By Pete Brush

Law360, New York (May 19, 2020, 3:11 PM EDT) -- The Second Circuit on Tuesday upheld a federal judge's decision that ordered New York's uncontested Democratic presidential primary to go forward despite the dangers of COVID-19, and the state elections board said it will turn its focus to holding a safe election instead of appealing to the U.S. Supreme Court.

The decision from Circuit Judges Amalya L. Kearse, Dennis Jacobs and José A. Cabranes came four days after Judge Cabranes called the New York State Board of Elections' move to cancel the June 23 presidential poll — while allowing other down-ballot races to go forward — "odd." That comment was a strong hint that the circuit was set to uphold U.S. District Judge Analisa Torres, who reinstated the vote.

The circuit judges did not elaborate Tuesday, saying they will soon issue their own opinion. But they did say Judge Torres did not abuse her discretion and added that their reasoning will largely hew to hers.

Judge Torres said in a May 5 order that the erstwhile Democratic candidate who sued over the cancellation — businessman Andrew Yang, who dropped out of the race in February — and his pledged Democratic National Convention delegates would be irreparably harmed by the cancellation by being deprived of their constitutional right to influence the party platform.

"The removal of presidential contenders from the primary ballot not only deprived those candidates of the chance to garner votes for the Democratic Party's nomination, but also deprived their pledged delegates of the opportunity to ... influence the party platform," Judge Torres held.

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.

Yang's lawyer, Jeff Kurzon of Kurzon Kohen LLP, called the decision "a win" for democracy and for Empire State voters.

"Voting is a right granted by law, but more importantly it is the custom by which we peacefully transfer power in our country," he said in an email.

Douglas A. Kellner, who co-chairs the state Board of Elections, said in a statement that the board will not appeal the decision. Instead, he said, it will focus on "the daunting tasks of managing the primary election in a way that minimizes the risks to the public and to election workers" from the coronavirus epidemic, which as of Tuesday had infected more than 347,000 New Yorkers and killed more than 28,000.

"We continue to urge the voters to take advantage of ... executive orders to permit the widespread use of absentee ballots," Kellner said.

A representative for the New York State Attorney General's Office, which represents the elections board, declined to comment Tuesday.

Many more people could become sickened or killed by COVID-19 if forced to go to the polls and work the polls, the state said. The state said the presidential race was singled out for cancellation because it was uncontested, and also that holding it would draw the most attention and the most voters.

In a statement, Sanders spokesman Faiz Shakir said the cancellation was illegal.

"We expect New York to work to make voting safe, rather than wasting taxpayer money trying to disenfranchise New York voters," he said in an email.

Yang is represented 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 Vale and and Matthew Conrad 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.

--Additional reporting by Emma Whitford. Editing by Stephen Berg.

Updated: This article has been updated with additional comment

For a reprint of this article, please contact reprints@law360.com.