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Law360, New York (May 12, 2020, 6:13 PM EDT) -- Sen. Bernie Sanders joined fellow also-ran Andrew Yang Tuesday in asking the Second Circuit to uphold a Manhattan federal judge's ruling that New York's uncontested Democratic presidential primary must go forward despite the state's decision to cancel it over coronavirus pandemic risks.
Sanders, I-Vt., who conceded the race to presumptive Democratic nominee Joe Biden on April 8, sided with Yang in challenging the April 27 decision by the state Board of Elections to scrap the Empire State's scheduled June 23 primary.
Sanders argued that the allocation of delegates remains a key issue and that only an election should decide how much of New York's large delegation is allocated to former Vice President Biden.
"[T]he selection of like-minded delegates ... is not just about presidential candidates; it is about having the right advocates present at the convention to advance ideas and principles that can be implemented at all levels of government," Sanders' filing said.
His filing follows Manhattan U.S. District Judge Analisa Torres' May 5 directive ordering the primary to go forward despite the state's concerns about the spread of the virus. Judge Torres held that the decision to scrap the vote deprived both delegates and voters of their constitutional right to influence the party platform.
Her decision followed a lawsuit by Yang, a wealthy businessman who also had vied for the Democratic nomination until dropping out of the race in February. In an appellate brief filed May 11, Yang asked the circuit to uphold Judge Torres' order, arguing that canceling elections — virus or no virus — is unprecedented and that the vote should go forward to protect individual liberties.
"Voting is a big deal," Yang's brief said.
Lawyers for the state did not celebrate the decision to cancel the primary in their May 8 brief, saying the "enormous strain" stemming from the health crisis has tasked them with making "difficult choices about how best to protect public health while preserving essential state functions."
The primary could endanger rank-and-file poll workers as well as voters, the state argued, adding that Biden's win means "any remaining functions of the presidential primary" are "substantially outweighed" by the public health risk.
"The board accordingly exercised its statutory authority to remove from the ballot the candidates who had suspended their campaigns (along with their pledged delegates), thus triggering the statutory provision that cancels an uncontested primary," the state's brief said.
Yang's lawyer, Jeff Kurzon, said the circuit court shouldn't allow the state to govern its elections "by fiat."
"It is for the voters to determine the outcome of an election," he said in an email.
Counsel for the other parties had no comment.
The appeal will be heard by U.S. Circuit Judges Amalya L. Kearse, Dennis Jacobs and José A. Cabranes. Oral arguments are scheduled for Friday.
Sanders is represented by Malcolm Seymour and David West of Foster Garvey PC.
Yang is represented by Jeff Kurzon of Kurzon Kohen LLP.
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 Daniel King.
For a reprint of this article, please contact reprints@law360.com.
