WASHINGTON – The Justice Department today announced that it has filed a lawsuit against the state of New York seeking relief to help ensure that military service members and other U.S. citizens living overseas have the opportunity to participate fully in the Nov. 2, 2010, federal general election and future federal elections.
The lawsuit, brought under the Uniformed and Overseas Citizens Absentee Voting Act (UOCAVA), was filed in federal district court in Albany , N.Y “Our laws guarantee that uniformed service members and other overseas citizens will have a meaningful opportunity to participate in the elections of our nation’s leaders,” said Thomas E. Perez, Assistant Attorney General for the Civil Rights Division. “This suit seeks both immediate and permanent relief to ensure that New York’s military and overseas voters, many of whom are members of our armed forces and their families serving our country around the world, can exercise their right to vote and have their votes counted in the upcoming federal elections.”
UOCAVA requires states to allow uniformed service voters (serving both overseas and within the United States) and their families and citizens living overseas to register to vote and to vote absentee for all elections for federal office. In 2009, Congress enacted the MOVE Act, which made broad amendments to UOCAVA. Among those changes was a requirement that states transmit absentee ballots to voters covered under UOCAVA, by mail or electronically at the voter’s option, no later than 45 days before federal elections. Under the new law, states can apply to the Department of Defense for a hardship waiver of this requirement for a particular fede ral election if the state’s primary election date prohibited it from sending ballots by the 45 th day before the election; if a legal contest causes a delay in generating ballots; or if the state ’s constitution prohibits compliance. To obtain a waiver, states must 1) establish that one or more of these circumstances creates an undue hardship, and 2) present a comprehensive plan that provides UOCAVA voters sufficient time to receive and submit marked absentee ballots in time to have them counted in that election. Waiver determinations are made by the Department of Defense, after consulting with the Department of Justice.
The state of New York submitted a waiver application on April 23, 2010, claiming that its Sept. 14, 2010, primary election date created an undue hardship that prohibited the state from complying with UOCAVA. On Aug. 27, 2010, the Department of Defense granted New York’s waiver under the agreement that New York would transmit absentee ballots for the Nov. 2, 2010, federal general election to its UOCAVA voters no later than Oct. 1, 2010, and that absentee ballots would be accepted and counted up to Nov. 15, 2010.
Today’s action was necessary because New York failed to mail ballots to its military and overseas citizens by the Oct. 1, 2010, deadline in the state’s waiver application in nine New York counties, including those comprising New York City. The lawsuit seeks a further extension of the deadline for counting UOCAVA ballots which will ensure military and overseas voters have a 45-day period to receive, mark and return their ballots.
The department previously reached agreements with Alaska, Colorado, the District of Columbia, Hawaii, Nevada, North Dakota and the U.S. Virgin Islands; and filed lawsuits against Wisconsin and Guam seeking relief to help ensure that military service members and other U.S. citizens living overseas have the opportunity to participate fully in the upcoming election. More information about UOCAVA and other federal voting laws is available on the Department of Justice website at www.justice.gov/crt/voting/misc/activ_uoc.php. Complaints may be reported to the Voting Section of the Justice Department's Civil Rights Division at 1-800-253-3931.