NY Ordered To Reinstate Presidential Primary Despite Virus

By Emma Whitford
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Law360 (May 5, 2020, 11:09 PM EDT) -- A federal judge on Tuesday ordered New York to reinstate its June 23 presidential primary that had been canceled due to the coronavirus pandemic, granting a preliminary injunction to former Democratic candidate Andrew Yang in his proposed class action.

U.S. District Judge Analisa Torres said that Yang and his pledged Democratic National Convention delegates met the irreparable injury standard for the injunction, and that canceling the primary deprived both delegates and voters of their constitutional right to influence the party platform. 

Ten Democratic presidential candidates will appear on the primary ballot, according to Judge Torres' order, including Sen. Bernie Sanders, I-Vt., whose delegates intervened in the suit on May 3.

Yang and his delegates originally filed suit to reinstate the primary on April 28, saying that canceling the primary violated their Fourteenth Amendment equal protection rights under state election law. 

"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 run for a position where they could influence the party platform," Judge Torres wrote.

"And it deprived Democratic voters of the opportunity to elect delegates who could push their point of view in that forum," she continued.

New York Board of Elections Commissioners Douglas Kellner and Andrew Spano initially canceled the presidential primary on April 27, according to Tuesday's order, invoking an April 3 state law allowing them to strike presidential candidates from the ballot who have publicly announced they are no longer running.

Former Vice President Joe Biden was by then the only remaining Democratic presidential candidate.

Kellner and Spano, defendants in the case, have since argued that they based their decision on a need to protect the public from COVID-19. Without the presidential primary, seven New York counties would not have had elections that day, they said.

But Judge Torres countered that the availability of absentee ballots alleviates risk, making it "substantially easier for voters and poll workers to practice social distancing at voting sites."

Judge Torres also noted that down-ballot primary races are proceeding in 42 of New York's 62 counties on June 23, including densely populated counties of New York City.

"In those localities — whether the presidential primary goes forward or not — it will be necessary to take the protective measures defendants describe," she said, referring to adding more poll sites and workers, among other measures.

BOE spokesperson John Conklin did not rule out the possibility of an appeal in a statement to Law360. "In reviewing the decision our lawyers are considering all our options," he said.

New York Governor Andrew Cuomo's office did not immediately respond to a request for comment.

"We are delighted the court acted so swiftly to bring justice to more than six million New Yorkers so they can vote in the June 23 Democatic presidential primary," said Jeff Kurzon of Kurzon Kohen LLP, counsel for Yang, in a statement to Law360.

In a statement shared Tuesday with Law360, counsel for Sanders' delegates called the decision an "extraordinary victory for the democratic process here in New York."

"The Democratic Presidential Primary for millions of New Yorkers has historically been an opportunity to express a wide range of views of the critical political issues of the day, not just a 'beauty contest' among presidential candidates," they added, referencing an April 27 comment made by Spano.

In his concession speech last month, Sanders emphasized his intention to remain on the ballot in upcoming primaries.

"While Vice President Biden will be the nominee, we must continue working to assemble as many delegates as possible at the Democratic Convention, where we will be able to exert significant influence over the party platform, and other functions," he said.

Yang and his delegates are represented by Jeffrey M. Kurzon and Leonard M. Kohen of Kurzon Kohen LLP.

Sanders' delegates are represented by J. Remy Green and Elena Cohen of Cohen Green PLLC, Arthur Z. Schwartz of Advocates for Justice, and Jonathan Wallace of Ratschko Wallace PLLC.

The Board of Elections is represented by Matthew L. Conrad of the New York State Office of the Attorney General.

The case is Yang et al v. New York State Board of Elections, case number 1:20-cv-03325, in the U.S. District Court for the Southern District of New York.

--Editing by Emily Kokoll.

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

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Case Information

Case Title

Yang et al v. New York State Board of Elections


Case Number

1:20-cv-03325

Court

New York Southern

Nature of Suit

Civil Rights: Voting

Judge

Analisa Torres

Date Filed

April 28, 2020

Government Agencies

Judge Analytics

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