Sanders Legal Team Protests Possible ‘Involuntary Erasure’ of Senator From New York Primary Ballot

The legal team representing Sen. Bernie Sanders’ presidential campaign expressed opposition on Sunday to New York election officials’ possible decision to remove the Vermont senator from the state’s presidential primary ballot, a ploy that has angered progressives eager to help Sanders accumulate as many delegates as possible ahead of the Democratic National Convention.

With a vote on whether to remove Sanders from the ballot expected Monday, Sanders attorney Michael Seymour wrote in a letter (pdf) to the New York State Board of Elections—first obtained by HuffPost—that “Senator Sanders wishes to remain on the ballot, and is concerned that his removal from the ballot would undermine efforts to unify the Democratic Party in advance of the general election.”

The New York primary is scheduled to take place on June 23.

Though Sanders suspended his presidential campaign on April 8, Seymour noted, Senator Sanders has not “officially terminated his candidacy with the Federal Election Commission” and has explicitly voiced his desire to “remain on the ballot in upcoming primaries, gather delegates, and attend the Democratic National Convention, with an eye to influencing the party’s platform.”

“His involuntary erasure from the ballot, on grounds of a law that was not in effect when he announced his campaign’s limited suspension, would sow needless strife and distrust, impeding Senator Sanders’ efforts to unify the Democratic Party in advance of November elections,” Seymour wrote.

The law to which Seymour referred is a budget measure signed by New York Gov. Andrew Cuomo on April 13 that contains a provision empowering the state’s Board of Elections to remove from the ballot candidates who have ended their presidential campaigns.

The language of the provision indicates that New York election officials have discretion to determine whether a candidate should be removed from the ballot: “The state board of elections may determine… that the candidate is no longer eligible and omit said candidate from the ballot.”

As HuffPost reported, Board of Elections co-chair Douglas Kellner, a Democrat, “interprets that language to mean they’re effectively required to remove Sanders.”

Commissioner Andrew Spano, also a Democrat, has “expressed ambivalence… weighing the inconvenience to county governments against the desire of Sanders supporters for a ‘voice at the convention,'” HuffPost noted.

To remove Sanders from the presidential primary ballot, both officials must agree to do so.

Seymour warned in his letter Sunday that Sanders’ removal from the ballot would “undermine the Democratic Party’s interest in self-governance and unification.”

“Senator Sanders has complied with the state party’s Delegate Selection Plan and with the national party’s Delegate Selection Rules,” said Seymour. “The party’s rules do not permit, much less require, his involuntary  removal from the ballot because of a public announcement of campaign suspension.”

Read the full letter:

Dear Sirs:

Our firm serves as outside counsel to the 2020 presidential campaign of Senator Bernie Sanders (the “Campaign”). We understand that the Campaign  will  not  have  an  opportunity to present at tomorrow’s meeting of Commissioners to determine whether Senator Sanders will remain on the ballot for the June  23,  2020 Presidential  Primary (the  “Primary”). In lieu of our live participation, we respectfully submit this letter for your consideration, and to document the Senator’s position on the official record: Senator Sanders wishes to remain on the ballot, and is concerned that his removal from the ballot would undermine efforts to unify the Democratic Party in advance of the general election.

Senator Sanders has duly qualified for placement on the Primary ballot as a candidate for the Democratic nomination to the office of President of the United States. To get him on the ballot, the Campaign mobilized a vast  network of volunteer circulators across New York’s 27 congressional districts, gathering nearly 60,000 signatures for Senator Sanders and his 184 authorized pledged delegates. Before and after the petitioning process, the Campaign worked tirelessly in New York to conduct voter outreach and organizing initiatives. On April 8, 2020, Senator Sanders announced the limited  suspension of his presidential campaign, emphasizing that he  intended to remain on the ballot in upcoming primaries, gather delegates, and attend the Democratic National Convention, with an eye to influencing the party’s platform. Unlike most of the other major candidates who have conceded in this year’s Democratic primary, Senator Sanders has not officially terminated his candidacy with the Federal  Election Commission.

On April 13, 2020, five days after announcing the suspension of his campaign, Senator Sanders endorsed Vice President Joe Biden, the likely Democratic nominee.  Vice President Biden welcomed Senator  Sanders’s announcement,  his  endorsement,  and  his  plan  to  continue  collecting  delegates  for purposes of the Convention.  In statements to the press, one Biden campaign official confirmed, “[w]e feel strongly that it is in the best interest of the party to ensure that the Sanders campaign receives statewide delegates to reflect the work that they have done to contribute to the movement that will beat Donald Trump this fall.” It was also on April 13 that Governor Cuomo signed into law Senate Bill S7506B, an omnibus appropriations bill that added the following provision to the New York Election Law:

Notwithstanding any inconsistent provision of law to the contrary, prior to forty-five days before the actual date of a presidential primary election, if a candidate for office of the president  of  the  United  States  who  is  otherwise  eligible  to  appear  on  the  presidential primary ballot to provide for the election of delegates to a national party convention or a national party conference in any presidential election year, publicly announces that they are no longer seeking the nomination for the office of president of the United States, or if the candidate publicly announces that they are terminating or suspending their campaign, or if the candidate sends a letter to the state board of elections indicating they no longer wish to appear on the ballot, the state board of elections may determine by such date that the  candidate  is  no  longer  eligible  and  omit  said  candidate  from the  ballot; provided, however, that for any candidate of a major political party, such determination shall be solely  made  by  the  commissioners  of  the  state  board  of  elections  who  have  been appointed on the recommendation of such political party or the legislative leaders of such political party, and no other commissioner of the state board of elections shall participate in such determination.

