time that's indicated on the calendar without interruption and that they the questions of the bench will come after each segment of the argument when i will turn to my colleagues in terminations experience and expertise and what it takes to run elections including how many more voters almost like poll workers and election workers are likely to be involved in person on the ground contested presidential primary goal or work as a border easily determined that a significant increases in the number of people involved and the social interactions that will be required raises the risk of covert nineteen spreading further increasing mattered not just in rural less popular populous areas but also in more populous areas to particular bar where in many of these areas there would not be any other democratic party primary more risk of those people spreading it on the other and then on to others and when and where it was facing risk not just from what might happen on june rd although that certainly was a big factor but also early voting very difficult matter for the board to find the people find the space especially under restriction for social distancing and trying to keep everybody safe and there are a lot of different ways to parse election precinct the number of people and decreasing the number of workers and volved and in addition to the health factor but we're also reasonably determined that not holding the printer will also decrease the frames that are already connection this direct connection between the base of the nomination and the race for delegates is part of the reason why it was always the case into your club a poor dependent that number one if there was a presidential candidate who qualified for the ballot these principles of new york law and it was made into a very specific context of both the pandemic and the fact that there was no other active campaign for the nomination when the board made a decision at that point from april to june and it was at that point where the legislature authorize of work to have another opportunity to sort of take the temperature of do we have any impact as a primary or not in that is not within the port authority to do that and in fact you know at that point the governor had already decided that all the absentee ballots are absolutely going to be encouraged as much as possible suspended their campaigns a few weeks in which they could have elected to suspend their campaign and avoid being taken off the ballot what would they have had to do in your view to accomplish that would have sufficed just to send a letter saying i do not i no longer have suspended my campaign yet i think they would have made it to that letter to the board or otherwise make clear normally do you would not be required run out of money and they can't pay their workers who would rent or whatever but one way people would jump back in is if they did well in a primary and i would wonder whether or many of the people who have suspended their presidential campaigns what in fact jump back in if they did quite well in a in a presidential primary in new york so the question becomes wh this becomes a self fulfilling prophecy if you like and if you suspend you can't appear on the ballot if you can't appear on the ballot you can't get the public support the brings in the money kept bring in the money you can't no presidential primary on june twenty three i think it is how many of the sixty two counties in new york would have no voting at all for anything i mean having no primaries and then there is another county jefferson which similarly has banned party primaries but there are voters who would be eligible to vote in that county for that primary that was remaining  and you know as i said that although there are many how do you mean that would still have the minority there's also you know there could be a very small primary and one city let's say and that presidential primary is it is a beauty contest along with some respect i suppose it is but is it not true that delegates at the convention vote for vice president it is true that never get the memo in the normal course see if there is a rate for delegates and i know you don't concede that but but if if there was a contest to become a delegate it would be it would be a contest to become a person your cited about five or six counties in new york that would be no elections at all but for the presidential primary and i assume that the position here about some principles of u s constitutional law and i draw your attention in particular to the st amendment rights of political parties to determine the rules  ok so let me turn to the st amendment rights of political parties you're familiar with the case of casion against republican party of connecticut and as you may recall in an opinion by a chief justice thurgood marshall who knew a few things about freedom of association and political parties the supreme court stated i'm going to quote justice of the democratic party committees of new york state and the democratic national committee which ordinarily are the bodies that determine  about the delegates role at the convention there's no disagreement that that in addition to casting ballots for the presidential nominating though it does have a wide range not sure i quite understand that i am going back to george jacobs question as a simple example or hypothetical the delegates at the convention would be voting for a vice presidential nominee and it's entirely possible that such a vote would be cast without reference to anything that occurred in the convention delegates so it is a fact that at the democratic national convention the delegates who had been chosen in siri for presidential nominees cast votes and all but i mean it's not it's not an important one because up in a national election the vice presidential nominee as ever you can name all of these examples the choice of lyndon johnson and nine sixty serve the