Category Archives: primaries

Democracy Protection Requires More than Voting Rights

Senator Tim Kaine has a new Washington Post op-ed entitled The Jan. 6 attack demands that we protect voting rightsin which he says: “Only by passing comprehensive voting rights legislation can we live up to th[e] responsibility” to protect democracy from another attempt to subvert it like the one that occurred on January 6. 

The problem with Kaine’s argument is that while the right to cast a ballot, and to have it counted as cast, is necessary if democracy is to survive in the United States, safeguarding these voting rights does not suffice.  Perfect protection of these essential voting rights does not address what I’ve called the “Portman problem” and now “the Gonzalez problem”: the structural flaw of partisan primaries combined with plurality-winner general elections.

This structural flaw enables an authoritarian-leaning faction within one of the two major parties to win for its candidate the party’s nomination in its primary, beating a non-authoritarian primary opponent who would have been the “Condorcet winner” in the general election.  The authoritarian-leaning major-party nominee then goes on to prevail in the plurality-winner general election, because the “Condorcet winner” was knocked out in the primary and has no way of prevailing in the general election as most majority-preferred candidate (which the Condorcet winner is) given that the general election awards the office to a plurality winner and does not require a show of majority support.  In this way, the plurality-winner rule for general elections, combined with the antecedent partisan primaries, enables an authoritarian faction that only has minority support within the electorate overall (and whose candidate is not the Condorcet winner) to capture government power.

If America is going to protect itself from the risk of another January 6, it is going to need to fix this structural flaw. As is altogether too obvious, and is exemplified by Anthony Gonzales withdrawing from his reelection bid to avoid a Trump-inspired primary fight, Trump is endeavoring to exploit this structural flaw to recapture political power even though he represents only a minority faction and lacks majority support in the November electorate (statewide or district-specific, as in the Portman or Gonzalez examples). If he is able to use this structural flaw to take control of Secretary of State offices, governorships, and U.S. Senate and House seats, then his authoritarian-leaning minority faction is positioned to repudiate the result of the 2024 presidential election based on a “Big Lie 2.0” and the systematic plague of electoral McCarthyism he has been spreading.

 I have no doubt Senator Kaine is well-intentioned. But he is misdiagnosing the threat and the remedy necessary to address it.  Making sure every voter can cast a ballot in the midterms, and counting those ballots correctly, does not solve the Portman-Gonzalez problem.  (Even ending gerrymandering does not suffice, since the “Portman problem” applies to statewide as well as district-specific elections.) To adequately address the current danger of incipient authoritarianism to America democracy, it is necessary to eliminate plurality-winner general elections, which Congress is constitutionally empowered to do for U.S. Senate and House seats.  Regrettably, however, Senator Kaine’s Freedom to Vote bill makes no effort to do that. 

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The “Portman problem” is now also the “Gonzalez problem”

Earlier today, I did a post explaining why, if the goal is to reduce the risk of Republicans repudiating the result of a valid victory in the 2024 presidential election by the Democratic candidate, the highest electoral reform priority for Congress right now should be to enact the “majority winner rule” I’ve advocated previously–and elaborated upon in a forthcoming law review article. What I describe as “the Portman problem” (referring to Senator Rob Portman’s decision to abandon his Senate seat rather than facing a Trump-dominated GOP primary, even though he most likely would win the November election if it were a one-one-one race against either the Trump-backed candidate or the Democratic nominee) can be remedied, not by the various make-it-easier-to-cast-a-ballot provisions of the newly unveiled Freedom to Vote bill, but instead by structural reform that would replace plurality-winner general elections with the requirement that a general election winner must receive over 50%. This kind of majority-winner rule would enable a GOP moderate, like Portman, to compete in the general election even if unable to prevail in a Trump-dominated GOP primary.

Now, as if on cue, we get the news that Rep. Anthony Gonzalez, like Portman, won’t run for reelection next year. It’s the same problem: Gonzales likely could beat either the Trump-backed candidate or the Democratic nominee one-on-one (as thus is technically “the Condorcet candidate” for reasons that I explained in my earlier post today), but is structurally boxed out under the current system of a partisan primary followed by a plurality-winner general election. According to an interview Gonzales gave to The NY Times, Gonzalez laments the fact that “the congressional wing of the [Republican] party will become only more thoroughly Trumpified” as a result of his bowing out of the race. To Gonzalez, “Trump represents nothing less than a threat to American democracy,” calling him a “cancer for the country.” Even so, the structural combination of the partisan primary and the plurality-winner general election prevents Gonzales from trying to stay in Congress to avoid “a Trump-dominated House Republican caucus.”

