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Irresistible Force Meets ImMOVEable Object: DOJ vs. New York on Military and Overseas Voting

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[Image courtesy of stutterrockstar]

Last week, the U.S. Department of Justice (DOJ) asked a federal judge to order New York State to change the date of its 2012 primary election. The government argues that current September date gives military and overseas voters too little time to return their ballots and thus fails to comply with the Military and Overseas Voter Empowerment (MOVE) Act enacted by Congress in 2009.

DOJ and New York are well-acquainted with the courtroom and one another; DOJ sued in 2006 for failure to implement the Help America Vote Act and the state has been operating under a consent decree virtually ever since. Indeed, it is fair to say that no state has been as reliably consistent in the last decade as the Empire State in the implementation of new federal election laws.

The problem here is related to the election calendar. Because New York's primary is in September, by the time results from the primary are certified there is not enough time for military and overseas voters to receive their general election ballots 45 days before Election Day as required by the MOVE Act.

In addition, New York has been down this road before. In 2010, the state was one of a handful of states to get a waiver of the 45-day requirement, but it was accompanied by a court order requiring ballots to be mailed by mid-October - a deadline DOJ says more than half of New York counties missed.

Just recently, New York submitted another waiver request for the 2012 election - which may have been the last straw for DOJ. They have asked a federal judge to order the state to move its 2012 primary so that it occurs no later than August 14 - which would open up the 45-day window for military and overseas voters.

As always, New York is doing everything it can to postpone the day of reckoning. Governor Andrew Cuomo and legislative leaders have reached a tentative deal to move the primary - in 2013. The sentiment in the state is that moving the primary date for 2012 (at the same time legislative lines are being redrawn) would create difficulties for election officials and candidates and possibly confuse voters.

Not surprisingly, DOJ is unimpressed. In its pleading to the court, DOJ said that while it "does not dispute that instituting an earlier primary date may cause some temporary inconvenience for the state, [] that burden is far less significant now, months before the 2012 election cycle begins."

Absent any developments, the two sides will meet again in a federal courtroom in Albany on October 20. On that date the familiar tug-of-war between the federal government and the Empire State will be renewed once more.

2 Comments


  • Washington was similarly under the gun to meet requirements of MOVE, even with a generous post-election day window to return overseas ballots. Secretary Reed and the Washington Legislature have thus moved the primary forward to Aug. 7, with filing week in May. Candidates and media will have to adjust, particularly since as an all vote-by-mail state, we don't have "election day" per se, but an almost 3 week voting period. And our primary is a nonpartisan Top 2 system, as California is also adopting. Fun!

  • I don't think the problem in NYS is with moving the primary date, which is very necessary, but that it is likely that the reapportionment process following the 2010 census will not be finished in NYS by the August 14th date.

    For states that require compactness of districts, here is a mathematical proof that there is really only one valid measure of area compactness that cannot be used for gerrymandering.

    http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1857944

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