Pat Dollard

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The Department of Justice is ignoring a new law aimed at protecting the right of American soldiers to vote, according to two former DOJ attorneys who say states are being encouraged to use waivers to bypass the new federal Military and Overseas Voter Empowerment (MOVE) Act.

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, say Eric Eversole and J. Christian Adams — both former litigation attorneys for the DOJ’s Voting Section — could be that thousands of soldiers’ ballots will arrive too late to be counted.

“It is an absolute shame that the section appears to be spending more time finding ways to avoid the MOVE Act, rather than finding ways to ensure that military voters will have their votes counted,” said Eversole, director of the Military Voter Protection Project, a new organization devoted to ensuring military voting rights. “The Voting Section seems to have forgotten that it has an obligation to enforce federal law, not to find and raise arguments for states to avoid these laws.”

Adams, a conservative blogger (www.electionlawcenter.com) who gained national attention when he testified against his former employer after it dropped its case against the New Black Panther Party, called the DOJ’s handling of the MOVE Act akin to “keystone cops enforcement.”

“I do know that they have adopted positions or attempted to adopt positions to waivers that prove they aren’t interested in aggressively enforcing the law,” Adams told FoxNews.com. “They shouldn’t be going to meeting with state election officials and telling them they don’t like to litigate cases and telling them that the waiver requirements are ambiguous.”

The MOVE act requires states to send absentee ballots to overseas military troops 45 days before an election, but a state can apply for a waiver if it can prove a specific “undue hardship” in enforcing it.

Sen. John Cornyn,R-Texas – who co-sponsored MOVE – wrote a letter to U.S. Attorney General Eric Holder on July 26 saying he is concerned that the Department of Justice is allowing states to opt out of the new law. Click here to read the letter.

“Military voters have been disenfranchised for decades, and last year Congress acted,” Cornyn said in a statement to FoxNews.com. “But according to recent information, the Department of Justice has expressed reluctance to protect the civil rights of military voters under the new law. All our men and women in uniform deserve a chance to vote this November, and the Obama administration bears responsibility for ensuring that they have it.

“For far too long in this country, we have failed to adequately protect the right of our troops and their families to participate in our democratic process. The MOVE Act was supposed to end this sad history. The right to participate in democratic elections is fundamental to the American experience.”

In his letter to Holder, Cornyn cites 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. Wertz described the provisions of the law as “fairly general” and “somewhat of an open question as to what type of information” a state needs to submit in order to for their waiver application to be granted. She said it was also unclear whether waivers are for one election only, or if they apply to future elections.

According to the meeting’s minutes, obtained by FoxNews.com, Wertz also 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, “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.”

He said the language of the law makes it clear that there is no ambiguity when it comes to states’ eligibility for being granted a waiver, and that the statute does not leave room for the Justice Department to decide whether to enforce its requirements.

“If a state is not in compliance with the statute, there is little room for “dialogue” or negotiation, and the Voting Section should take immediate steps to enforce the law and safeguard military and overseas voting rights, including pursuing litigation whenever necessary,” Cornyn wrote. “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.”

Cornyn, who discussed Eversole’s allegations at a meeting with Defense Department officials last week, called for Holder to immediately provide guidelines to state election officials; to ensure that states are required to abide by the law; and to provide Cornyn himself with a state-by-state breakdown of which states have already applied for waivers and which are expected to be in noncompliance with MOVE in the November midterm election. He also called for full transparency in the waiver process.

A spokeswoman for the Department of Justice’s Civil Rights Division, Xochitl Hinojosa, declined to comment, other than to say Cornyn’s letter is being reviewed.

FoxNews.com obtained waiver applications submitted by Washington and Hawaii.

Defense Department spokeswoman Major April Cunningham told FoxNews.com that New York, Delaware, Maryland, Alaska and Virgin Islands had also applied for waivers. (Cornyn’s co-sponsor for the MOVE Act was New York Sen. Chuck Schumer, a Democrat.)

“All waivers are currently under review. The Defense Department must respond, under the law, after consultation with the Department of Justice, no later than 65 days before the election, which is August 29, 2010,” said Robert Carey, director of the Federal Voting Assistance Program.

“The voting section has taken this haphazard approach to enforcing military voting law,” said Eversole. “The voting section is asserting itself into statute to make a statute that’s not ambiguous, ambiguous. Can you imagine any other agency giving prospective defendants advice like this?”

“Everybody in Washington knows it doesn’t matter how good the law is; it comes down to who’s enforcing it,” said Adams. “This stuff should be transparent and online for the citizens of these states to comment on, the fact that it’s being done behind closed doors tells you everything you need to know about how it will affect the voters.”

Adams and Eversole separately pointed out that the DOJ’s website lacks any mention of the MOVE Act. In fact, the section on military voting includes the outdated and nonbinding 30-day recommendation for sending out ballots. There is no mention of the the current 45-day mandate.

But the DOJ’s online voting section includes a detailed section devoted to helping felons learn how get their voting rights back.

“It is just offensive to most Americans that we can send soldiers to the front lines but they can’t vote,” said Eversole. “This is an issue that tugs at the heartstrings of America and people can’t understand why we can’t get that right. This is something we have to get right. We should be fighting as hard for their rights as they’re fighting for ours.”