ALBANY -- The Department of Defense has rejected New York's request to have a September primary next year, opening the door for a federal judge to set an earlier date.
The rejection, first reported by the New York Daily News and officially announced late Wednesday, also could mean New York voters would trek to the polls three times next year for primary elections.
New York's current primary date in the second week of September is incompatible with a 2009 federal law requiring military voters stationed overseas be mailed ballots 45 days before the general election in early November.
The law applies to seats in the House of Representatives and U.S. Senate. The DOD gave the state a waiver for the 2010 election cycle.
"The state argues that because its redistricting process requires 2010 census data, and such data was not available until March 24, 2011, a redistricting plan will not be finalized for several months," the DOD wrote in its rejection letter. "The state's arguments do not support a finding of undue hardship. The state constitution merely compels the Legislature to use recent census data in redistricting."
In August, the Department of Justice sued New York for being out of compliance with the law and asked District Judge Gary Sharpe to order a primary date no later than Aug. 18.
New York's legislative leaders differ as to when they would like to hold an earlier primary. Assembly Democrats, backed by a bipartisan group of the state's election commissioners and several good-government groups, are urging a date in late June.
Senate Republicans favor a date in August, and have filed court papers to support it.
Gov. Andrew Cuomo has not expressed a preference.
If Sharpe were to move the congressional primary, voters would have separate dates for the presidential primary on April 12, state offices on the regular September date, and the congressional primaries on the assigned date.
The state Board of Elections, listed as a defendant in the Justice Department suit, issued a statement announcing the news but offering no comment.
A hearing in the case is set for Dec. 1 in Albany.
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