By Pete Brush

Law360 (May 15, 2020, 5:09 PM EDT) -- New York's decision to cancel its uncontested Democratic presidential primary because of the dangers of COVID-19 was a strange one, a Second Circuit judge said Friday after an also-ran persuaded a federal judge to reinstate the vote by arguing that his delegate haul still matters.

The comment came from Circuit Judge José A. Cabranes, who, with Circuit Judges Amalya L. Kearse and Dennis Jacobs, heard the state's request on appeal to overturn Manhattan U.S. District Judge Analisa Torres, who ordered that the presidential poll go forward despite the deadly virus outbreak.

In her May 5 decision, Judge Torres sided with businessman Andrew Yang, a Democratic candidate who dropped out of the race in February. Yang sued in a potential class action after the state Board of Elections' April 27 decision to cancel the primary.

In blocking the state via an injunction, Judge Torres held that the primary is not just about a presidential candidate, but also about promoting ideas and policies via delegates attached to each candidate even if they've dropped out.

Yang was later joined in the litigation effort by Sen. Bernie Sanders, I-Vt., who quit the race in April, leaving the field clear for former Vice President Joe Biden to duke it out with Republican President Donald Trump.

Delegates matter a great deal, and theoretically could have a say in helping choose which running mate Biden selects, their lawyers argued during a 90-minute oral argument session held by phone Friday.

Judge Cabranes, who seemed to lean toward upholding Judge Torres' ruling, said the state's move to cancel the presidential primary was strange given that down-ballot primaries will still go forward June 23 as planned.

"The only primary that was eliminated was the presidential primary right?" Judge Cabranes asked attorney Judith Vale of the New York State Office of the Attorney General, which represents the Board of Elections.

"Yes — there will absolutely be other primaries," said Vale. The large majority of New York's 62 counties still have down-ballot races to be decided, she said.

"Doesn't it seem odd?" Judge Cabranes said.

Vale declined to comment on any purported oddness, but said the presidential race would draw the most attention and, amid a deadly virus, the most voters.

Vale also downplayed the issue of fallen candidates' thirst to grab delegates, arguing that concern is marginal compared to the risk that "many, many" poll workers and voters will face. She noted that the Democratic National Committee could have, but did not, intervene to make the argument on behalf of all candidates who ran.

Many more people could become sickened or killed by COVID-19, which already has killed more than 22,000 Empire State residents, if forced to go to the polls and work the polls, on June 23, she said.

But that may not have been enough to win the day for the state. Joined by Judge Jacobs, Judge Cabranes also noted that other "hard hit" states, including New Jersey and Connecticut, are still planning to hold their presidential primaries — albeit later in the year, in July and August.

Vale confirmed that New York is the only one of the 50 states that so far has canceled its presidential primary.

"Well that's quite unusual, obviously, by definition," Judge Cabranes said.

Counsel for would-be delegates, Remy Green, said New York is trying to execute a "sea change" in basic tenets of democracy that could impact future elections if allowed to stand.

"Changes on the eve of an election should be avoided at all costs," Green said.

Counsel for Yang, Jeff Kurzon, asserted that the state's health concerns are "spurious" and suggested that the Board of Elections has an ulterior motive, which he said he would attempt to explore in discovery. Kurzon said he believes the state made the decision for "political reasons."

Vale said that take "really ignores the reality" of the coronavirus outbreak.

"New York was facing an unprecedented situation," she said.

Yang is represented in the circuit by Jeff Kurzon of Kurzon Kohen LLP.

Sanders is represented by Malcolm Seymour and David West of Foster Garvey PC. Sanders and his delegates are represented by Remy Green of Cohen & Green PLLC.

The Board of Elections is represented by Judith N. Vale of the New York State Attorney General's Office.

The appeal is Yang v. New York State Board of Elections, case number 20-1494, in the U.S. Court of Appeals for the Second Circuit.

--Editing by Peter Rozovsky.

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