This news of Gonzalez’s decision, coming in the same week that Senate Democrats release their Freedom to Vote bill, ought to be an alarming signal that they haven’t focused on the electoral reform most needed to protect American democracy from Trump-instigated election subversion. If the Senate next week is going to debate what congressional legislation is absolutely essential to safeguarding democracy, it should make sure to consider the kind of structural reform that would let the likes of Portman and Gonzalez–as well as Liz Cheney and so many other threatened non-Trump Republicans–prove themselves to be the most majority-preferred candidate in the general election even if they can’t win a Trump-dominated GOP primary.

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Democrats, democracy, and “the Portman problem”

Can one party save democracy by itself? I don’t think so, but that seems to be the view of some, as nicely captured by Ed Kilgore in responding to my blog post How Best to End “Electoral McCarthyism”?

            Kilgore acknowledges: “Democrats should exhibit reasonableness unilaterally as the sole custodians of small-d democracy.”  Further, this reasonable self-restraint on the part of Democrats means, Kilgore continues, their “voting-rights bill imposed by a filibuster carve-out … need not include every conceivable or advisable reform, so as to enable Republican claims of a ‘power grab.’”  Since the reason for my blog post was to explore how to reduce the risk of Republicans repudiating valid election victories by Democrats based on claims that Democrats unilaterally imposed electoral rules yielding results that can’t be trusted, there may not be much distance between Kilgore and me practically speaking. 

            Still, I think it’s worth considering for a moment the idea of Democrats “as sole custodians of small-d democracy.” For how long? The whole point of a fair two-party electoral system is that each party has a good chance of winning. In next year’s midterms Republicans may take back the House, and perhaps the Senate as well, even assuming Democrats unilaterally enact all the provisions in their newly unveiled Freedom of Vote bill. Then what? 

Continue reading Democrats, democracy, and “the Portman problem”
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What new census data tell us about Pa.’s politics: More influence for Philly and Latinos, and a shrinking white vote

From Jonathan Tamari and Jonathan Lai at the Philadelphia Inquirer: An interesting in-depth analysis of the potential political consequences of demographic changes in Pennsylvania—sadly, behind a firewall.

Two key points beyond the headline:

  • “Philadelphia and suburban Bucks, Chester, Delaware, and Montgomery Counties added more than 209,000 people in the last decade. That’s a 5.22% increase, while the rest of the state grew just 1.05%.”
  • The five counties around Harrisburg are also growing: “The population in these five counties increased by 107,000, a 6.7% growth that was among the state’s highest.”

One potential implication (not discussed in the article): As political power shifts to relatively wealthy and politically well-organized suburbs, Pennsylvania may begin to join those states, like Minnesota, Wisconsin, and Maine, that tend to see a less radical drop in turnout during midterm elections. “About half of the vote in a Democratic primary now comes from the Philadelphia region”—i.e., from these counties.  This will give those voters “massive influence” in state-wide races, but is also likely to impact voter turnout.

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Michigan Mess: Internecine War in GOP

Politico has a fascinating read on the infighting among Michigan Republicans between Trump supporters, for whom belief that 2020 election was stolen from Trump remains the focus of attention, and traditional Republicans who (like Bill Barr) recognize that this stolen election claim is nonsense. For Michigan, the question is whether this GOP infighting will prevent them from being successful in 2022, especially in the key gubernatorial election.

For those who remember the Tea Party movement of 2010 and 2012, if the GOP veers too far right, Democrats can win November elections that they otherwise would lose in battleground states. Michigan right now would seem an example of this. In their competition with Democrats, it matters what kind of profile the GOP presents to voters. Presumably, the same is true in a state like Pennsylvania.

Conversely, in states that are more right-of-center (like Ohio has become), the dynamic is different. If the GOP there becomes overtaken by obsession over the stolen election claim, there is less likelihood that the GOP will suffer consequences in the November elections. Thus, the consequence of Trump’s takeover of the GOP may differ state to state. One obvious state to watch, given its potential implications for 2024, is Wisconsin.

