Friday, May 8, 2020

On-Again, Off-Again New York Democratic Presidential Primary is Back on Again

The late April New York State Board of Elections decision to cancel the Democratic presidential primary in the Empire state met some judicial resistance on Tuesday, May 5.

In a federal case brought by former Democratic presidential candidate, Andrew Yang, and some of those who filed to run as delegates aligned with him on the New York primary ballot, the aim was to reinstate candidates and delegates pushed off the ballot last month. It was that action -- the removal of  suspended candidates from the ballot -- that was the predicate to the state board's decision regarding the primary cancelation.

But the groundwork for that maneuver was laid in the budget agreed to by the state legislature and Governor Cuomo (D). Under traditional New York state election law, the State Board of Elections has the ability to cancel a primary if only one candidate qualifies, rendering the election uncontested and superfluous. That obviously was not the case in the 2020 Democratic nomination race. Although the bar to qualify for the New York presidential primary ballot is high, Vice President Joe Biden was not the only candidate to make the ballot.

However, Biden was the only candidate who had not suspended his campaign by the time the budget deal was being finalized. And while other candidates were still technically on the ballot, all had suspended their campaigns and most had endorsed Biden. And language was inserted in the budget bill to provide the state board with an additional tool given that contingency. The board was empowered with the ability to remove candidates from the primary ballot if they were no longer actively running for the nomination. That, in turn, triggered the "only one candidate" provision that has been a part of New York election law for years.

But again, candidates, both presidential and district delegate, had qualified for the original April ballot before the primary was shifted to June 23. And when the primary was canceled in late April, that drew the ire of the newly suspended Sanders campaign and the aforementioned Yang case.

So, on the one hand, one has the argument that the cancelation suppresses the vote not only in the presidential race in New York, but in all the down ballot races in parts of the Empire state that are still on for June 23. On the other is a state government attempting to manage the public health concerns around in-person voting and the coronavirus pandemic and possible budgetary savings from scaling that primary back that would help diminished state coffers in the face of the virus.1

Now that federal judge, Analisa Torres, has issued an injunction and the June 23 Democratic presidential primary is back on, it means that elections officials in the state have lost a week of preparation with fewer than 50 days until the election. And throw on top of that a likely appeal of the decision from the state. Much of this creates more uncertainty that cuts into the time to get the ballots ready and printed and applications for absentee ballots out to eligible voters (much less returned, processed and actual ballots mailed out as well). That is a heavy lift even without considering any issues with recruiting poll workers, training them for new conditions and getting them comfortable with showing up to administer the election.

But push the state government implementation issues aside for a moment. There still is no answer to how the New York Democratic Party is or has responded to the primary back and forth. Should the presidential primary now go off as planned under the original delegate selection plan and the new court injunction, then the revisions the state party will have to make to the plan will be minimal.

However, there was no alternate scenario publicly shared on how the party would allocate delegates should there be no primary. Under the current plan, the party allocates all of the delegates to the candidate in an uncontested primary. But that rule hinges on (and cites) the traditional New York state election law that cancels a primary if only one candidate qualifies for the ballot. There is no contingency in the rule in the delegate selection plan that accounts for the new law, the law that eliminates candidates from the ballot who are no longer running.

A change has to be made there if the primary is canceled again under appeal.

But that is not the only change under the cancelation contingency. There also likely has to be something written into the plan -- the revisions of which will have to be reviewed and approved by the DNC Rules and Bylaws Committee (DNCRBC) -- to account for the deal struck between the Biden campaign and the suspended Sanders campaign. Yes, that deal allowed Sanders to keep his statewide delegates instead of having them reallocated, but it also included a provision about the New York process in the event that there was no primary. That deal says Sanders will get some share of the delegates in the Empire state. But how that process is conducted, who is doing the selecting (especially with district delegates no longer directly elected on the primary ballot) and how to determine Sanders's share remain open questions that likely have to be dealt with in any changes the New York Democratic Party hypothetically makes to its delegate selection plan before it submits it to the DNCRBC.

In the end, there is some uncertainty that surrounds the delegate selection process in New York while Judge Torres's decision is appealed. But that uncertainty extends beyond just the state government and its administration of an election that is less than seven weeks off. It affects the state party's plans for how it will handle the delegate selection process itself with the clock ticking down to the start of a delayed national convention.

1 Yes, Governor Cuomo issued an executive order on April 24 ensuring that absentee ballot applications would be mailed to every eligible New York voter in the June 23 primary. That decision came just days before the primary was canceled by the State Board of Elections on April 27.

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