Top Official Says DOJ Prepared To Sue States Over MOVE Act Even After Election Day, Takes Aim At IL GOP

The head of the Justice Department's Civil Rights Division said his department is prepared to sue states over military voters' rights even after Tuesday's mid-term elections if necessary, and he took sharp aim at Illinois Republicans whom he accused of seeking privileges that are "quite literally unprecedented in our nation's history."

"People who are serving our nation should have the right to cast a ballot and ensure that that ballot is counted," Assistant Attorney General Tom Perez said Wednesday. "And so we will continue to vigilantly enforce [the] law to make sure that happens."

In October 2009, President Barack Obama signed the Military and Overseas Voter Empower Act, or MOVE Act, requiring states to transmit absentee ballots to military and other eligible voters abroad no later than 45 days before a federal election. States can request "undue hardship" waivers from the Defense Department, but nearly a dozen states have still struggled to meet the requirements of the new law.

Republicans recently criticized the Justice Department for being slow to address the issue. Perez insisted the Justice Department is undertaking "robust and continuing efforts" to protect the rights of military and overseas voters. In the past couple of months, the department has reached out-of-court settlements with several states and filed lawsuits against four states and one territory.

Justice Department enforcement actions have "directly benefited over 65,000 voters in 14 states," with "a substantial percentage" of them being military voters, Perez said.

All of the lawsuits have been resolved either by a federal judge or, as with Illinois, through a court-approved consent decree. But unlike in New York, New Mexico and Wisconsin, Republicans in Illinois launched a legal challenge to their state's consent decree, urging a federal judge to give Illinois' military and overseas voters more than two weeks after Nov. 2 to first send their ballots.

Illinois Republican Party General Counsel Brien Sheahan said the agreement didn't "go far enough" to address delays -- up to 20 days in at least one jurisdiction -- in sending out ballots. In backing the party's motion, the head of the conservative Military Voter Protection Project told that Illinois illustrates "precisely the reason why you can't wait until a week before the election to try and resolve a clear violation of military voting rights."

Perez said such sentiments amount to, "I want to wait and see who won, and then I'll cast my ballot" or "I want to wait and see if it's a close election, and then I'll cast my ballot." He said Republicans in Illinois sought "a new paradigm" that is not even legal.

On Wednesday, after Perez's remarks, a federal judge rejected the Illinois Republicans' appeal. But, Perez said of his department's efforts, "I am not here to declare victory, because this work continues."

"The department's efforts are not over after Election Day," the Civil Rights Division chief said. "If any state does not comply with the terms of their agreement, the department has the authority to sue and we will be prepared to do so. ... We will not hesitate either before or after the election to take appropriate action if the circumstances warrant."

Two weeks ago, three House Republicans, including Judiciary Committee Ranking Member Lamar Smith of Texas and Armed Services Committee Ranking Member Howard McKeon of California, wrote a letter to Perez saying public records and media reports "have painted a picture of widespread noncompliance" with the MOVE Act that was "aided and abetted by an enforcement authority that is entirely ineffective."

"What we find most troubling about this situation is the Department of Justice, which has the sole and exclusive authority to bring actions to enforce [the law], not only failed to ensure compliance but apparently was not even aware when widespread noncompliance occurred," the lawmakers wrote.

Perez, however, said his department has "devoted significant time and resources" in recent months to enforce MOVE, including assigning more than 20 lawyers and support staff to a "nationwide compliance program."

"The Justice Department's pre-election enforcement of the MOVE Act is unprecedented and unmatched in any other election cycle with regard to any other voting statute," he said.

Perez said the size of a jurisdiction does not "affect our commitment to ensure that every voter in every state has the opportunity to have their votes counted." In New York, he said, more than 43,000 were not sent out in time, making it "the state that has the most number of voters who were affected by violations." But in the Illinois consent decree, one county had only four voters whose ballots were mailed late.

Asked why so many states have had such a hard time complying with the MOVE Act, Perez said there are many factors.

"This is the first election cycle where we have the MOVE Act in place," he said. "And different states have different election cycles. Some primaries are in June so that there's time. Some primaries are in September, and that raises other issues. And so there's a variety, I think, of circumstances that led to this."

In Illinois, a total of 35 counties failed to send out their ballots 45 days before Tuesday's election.

For 29 of them, Perez said, the problem was easily remedied "because there's a provision of state law that automatically extends by 14 days the amount of time you have to have a ballot counted."

"That existing law will provide the remedy of extending that back in time to address their issues," he said.

But Eric Eversole, the head of the Military Voter Protection Project and a former Justice Department voting section attorney, said the consent decree between Illinois and the Justice Department means those 29 counties faced "absolutely no consequences."

Perez, though, said the consent decree was aimed at the jurisdictions where ballots were sent more than 14 days late and could not be remedied by state law.