Lawsuit Filed in NJ Federal Court Challenges Constitutionality of Partisan Primary Elections

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(Newark, NJ) — The EndPartisanship.org coalition today filed suit in the U.S. District Court in Newark, New Jersey demanding that every voter should have an equal and meaningful vote at every stage of the state-funded election process, regardless of their party affiliation or non-affiliation.

Over 47% of New Jersey voters choose not to register with a political party and 42% of American voters now self-identify as Independent or unaffiliated voters, yet most states have primary systems that give political parties special access to the voting franchise and penalize voters who do not wish to join a political party.

The Republican and Democratic Party have prevented attempts to allow nonpartisan voter participation in many states by asserting their First Amendment right of association. This is despite the fact that primary elections like those in New Jersey are conducted at significant public expense.

Fewer than 8% of all registered voters participated in New Jersey’s last primary election at a cost of $12 million to the taxpayers. This amounted to more than $92 per vote cast. And 2.6 million New Jersey voters were not allowed to vote in the primary election unless they joined either the Republican or Democratic Party.

Samuel Gregory, local counsel for the EndPartisanship.org coalition said, “Today, representatives are accountable to a small partisan base of voters. Those who choose not to participate in divisive partisan politics are pushed out or left out of meaningful participation in the electoral process. We believe the system’s first obligation should be to individual voters, not to political parties. When every voter matters, leaders are rewarded for being good representatives, not good party leaders.”

“A primary election is often the most important part of the electoral process … By denying over 2.6 million New Jersey voters the right to cast a vote in the primary election, the State has disenfranchised nearly half of its electorate, and thereby, given private political parties and partisan voters a greater and unequal access to the voting franchise. As a result, New Jersey’s elections are not free, not equal, and not constitutional for the reasons demonstrated herein.” – Paragraph 4 of the Complaint

New Jersey plaintiffs represented in the suit by the EndPartisanship.org coalition include Mark Balsam, Charles Donahue, Hans Henkes, and Rebecca Feldman who are registered as unaffiliated voters, plaintiff Jaime Martinez, a registered Democrat, and plaintiff Tia Williams, a registered Republican.

The EndPartisanship.org coalition was co-founded by the Independent Voter Project and IndependentVoting.org, both national 501(c)(4) nonprofit organizations. The coalition includes a diverse group of independent organizations, media outlets, election reform advocates, and other participants from across the political spectrum and from across the country. The complete current list of coalition members can be found on the EndPartisanship.org coalition’s website.

The EndPartisanship.org coalition is the first organized effort to defend and promote the principle that every voter is entitled to an equal right of meaningful participation in the election process, whether or not they choose to affiliate with a political party.

Harry Kresky, counsel to Independent Voting, is the national legal advisor. S. Chad Peace, legal advisor to IVP, is the national legal strategist. Samuel Gregory is lead counsel to the New Jersey efforts with Kresky and Peace as co-counsel.

The EndPartisanship.org coalition will continue to focus on legal and political strategies designed to challenge laws, customs and practices that place the rights of political organizations above the rights of individual voters. The coalition believes that while the two major parties should continue to be an important and constructive part of our election process, a party’s strength should not be derived from institutionalized rules, laws, and court precedents. Instead, its strength should be measured by its ability to represent the concerns, hopes, and aspirations of the most voters.

EndPartisanship.org coalition members believe in three core principles:

Learn more about the EndPartisanship.org coalition and its national plans on their website, EndPartisanship.org.