particular purpose political purpose of the party and its members that is to you as a nod to certain a certain part of the  country i don't i don't understand how that wouldn't be true here i mean this is at this democratic national convention the choice of a vice presidential nominee maybe nominally or at the threshold be in the gift of the presidential of the presumptive presidential nominee but it's not clear to me see that that the other candidates and their delegates wouldn't have a very significant role to play presidential nominee you can very well imagine that there are different elements of the democratic party that would wish to encourage the presumptive nominee misunderstand my comments as having a settlement view on what result of this case ought to be but you know you just said that they're still going to be an opportunity for the elected del hold on which i understand let me let me perhaps ask this in a serious just trying to parse some of these questions you are not disputing that the elected delegates at the convention act on the rules of its own proceedings and it will have to vote on the party governance rules in the future that is how primary season be regulated the convention is it not the case that the that the national convention is where these rules are now admittedly this data exactly one of the great deliberative body is but they are the people who make these decisions perhaps ratifying the views of delegates right agree that the kick that you would not disagree with the proposition that the cancellation of the primary modifies the interests of the parties or if you could say and to see if they might and that that the state changed the rules of this game after after the various presidential candidates to suspended their campaign mean he had no way of knowing when he suspended his campaign that he would not have the right too to participate in the primary in this limited w about the only this statute in this action by the by your clients only affects the primary for the nomination of the democratic nomination for president is that right doesn't it seem odd to you that somehow these other political contests and the only one that's been eliminated is the presidential deliberate but by moving it up and looking at you know there was a significant possibility that there would be an uncontested sickly presidential primary during the past and that was what the legislature was thinking about definition what is your response to the place this argument that the appeal simply came too late that is wouldn't it be virtually impossible to cancel  quite a while and we appreciate your argument very much michel thank you thank you thank you y delegate races i think that has absolutely no support in the record and to judge here says point i think that the letter he sent to the board of elections is exactly what they're claiming he should have been allowed to do and an suspending constitutional when applied in that very same cycle nd that the measure employed to balance the weighty burden it places on the right to vote and act at the ballot with measures that actually any meaningfully advance the  the court should also affirm that simply invoking the word pandemic is not a shoveller that changes the applicable standard of review my friend i don't think cited one case in her argument and no matter how weighty the government interest is the constitution in terms of the democratic primary vs general primary argument but the slate as concerns for example polling places it in kings county when i go to my polling place there there are four different districts that are that are pulling those are all upstate counties beyond that though the board has now employed rd party vendors that are that are going to be sorting through ballots out of state and these are all scanned by machine right there is not a substantial stream but comes from adding one more contest to a long list of contests but where ballots are already being reviewed finally my friend also argues that the new york law has always allowed this to be the case and that's just not true new york has never impose consequences of this kind for spending a campaign what new york does allow is if you file a declaration within i believe read a of being nominated by petition for a particular position within those three days you can get off the ballot in certain limited circumstances the new york was also allows you to get off the ballot if you die but beyond  in the way that new york election law applies to be a kind of contest and so one of the one of the arguments my friend made the well this is just the flip side of side argument the the legislature in green party had passed a measure that allowed green party candidate or i'm sorry the green party status of the party under the election law quote legislation that has been found constitutionally sound when it acted during an election cycle that disqualify previously qualifying candidates from appearing on the ballot not in our brief thirty six the clergy quoting the point extirpate even now the be an important interest and kind of the the personal and political and speech based concerns that they had and interests that they have been voting under scholz the fact that the voting conclusion i just want to say i think the district court did exactly what it's supposed to do here right the as set out in the andersen case the job of analyzing election restrictions is hard work and it involves an in de process and the board has has not met its burden on appeal of showing that the district court's thoughtful weighing of the various earnings amounts to something that is an abuse of discretion a certain neutrality about it you referred apathetically i think to what happens if a candidate guys truly if a candidate guys would you agree that that the delegates go off the ballot along with a candidate yes you are so to the to the end of the question i think the answer is