A panel of federal appeals judges pondered aloud Friday why New York’s state Board of Elections sought to cancel New York’s Democratic presidential primary but wants to let down-ballot contests go forward.

“Doesn’t it seem odd to you that somehow these other political contests will go on and the only one that will not is the presidential primary?” asked Manhattan Federal Appeals Court Judge Jos\u00e9 A. Cabranes.

The answer from Judith Vale, a lawyer in the state Attorney General’s office:

“It was all in the context of the pandemic. Even a few people getting the virus means that there’s more risk of those people spreading it onto others and then onto others.”

Vale told the three-judge panel that an enormous surge in absentee ballot voting will place unnecessary strain on the state and require significantly more poll workers to process votes, putting staff at major risk of contracting the potentially deadly virus.

“The risk was not warranted,” she said.

Language slipped into the state budget signed by Gov. Cuomo in April allowed the Board of Elections to cancel the presidential primary if all but one of the candidates had suspended their campaigns or dropped out.

The primary — now scheduled for June 23 — thus would be won by Joe Biden, the last candidate standing, who would get all the Democrats’ presidential delegates.

But candidate Andrew Yang believes that even though he suspended his presidential campaign, he would still like to appear on the June ballot in the hope of winning some delegates to this year’s Democratic convention. That would give him a voice in the party’s platform and other issues.

A federal judge reversed the Board of Election’s decision canceling the presidential contest, and the state decided to appeal.

Vale argued that Yang and abex-candidate Bernie Sanders — who has backed Yang’s suit — had 23 days to “un-suspend” their campaigns after the passage of the budget.

Vale said the former candidates will have alternate ways of expressing their policy issues to the ultimate nominee and gathering delegates for the Democratic party’s August convention, which she said Sen. Sanders has begun doing informally.

Yang lawyer Jeffrey Kurzon said there was “no way” the retroactive law “should have been applied midstream to people who had already done everything right.”

“This is how the game is played,” he said. “If you’re not going to be president, then you want the campaign of the person who is going to be president to reflect your beliefs.”


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