Democratic presidential primary election will proceed on June 23, 2020

A federal judge has ruled that the State of New York cannot legally remove names from the Democratic primary ballot. Nor can the State legally cancel the primary election scheduled for June 23, 2020.

The case is Yang v. Kellner, issued on May 5. Judge Torres of the Southern District of New York has the case. Plaintiffs filed this lawsuit only last week. Even during a horrible pandemic, the courts will move to restore constitutional values.

On April 3, 2020, the Governor signed into a law a measure that says the Board of Elections may remove from the ballot any presidential primary candidate who either says he is no longer running for president, he is terminating or suspending the campaign, or sends a letter to the BOE stating they no longer wish to appear on the ballot. Under that law, the BOE's Democratic Party commissioners removed from the ballot to 10 Democratic candidates who had qualified to be on the ballot but who had suspended their campaigns or announced they were no longer running for president. These candidates include Elizabeth Warren, Bernie Sanders, and Andrew Yang. Under the state election law, when only one candidate remains on the primary ballot, the primary election is cancelled and the candidate is deemed the winner. That means, under these maneuvers, Joe Biden wins the New York primary.

Yang and his delegates to the primary convention filed this lawsuit challenging the legality of the cancelled primary election. Sanders' delegates have also joined in the lawsuit seeking the same result. They seek a preliminary injunction that would order the state to hold the primary election and allow Yang and other candidates to run against Biden in New York. Judge Torres first holds that plaintiffs will suffer irreparable harm without an immediate court order, as the loss of constitutional rights in the elections context (such as the right to vote for the candidate of your choice) is always irreparable.

Judge Torres also says plaintiffs are likely to win the case on the merits. A preliminary injunction essentially allows you to win the case right after it is filed when you can satisfy that standard. You need close to a slam-dunk to overcome this hurdle. Judge Torres says that, while Yang is no longer running for the Democratic nomination, his delegates may still assert the right of association under the First Amendment because the primary "results in the election of delegates to the [Democratic National] Convention," and removing Yang's name from the ballot deprives them of the opportunity to influence the party platform, vote on party governance issues, pressure the party nominee on policy, "and react to unexpected developments at the Convention." Since Yang and Sanders did not formally withdraw from the race under the procedures that would have taken their names off the primary ballot, plaintiffs continue to have the right to associate with these candidates, even if, let's face it, they will not win the primary or become the Democratic Party nominee.

The State defends this case by arguing that the COVID-19 pandemic creates a public health risk if the primary election proceeds as planned, and that cancelling the primary election will minimize social contact. While Judge Torres agrees this is an important governmental interest, it is not enough to justify cancelling the primary election. Voters can cast a ballot by mail or do so through absentee ballots. And in many localities, other elections are also scheduled for June 23, 2020, including in New York City, and the state has time to implement measures that will prevent the virus from spreading during the balloting process.

What it all means is that the primary election in New York will resume as scheduled on June 23, 2020. Yang and Sanders and eight other Democratic candidates will appear on the ballot.