LEGALcurrents®

Tuesday, June 23, was Primary Day in New York.  The bulk of the elections yesterday were on the Democratic side.  While there were a handful of Republican primaries throughout the state, most of the focus was on the Democratic races.  There were primaries for the Presidential, Congressional, State Senate, State Assembly, and a variety of local races.  On the Republican side, there was no Presidential primary as no challenger qualified for the ballot.  On the Democratic side, though former Vice President Biden was the presumptive nominee, the attempt to cancel the election because of COVID-19 was reversed after a lawsuit was filed, so the Democratic primary proceeded as scheduled, and Biden is the presumed winner of the Democratic primary in New York.

The morning after the primary elections usually provides a pretty good idea of who has won each race. While there are sometimes one or two elections that are too close to call, results have usually been announced in most races.  However, this year, this is not the case.  The COVID-19 pandemic led to an executive order from Governor Cuomo that called for an absentee ballot to be mailed to every eligible primary voter ahead of the primary elections.  This led to an unprecedented number of absentee ballots being requested and sent back, meaning that until those absentee ballots are counted, we will not know the winners of the races from last night for at least a week or so.  Some of the races from last night are so close that even once the absentee ballots are counted, the results are likely to be contested and, therefore, not known for a few weeks.

The initial results of the in-person voting last night are showing some potential upsets of longtime incumbents, mainly in the Assembly for several members of the Democratic majority.  Building on the results from 2018 and the success of several upstart candidates that ran under the Democratic Socialist agenda, a wave of new, younger candidates challenged incumbent Democratic members at a level that we have not seen in many years, if ever.  Again though, given the high number of absentee ballots, we will not know if these potential upsets will materialize until the absentee ballots are counted. 

Conventional wisdom says that absentee ballot votes tend to break along the same lines as those who showed up in person to vote.  However, as with everything 2020, it is likely that conventional wisdom will not apply.  There are two schools of thought, and at this point, it’s not clear which school will prove correct.  One school of thought is that the incumbents have access to the party’s organizational structure, and therefore, have a built-in network that will get out the word and encourage their base voters to vote by absentee ballot.  Also, the incumbents tend to have better name recognition and are well-known in the community, so their base should be motivated to vote.  The second school of thought is that given that absentee ballot applications were mailed to all eligible voters, getting a ballot and voting has never been easier, so we would see new and/or younger voters, who are more likely to vote for incumbent challengers, voting at a level that we don’t usually see.  Given that we are in unprecedented times, and we are seeing a new energy around voting coupled with a call for change, this usually favors the challenger over the incumbent. 

Again, we have no way of knowing which school of thought is correct, and we now await the results of the absentee ballot count.  At this point, the one thing we do know for sure is that the voting turnout between early voting, in-person voting, and the absentee ballot vote is at an all-time high.  At this time, we don’t know what voting in November will look like because of COVID-19, but if these turnout results hold, we could see an unprecedented voter turnout in November as well.

One change we will see next year is in the Senate seat in Long Island currently held by Senator John Flanagan.  Senator Flanagan, who was the Minority Leader for the Senate Republicans, announced that he would not be running for reelection to his seat earlier this year.  Last week, he announced that he would step down from his Senate seat as of Friday, June 26, to pursue a new job opportunity.  This meant that the Senate Minority Leader position had an immediate opening. The Senate Republicans voted last Friday, and they have selected Senator Robert Ortt from the Western New York area as their new Minority Leader.

As we await the final Primary Day election results, New York Un-PAUSE is continuing.  New York City entered Phase 2 on Monday, and the Mid-Hudson and Long Island regions entered Phase 2 yesterday and today respectively.  Starting on Friday, the Central New York, Finger Lakes, Mohawk Valley, North Country and Southern Tier regions will enter Phase 4 of reopening. The Capital and Western New York regions will enter Phase 4 next Wednesday. It was announced late yesterday that Phase 4 reopening will include higher education institutions and low-risk indoor and outdoor arts and entertainment.  These low-risk activities can only resume at 25% capacity for now.  In addition, as regions enter Phase 4, religious gatherings can be at 33% capacity and social gatherings can be up to 50 people. 

During a press briefing today, the Governor confirmed that malls, gyms, movie theaters, casinos, places of public amusement (theme parks, bowling alleys, arcades) and concerts are not in the low risk categories that can reopen in Phase 4.  He indicated that the experts are studying whether air conditioning creates a problem for these types of facilities, and once this has been studied, a decision will be made, and individual guidance will be issued for these businesses.

The Governor was joined in his press briefing today by the governors of New Jersey and Connecticut.  They announced that the three states were enacting a travel advisory, which will be effective midnight tonight for all individuals traveling from states with significant community spread.  The list of states with significant community spread right now are Alabama, Arkansas, Arizona, Florida, North Carolina, South Carolina, Texas, Utah and Washington.  This list will be evaluated and updated daily.  Significant community spread is defined as an infection rate of 10% of the population or more.

The Governor indicated that this travel advisory is not a ban on entering New York, but anyone coming from one of the states on the list will have to abide by a mandatory quarantine.  This includes New Yorkers who visit these states and return.  The quarantine is 14 days.  Each state will enforce the travel advisory accordingly.  For New York, if you are found to be in violation of the travel advisory, you are subject to fines up to $10,000.  We are awaiting further guidance on this travel advisory.

If you have additional questions about this update or any other developments that are happening as New York continues to Un-PAUSE, please reach out to a member of our Government Affairs practice group for assistance

Amy J. Kellogg
John M. Jennings
Donald S. Mazzullo


Attorney Advertising. Prior results do not guarantee a similar outcome. This publication is provided as a service to clients and friends of Harter Secrest & Emery LLP. It is intended for general information purposes only and should not be considered as legal advice. The contents are neither an exhaustive discussion nor do they purport to cover all developments in the area. The reader should consult with legal counsel to determine how applicable laws relate to specific situations. ©2020 Harter Secrest & Emery LLP

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