Judge rules 'all qualified candidates' must remain on the ballot in case filed by former hopeful Andrew Yang with the support of Bernie Sanders
UPDATE: 2d Circuit summarily rejects NY appeal...
By Ernest A. Canning on 5/6/2020, 10:05am PT  

Bernie Sanders, thanks to Andrew Yang, is now back on the Presidential Primary ballot in New York state. So is Yang. At least for the moment.

By way of a 30-page decision [PDF] on Tuesday night, U.S. District Court Judge Analisa Torres ordered the New York State Board of Elections to reinstate the Empire State's June 23 Democratic Presidential Primary and to include, on the ballot, those candidates who previously suspended their campaigns but did not elect to remove their names from the ballot.

Last week, the Board's two Democratic Party Commissioners unilaterally removed from the ballot Presidential candidates who had suspended their campaigns. Because that left only one candidate, Joe Biden, they effectively cancelled the NY Democratic Presidential Primary.

Biden, Sanders, NY Gov. Andrew Cuomo, the state Democratic Party and the DNC all say they did not request the cancellation carried out by the two Commissioners on the Board. The Commissioners say they did so as a safety precaution in order to decrease polling place turnout during the coronavirus epidemic, even as Cuomo had previously ordered that all registered voters be mailed an absentee ballot application. Sanders and his supporters expressed outrage at the Board's decision.

The next day, however, former Democratic Presidential candidate Andrew Yang, along with seven of his pledged delegates, filed a legal challenge to the New York Board's decision...

The complaint in Yang v. NY State Bd. of Elections alleges that the Board violated their rights --- and those of NY Democratic Party voters --- under the 1st and 14th amendments to the U.S. Constitution. Alleging that they would sustain irreparable harm, they sought a preliminary injunction that would reinstate the scheduled presidential primary and restore Yang's name to the ballot. Thirteen Bernie Sanders NY delegates were subsequently added as plaintiff intervenors.

Expressly finding that plaintiffs had demonstrated a likelihood to prevail on the merits of the 1st Amendment argument and that NY voters, as well as the candidates and prospective delegates, would suffer irreparable harm, the court explained the basis for its injunction...

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, vote on party governance issues, pressure the eventual nominee on matters of personnel or policy, and react to unexpected developments at the Convention. And it deprived Democratic voters of the opportunity to elect delegates who could push their point of view in that forum.

That legal conclusion squares with the core political point of our earlier article: that, by casting votes for Sanders in the remaining primaries, voters can not only help ensure that Biden makes good on his promise that his will be the most progressive administration since FDR occupied the White House but that, in the bargain, a strong showing for Sanders would actually enhance Biden's chances of defeating Donald Trump come November.

Thus, in this case, small "d" democracy has prevailed.

At least for now.

Shortly after Judge Torres' ruling on Tuesday evening, the Wall Street Journal's Jimmy Vielkind reported that "The NYS Board of Elections plans to appeal the decision reinstating the NY presidential primary."

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UPDATE 5/20/2020: New York's Attorney General Letitia James appealed, contending that the dangers posed by COVID-19 justify the decision to effectively cancel the Presidential primary race. Those contentions are vigorously disputed by Yang et. al., via their Answer, which is supported by Sen. Bernie Sanders (I-VT).

Plaintiffs pointed to multiple flaws in the AG's core argument --- e.g., the ability to conduct a vote-by-mail election for Congressional and state office primary elections scheduled on the same date. They noted that the two Democratic Commissioners not only lacked any medical qualifications to make their determination but also failed to hold a hearing or consider any expert testimony before cancelling the Dem Presidential primary by fiat. Plaintiffs also argue that the relief the Commissioners now seek from the U.S. 2nd Circuit Court of Appeal from the preliminary injunction requiring them to restore qualified candidates to the ballot is moot because "the June 23 election is already now well in progress and registered voters...are already receiving and returning to the Board absentee ballots that include the names Andrew Yang and Bernie Sanders."

On May 19 a veteran three-judge 2nd Circuit panel summarily rejected NY's appeal "for substantially the reasons given by the District Court in its May 5, 2020 Opinion and Order." The unanimous panel expressly found NY's appeal to be "without merit."

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Ernest A. Canning is a retired attorney, author, and Vietnam Veteran (4th Infantry, Central Highlands 1968). He previously served as a Senior Advisor to Veterans For Bernie. Canning has been a member of the California state bar since 1977. In addition to a juris doctor, he has received both undergraduate and graduate degrees in political science. Follow him on twitter: @cann4ing

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