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Could you withstand the pressure?

Two articles, one in The Atlantic and the other in The New York Times, discuss how first-term Representative Nancy Mace–a Republican from South Carolina–initially condemned Trump for causing the January 6 insurrection, only to backtrack since then. She’s no Liz Cheney, in other words.

But it’s easy to criticize. Can any of us be sure how well we would handle the pressure if we were in their situation? (The pressure is the threat of being abandoned by Trump’s supporters in favor of someone more loyal to Trump.) It’s easy to say we’d have the courage and fortitude of Cheney, but unless we face it ourselves first-hand we can’t really know. The sad truth is that, in the aggregate, Cheney is the exception, not the rule.

The implications of this is that, insofar as is possible, we should look for institutional ways to reduce the pressure and to make it easier for our representatives to do the right thing rather than the wrong thing. (One reason I’ve been working on the idea of round-robin voting, and how it relates to the kind of instant-runoff voting system adopted in Alaska, is to explore institutional alternatives that would help reduce this sort of pressure.) The basic insight of Madisonian theory, as I understand it, is that the institutions of government should be structured in such a way as to “economize” on the limited amount of political virtue that inevitably exists given human nature. “If men were angels,” as Federalist 51 says, we wouldn’t need to worry. Conversely, if there’s no virtue whatsoever, republican government couldn’t possibly function (only anarchy or despotism). So the trick is to calibrate institutions to the amount of virtue that exists (which hopefully is at least sufficient), and if possible create a virtuous circle where good institutions breed more virtue, which in turn make it easier for institutions to serve the public interest. (The virtuous circle, in other words, reduces the pressure on individual politicians to outperform expectations in light of human nature.)

The big-picture problem, as I see it, is that right now our Madisonian system is seriously out of calibration. Currently, there’s not enough virtue for our existing set of institutions. Or, to put the same point another way, our institutions are not, or no longer, well-suited to the amount of virtue we collectively have at the moment. We need to recalibrate, to get our institutions and our communal measure of virtue sufficiently back in alignment. But that’s easier said than done.

The advantage of stories like these two on Nancy Mace is that, as incomplete as they inevitably are in explaining our current predicament, they spotlight the the fact that the virtue component of the recalibration effort necessarily operates at the level of individual souls; it’s not just a matter of the overall structural context in which these individual souls operate. To get a virtuous circle rolling in the right direction, we will have to up our game at the individual level, in order to achieve the institutional reforms required to reduce the need to rely on extraordinary virtue, and to secure even more institutional reform, and so forth. It’s going to be a difficult challenge, but there’s no point giving up without trying.

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Trump’s efforts to “primary” Cheney

Politico goes deep into the details of former president Trump’s concerted plans to oust Rep. Liz Cheney as revenge for her commitment to honest vote-counting. Particularly interesting are the efforts to change the rules to make it more difficult for Cheney to win:

Underscoring the urgency, Donald Trump, Jr. earlier this year threw his support behind legislation that would change Wyoming election law to make it harder for Cheney to win against a splintered field. The proposal would have implemented a runoff if no primary candidate received a majority of support in the first round of voting, thereby forcing Cheney into a one-on-one matchup against a Trump ally.

The legislature, however, voted down the bill in March. Since then, some state lawmakers have pursued other election law changes that would hinder Cheney’s prospects.

Two of the potential rule changes under consideration according to an article linked to by Politico are ranked-choice voting and a California-type nonpartisan top-two primary. I don’t know if either of those moves would be successful in blocking Cheney; much as with Senator Lisa Murkowski’s situation in Alaska, it would depend on what percentage of voters view Cheney as their first-choice preference. As I discuss in my paper on Round-Robin Voting, both Instant Runoff Voting (what “ranked choice voting” usually is) and California’s top-two system privilege the electorate’s first-choice preferences in comparison to all the preferences that voters have among the candidates in the race. In other words, if many voters really don’t want a candidate to win, perhaps because they view the candidate as authoritarian and dangerous to democracy, that preference (no matter how strong) will be downplayed in either Instant Runoff Voting or California’s top-two system.

