ALBANY, NEW YORK, Sept. 26 (Reuters) - In a case that could
have implications for primary-election scheduling in states
across the country, Gov. Andrew Cuomo and state legislative
leaders are fashioning a last-ditch proposal in the hope of
preventing New York from becoming the first state to be forced
to move up its primary date.
Last week, the U.S. Justice Department asked U.S. District
Court Judge Gary Sharpe to impose a new primary date in order
to pull New York into compliance with the federal Military andOverseas Voter Empowerment (MOVE) Act, which requires primaries
to be held at least 80 days prior to a general election. The
2009 law was designed to give absentee voters -- particularly
soldiers serving overseas and their families -- more time to
mail in their ballots.
New York currently holds its primaries for congressional,
state and local elections on the second Tuesday in September,
only 49 days before the November general election. To comply
with MOVE, the state's 2012 primary would have to be no later
than Aug. 14.
The tentative deal between Cuomo and key lawmakers would
preserve the September primary next year, and move the calendar
ahead beginning in 2013, according to Michael Whyland, a
spokesman for Assembly Speaker Sheldon Silver. The deal does
not specify the exact date the primary would move to, nor is it
clear when the legislature, which is not scheduled to reconvene
until January, will take up the proposal.
'ENOUGH IS ENOUGH'
The proposal follows a request Cuomo and legislative
leaders made last month for a hardship waiver, which the
Justice Department may grant to states facing logistical
challenges in complying with MOVE. New York, which is in the
midst of redrawing state electoral districts, was already
granted a waiver for the 2010 election cycle, but it was
conditional: a court order set a mid-October deadline for
counties to send out absentee ballots, and prosecutors allege
that 33 of the state's 62 counties missed the deadline.
Some lawmakers are now doubtful that the federal government
will extend the exception, particularly because the legislature
took no action on the issue this year.
"I don't think they're going to grant the waiver," said one
Democratic lawmaker who requested anonymity because he did not
want to alienate legislative leaders. "The Justice Department's
attitude is, 'Enough is enough.'"
In 2010, 11 states applied for waivers, but only five were
At least six states that previously held September
primaries -- Colorado, Hawaii, Maryland, Minnesota, Vermont and
Washington -- and the District of Columbia adopted earlier
elections this year in order to comply with MOVE. Nine other
states, including New York, still have 2012 primaries scheduled
for late August or September.
Doug Chapin, a former election lawyer and a professor at
the University of Minnesota who has followed MOVE's
implementation, said New York was likely targeted because of
its high profile and its request for another waiver.
"If DOJ gets the court order, I bet those other states will
get very busy on figuring out how to comply with the MOVE Act
in 2012," Chapin said.
POLITICAL AND PRACTICAL OBSTACLES
The issues holding up action on the New York primary date
are political as well as practical. The legislature is set to
redraw district lines next year -- a process likely to be
stalled by a debate over methodology -- and potential
candidates can't file nominating petitions until the new
boundaries have been approved.
Since electoral deadlines are tied to the primary date,
advancing the primary would mean shifting the entire political
calendar in a year when all 212 seats in the legislature will
be up for grabs.
"There are a number of serious considerations that are
going to affect the ability to comply, not least of which is
redistricting," state Board of Elections spokesman John Conklin
The Justice Department won't comment on the tentative deal
or the pending waiver. But in a court memo filed last week,
prosecutors said the state has had plenty of time to sort out
the issue. The nearly half of counties that missed the last
deadline, they said, was evidence that the state is not taking
"In light of the state's inaction, and absent an order from
this court, New York's late primary date will disenfranchise
(military and overseas) voters in 2012 and beyond," U.S.
Attorney Richard Hartunian wrote.
'A TREMENDOUS HARDSHIP'
Several election law experts sided with the state, saying
the logistical obstacles are too great to overcome before next
Jerry H. Goldfeder, an election lawyer with Stroock &
Stroock & Lavan, said a court order to move up the primary
would be "a tremendous hardship" to state election officials
and political candidates and could also confuse voters, who
would have to adjust simultaneously to new districts and a new
"It would bollix up everyone's schedule and present
additional difficulties for voters," said Goldfeder, who has
ties to the Democratic Party.
In Monday's memo, the Justice Department argued the state
still has a full year to sort out those issues, and that the
voting rights of U.S. citizens stationed overseas outweigh any
bureaucratic headaches for the state.
The memo said the department "does not dispute that
instituting an earlier primary date may cause some temporary
inconvenience for the state, but that burden is far less
significant now, months before the 2012 election cycle begins."
A hearing in the case is scheduled for Oct. 20 in Albany
(Reporting by Dan Wiessner)
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