EXCLUSIVE: New York Violating MOVE Act

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More than one week after its extended deadline, New York still hasn’t mailed out absentee ballots to all its 320,000 military servicemen and women and overseas voters, in clear violation of the MOVE Act, FoxNews.com has learned.

According to the 2009 MOVE Act, a state must send out its military and overseas ballots 45 days prior to elections.

New York was granted a waiver to this deadline by the Department of Justice and given an additional 15 days -- until October 1 -- to send out all its ballots. On October 5, New York State Board of Elections co-directors informed federal officials that the state had not fully met their extended deadline, according to an e-mail posted online at FVAP.gov, the website of the Defense Department agency tasked with overseeing military voting.

In an e-mail sent October 5, New York State Board of Elections co-directors Robert A. Brehm and Todd Valentine wrote:

“County Boards of Elections have reported to our office that UOCAVA ballots have been transmitted to voters within their respective jurisdictions except in the City of New York, and the following counties: Erie, Niagara, Putnam and Westchester.”

And, as of Oct. 9, these ballots still have not been mailed to voters in these counties, who will now have less than 25 days to receive, mark and return their ballots, federal and state officials told FoxNews.com. New York City alone has about 50,000 servicemen and women and overseas voters.

"The gravity of New York's failure cannot be overstated. With approximately 50,000 military and overseas voters in New York City alone, there is no doubt that the November elections could be altered by this failure,” said Eric Eversole, a former Justice Department voting section attorney who recently started a nonprofit organization, Military Voter Protection Project, to protect military voting rights.

In September, the MVP Project filed a lawsuit against Maryland Board of Elections on behalf of an unnamed serviceman in Iraq who, the suit alleges, will be disenfranchised this election.

“The sad fact is that New York City's failure will have its greatest impact on those military members serving on the front lines," Eversole said. "They do not have the luxury of receiving their ballots via e-mail and must rely on a notoriously slow postal service to receive their ballots. Without immediate action, there is no doubt that some of these troops will be disenfranchised by New York's failure. It is truly shameful."

Department of Justice spokeswoman Xochitl Hinojosa provided FoxNews.com with the following statement:

"The department is aware of recent issues in New York and we are in urgent discussions with state officials aimed at achieving a prompt resolution. The department is committing significant resources to vigorous enforcement of the MOVE Act nationwide to ensure that our men and women serving in the military and our citizens living overseas have the opportunity to vote and have their votes counted in this year's elections."

E-mail requests for comment sent to the co-directors, other Board of Elections officials and its spokesman were not returned.

The MOVE Act was passed in 2009. It's lead author and sponsor was Senator Charles Schumer (D-N.Y.), Chairman of the Senate Rules Committee; It was co-sponsored by John Cornyn (R-Texas.)

In a statement to FoxNews.com, Sen. Schumer said:

"Put these ballots on the next plane to Afghanistan. These soldiers sacrifice their lives to protect our freedoms, they should never, ever be denied their right to vote. I wrote and passed this law so our brave men and women overseas would no longer be disenfranchised and there is absolutely no excuse for failing to get this done. The boards of election should immediately get these ballots to each and every one of our service members around the world. They should overnight them if they have to -- no ifs, ands or buts."

Sen. Cornyn gave this statement to FoxNews.com:

"The fact that New York government officials failed to live up to the clear terms of the waiver is shocking, in light of how much our troops have sacrificed in the years since 9/11. This is a clear violation of federal voting rights law. If DOJ does not file a suit to right this wrong as soon as the courts open on Tuesday, then we will know once and for all that DOJ is not serious about safeguarding military voting rights."

Go to FVAP.gov for information about military voting, and to learn about online balloting options available for military voters from 31 states.