Round-Robin Voting, by contrast, does not privilege (or downplay) any of the preferences that voters have among the various candidates and thus will treat a preference that a candidate lose equivalently to a preference that a candidate win. Without looking more closely at the Wyoming race, I can’t be more confident of my assessment, but I’m inclined to think that Cheney would fare much better in a system with Round-Robin Voting than under the current system or under either Instant Runoff Voting or California’s top-two system. The same point applies to Murkowski. The basic reason is that voters who don’t prefer Cheney or Murkowski as their first choice, but really don’t want a Trump-endorsed candidate to win, might rank Cheney or Murkowski second (and enough voters who prefer the Trump-endorsed candidate first might hold their noses and still prefer Cheney or Murkowski to a Democrat). If this is true, then Cheney and Murkowski can win the head-to-head matches that form the Round-Robin Voting competition, even if they would not have enough first-choice strength to prevail under either Instant Runoff Voting or California’s top-two system.

Thus, as one considers how the choice of an electoral system may favor Trump’s midterm efforts to purge Cheney, Murkowski, and others in his quest for a return to power, one should consider the same question in reverse: what electoral system would best protect against Trump’s authoritarian-style populism? I submit that a version of Round-Robin Voting has the best prospect of serving that democracy-protection purpose (although that hypothesis should be tested empirically with whatever data can be mustered for the task).

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Tournament Elections with Round-Robin Primaries

I’ve posted a draft of this paper on SSRN. Here’s the abstract:

Round-robin voting uses ranked-choice ballots but calculates which candidates are most preferred by a majority of voters differently from instant-runoff voting. Like a round-robin sports competition, round-robin voting determines how each candidate fares against every other candidate one-on-one, tallying the number of wins and losses for each candidate in these one-on-one matchups. If necessary to break a tie in these win-loss records, round-robin voting looks to the total number of votes cast for and against each candidate in all of the one-on-one matchups—just as round-robin sports tournaments look to an equivalent total point differential statistic to break ties. When used in a primary election as the method to identify the top two candidates deserving to compete head-to-head as finalists in the general election, comparable to the use of round-robin competition as the preliminary stage of a sports tournament, round-robin voting is the electoral system best able to implement the democratic idea of majority rule.

I was delighted to have the opportunity to present an earlier draft at the University of Wisconsin Law School’s “Public Law in the States Conference” on June 23, and I’m looking forward to working with the Wisconsin Law Review on preparing the paper for publication. This draft will be revised before submission to the law review’s editors at the end of August, and therefore I very much welcome any comments that readers might email me before then.

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Effect of Primaries on Electoral Outcomes?

Geoffrey Skelley at 538 has a piece on Lee Drutman’s very important new report analyzing the effect of primary elections on general election outcomes. (I mentioned this report in a previous blog post.)

As Skelley explains, Drutman’s report is based on extensive empirical data and questions whether the rules governing primary elections contribute to the increased polarization of electoral results. In this respect, Drutman is running counter to others who argue that primaries are a main driver of skewed politics, causing outcomes artificially distorted compared to a baseline of what voters as a whole actually want. Drutman’s case is very detailed and deserves more consideration than I will give it here.

I want to highlight one point from Skelley’s useful summary of, and commentary, on it. Skelley, like Drutman himself, observes that Alaska’s new “top four” system might be more effective at combatting polarization than previous efforts at primary reform, like California’s “top two” system. (Alaska will use Instant Runoff Voting in its general election to identify the winner among the top four candidates who advance from its nonpartisan primary.) But Skelley appropriately cautions, using Senator Lisa Murkowski’s upcoming 2022 race as an example, that the Alaska system may be no more able to counteract the increased polarization of voter preferences than California’s “top two” system.

In this regard, it’s worth noting that an alternative electoral system, Round-Robin Voting, would handle polarization very differently from either California’s “top two” or Alaska’s “top four” systems. (Round-Robin Voting uses ranked-choice ballots but it calculates the relative strength of candidates differently from the Instant Runoff Voting methodology used in Alaska and elsewhere.) I have written about Round-Robin Voting, including comparing it to California’s “top two” system and Alaska’s new “top four” alternative, as part of a paper arguing that Congress should adopt a “majority winner” rule that would require states to experiment among different majority-winner electoral systems. (California’s top two, Alaska’s top four, and Round-Robin Voting would all qualify, but the combination of partisan primaries and plurality-winner general elections would not.) This video uses graphics to show how Round-Robin Voting treats polarized voting preferences very differently from either the California or Alaska system.

