EXCLUSIVE: Feds to Sue New York Board Over Military Voting Violations, State Official Says

The New York State Board of Elections has reached an agreement with the U.S. Department of Justice to settle a lawsuit targeting New York City and four other counties the DOJ has accused of violating the MOVE Act, the state board’s chairman told FoxNews.com on Tuesday.

The agreement was worked out between the Elections Board and the DOJ on Friday and on Tuesday morning, Douglas Kellner, co-chairman of the state board, told FoxNews.com.

He said the agreement was expected to be filed later today in conjunction with an official complaint.

The consent order, Kellner said, would give the federal authorities power to ensure MOVE Act compliance in New York City and four counties — Putnam, Erie, Niagara and Westchester — which still hadn't mailed out their absentee ballots as of their latest deadline.

The legal action would mark the most aggressive federal intervention yet amid an ongoing debate over how to enforce compliance with the 2009 Military and Overseas Voters Empowerment Act, known as the MOVE Act. The Department of Justice is expected to intervene in several New York counties that missed deadlines intended to ensure that overseas ballots are sent, received and counted on time.

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Department of Justice spokeswoman Xochitl Hinojosa said in a statement:

"The department is in urgent discussions with New York officials aimed at achieving a prompt resolution to ensure our men and women serving in the military and our citizens living overseas have the opportunity to vote and have their votes counted."

Kellner said the court order likely will mandate one or a combination of the following:

— Further extend the deadline for when returning ballots can be counted.

— Require election boards that are just now mailing ballots to do so by express mail.

— Send an e-mail notification to every absentee voter on file reminding them that they can download their ballot over the Internet or have the ballot e-mailed to them.

“In either case, the voter would have to print it out,” Kellner said of the third provision, “which doesn’t work for everybody.” (Military personnel serving on the front lines are unlikely to have a printer they can use to easily print out ballots.)

The New York State Board of Elections certifies state ballots and holds a supervisory role over the individual county boards, but the individual counties are charged with getting their own ballots out. 

On Sunday, FoxNews.com reported exclusively that the four New York counties and New York City had missed the deadline. The 2009 MOVE Act requires states to send out ballots to military and overseas voters 45 days prior to an election.

New York State had been granted a waiver to this provision by the Justice Department, giving the local boards an extra 15 days to get their ballots out — until Oct. 1. But that date came and went, and the ballots in the city and four counties remained unsent.

“The Department of Justice certainly wants remedial action — as do we — and a court order might be helpful in that it will give DOJ direct powers of contempt over five county boards that have been out of compliance,” Kellner said.

He said that the five elections boards were told of their legal and legislative obligations to get all absentee ballots out by Oct. 1, but they flouted the law.

“There is no excuse other than defiance,” Kellner said. “They were told what their obligations were, but they didn’t agree with it — and I understand why. It’s because New York’s general election ballot isn’t final yet. The last day for making substitutions is tomorrow.”

Under New York’s election schedule, ballots have until Oct. 12 to be finalized, meaning that the version of the ballot available by the state’s extended deadline was not the final accurate ballot.

“But the state board certified the ballot and reminded them they were still required to send out the ballots. They were required to use the form that was certified on that date," Kellner said. "Some of the local boards thought they knew better than state board of elections or Congress or legislature and did it their own way. ...

“They should drop everything and get these ballots on plane to Afghanistan immediately.”

On Monday, New York City Mayor Michael Bloomberg weighed in.

"I don’t know whether or not the Board of Elections has failed to send out absentee ballots to the military or anybody else, but if they have failed it really is reprehensible," Bloomberg told Fox News.

"We send our young men and women overseas to fight and to die for us, and we don’t care enough to make sure they get the right to exercise their franchise? That’s what they’re over there fighting for as much as anything else."

By Monday night, it remained unclear just which of the counties still had yet to mail their ballots.

David Kogelman, counsel to the New York Senate Election Committee, said the Senate Election Committee would be calling for oversight hearings into why the ballots didn’t all get out in time.

“They should’ve gone out, and the State Senate — we’re going to be looking into why they didn't get sent out on time,” Kogelman said. “I’m sure the ballots will be sent out at some point.”