N.Y. Election Law § 2-122-A(13) (emphasis added).  Several features of this new law warrant further discussion.

First, the law authorizes the Commissioners to remove a presidential candidate from the Primary ballot only if she or he “is otherwise eligible to appear” on that ballot.  To the extent the Board is contemplating  Senator  Sanders’  removal  from  the  Primary  ballot under  this  provision,  it  is acknowledging that he has satisfied all other requirements, and is “otherwise eligible” to appear on the ballot.

Second, the law is written in the present tense: it applies “if the candidate publicly announces,” and  not  “if  the  candidate  has publicly  announced.” This  is  significant  because  conduct-regulating statutes such as this one are presumed not to apply retroactively unless the legislature clearly signals that they should reach past conduct:

[A]pplication  of  a  new  statute  to  conduct  that  has  already  occurred  may,  but  does  not necessarily, have ‘retroactive’ effect upsetting reliance interests and triggering fundamental concerns about fairness. . . .  A statute has retroactive effect if ‘it would impair rights a party possessed when he acted, increase a party’s liability for past conduct, or impose new duties with respect to transactions already completed,’ thus impacting ‘substantive’ rights. . . .

In light of these concerns, “[i]t takes a clear expression of the legislative purpose … to justify a retroactive application” of a statute, which “assures that [the legislative body] itself has affirmatively considered the potential unfairness of retroactive application and determined that it is an acceptable price to pay for the countervailing benefits.” . . . The expression of intent must be sufficient to show that the Legislature contemplated the retroactive impact on substantive rights and intended that extraordinary result. Even within the same legislation, language may be sufficiently clear to effectuate application of some amendments to cases arising from past conduct but not others with more severe retroactive effect.

Regina Metropolitan Co., LLC v. New York State Division of Housing and Community Renewal, — N.E. 3d —, 2020 WL 1557900, at *10-11 (N.Y., April 2, 2020) (quoting Landgraf v. USI Film Prods., 511 U.S. 244, 144 S.Ct. 1483, 128 L.Ed.2d 229 (U.S. 1994); Gleason  v.  Gleason, 26 N.Y.2d 28, 36 (N.Y. 1970)) (internal citations omitted).

The  retroactive  application  of  §  2-122-A(13)  would  severely  impact  Senator  Sanders’  core substantive rights.  Invoking this provision against him would subject him to the prospect of involuntary ballot removal, notwithstanding his publicly stated desire to remain a candidate, and his satisfaction of all  legal  prerequisites  for  ballot  access.  Because  of  the  severity  of  this  potential  deprivation,  the presumption against retroactive application must operate with maximum force.

Section  2-122-A(13)  was  not  on  the  books  when  Senator  Sanders  announced  the  partial suspension of his campaign.  He had no opportunity conform his conduct (by exploring alternatives to formal  “suspension”)  to  avoid  adverse  application  of  this  new  provision.    The  presumption  against retroactive application dictates that, if the legislature truly intends to deprive a candidate of political rights by surprise and without prior notice, it must clearly say so.  Because the statute here does not clearly state that it applies to announcements made before the law’s passage, the presumption is not overcome.  The law should not be interpreted to apply to announcements made prior to April 13.

Third, the statute confers discretion on the Board to determine whether, under the circumstances of a particular candidacy, ballot removal is in fact appropriate.  The legislature would not have given the Board  this  discretion  if  the  legislature  had  not  anticipated  that  situations  would  arise  in  which  a candidate’s removal would be improper. This is clearly one such situation – Senator Sanders has publicly stated that he wishes to remain a candidate and has formally objected to his removal.  Neither Vice President Biden, nor the New York State Democratic Party, nor the Democratic National Committee has asked the Board to dishonor the Senator’s wishes.  Nobody wants Senator Sanders removed from the ballot.  His involuntary erasure from the ballot, on grounds of a law that was not in effect when he announced his campaign’s limited suspension,  would  sow  needless  strife  and  distrust,  impeding  Senator  Sanders’  efforts  to  unify  the Democratic Party in advance of November elections.

Fourth, by entrusting this decision to the two Commissioners appointed at the recommendation of the New York State Democrats, the statute acknowledges the centrality of the party’s prerogative to this  determination.    Primary  elections  were  the  creations of  the  parties themselves, they continue to operate by rules left largely to the design of the parties, and they exist to serve the parties’ interests in self-governance.

Removing Senator Sanders from the ballot would undermine the Democratic Party’s interest in self-governance and unification.  Senator Sanders has complied with the state party’s Delegate Selection Plan and with the national party’s Delegate Selection Rules.  The party’s rules do not permit, much less require,  his  involuntary  removal  from  the  ballot  because  of  a  public  announcement  of  campaign suspension.  Nor has the party itself requested his removal.

Senator Sanders has collaborated with state parties, the national party and the Biden campaign, to strengthen the Democrats by aligning the party’s progressive and moderate wings.  His removal from the ballot would hamper those efforts, to the detriment of the party in the general election. The Board should exercise its discretion to avoid such interference.

Senator Sanders respectfully requests that the Board either: (1) determine as a matter of law that § 2-122-A does not apply to announcements of campaign suspension made prior to April 13, 2020, the date of the law’s enactment; or (2) exercise its discretion to keep Senator Sanders on the Primary ballot, in the interest of party unification.

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