The Department of Defense will not grant New York a waiver from adhering to the federal Military and Overseas Voter Empowerment Act, all but ensuring a court battle between the state and the Department of Justice to move forward.

The state had asked for — and up until this point received – the waiver from the 2008 law each year since its approval. The Department of Justice is suing the state to force an early primary in U.S. District Court in order to comply with the law. But the Federal Voting Assistance Program determined late this afternoon that the state didn’t make a compelling enough case.

In a memorandum sent to the state Board of Elections today, federal officials write that the state has failed to prove that moving the primary date to as late as August does not present “an undue hardship” in light of next year’s round of redistricting.

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. Nothing in the Constitutional provision cited requires that redistricting occur prior to enacting other legislative changes to comply with UOCAVA. In its application, the State demonstrates that it has made the legislative decision to prioritize its redistricting process over UOCAVA compliance, not that it was constitutionally compelled to do so.

Redistricting is a politically tricky problem all its own, given Gov. Andrew Cuomo’s vow to veto legislative lines drawn by lawmakers. The new lines must be in place by early 2012.

The move essentially allows the DOJ’s lawsuit against New York to move forward. Judge Gary Sharpe has repeatedly delayed a hearing on the case. It is now being held on Dec. 1.

The law requires states to send out overseas ballots at least 45 days before an election in order to accommodate military and overseas voters. All 212 seats in the Legislature are up for re-election next year. New York traditionally holds its party primaries September.

Senate Republicans filed a court brief last month endorsing an August primary, saying that talks between legislative leaders and the governor have broken down. Good-government and watchdog groups have written to Sharpe backing a June primary date, arguing that too many people are on vacation in the summer.

Lawyers for the state, meanwhile, filed a brief pushing for more time to comply with the law.

Cuomo has said he continues to talk with state officials on the matter.

Update: Board of Elections spokesman John Conklin issues this statement:

The denial means that the litigation in Federal Court in the Northern District will go forward. The Court is scheduled to rule after December 1st on the US Department of Justice’s motion to compel New York State to comply with the MOVE Act requirement to transmit ballots to military and overseas voters not later than 45 days before election day for federal office rather than the 32 day deadline currently provided for in state statute. The motion, if so ordered, would require moving primary date for federal office to take place not later than August 18, 2012.

DOD Waiver 1116

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