New York District Court Judge Denies Emergency Order for Open Primary But Allows Lawsuit to Continue

April 19, 2016

A lawsuit was brought in a New York Federal District Court in Long Island seeking an order which would allow Independents to vote by affidavit or by provisional ballot. The lawsuit sought a temporary restraining order (TRO) challenging New York’s closed primary. The presiding judge is a George W. Bush appointee. Most of the challengers are Democrats, so the random selection of the judge doesn’t bode well for the challengers.

Judge Denied Temporary Restraining Order and Emergency Order

The judge denied the TRO but did not dismiss the lawsuit. In allowing the lawsuit to continue, the judge noted that the defendant was improperly designated as the New York State Board of Elections. Instead, the judge said that each county’s Board of Elections should be defendants in this lawsuit.

The judge’s decision is ludicrous and is going to make it more difficult to get results. As a New York lawyer and a former New Yorker for 50 years, I have never seen so many voting issues in the state.

If this suit were in Maine, where I live now, there wouldn’t be a problem–there are only 16 counties, and while it wouldn’t be prohibitive, each county’s Board of Elections could be served. New York has 62–not a typo, sixty-two–counties. This is going to make the lawsuit prohibitive, time-consuming, expensive, and it’s unknown what impact the lawsuit will have on the New York Primary, if any.

New York Voters Were Encouraged to Vote by Affidavit or Provisional Ballot

New York is one of the states which has a closed primary. Unless you are a registered Democrat or Republican, you cannot vote in New York’s primary. The problem with this is that many other states have open primaries or caucuses and there are many Independents in New York who cannot and could not vote in the primary. Likewise, there were monumental issues of disenfranchisement this time around. Somehow, election officials can’t explain it.

Many of the disenfranchised voters are in Brooklyn. One explanation is that when people voted after Superstorm Sandy, Governor Cuomo allowed voting by affidavit because of the chaos that ensued after the storm. Brooklyn was one of the boroughs that was hit hard by Sandy. The mayor, Bill de Blasio,  stated there were more than 120,000 people who were unable to vote or who suddenly found that their names were missing from the voting rolls. He called for an investigation into this massive disenfranchisement. Actually, there were more than 126,000 people disenfranchised.

Others simply could not vote because they are Independents, and unless they signed up as a Democrat or Republican in October, they could not vote in the New York primary. However, there were many Democrats who couldn’t vote because their names were nowhere to be found.

New York’s Voting Registration Laws are Outdated

New York’s voting registration laws are not only outdated but they’re unfair. For a primary that is held in April, people would have to register to vote the previous October. As we all know, a lot has happened since October 2015. A little-known Bernie Sanders has suddenly arrived on the scene and he’s got to be taken seriously. His campaign has more momentum than any other candidates’ campaign. He went from a complete underdog to a possible contender in just a few months.

Most other states allow either open primaries, same-day voter registration or voter registration within weeks of the primary. Not so in New York. New York, the last state to convert to no-fault divorce, is surprisingly behind-the-times for such a progressive state.

During Primary Day, Voters Were Encouraged to Vote by Affidavit or by Provisional Ballot

Because of the uncertainty of the lawsuit, Election Justice USA urged voters to vote by either affidavit or by provisional ballot. Voters were urged to stick to their guns and stay at their polling places, refusing to leave until they were able to fill out a ballot of some sort.

The court proceeding was scheduled earlier but was moved to 2:00 p.m. Because the outcome was unknown, Independents and disenfranchised voters were told to vote anyway because their ballots might be counted.

Now it’s possible that we may not have accurate results from New York for a while.

Why Did it Take so Long for a Lawsuit to be Filed?

This is the question of the day and nobody seems to be able to answer it. An earlier-filed lawsuit might have made a big difference in the outcome of the New York Democratic primary. After all, many of Bernie Sanders’ supporters are Independents and a positive outcome would have favored him.

During today’s primary, there were issues of voter irregularities such as voting lists which have been purged, broken ballot machines, lost ballots, and more. The New York Attorney General’s Office normally gets about 150 complaints by voters during elections. Within the last few days, the AG’s Office received more than 702 complaints.

It remains to be seen if the provisional ballots and affidavits filled out by disenfranchised people will count. Stay tuned for the latest on this developing story. The takeaway is, of course, that the results of the Democratic primary in New York do not, at this time, accurately reflect the will of the New York voting public.

What difficulties did you encounter when voting? Did you vote in the city, suburbs or upstate New York? Please leave a comment and click the “follow” button on the left.

Ronna Lambiasi DeLoe