MANHATTAN (CN) — Reaching back to the medieval charter that shaped the U.S. Constitution, a lawyer for the erstwhile presidential candidate Andrew Yang made his case Friday to have the Second Circuit safeguard New York’s primary election.
“There are all kinds of methods for running an election during a pandemic,” Jeffrey Kurzon of the firm Kurzon Kohen said this afternoon in a teleconference hearing of the Manhattan-based federal appeals court. “And cancelling an election is clearly an overreaction and undemocratic and could be so severe as to possibly have violate such long-standing law as the Magna Carta. It’s just appalling.”
Rather than canceling the June race, as the state Board of Elections purported to do last month, Kurzon questioned why less restrictive alternatives, such as mail-in ballot, or public health guidelines that call for masks and social distancing, were not considered.
U.S. Circuit Judge Jose Cabranes, one of three members of the panel hearing New York’s appeal, appeared critical of the state.
“It is true that by legislation, New York has effectively … taken over the role of Democratic party committees of New York state and the Democratic National Committee which ordinarily are the bodies that determine when and how primaries are to be conducted,” the Clinton-appointed judge said.
The panel concluded the hearing without a ruling, but Cabranes noted that he found it “quite unusual, obviously by definition,” that New York was only state in the entire country to have canceled its presidential primary.
With the exception of former Vice President Joe Biden, all of the candidates seeking the Democratic presidential nomination had withdrawn from the contest when the board of elections on April 27 employed a provision of Governor Andrew Cuomo’s state budget law to remove their names from the ballot.
New York has been the hardest hit state, and city, in the country by the coronavirus pandemic. In a brief to the appeals court, the state maintains that the interest in letting voters exercise their civic duty is “substantially outweighed by the serious public-health risks and election-administration burdens of holding this particular primary election.”
Yang, a tech entrepreneur, set the stage for the fight with a class action where he cited the potential harm to down-ballot candidates, to say nothing of the rights vested by the First and 14th Amendments. Several New Yorkers who had pledged to serve as delegates of Vermont Senator Bernie Sanders, the onetime frontrunner, filed an intervenor complaint one week later.
Though U.S. District Judge Analisa Torres issued an injunction to make the state reinstate the Democratic primary contest, New York wants that ruling reversed.
Judge Cabranes was joined Friday by U.S. Circuit Judges Dennis Jacobs, a George H.W. Bush appointee, and Amalya Kearse, a Jimmy Carter appointee.
Sanders was cagey in making his announcement, however, initially urging his supporters to still vote for him in upcoming state primaries because he said more delegates would help tip the Democratic Party toward his policies.
Judith Vale, an attorney representing New York at the hearing, said the Democratic Party could still decide to allocate the delegates in a different way that might “favor plaintiffs’ interests here without needing to do a primary that would risk health and safety during the pandemic.”
“It is underway and at least possible,” she added, noting that Sanders had indeed already begun such negotiations.
Remy Green, an attorney for the Sanders campaign, urged the panel to affirm the order reinstating the election. “This court should not be the first court to ever find an application of a midcycle law that removes candidates from a ballot to be constitutional when applied in that very same cycle,” Green said.
Green noted the state’s expanded absentee voting has already started, adding “the Supreme Court has long counseled that changes on the eve of election should be avoided at all costs.”
While Yang had not won a single pledged delegate to date and was unlikely to win any in New York, Rosanna Perotti, a political science professor at Hofstra, says the story is different for Sanders, who stands to lose materially from the cancellation of the New York presidential primary.
“Sanders continues to have the support of about 30% of eligible Democratic primary voters nationally, to Joe Biden’s 50% support,” Perotti said in an interview. “If Sanders’ name were on a New York primary ballot, he could very well be on his way to winning enough delegates at the Democratic Convention — 25% — to have a say on the convention’s decision-making committees, which determine the platform and rules.”
In an amicus brief, the Sanders campaign notes that specific policies he advanced during the 2016 presidential campaign and at the 2016 Convention — Medicare for All, expanded Social Security, free college tuition, and a $15 minimum wage — became part of the national political conversation in the 2018 elections, Congress, and state and local legislative bodies.
“By the time of the 2020 presidential elections, many of these ideas had gained such mainstream acceptance that they were espoused by a majority of the Democratic Primary candidates,” the campaign emphasizes.
In another interview Hofstra law professor James Sample pointed to the assertion by Sanders’ delegates that the cancellation of New York’s election deprives the plaintiff candidates and would-be delegates of their opportunity to shape the party’s policy platform.
“In turn, because there will be primary elections in many — but not all — New York jurisdictions, New York’s role in shaping the party’s ‘shapers’ will be undemocratically skewed,” Sample said Friday.
Some of the more progressive-leaning supporters of Sanders, including members of the Democratic Socialists of America, have refused to support Biden.
The Democratic National Convention is presently scheduled to take place Aug. 17–20 in Milwaukee.
Kurzon told Courthouse News on Friday he was optimistic that the panel would affirm reinstatement. “We believe they will deliberate in due course and uphold Judge Torres’ well-reasoned 30-page opinion and order that the June 23 presidential primary should continue as voting is such a fundamental right,” he said.
Following the hearing, Green said that the Board of Elections lacked adequate answers to “important and basic questions about both the structure of the Democratic primary and the constitutional protections that exist for voters and candidates alike.”
“While I am not going to make any predictions, I am hopeful the court will recognize the cancellation of the election for what it is: a poorly considered decision of political convenience, made without any consideration of medical opinion or the rights of New Yorkers,” Green added.