One aspect of the video deserves mention in connection with Skelley’s piece. Skelley observes that, contrary to conventional wisdom, recent studies suggest that primary voters are not ideologically more polarized than general election voters. If this is true, it’s not enough just to “fix” primaries by changing the rules governing them; instead, it’s necessary to consider more broadly how primary elections interact with general elections in eventually producing a single winner from a field of multiple candidates across the ideological spectrum. The comparison of Round-Robin Voting with the California and Alaska systems in the video (and in a separate paper on which this video is based, to be posted shortly on SSRN) assumes that the electorate is the same ideologically for both the primary and general elections; even so, Round-Robin Voting reaches a very different result given the same set of polarized preferences from voters than does either the California or Alaska systems. Therefore, as one considers the implications of Drutman’s important report on primaries, one should consider not only the potential of Alaska’s top-four system and Skelley’s cautionary note about it. Also relevant is the possibility of Round-Robin Voting as an alternative way to address the issue of increased polarization.

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J.D. Vance and the pressures of primaries

In a remarkably candid TIME interview with Molly Ball after announcing his candidacy in Ohio’s 2022 U.S. Senate election, for the seat being vacated by Rob Portman, J.D. Vance acknowledged that he’s pandering to ex-president Trump because that’s the only way to be viable in the GOP primary: “I need to just suck it up and support him.”

It’s believed that Portman abandoned his Senate seat, despite remaining popular among Ohio’s general election voters, in part because he didn’t want to pander to Trump for the sake of winning the primary. In this respect, Portman is in the same position as Roy Blunt of Missouri, Richard Burr of North Carolina, Richard Shelby of Alabama, and Pat Toomey of Pennsylvania, all non-Trump Republicans giving up their Senate seats.

Vance’s comment, as a kind of exclamation point on this troubling trend, vividly illustrates one of the main observations of recently released “The Primary Problem” report from Unite America: the existing system of partisan primaries, followed by plurality-winner general elections, not only affects which candidate ultimately holds office but also how candidates choose to campaign and then act in office in order to avoid being “primaried” when running for reelection. The distortion of representation is pervasive as a result of the particular institutional arrangement in which candidates compete. (An even newer report, from New America, reaches a similar assessment–“primaries incentivize more polarizing behavior among candidates and legislators”–although it is cautious in its conclusions on how best to address the issue.)

I wonder, therefore, what kind of candidate J.D. Vance would have attempted to be if he were running, not in the current system, but instead in the system of “Round-Robin Voting” that the Election Law at Ohio State program is developing. This system, which involves a variation on ranked-choice voting, requires candidates to compete one-on-one against all other candidates for the office regardless of party affiliation, to determine which candidate is most preferred by a majority of the entire electorate. If you watch until the end of this 15-minute video explaining Round-Robin Voting, you’ll see that it hypothesizes an “Opportunist” candidate attempting to position himself (or herself) in between a Trumpian Populist (like Josh Mandel, already running for this Ohio U.S. Senate seat) and a traditionally Conservative Republican (like Rob Portman). Does J.D. Vance exemplify this “Opportunist” candidate, and how would he fare in a Round-Robin Voting nonpartisan primary? Also, would Portman have run for reelection if he had been able to do so in a Round-Robin Voting nonpartisan primary?

Rather than answering these questions definitively right now, it’s instead worth keeping them in mind as the 2022 midterm campaigns unfold. The big-picture point: as much as the changing nature of American politics is caused in part by changes in voter preferences, it is also significantly a product of the particular system in which politicians operate. If that system artificially magnifies increasingly extremist tendencies in what voters want, it’s necessary to alter the system itself to undo that dangerous magnification of extremism.

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“It might just be game over for the Iowa caucus”

Politico:

The siege of Iowa and New Hampshire has begun.

The two states with privileged places on the presidential primary calendar are finding their roles more threatened than ever before — most recently in the form of a bill introduced in Nevada this week to move that state’s nominating contest to the front of the line in 2024.

