MANHATTAN (CN) — New York must reinstate the Democratic presidential primary election in June that it had attempted to cancel, the Second Circuit affirmed Tuesday morning.
The unsigned summary order says U.S. District Judge Analise Torres got it right on May 5 when she ordered the state to carry out the junked primary with 10 candidates, nine of whom are no longer in the running.
Reacting to the ruling, J. Remy Green, an attorney for the now-disbanded Bernie Sanders campaign, called it “both gratifying and important at this delicate moment in history” that the Board of Election lost its bid to speak in the place of voters.
“The court's decision draws a democratic line in the sand: the phrase 'Covid-19' is not a magic incantation that unlocks boundless government power and it is the voters — not the state — who decide whether elections are important,” Green said in an email.
Another former candidate, Andrew Yang, brought the suit here, saying that the lack of an election deprived progressive-leaning delegates of influence on the party's platform at the Democratic National Convention.
“Thrilled that democracy has prevailed for the voters of New York!” Yang tweeted on Tuesday morning.
The New York State Board of Elections will not appeal to the Supreme Court, its co-chair Douglas A. Kellner said in an interview.
Kellner said the board wants instead “to focus all of our attention on the daunting tasks of managing the primary election in a way that minimizes the risks to the public and to election workers, while we continue to urge the voters to take advantage of Governor Cuomo’s executive orders to permit the widespread use of absentee ballots during the public health emergency.”
At oral arguments before a three-member panel Friday, U.S. Circuit Judge Jose Cabranes 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 had said last week.
Cabranes also emphasized at the hearing that New York was only state in the entire country to have canceled its presidential primary — something he called “quite unusual, obviously by definition.”
Judge Cabranes was joined on the panel by U.S. Circuit Judges Dennis Jacobs, a George H.W. Bush appointee, and Amalya Kearse, a Jimmy Carter appointee.
Arthur Schwartz, president of the Advocates for Justice Legal Foundation praised the Second Circuit on Tuesday for striking the suitable balance between public safety and democracy.
“Democratic voting is ‘canceled’ only in totalitarian societies,” Schwartz said in a statement. “We hope the Board of Elections redoubles its efforts to promote absentee balloting so that New Yorkers can weigh in on the critical issues which will be addressed at the Democratic Convention — like the failures in our health care system during this pandemic.”
Another tweet praising the outcome came from Zephyr Teachout, a professor at Fordham Law who had brought a failed primary challenge in 2014 against New York Governor Andrew Cuomo.
“You can't just say ‘pandemic’ and give away unconstrained power to change ballot rules,” she wrote. “Good.”
Teachout, who ran for New York state attorney general in the 2018 but lost the Democratic nomination to Letitia James, included a stinging diss to that office, which led the appeal to keep the presidential primary canceled.
“Great lawyering by the plaintiffs, but what a waste of time by Cuomo to put this authoritarian power in the budget and the BOE to even try this nonsense, let alone appeal,” said Teachout.
In an article earlier this month for The Nation, Teachout had lauded Judge Torres’ opinion as “a lucid, thorough 30-page destruction” of the arguments put forward by the state Board of Elections.
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 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 its brief to the appeals court, the state maintained 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 Senator Sanders, the onetime frontrunner, filed an intervenor complaint one week later.
The New York Progressive Action Network, whose members include the Sanders supporter-delegates who joined the suit, called the circuit opinion "a resounding victory for democracy and the 6.5 million registered Democratic voters who are eligible to vote in that election."
“Andrew Cuomo’s disastrous decision to support his appointed Board of Elections commissioners in an effort to thwart democracy and encourage backroom cronyism, especially in a time of great crisis and uncertainty, would be a fatal blow to our democratic society and the preservation of our Constitution,” Stephen Carpineta, one of the named plaintiff intervenors and spokesman for the New York Progressive Action Network, said Tuesday.
Biden has accrued 1,464 delegates so far and leads Trump nationally by 5 points, according to a recent poll.
The Democratic National Convention is being held in Milwaukee, Aug. 17–20.
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