Judge Orders New York to Hold Democratic Primary

Democratic presidential candidate Andrew Yang, right, poses with a supporter at the “Our Rights, Our Courts” forum on Feb. 8. (AP Photo/Andrew Harnik)

MANHATTAN (CN) — One week after state officials announced the cancellation of New York’s Democratic primary elections due to Covid-19 concerns, a federal judge ordered the state to reverse course and hold the primary contest in June.

The injunction ordered Tuesday evening by U.S. District Judge Analise Torres requires that the primary election be held on June 23, restoring all 10 presidential candidates who were qualified as of April 26, and their respective slates of delegate candidates, to the New York Democratic presidential primary ballot.

New York canceled the primary one week ago, citing concern about the spread of the novel coronavirus in the state where the disease has hit hardest.

The New York Board of Elections employed a provision of Governor Andrew Cuomo’s state budget law to remove any candidate from the primary ballot who had announced they have stopped running and were “no longer eligible” under state law to win the nomination.

Former candidate Andrew Yang filed suit on behalf of his would-be delegates a day later, challenging the state’s decision to abandon the primary election.

Represented by attorney Jeffrey M. Kurzon of the New York City firm Kurzon Kohen, Yang and his co-plaintiffs alleged that the New York Board of Elections violated the First and 14th Amendments to the Constitution.

Delegate candidate supporters of erstwhile front runner Bernie Sanders — who ended his presidential campaign last month — joined the suit the following week, filing an intervenor complaint Tuesday.

“What the cancellation does is prevent Democratic Party voters who wish to express their views concerning issues ranging from health care, to the environment, to student debt, to the cost of higher education, from expressing their view on the differences between Bernie Sanders and Joseph Biden on these issues,” the Sanders delegates said in their complaint.

The Sanders delegates were represented by Elena Cohen from the Ridgewood, New York, firm Cohen and Green, along with Arthur Schwartz from Advocates for Justice.

During a pretrial conference conducted by phone on Monday, Matthew Conrad, an assistant attorney general for New York state, defended the board’s decision to cancel the presidential primary as a “common-sense step” taken after Sanders had dropped out of the race and endorsed Biden.

Conrad insisted that forcing the primary to happen risked the type of harm to New Yorkers’ public health that resulted when Wisconsin staged its primary and reports emerged that some voters later were diagnosed with Covid-19.

“If you grant this injunction, the state will be required to deploy thousands of election workers,” he said. “They’ll be interacting with enormous numbers of the public in the midst of what is still an unprecedented public health crisis in the nationwide epicenter of that crisis.”

Douglas Kellner, co-chair of the New York State Board of Elections, had similarly invoked “the chaos that so marred voting in the recent Wisconsin primary” in a letter to Judge Torres on April 29.

A Wisconsin primary voter, right, is asked by a poll worker to remove her mask as her identification is examined last month at the Janesville Mall. (Angela Major/The Janesville Gazette via AP)

“Perhaps the greatest lesson we have learned from the recent primary election in Wisconsin is that last minute court rulings can have an incredible impact on the conduct of elections, and in the case of the current pandemic, can endanger lives,” Kellner wrote, seeking an urgent resolution dismissing the suit.

On Tuesday, Torres ruled that, even weighing the public safety issue, the Board of Elections’ decision to remove candidates from the Democratic primary ballot and cancel the election was unconstitutional.

“Protecting the public from the spread of COVID-19 is an important state interest,” Torres wrote in 30-page opinion. “But the Court is not convinced that canceling the presidential primary would meaningfully advance that interest — at least not to the degree as would justify the burdensome impingement on Plaintiffs’ and Plaintiff-Intervenors’ rights”

 The decision to cancel the primary burdened the rights of the candidates and their would-be delegates to make the case for their platforms at the national convention, the judge found. 

“Yang’s suspension of his campaign does not divest him of standing to challenge his erasure as a primary contender,” Torres wrote. “Yang suspended his campaign with the understanding that his name would remain on the ballot, which would allow him to accumulate delegates.”

Yang quickly announced the judge’s decision’s Tuesday, posting on his Twitter page: “I’m glad that a federal judge agreed that depriving millions of New Yorkers of the right to vote was wrong.” 

“I hope that the New York Board of Elections takes from this ruling a newfound appreciation of their role in safeguarding our democracy,” he wrote.

A spokesman for the Board of Elections said Tuesday evening that its lawyers are reviewing the judge’s decision.

Jonathan Herzog, one of the suit’s co-plaintiffs, celebrated the judge’s order Tuesday, calling it “an important day for the protection of our democratic process and constitutional rights.”

“We have to be eternally vigilant and I’m relieved the Court agreed,” said Herzog, a 25-year old Democratic candidate for New York’s 10th Congressional District who is aiming to unseat the incumbent, Representative Jerry Nadler.

“Democracy may have to fight with one hand tied behind its back, but it’s up to us to ensure it keeps the upper hand,” Herzog added.

Some political experts questioned the practical outcome of the abrupt reversal of the canceled primary election.

“Holding a presidential primary in the midst of a health pandemic makes little sense when there is only one viable candidate remaining,” Stephen J. Farnsworth, director of the Center for Leadership and Media Studies at University of Mary Washington told Courthouse News Tuesday evening.

“If this order remains in place, I imagine turnout will be tiny, given both the health crisis and the fact that this primary that no longer means much of anything to the Democratic presidential nomination process,” he added.

In addition to Sanders and Yang, the other candidates removed from the New York presidential primary ballot by the board’s April 27 resolution included Elizabeth Warren, Michael Bloomberg, Pete Buttigieg, Tulsi Gabbard, Amy Klobuchar, Deval Patrick, Tom Steyer, and Michael Bennet.

The Democratic National Convention is presently scheduled to take place August 17–20 in Milwaukee, Wisconsin.

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