Friday, June 5, 2020

There will be a Democratic primary on June 23

The Second Circuit has ruled that a federal court properly ordered that the New York primary election scheduled for June 23, 2020 must take place. This decision rejects the Cuomo administration's argument that it had to cancel the election because of the Covid-19 pandemic.

The case is Yang v. Kosinski, issued on June 1. The governor canceled the primary election on April 27, 2020, making New York the only state to cancel its 2020 Democratic presidential primary. The justification for cancelling the election was the state wanted to minimize social contacts to limit the spread of the virus and to focus its limited resources on the management of other contested primary elections. As it happened, the other Democratic candidates had suspended their campaigns quite some time ago, including Andrew Yang and Sen. Bernie Sanders. But they challenged the primary cancellation under the First Amendment. They won in the Southern District of New York, and the Court of Appeals affirms.

When you seek a preliminary injunction, you have to convince the court that you deserve to win the case right now, prior to discovery or a formal trial. You have to show, largely on the paperwork, that you will most likely win the case and will suffer irreparable harm without an immediate injunction. This relief is hard to come by. But plaintiffs win the injunction because, first, the loss of constitutional rights is usually irreparable (and besides, a drawn-out lawsuit would be mooted by the time the case is finally decided, as the primary date will have come and gone). Second, the Court of Appeals finds, we have a serious First Amendment problem when a primary election is cancelled because the candidates, even if they are destined to lose, have the right to "engage in association for the advancement of beliefs and ideas" and "to cast their votes effectively." The candidates also have the right to compete for delegates, which can only happen if they compete in a primary election, as accumulating delegates gives the candidate influence over the party platform at the Democratic National Convention. In addition, Yang and Sanders supporters have the right to vote for the candidates of their choice, and their delegates have the constitutional right to attend the convention.

The Cuomo administration cannot offer compelling reasons to cancel the primary. Yes, we are in the midst of a public health pandemic, but voters can vote by absentee ballot, and while the state claims it need to conserve its resources to conduct other primaries, the state has not backed up this claim with real evidence. This asserted justification "warrants little discussion," the Second Circuit (Cabranes, Kearse and Jacobs) writes.

Since there is a political overtone to this case, Judge Cabranes drops an interesting footnote to emphasize how party conventions can actually make a difference, even if the party nominee has already been in effect chosen by then. He writes:

The Democratic Party is familiar with how unsuccessful presidential candidates have influenced the party’s governance and shaped the party’s rules in a way that has transformed the internal structure and politics of the Democratic Party moving forward. For example, after an unsuccessful run to obtain the Democratic nomination for President in the midst of the tumultuous 1968 Democratic National Convention, Senator George McGovern led an effort to reform the Party’s internal structure and nominating procedures. The effort concluded in the adoption of “guidelines to eliminate state party practices that limited the access of rank-and-file Democrats to the candidate selection procedures, as well as those that tended to dilute the influence of each Democrat who took advantage of expanded opportunities to participate”—which are commonly known as the “McGovern Rules,” and which were formally “incorporated into the Call to the 1972 Convention, which set forth the formal requirements of the delegate selection and nominating processes for the Convention.”

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