ALBANY — State lawyers are redrafting their legal defense against a federal lawsuit that seeks to move congressional primaries from their traditional date in September.
The attorneys sent a letter last week to U.S. District Court Judge Gary Sharpe, who was scheduled to hear the case on Thursday. The federal Department of Justice sued New York in August, claiming the September date was structurally non-compliant with a federal law requiring that military voters stationed overseas receive their ballots at least 45 days before the general election in early November.
The suit asks Sharpe to declare a primary date for no later than Aug. 18. A hearing is now scheduled for Dec. 12.
In a filing earlier this month, lawyers from the office of Attorney General Eric Schneiderman tried to stave off the DOJ citing the state's pending application for a waiver from the law, called UOCAVA, before the Department of Defense. The DOD rejected that waiver Nov. 16.
A spokeswoman for Schneiderman declined to comment on the state's new argument. In its earlier filing, the state conceded the DOJ's point that the primary should take place at least 80 days before the scheduled general election.
If Sharpe moved the Congressional primary, it could put New York voters in the awkward situation of holding three primary elections next year: April 12 for presidential candidates, September for candidates in state legislative races, and some undetermined date for Congress.
Adding complexity to the lawsuit are the desires of Republicans who control the Senate to have Sharpe set a date in August, and the Assembly Democrats' preference for a primary in late June. Democrats are backed by good-government groups and the bipartisan election commissioners association, who say turnout will be low in August. Senate Republicans say a June date will conflict with the scheduled legislative session.
Republicans are now arguing for a legal solution, saying these negotiations have foundered. But Gov. Andrew Cuomo said Monday they continue.
"We should have a legislative resolution, ideally, and I know the Legislature's talking amongst themselves and we're involved in those conversations also. And hopefully we'll come to a conclusion," he said.
The governor did not state his own preference between June or August. "It's more of an issue for them, frankly, than for me," he said.
Moving the primary date will also influence the process of drawing new legislative districts. A June date, for example, would require lines to be settled by early March. Cuomo has expressed dislike for the legislative panel — a special creature of the majority Assembly Democrats and Senate Republicans — that is currently charged with the once-a-decade process of drawing new lines.
Cuomo has threatened to veto "lines that are not drawn by an independent commission that are partisan," prompting aides to the governor and legislative leaders to quietly negotiate a new process. One idea floated last week by Assembly Speaker Sheldon Silver to create an eight-person panel of non-legislators appointed by each legislative conference was panned Monday by a good government advocate.
"I certainly feel that a better model is the model we find in other states that have commissions, even commissions appointed by the legislature, where you have an odd number," said Common Cause Executive Director Susan Lerner. "I think we have too many examples of equally split commissions that don't work, from the board of elections to the (Congressional) supercommittee."
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