EndPartisanship Complaint New Jersey Secretary of State

Photo Credit: spirit of america / Shutterstock.com

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  1. RichardWinger Louisiana was just using common sense in 1997 when it said that the first round would be in November, and only if no one got 50% would a run-off be held in December.  85% of the time someone does get 50% in November.  The real puzzle is why Washington state and California didn't imitate Louisiana.  It is horribly wasteful to force a candidate who got 50% or more to run again 4 or 5 months later.  It is really ridiculous that California forces a candidate who got 100% of the vote in June to run again in November, especially given that California has no write-in space in November, so the candidate can't possibly be defeated in November.  In fact a one-candidate election with no write-in space is a farce.  But we had 3 elections like that in November 2012 and we will probably have more in November 2014, because there are 21 partisan races this year in which only one person filed to be on the primary ballot (but there will be write-in candidates in June for most of these districts, almost certainly).
  2. shankbrianb RichardWinger Richard, What are the federal limits placed on a state government for what an election can be named? In CA, is it unlawful for the first round polling event to be named with the word "election?" For example, I believe it is used to describe May primaries and June primary run-offs in Arkansas. Furthermore, would it be legal for CA to use the name "run-off election" for the second-round election held in November or is CA forced to use the name "general election?" I believe that naming the first round polling event a primary is sending the wrong message to voters, and it is discouraging badly needed participation. Why did Louisiana decide to move the election dates from Sept and Nov to Nov and Dec rather than simply allow the top two finishers to always advance to the November run-off regardless of percentage of vote received?
  3. RichardWinger The November election, by federal law ever since 1872, for Congress, is not a run-off.  Federal law says states must have the election itself in November.  If states want a run-off for Congress when no one gets 50%, they must hold it after November.  The only two states with congressional run-offs are Louisiana and Georgia. The US Supreme Court in Foster v Love, issued in 1997, told Louisiana to stop holding its congressional elections in September, with a run-off in November.  The decision was unanimous.  That is why the California and Washington state systems always hold an election for all offices in November, even if someone in June got 100% of the vote.  The June event is not an election because no one can be elected in June.
  4. BrianShank Mark, that's not a general election, it is a run-off, and that is what it should be called. Also, what top two proponents are calling a primary is really just an election. California voters need to realize that the general election now consists of a two-round system that begins in June, and they should definitely participate in the first round as well as the second one. Since such a small number of voters typically have participated in (party nomination) primaries, I believe it is hindering the participation rate to continue to refer to the open blanket election as a primary.
  5. BrianShank SuzanSmith BrianShankshankbrianb I suppose there are several options for the court. Force parties to have open nominating primaries like those held in Indiana or Arkansas, forbid public funding, or give parties the choice of open publicly funded versus closed privately funded primaries. Another option, which I believe is the more likely one, is they will just throw the suit out and not even consider it. They may do this because many private organizations now receive public funding of some sort without losing free association rights. It seems to me that the lawsuit is asking that an exception should be made with regard to political parties and that they should be treated differently than these other private organizations.
  6. Mark Goins That's a good point, Douglas, and it's something that most people forget. The term "democracy" is used very loosely, and there are a LOT of self proclaimed Republicans who probably cannot Define what a republic is. That goes for most people. Thank you, Fred Marsico!
  7. ted_wade IVNetwork Mostly Republicans jumping ship.
  8. Sharon Riley I agree
  9. Doug Lively Thank you Deborah!! voter ID is a must!!
  10. SuzanSmith BrianShank SuzanSmith shankbrianb  I hope you have some optimism to go with the skepticism. Groups are forming across the country to engage, encourage and educate folks on the importance of their vote. I think we will see voter participation increase as people begin to understand that top two brings back the power of my vote; I am free to vote for any candidate in any race; regardless of party. Open, fully taxpayer funded and inclusive of all voters. It is either that or Ds and Rs can foot the entire bill for the closed primary election.
381 comments
Mark Goins
Mark Goins

That's a good point, Douglas, and it's something that most people forget. The term "democracy" is used very loosely, and there are a LOT of self proclaimed Republicans who probably cannot Define what a republic is. That goes for most people. Thank you, Fred Marsico!

Doug Lively
Doug Lively

Thank you Deborah!! voter ID is a must!!

Sarge Richard Cohan
Sarge Richard Cohan

Elections are in the constitution, however nowhere in the constitution is there a mention of primary votes or elections, these are simply an invention of the political parties themselves.

Mark Scholar
Mark Scholar

Also, it used to be that if you were Independent, you could select which party you wanted to vote for in the Primary. So their votes were indeed counted.

Mark Scholar
Mark Scholar

We have this BS in California now, and it actually takes away my rights. Now, instead of each party having someone in the General Election, now we have the top two, which are usually Democrats.

Fred Marsico
Fred Marsico

Can any of you show me where any of our Founding Documents mentions a 'democracy'? The creation of the union was defined as a 'Representative federal republican form of governance.' The Constitution defines the scope and limits of that system of governance. Each Sovereign State also had its own representative governance in the form of assemblies. The sovereignty of the individual is where our national system of governance obtains its duties and responsibilities, and is subordinate to the will of the People.

Jacqueline Lynn
Jacqueline Lynn

Should be file in every stat (ie FL) that denies that vote to any legal tax paying citizen. The PARTIES do not represent the people, they represent the money sources!