yes if a candidate dies and that's one of the well settled ways new york election law allows you to get off the ballot in announcement included the idea that yes i'm going to stay on the ballot and continue collecting delegates because that's the goal here and that is the particular bargain we made in the context of  are there states that have not yet had a democratic presidential primary there are such things or are they going forward with them they are as of today all forty nine other states are going for democratic primary but surely many of them of already had a democratic primary and i don't know the exact number but it most of them i think at this point their primary but some ok thank you very much to my question attorney green i just want i want to have facts straight here maybe you can help me to understand the chronology of events here the statute at issue did they base hunt a letter saying we intend to be on the ballot please do not take us off the ballot we think it would be illegal to take that off the ballot and so that letter reached the board before the fish and so i think to the point i don't think that they could reasonably be understood to have needed more particularly where the board didn't tell them they could have they should have done something else but beyond that i think that the the board's argument is a little bit disingenuous in terms of the board's decision at all so to the point i think because the board took the letter that the founders campaign wrote them and said well we don't think that this is enough i don't think there's any reason to believe that if  or whatever the arrangement was with the clerk but mr schwartz surely wishes to be are go either in a more in a different way into your or your advice was a big hero at the time and there was a there was a roll call vote and he was the candidate of the civil rights movement and in the one thousand and sixty eight a lot of people forget this john lindsay the mayor who isn't the mayor of new york city play but in fact in this particular convention this year but in fact some of the standards before this law was passed had already amassed over a one thousand delegates to go to the convention and at the time i think there were about there was still the twenty five there was no roll to the plea it wouldn't have made a point of continuing to run and a master would get sick or the convention so there they were critical priest these questions and association of questions that come into play at the at the convention and there's no legislative history at all discussing about what that means how it should be interpreted but that certainly has nothing in the statute that the board of elections relied on that gave that said one word about suspending or public the experience that i'm not sure what experience they were talking about because a they had never had an election before where the governor had told the board of elections to send out absentee ballot applications to every voter in the state and  utilizing the absentee ballot and i'm not sure what experience and expertise they have there or the experience and expertise they had in in running elections in fact the c d c has put out i think we cited to it in our br c has put out a guidance for states on how to run the elections and not one word in that guidance says postpone them it talks about all kinds of alternative measures that could be taken at polling places it certainly promotes deliberations keep in mind the following three point one andrew young is not only a candidate who qualified for the ballot for president of the united states andrew yang is a citizen of the united states and a registered democratic party vote for the ballot they are also citizens of the united states and registered democratic party voters and furthermore mr jonathan herzog is a so called out down ballot candidate whose rights have been further impacted by the board's decision rd the right to vote and i apologize to the court get this is repetitive are such common knowledge that it doesn't need to be said but i think it's worth reiterating the right to vote is the most important right as the determine our economic rights which in turn determined the other civil rights we have in other words as it's been said many times before the right to vote is preservative of other right voting is legally effective speech under the st amendment to  in progress has no justification weighting the state's alleged compelling interest pleas of term judged for its decision because the burden on the anguish to be are he did everything he was supposed to do with the presidential candidate and then the legislature and the board change the rule candidates have continued to gain delegates after stopping active campaigns across many modern elections and senator sanders as well wanted to maintain influence in the democratic party after suspending their campaign that was always clear this is how the game is played if you're going to be president or if you're not going to be president then you want to campaign as the person who is going to be president to reflect your beliefs and i believe judge are correct when you pointed out the potential for improvements with respect to for example a vice presidential campaign moreover the party platform and rules are equally important and these are some of the most powerful already done everything right and due to the severity of the burden this is the classic strict scrutiny case or close scrutiny in the realm of cases we've seen before in the supremes court such as smith and already there westberg and sanders under strict scrutiny don't ask whether there were ample alternative means such as going into a smoke filled room and asking the new york democratic party powers that be your point them you ask why this the least restrictive alternative and there's no way it was because overreaction and undemocratic and could be so severe as to possibly