The U.S. Department of Justice is asking a federal judge to set a primary date beyond just the 80-day requirement.

A federal law requires states to hold their party primaries 80 days before a general election in order to provide timely access to military and overseas ballots and the DOJ is suing New York to force the state to comply with the law.

The DOJ wants the primary held no later than Aug. 18; New York typically holds its primaries in September.

But in a brief filed this week in federal court, lawyers for the Justice Department tell U.S. District Court Judge Gary Sharpe that if he does set a primary for New York, that he make the date earlier than Aug. 18.

The law requires that the date be held no sooner than August. The Department of Defense denied New York a waiver this year, setting up the court battle.

Sharpe is expected to rule soon on the primary date.

Democrats want a June primary, arguing that most voters are out of town in August. But Republicans are calling for an August primary, pointing out that the Legislature typically wraps up work in June.

Monday was the deadline to file briefs with the court.

Depending on how Sharpe rules, New York could be in store for three primaries: one for state offices, another for House and Senate races and a third for the presidential primary in April.

The Elections Commissioners Association has called for a June primary, though several Republican elections commissioners have written their own letters backing an August date.

This week Republican Suffolk County Election Commissioner Wayne Rogers wrote that a June primary would be difficult to execute.

“..the Department of Justice’s recommendation to conduct the primary in mid-August would be workable from a board of elections standpoint,” Rogers wrote. “Moreover, as compared with a competing proposal for a late-June primary, a mid-August primary would provide greater consistency with the existing election process.”

Gov. Andrew Cuomo has been careful not to take a position on when a primary date should be held, but has said he would not want a scenario resulting in three primaries.

DOJ Document

Suffolk County Document

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