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Last week, the Democratic commissioners of the New York Board of Elections did something unprecedented in election law: They threw legally qualified candidates off the ballot without their assent. Yesterday, a district judge held that what the board had done was unconstitutional and ordered it to reinstate the presidential primary for June 23.
Judge Analisa Torres’s decision was a lucid, thorough 30-page destruction of the board’s argument. It was an especially important decision given that Donald Trump, whose disrespect for the law and desire for power are well established, might use any precedent to justify canceling or closing down elections later this year.
The Board of Elections is planning to appeal to the Second Circuit, setting up a major court battle about just how far states can go in authoritarian ballot stripping because of the pandemic. The question of the case boils down to this: During a public health crisis, do we lose our constitutional rights? Does the state still have to justify major burdens on our rights with well-tailored responses, or can it simply say “pandemic” and gain arbitrary powers it would never otherwise have?
The suit that led to yesterday’s decision was brought by Andrew Yang, Yang delegates, and delegates for Bernie Sanders, all of whom had qualified to appear on the ballot in the New York presidential primary, after that primary—originally scheduled for April 28 and then postponed to June 23—was canceled. On April 3, Governor Andrew Cuomo had pushed through a law that gave the same-party members of the Board of Elections total discretion to remove from the ballot any qualified candidates who had “suspended” their campaigns. The Democratic commissioners of the Board of Elections then used that newfound power to get rid of 10 candidates and their delegates and cancel the primary. The reasons they gave were that the candidates were no longer in the race (something the candidates disputed), that the race was a foregone conclusion, and that we have a serious pandemic.
Sanders’s campaign—which had recently won 23 percent of the delegates in Kansas, despite his not actively campaigning in the state—called the move outrageous and pointed out that the Vermont senator had not dropped out of the race. Yang, like Sanders, was clear that while he had suspended his campaign, he had not terminated it. In an affidavit for the case, Yang wrote that he “believed and expected that [his] name would nonetheless stay on the ballot in states with upcoming elections.” Yang and Sanders delegates, who had worked hard through the winter to get on the ballot (no easy feat in New York), pointed out the practical reasons they wanted to be elected even if their candidate was a long shot: Every delegate gets a voice and votes in key decisions about rules and the platform at the Democratic National Convention. If elected, they will have the power to vote on DNC rules, the DNC platform, the candidate for president, and the candidate for vice president.
In modern election law, limits on the right to vote—including ballot access limits—are subject to a balancing test, in which the reason for the limitation is weighed against the nature of the right being burdened. If a state stops someone from voting altogether, the burden is enormous, and the decision is subject to the strictest scrutiny and highly unlikely to be found constitutional. If, on the other hand, the state moves a polling location from a post office to a school, the burden on the voter is slight, and the state can give convenience justifications for the move, which will likely be upheld.
Courts have long recognized that a state’s ballot access rules affect both the rights of candidates and the rights of voters—and that these rights can’t be easily separated. While a state has enormous leeway in crafting ballot access rules, that leeway extends only up to the time the rules are put in place; it can’t create one set of expectations for how to get on the ballot and then change them after the fact. Therefore, the burdens on the right to vote in this case were extremely severe: ballot stripping. That means any justification must be stacked up against other ways the same goal could be achieved. Plaintiffs’ lawyers argued (and I agree) that the state decision should be subject to the strictest scrutiny, because the vote was taken away. Judge Torres didn’t use that language, but she recognized the cancellation was a “weighty imposition” on the plaintiffs’ rights, one that would require a serious, carefully and closely crafted justification.
This test the Board of Elections failed miserably. It gave no thorough justification at the time of the decision but instead relied on generalities about how the candidates weren’t running and the need to protect public health. More importantly, the board’s public health justification simply doesn’t hold up under scrutiny. Judge Torres pointed out in her opinion that on the same date as the presidential primary, there are elections in most of the political units of the state, so it doesn’t make sense to cancel one election when the voters will be at the polls (or mailing in absentee ballots) anyway. She noted that the few areas where there are no other primaries are rural: The election is going forward in the most populous areas of the state—precisely those where the risk is highest. She noted that no other state had canceled a primary, despite the national nature of the pandemic; that the Board of Elections was offering absentee ballots to any voter who wanted one; and that it still had seven weeks to plan for safety measures in those areas where no election would otherwise have been held. Basically, she correctly concluded that the board can’t use a general claim of public health to justify such a severe burden on constitutional rights when there are less burdensome ways to address the health risk.
There are two other features of New York’s actions that are very troubling. The law put absolutely no constraints on how the deciders—the Democratic commissioners of the Board of Elections—could determine which suspended candidates stayed on the ballot and which did not. On its face, the law would allow the board to kick off Yang and keep Warren for no reason, just because it liked Warren better. The commissioners’ stated reasoning, while not mentioning personal dislike, came pretty close—one claimed that Sanders’s desire to remain on the ballot would render the vote a “beauty contest.” At best, this represented the commissioners’ making an independent judgment on what counts as a serious election and what does not, something you never want a state official to do without guardrails.
Also, until the legislature acted on April 3, the term “suspend” had no meaning in election law. “Terminate,” on the other hand, has always been highly consequential. For just that reason, “suspend” has long been the word candidates used when they wanted to stay on the ballot but take time off, with the possibility—but not certainty—that they would return. John McCain “suspended” his campaign for a few days in the middle of the financial crash of 2008, asking for a debate to be canceled and saying he needed to focus on the historic crisis at hand. Ross Perot “suspended” his campaign for three months in 1992 and then returned after his supporters demanded it. When Gary Hart’s Monkey Business went ’80s-viral, he, too, “suspended” his campaign, saying, “Under the present circumstances, this campaign cannot go on.” Seven months later, Hart returned to the campaign trail.
If we allowed a state to change the meaning of the word “suspend” midstream and transform election laws in this way, it would open the door to stripping lots of states’ rights. Imagine if, between now and November, Trump were to encourage Republican states to cancel the presidential election for public health reasons and suggest that the Republican-controlled state legislature change the ballot access rules in order to justify it. If that would outrage you, then Cuomo’s move should outrage you, too. It isn’t about Bernie or Yang; it’s about whether the state can arbitrarily strip away our rights on any pretext.
The Board of Elections would be wise not to appeal this decision but instead spend all its time and limited resources working to make the June 23 election run smoothly. Cuomo and New York state lawmakers should acknowledge that they made a mistake and speak out opposing the appeal. We have disagreed often in the past. However, I wouldn’t wish any Democratic governor to be remembered as the governor who fought for the right of states to rip names off a ballot without due process.
Judge Torres’s decision is a rare cause for celebration—for the sake of our voting rights and for the future of the Democratic Party. As the lawyers for the plaintiffs said in a statement late last night, “The victory here is not just a victory for candidates, it is a victory for the voters and for the political process. For Democrats to unite behind Joe Biden, for the thousands and thousands of supporters, particularly young supporters, to take up the fight against the Imperial President in the way which we need it to be taken up, the Democratic Party must be as open and democratic as possible.”