have and violated such longstanding laws the magna carta i mean it's just appalling the attorney general it said they could have simply unsuspended but this is a middle of the game rule change the retroactive application must have affected mr yang and others st amendment rights when yang suspended his campaign he did not tell anyone hey take my name off the ballot and if you look at the word suspended in the dictionary it is by definition a temporary act and now the board what they did was they canceled the election on april t after it was in progress because the attorney general admitted in their reply that march th was the date that ballots started going out to our military and overseas voters but they have allowed the primaries throughout all over the state to continue in person and we submit that the driving reason behind their decision to cancel this election was never public health in fact the resolution of april april th never even mention the pandemic and if the court does not agree on this strict scrutiny standard then the severity of the burden still pulled up to the upper end of the andersen verdict balance in scale when you actually take people one off the ballot they're not turnitin means for them to exercise their st amendment rights of free speech and freedom of association the state's interest in protecting people against coded nineteen could be only served by mail and ballots math and social distancing also part of election or not and we pointed this out in our briefs is not the agency passed with public health issues so no deference should be paid to their public health arguments even if the numbers they cite are correct which we contend that they are not and again the board didn't even make the public health case when they passed a resolution without opportunity for plaintiffs to be heard all this court need to do is read the amaechi briefs in particular the health care workers brief and pay attention to the voters reads where some of the voters actually joined the democratic party just so that they could express themselves in this election other states have struck the balance far better and new york as was noted earlier is the only one trying to cancel its election no doubt an election in progress what was the driving reason that should be the subject of many editorials and op ed in the future your honor but we perhaps will determine it through discovery in the district  citizen so please take that in mind when i say that the most popular election or the most the election where citizens choose to exercise their rights and that's an important distinction about the right to vote but the choice to vote as well as to not vote but in terms of the presidential election i think the court could easily take judicial judicial notice of the fact that turnout  elections is much higher and when you have the so called down ballot primaries which traditionally have much lower turnout you can see that by canceling the presidential election you're also canceling voices of many others who would basically be going to the polls and not staying home because they are enticed by the very fact that they got to have their sliver of sovereignty  determining our next president united states and the democratic party platform the people who want their sliver of sovereignty they can go to the polls and vote for the down  to be canceled would get a much lower percentage of the electorate voting for him and that's not only true for him it's true for the state assembly candidates and the state senate candidates and to the prior question i think it  could possibly be related but again i i don't think it's really time to speculate on that with this law be valid if it were not enacted if it were enacted say last october well and it would be part and parcel of the ballot access but here about access began in january january and whether you argue that the election began at that period when the ballot access rules d were set or at the date march th when the first ballot went out and and by the way the ballots are continuing to go out and what the state i guess wants to do is claw back those votes and say they don't matter can't and it would want to keep an active campaign for delegates even if they can't win the ultimate nominee and they want their delegates and some to be outdated and to have various types of influence but the candidates here did not do that they suspended their campaign and they did not react that made them in order to try to have delegates get allocated and to have influence at the convention and senator sanders i know and court and with our power all that that that procedure is available and sufficient to provide procedural due process it's a question of about your back to that how it should be interpreted or applied to a particular person special way even though this statute only addresses the presidential race it's already the case that there are other primaries that are still up in litigation right now over whether there will be and up to or only one candidate further than postpone it but i can't say what those states may or may not do going forward depending on what happens with the pandemic and then finally able to touch on this point about down ballot down ballot races board reasonably decided it would need more people coming out of them all putting themselves at risk having worked for workers more coal side and everything back over along with that and it was in that act that  reasonably decided that conducting the uncontested presidential primary they had too many risks to health and election administration given what the state and the board with the thing argument but i do wish to have the record reflect that i believe attorneys malcolm seymour and david west have been present for this argument sanders in case the court of any questions or something comes up i would take it that they have they have formally entered appearances is that right