It's Official: New York's Presidential Primary Is Happening

It was on, then off, then challenged in court, and now it’s back on again. A federal appeals court has upheld a lower court decision reinstating the Democratic presidential primary in New York State on June 23rd.

The New York State Board of Elections appealed the earlier decision, arguing that the potential public health risk from COVID-19 posed to election staff and voters was the driving concern behind their decision to cancel the contest.

In a summary order issued Tuesday by the Second Circuit Court of Appeals, a panel of three judges rejected the state’s claims concluding, “We have reviewed all of the remaining arguments raised by Defendants on appeal and find them to be without merit.”

The decision means that eleven qualifying Democratic presidential candidates and their respective delegates will appear on the primary ballot in June, even though only former Vice President Joe Biden is still actively running for president.

The case was filed by former presidential candidate and Hell’s Kitchen resident Andrew Yang, and several supporters and delegate candidates for Vermont Senator Bernie Sanders. These plaintiffs argued that the State Board of Elections had acted unconstitutionally when they decided to enact a resolution removing from the ballot all the candidates who had announced that they had suspended their campaign and their respective delegates, effectively cancelling the primary.

During the oral arguments to the panel of Appeals Court judges on Friday, the state tried to persuade them to consider the burden of holding an “uncontested primary” during a pandemic.

“In reaching its determination, the board applied its experience and expertise in what it takes to run elections, including how many more voters, poll workers and election workers, are likely to be involved in person on the ground if the uncontested presidential primary goes forward,” said Judith Vale, senior assistant solicitor general in the New York Attorney General’s Office. She added, “The board reasonably determines that the significant increases in the numbers of people involved, and the social interactions that will be required, raises the risk of COVID-19 spreading further, sickening and even potentially killing more people.”

If there was no presidential primary, Vale said, that would mean the state would need 615 fewer poll sites for in-person voting on June 23rd, and 22 fewer poll sites for early voting. The State would also need 4,617 fewer poll workers, many of whom are often older populations that are at more significant risk of suffering severe illness if they contract the virus.

When pressed by the judges over how many of New York’s 61 counties would have no primary at all, Vale said there were only a handful, and acknowledged that all those counties were upstate in more rural areas with lower rates of the disease.

Arguing on behalf of Senator Sanders's supporters, attorney J. Remy Green said the Board failed to provide evidence and precedent for why the state could enact a law that changed the rules for an election so close to the actual contest. That argument was in reference to a statute added to state election law in April as part of the budget bill that allowed the State Board of Elections to remove presidential candidates, and their delegate slate, from the primary ballot if they had suspended their campaign.

“Simply invoking the word pandemic is not a shibboleth that changes the applicable standard of review,” Green said, noting that the state failed to cite any existing cases where similar decisions were made balancing public health risk and Constitutional rights.

Green also noted that ballot access rules in New York State are notoriously strict.

“Once you are on the ballot, once you are qualified, absent, say, a challenge to the validity of your signatures, there is virtually no way to get off the ballot. And I think rather than being an application of consistent New York law, this is a sea change in the way that New York election law applies to these kinds of contests,” Green added.

There were also two amicus briefs submitted in support of Yang and the Sanders delegates, including one behalf of Senator Sanders’ campaign, as well as another from a group of medical professionals.

Plaintiffs cheered the decision from the Appeals Court, describing it as a win for voters and the Constitution—and a rebuke of Governor Andrew Cuomo, who was also a named defendant in the appeal. The governor had previously voiced his support for cancelling the primary. "I don't think it's wise to be bringing a lot of people to one location to vote,” Cuomo said in March. He later issued two executive orders to make it easier to vote in the June primary by absentee ballot.

“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,” said Stephen Carpineta, a named plaintiff intervenor and communications director with NYPAN, a progressive activist group comprised of many Sanders supporters.

The order affirming the lower court’s decision to reinstate the primary brings an end to the nearly month-long saga over whether there would or would not be a presidential primary next month. In a statement, state Board of Elections officials said they plan to turn their attention to executing the contest safely.

“Commissioner [Andrew] Spano and I have decided not to appeal to the US Supreme Court so we can 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,” Commissioner Douglas Kellner told Gothamist via email.

The governor’s office sought to distance the administration from the court’s decision.

“This was a Board of Elections decision,” said Cuomo spokesperson Rich Azzopardi. “Anyone who can should vote absentee."