THE ASSEMBLY STATE OF NEW YORK ALBANY

SHELDON SILVER Speaker of the Assembly

Room 932 Legislative Office Building Albany, New York 12248 (518) 455-3791

December 19, 2011

Honorable Gary L. Sharpe James T. Foley U.S. Courthouse 445 Broadway Albany, NY 12207-2924

Dear Judge Sharpe: In response to your request of Monday, December 12, 2011, the New York State Assembly submits for your consideration a supplemental draft order setting New Yorks 2012 non-presidential federal primary election for the fourth Tuesday in June. The instant litigation is wholly premised on ensuring that members of the military, as well as New Yorkers living abroad, have their votes cast and counted in compliance with the Uniformed and Overseas Citizens Absentee Voting Act (UOCAVA). Simply put, a June primary is far more likely than August to yield such a result. The Court has indicated that, absent an agreement on a new primary by the Legislature or the parties to the instant case, the Court would order a UOCAVA-compliant primary date as close to the September date that the Legislature set in 1974 a date in August. While this solution may seem logical, in fact a June primary, rather than an August date, is more in keeping with the rationale and purposes of the September primary. Many more people are home and available to vote during September and June than during the hot, vacation months of July or August. There can be no doubt that voter turnout would decrease dramatically were a primary scheduled during the summer. An August primary would, therefore, not serve all the people of the State of New York. In addition to this comparison being borne out by the history of voting in New York, the Court should also take judicial notice of the experience of the State of Nevada. Nevada used to have a September primary which was changed to August, and then ultimately to June. The conclusion in Nevada was that a June primary had a dramatically higher voter turnout than an August primary. Nevadas move from an August to a June primary yielded a 12.2% increase in voter turnout. Furthermore, the Assembly agrees with the bipartisan Election Commissioners Association of the State of New York (ECASNY), that a primary in August would pose practically insurmountable timing and logistical obstacles to UOCAVA compliance by election

administration professionals the very people who actually make our elections work in New York. I respectfully refer you to ECASNYs filings already before the Court. The Assembly has been and remains committed to upholding the voting rights of all New Yorkers while ensuring the rights of New Yorkers, at home and abroad. It is with this commitment in mind that we respectfully urge this Court sign the enclosed proposed order.

Sincerely,

SHELDON SILVER, Speaker