NEW YORK (AP) – Federal appeals court judges seemed inclined during oral allegations on Friday to let New York's Democratic presidential primary continue next month, despite state claims that it could threaten voter safety during a pandemic.
The panel of three judges at the U.S. Circuit's 2nd Court of Appeals heard 90 minutes of arguments after a judge last week ordered the primary, despite an April decision by Democratic members of the state's Elections Council to cancel it.
Even without the presidential primaries, elections were scheduled in all 62 state races, except two, for other elections, including congressional and state races.
The judges did not decide immediately, but they vigorously leaned against the state.
Some of them confessed to the claim by Judith Vale, a state attorney, that Bernie Sanders and Andrew Yang could have remained on the ballot by withdrawing their announcements that they were suspending their presidential campaigns. Instead, lawyers sued to keep them in the vote.
Circuit Judge Amalya L. Kearse asked what a candidate would have to do to reinstate a suspended campaign.
Vale said it would have to send a letter to the Elections Council or "make it clear that they were suspending their campaign".
"How does this differ functionally from what Senator Sanders did, which was simply asking not to be removed from the vote?" Asked Kearse.
Vale said Sanders did not announce that he was suspending the suspension of his campaign.
Judge Dennis Jacobs noted that a way for a candidate to decide to re-run the race is if "they did very well in the presidential primaries in New York."
"So the question is whether this becomes a self-fulfilling prophecy," said Jacobs. "If you suspend, you will not be able to go to the polls. If you cannot go to the polls, you will not be able to get public support. This generates money. If you cannot bring money, you cannot revive your campaign."
Judge José A. Cabranes cited constitutional voting rights and the First Amendment and questioned whether state or national Democratic leaders had a say in the decision to cancel the primary.
He also said that delegates play an important role in the Democratic convention and have made a difference in selecting candidates for the vice presidency in the past.
"Doesn't it seem strange that, in some way, these other political competitions continue and the only one eliminated is the presidential primary? Doesn't it suggest that there is a specific goal here that might not be obvious to any of us?" Asked Cabranes.
"No, no," replied Vale. "It all happens in the context of the pandemic."
"Has any other state canceled its presidential primary?" Asked Cabranes.
"No," said Vale.
"So this is quite unusual, obviously by definition," said Cabranes.
Sanders and Yang's lawyers noted that the state never spoke when it changed the rules that candidates needed to suspend campaign suspensions to remain at the polls.
Lawyer Jeffrey Kurzon, who sued on behalf of Yang and several alleged delegates, told the judges it was "amazing" that the election was canceled. He called it "mid-game change" that was overturned by the lower court.