requested state-by-state breakdown, instead suggesting an in-person briefing with the senator.

Sources tell DOJ officials will meet with Cornyn’s office next week.

“Thus far, the Department of Justice has been responsive to my concerns, which I appreciate. The state-by-state breakdown that I requested from DOJ is forthcoming, and this information is essential for effective congressional oversight of the DOJ,” Cornyn said in a statement to

“Based on preliminary information, it appears that some states are not in compliance with the MOVE Act’s 45-day requirement. If this law is not properly enforced, thousands of military voters will likely be disenfranchised yet again. I refuse to accept that outcome, and I look forward to working closely with the DOJ to ensure the civil rights of our troops and their families are protected.”

Cornyn and former DOJ voting section litigators Adams and Eversole are calling on DOJ to make the process of filing waiver applications transparent. They all want the applications to be made public and be posted online.

Eversole gave this response to Assistant Attorney General's letter to Sen. Cornyn:

"While we are glad to hear that the Department is committed to enforcing the MOVE Act, actions speak louder than words. So when is this action going to occur?  With only 45 days before the deadline for mailing absentee ballots, I am not sure how the Voting Section realistically believes that it will have remedies in place in the next 45 days.
"Nor is it entirely clear why the Voting Section is waiting in some cases.  A few days ago, the Colorado secretary of state's office acknowledged that its waiver application will prevent some military members from voting, especially if they are serving on the front lines of a remote battlefield. What more does the Voting Section need to take action?
"There also are at least six states (Alabama, Connecticut, Massachusetts, Missouri, New Hampshire and New York) that have not complied with the electronic delivery requirements under the MOVE Act. Those provisions -- which are not subject to the waiver requirements -- should have been in place months ago. Again, it is not clear why the Voting Section has waited to take action."