Tuesday, May 19, 2020

Appeal Denied. New York Democratic Presidential Primary Set for June 23

The US 2nd Circuit Court of Appeals on Tuesday, May 19 upheld a lower court ruling from earlier in the month reinstating the canceled New York Democratic presidential primary.

The state of New York had appealed the district court decision to reverse the New York State Board of Elections action canceling the primary under a new law that allowed the Board to remove candidates no longer in the race. Following the 2nd circuit ruling, the state will not appeal any further.

And that officially slates the New York Democratic presidential primary for June 23, a date just five weeks away.

Candidates both for president and district delegate had already filed for the April 28 primary ballot, so none of the state government nor judicial decisions have had any demonstrable impact on the filing process. Nor does the decision today affect the selection process for those district delegates. They will continue to be elected directly from the primary ballot. However, the date of the state convention and the selection of statewide -- at-large and PLEO -- delegates has been affected in the move to June. The State Democratic Committee will now select those delegates -- based on the statewide results of the primary -- at the late July state convention.

And two other factors will affect the administration of the election. First, the delay in finalizing the date of the New York primary did no favors to the State Board of Elections. Sure, the Board held that up with the appeal, but it also delayed finalizing the ballot for the primary election itself. And under the federal UOCAVA law, ballots are to go out to military and other personnel overseas 45 days before any election. There are workarounds for that -- counting the ballots when they come in, for example -- but a delay is a delay and can influence the implementation of election law.

Additionally, Governor Cuomo's April 24 executive order to provide absentee ballot applications (with a postage paid return option) to all eligible New York voters for the primary must be rolled out in the 35 day window remaining. The details of that process will have to be finalized as well, particularly the return of the completed ballots and whether that is mail-only for voters or if they can physically drop them off with election administrators.

One other matter to note is that the New York Democratic Party has amended its delegate selection plan to reflect not only the date change for the primary, but the allocation of delegates. Now, this point is moot at this time given that the primary is back on, but the language of Part 2, Section A of the delegate selection plan lays out the conditions under which the process would operate if the primary were canceled. Originally (and traditionally), the plan has called for all of the delegates to be allocated to the one candidate who has qualified for the primary ballot. That remains the case, but with a slight tweak. As a rider on that provision another is included: "or at the discretion of such Candidate." That addition was seemingly made in response to the deal struck between the Biden and Sanders campaigns to not only allow Sanders to keep his statewide delegates but to get a share of New York delegates if the primary ultimately ended up canceled. It is not and thus that provision is unnecessary. Still, there was a notable change to the language of the rules.

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

Cuomo Executive Order Confirms New York Presidential Primary Will Move to June 23

New York State Legislature Begins Working on Alternatives to April 28 Presidential Primary

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