Barring an extremely unlikely intervention by the U.S. Supreme Court, New York’s June 23 primary will include a Democratic presidential primary, a three-judge panel of the Second Circuit Court of Appeals has now affirmed. As district court Judge Analisa Torres ruled on May 5, the ten presidential candidates removed from the ballot by order of Governor Andrew Cuomo, and the delegates pledged to them, will have their ballot access restored. That also means that the 20 counties (mostly upstate) with no down-ballot primary contests will have to make in-person voting available on June 23 to accommodate the presidential contest, though the state has tried to encourage maximum voting by mail. A presidential primary could, of course, also boost turnout in counties that do have June 23 contests.
The appeals court accepted without extended comment the trial judge’s conclusion that the risk of coronavirus infections in jurisdictions that would not otherwise hold a June 23 primary did not offset the First Amendment rights of the candidates and delegates (notably Andrew Yang, the plaintiff in the case, and Bernie Sanders, its chief beneficiary, along with their delegate slates) pursuing influence over the Democratic platform through a strong primary showing, even though their campaigns have been suspended.
From a practical point of view, the decision places additional pressure on New York election authorities to process the absentee-ballot applications sent to many millions of registered voters (with Cuomo having clarified that the coronavirus pandemic was a sufficient excuse for absentee voting) and get ballots out in time to minimize the necessity for in-person voting on primary day. The applications were sent with prepaid-postage envelopes. But if voting by mail really is robust, it will test the capacities of an election system that handled only 300,000 absentee ballots in the entire 2016 cycle.
As for the impact on the Democratic presidential nominating process, New York’s primary is likely to be an afterthought. Nomination process guru Josh Putnam estimates that unless there is some wild development damaging Joe Biden’s candidacy, the former veep is likely to pass the 1,991 pledged-delegate threshold for clinching the nomination on June 9, when Georgia and West Virginia hold primaries. The good news for New York is that the Rules and Bylaws Committee of the Democratic National Committee has voted to waive the sanctions that normally would have reduced the size of the convention delegations for states that held primaries after a June 9 cutoff. So the state will have its full apportionment of 274 pledged delegates, and the main question now is how many (if any) Bernie Sanders can win on June 23. New York could perhaps become the final preconvention test of party unity, and certainly an indicator of whether Tara Reade’s accusations of sexual assault against Biden are troubling Democratic voters.
