In Historic Times, NYSBA Is at the Forefront of the National Discussion

By Scott Karson

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We are truly living through historic times.

America is on the verge of inaugurating former Vice President Joseph R. Biden Jr. as the 46th president of the United States, and Sen. Kamala Harris as the first woman and first woman of color to serve as vice president.

This follows an election that saw an all-time record high in voter turnout. Their victory is a testament to the strength and resiliency of our democratic process. Our country voted in the midst of an unprecedented pandemic, which created significant challenges and uncertainty. But we stayed the course and, despite the record number of mail-in ballots, succeeded in declaring a winner just a few days after Election Day.

We may also be on the verge of eradicating this once-in-a-century coronavirus pandemic as vaccines begin the approval process and possible distribution. There have been no bigger news stories in recent weeks than the election and the public health crisis, especially when it comes to a vaccination to stem the tide of the rising number of cases and deaths during these winter months.

Inevitably these historic societal and political issues of our time have become legal issues – and in both instances the New York State Bar Association was prepared in advance and at the forefront of the discussion.

In September, I appointed the NYSBA Task Force on the Presidential Election, chaired by veteran election lawyer Jerry H. Goldfeder, to advise fellow attorneys, journalists and members of the public on issues related to the 2020 presidential race. The task force issued an authoritative report providing nonpartisan interpretation of the laws governing voting, the counting of ballots, the electoral college, and the role of Congress in counting electoral college votes.

In addition, in October, the task force held a media bootcamp on the presidential transfer of power – a very apropos topic given the transfer of power, or lack thereof, that ensued after the election.

The eight-member task force will continue its work at least through the January 20, 2021 inauguration.

On Saturday, Nov. 7, during our virtual House of Delegates meeting, every major news outlet called the election in favor of Vice President Biden. NYSBA immediately issued a statement in which I unequivocally stated that our Association is deeply committed to the rule of law, and nowhere is the rule of law more critical than in the transfer of power from one president to the next. Our Constitution and laws lay out a procedure for an orderly and peaceful transition that distinguishes our democracy and makes it unique.

While worst-case scenarios that could have prompted a constitutional crisis were avoided, the legitimacy of the election was – and still is – being called into question by President Donald Trump’s unfounded allegations of fraud. NYSBA decried such tactics and we hope for a return to civility in Washington, D.C., and to a time when lawmakers work together in a bipartisan manner for the good of the country.

In fact, on Nov. 23, I was joined by 23 past presidents of the association, both Republicans and Democrats, in issuing a statement regarding President Donald Trump’s attempts to interfere with the lawful certification of the election results.

These statements, as well as the work of the task force, were indeed a help to the media, as evidenced by the amount of coverage garnered from the likes of Spectrum News, WRGB CBS-6 in Albany, the New York Law Journal and others. Internationally, our work has drawn the attention of the Al Jazeera website and The Guardian in the United Kingdom.

Help on the Way

Since last spring, the bar association’s Health Law Section has provided in-depth study of the public policy and legal issues arising from the pandemic.

As a result of the tremendous work done by the Section, our House of Delegates approved a resolution recommending that New York consider mandating a COVID-19 vaccine once a scientific consensus emerges that it is safe, effective and necessary. But before taking this significant step, the state government should conduct a public awareness campaign to urge voluntary vaccination.

The resolution also outlined conditions for requiring the vaccine for all New Yorkers, save those exempted by doctors. It would be up to public health authorities to decide if a vaccine mandate is necessary, and whether it should apply to all residents or a smaller population such as health care workers or students.

The association weighed in on this controversial topic based on the belief that the primary function of government is to protect its citizens and keep them safe, and, as such, must consider all possible avenues to achieve that goal. The intention of the recommendations has been misunderstood at best, and at worst, willfully misconstrued by anti-vaccination activists.

To be clear: NYSBA is not recommending an across-the-board mandate as the first step in vaccination distribution. But it does acknowledge that under the eyes of the law the state is within its right to enact such a mandate if experts and officials deem it necessary. NYSBA’s recommendations seek to strike a balance between government’s responsibility to protect the majority of New Yorkers while safeguarding personal freedoms clearly dictated in the Constitution.

As my colleague Mary Beth Morrissey, Chair of the Health Law Section’s COVID-19 Task Force, noted: “In balancing the protection of the public’s health and civil liberties, the Public Health Law recognizes that a person’s health can and does affect others.” As we were taught in our constitutional law classes, the freedoms established by our Constitution are not without limits, and do not permit one to do harm to others in the exercise of those freedoms.

Once again, NYSBA is on the cutting edge of a hotly debated national discussion. At the state level, Professor Morrissey most recently appeared on Capitol Pressroom and Capital Tonight to discuss these legal issues, and numerous other local publications statewide have provided coverage of the Section’s report. Legal publications like Law360 and the New York Law Journal have followed the story since the Health Law Section released the report in the spring, and I know for a fact it was one of the most-read stories of the entire year for the New York Law Journal.

Television news stations have also mentioned NYSBA’s position, including conservative commentator Laura Ingraham on Fox News. (Remember what I said about our position being misunderstood at best?)

The magnitude of the COVID-19 pandemic is unprecedented over the last 100 years by any measure – the number of lives lost, the survivors who remain seriously ill, the risks faced by health care workers, the disproportionate impact on communities of color, the profound trauma and the disruption to our economy. It is our responsibility as legal experts to offer guidance to policy makers, which is one that we do not take lightly.

That was our goal in drafting and releasing these recommendations, and it was our goal with being at the forefront of any legal issues that arose with the presidential election. I am proud of the Association’s work on these critically important questions. After all, it is among NYSBA’s core missions to use the considerable expertise of our members to advise decision makers, elected officials, the media and the general public about the legal ramifications and impacts of these kinds of significant legal and societal issues.

I hope you all join us at our two-week virtual Annual Meeting beginning Jan. 19 highlighted by the Presidential Summit on Wednesday Jan. 27, focusing on legal, constitutional and public health issues brought on by the COVID-19 pandemic. You can visit our website at nysba.org for more information.

Best wishes to one and all for a joyous, peaceful and healthy holiday. Hopefully, 2021 will bring us closer to the normalcy we are now missing so badly!

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