On its own, the Nevada encroachment would mean little. For years, Iowa and New Hampshire have successfully defended their one-two position from states eager to jump ahead. But the combination of Iowa’s botched 2020 caucus and increasing diversity in the Democratic Party’s ranks has made the whiteness of Iowa and New Hampshire all the more conspicuous, putting the two states on their heels and throwing the 2024 calendar into turmoil.“There’s no reason in the world that those states should go forward so early, because they’re not representative of what 90 percent of the country’s all about,” said former Senate Majority Leader Harry Reid, a Nevada Democrat who remains influential in party politics. “America looks different than it did 50 years ago, when these traditions were put in place, and the Democratic electorate looks really different.”

He added, “It’s no longer palatable, as far as I’m concerned, for those states to take precedence over states like South Carolina and Nevada.”

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“A Plan to Keep Extremists Out of the G.O.P.”

Timothy Egan for NYT Opinion:

Hear me out. In Washington, along with California, the top two vote-getters in a congressional primary, regardless of party affiliation, advance to the general election. Sometimes two Democrats make the final. Sometimes two Republicans. Often, it’s one of each, with partisan zealots left out.

In my home state of Washington, the Trump fanatics, conspiracy theorists and misinformation merchants who dominate the G.O.P. are in a lather over the votes by Herrera Beutler and Newhouse to impeach Trump.

“Turning a blind eye to this brutal assault on our Republic is not an option,” Newhouse said last month in announcing his decision.

“I’m not afraid of losing my job,” said Herrera Beutler. “But I am afraid that my country will fail.”

Republicans in her district, a moderate to conservative swath of southwestern Washington, called her vote shameful, and they vowed to primary her. Good luck with that.

In a top-two primary system, Herrera Beutler will almost certainly make the runoff, even if another Republican gets more Republican-leaning votes in the primary. But in the general, she’ll pick up independents and many Democrats, as she did in the past. She won by 13 percentage points last November, in a district that Trump carried by four points.

Removing the leverage to knock out Herrera Beutler in the primary allows her to be more accountable to her constituents than to her party. Little wonder that she’s also a member of the bipartisan Problem Solvers Caucus.

I expressed some similar views here at Slate:

Making these kinds of changes will help assure that elections are fairer and that results will more likely reflect the will of the people. But they won’t do enough to deal with the Trumpian wing of the Republican Party, which needs to be weakened to re-create a system in which both political parties are led by responsible actors, and where leaders cannot be held hostage to a radical minority within the Republican party.

To that end, we need structural change to help Republican moderates fend off primary challenges from Trumpians in the House and Senate. There are a number of forms such changes can take. As the Supreme Court recognized in Rucho v. Common Cause, Congress has broad power to set the rules for congressional redistricting even if states object. Congress can require districts to be drawn with bipartisan or nonpartisan commissions, which can help eliminate some of the more extreme forms of gerrymandering that lead to the election of more extreme Republican candidates. In light of the fact that moderate Republicans fear getting primaried by more extreme insurgents within the party, Congress can require the use of ranked choice voting, or other methods of voting that require winners to represent true electoral majorities.

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Second Circuit Unanimously Affirms District Court Order Requiring New York to Conduct a Presidential Primary

The order is here. An opinion to follow is promised. “After reviewing the record, we affirm the order granting the application for preliminary injunction for substantially the reasons given by the District Court in its thorough May 5, 2020 Opinion and Order. See Yang v. Kellner, No. 20-cv-3325 (AT), —F. Supp. 3d—, 2020 WL 2129597, at *1–14 (S.D.N.Y. May 5, 2020).”

Update: New York is not appealing the ruling.

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“New York Cancels Primary Election, Angering Sanders Supporters”

NPR:

New York Democrats will not be casting primary votes for a presidential candidate this year.

State election officials effectively canceled the presidential primary by removing every Democrat except the presumptive nominee, former Vice President Joe Biden, from the primary ballot.

According to multiple reports, Douglas Kellner, co-chair of the New York State Board of Elections, received thousands of emails from Sanders supporters pushing for the primary to continue as planned.

“What the Sanders campaign wanted is essentially a beauty contest that, given the situation with the public health emergency, seems to be unnecessary and, indeed, frivolous,” Mr. Kellner said.

The primary, originally scheduled for April 28, had previously been pushed back to June 23 due to concerns over the coronavirus.

Voting will continue as planned for New Yorkers on June 23 for congressional and state-level races.

The cancellation will likely make it easier for election workers to manage the other state elections in June during a primary season that has seen unprecedented administrative challenges.

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