Bernie Valentine
Bernie Valentine

Well, This statement is a mis-representation of reality .....because the electoral process itself is flawed.... ....if you can license a car driver or issue a permit to carry a gun.... why is the same logic not applied to voting? For something that is as fundamental to life as the one who passes legislation to affect your well being, ....and to choose who represents you in government .... Why would you want the ill-educated, easily manipulated and misinformed to vote on such matters ??? The logic behind the current voting system is much more dangerous than a gunman or a drunk driver behind the wheel. Voting effects your life and the country around you in every way possible. It can not be indiscriminately given or allowed to be abused by the less responsible people in our society. Should voting be restricted to people with at least a basic knowledge of their government or current affairs??? Could YOU pass a U.S. Citizenship Test?? If you were not born in the United States, the process of becoming a U.S. Citizen is called naturalization. U.S. immigration law has certain requirements for becoming a citizen, including: you must be at least 18 years old; you must be a permanent resident for at least 3 years; you need to be able to read, write and speak basic English; and you must have a basic knowledge of how the U.S. government works. The U.S. Citizenship and Immigration Services (USCIS) administers a Citizenship Civics test to determine whether you have a sufficient knowledge of the United States government. This would be a good place to start considering a basic testing requirement prior to voting. http://solutionstofixitnow.blogspot.com/2014/02/what-will-it-take-to-make-it-better.html

Al Becerra
Al Becerra

There are rules you must satisfy in order to qualify for the office of the presidency. Otherwise complete idiots like The Cuban Canadian that lies through his teeth can just come here and become president.

Al Becerra
Al Becerra

Because they cheat like the underhanded scumbags that they are.

Al Becerra
Al Becerra

Instances of this type of voter fraud is infantesimal compared to gerrymandering which basically is akin to cheating.

Douglas W. Isaksen
Douglas W. Isaksen

with the EC, you could win by one Vote in 10 states and win by a landslide,making the popular vote irrelevant.. ; (

Kat Koch
Kat Koch

And anyone who wants 2 run 4 prez or any other office, should be allowed 2 debate!! in all 50 states and have ballett access !!

Kevin C. Smith
Kevin C. Smith

I would dissent about the EC, however. It's purpose was to bring more people into consideration. It is the presence of political parties that has corrupted it. With a few changes, it could regain its use.

William Waugh
William Waugh

The funding isn't the crux of it, the power is.

David Council
David Council

Willie Webb then it shuld be funded by the party's and not the tax payers that are excluded

Freeland Engle
Freeland Engle

ya but without all the dead rising up a lot of our bad polititions wouldn't be in govt. lol sad but true

Ben Hardin
Ben Hardin

Individuals can choose to affiliate simply as voters favoring one particular candidate in one particular election. I basically agree with Hesterman's point except to say independents amd third parties would do well to join together for voting system reform rather than put their priority on promoting a candidate who's hopelessly handicapped by not belonging to the duopoly.

Brenda Fuller Shriver
Brenda Fuller Shriver

I do believe ID should be required. That being said, all registered voters should be allowed to vote in the Primary as well as General elections.

Rob Wiley
Rob Wiley

Republic or democracy, the right to vote is still sacrosanct. Otherwise, you will have neither. And those of you worried about voter fraud, I assume you mean the proven fraud, which usually falls in the .0002 percent range - or lower. Those statistics we can live with to ensure that We, the People get to choose our representatives on all levels.

Jennifer Leone
Jennifer Leone

Access to voting is easier than it has ever been in the history of the US and voter participation is at an all time low or close to it. Access is not the issue. Disenfranchisement is the issue if you are an optimist. Apathy is the issue if you are a pessimist. It is probably a little of both.

Willie Webb
Willie Webb

If I recall Primary Election are held so that those affiliated with a particular party can choose who they want to represent their party. If everyone were allowed to vote, in the primary for a party they are NOT in, then it would not be a reflection of who the party members wanted.

Scott Hesterman
Scott Hesterman

No, I do not advocate forced affiliation. I oppose forced admittance to a private group.

Mary Hackett
Mary Hackett

Remember, we are a REPUBLIC - respecter of no majority! Otherwise 51% of voters now allowed to vote could keep this exclusion in tact.

MerriAnn McLain
MerriAnn McLain

The US is not a democracy (Mr. Madison called this a 'tyranny of the masses'); however, this is not a two-party system - let's use public for potholes or libraries.

Lorraine Bennett
Lorraine Bennett

Every Registered Citizen should be allowed to vote ,regardless, and we need to have to show an ID to vote to stop the illegal crap.

Mark Bellamy
Mark Bellamy

True democracies do not work...the mob will rule and it's all over. Representative democracy is the best we can do. Of course since our representatives largely do not represent us there is a different problem.

Douglas W. Isaksen
Douglas W. Isaksen

more like rotten apples vs. rotten apples when it comes to the 2 parties...Electoral college has got to go..easier access for 3rd parties..the system is rigged..

Chad Peace
Chad Peace

Are you advocating for forced affiliation? Individuals can't participate as individuals?

Quark Hadren
Quark Hadren

Douglas W. Isaksen Not even a relevant statement. The 'difference' you are trying to claim is not related to the issue of the two parties usurping the political process - "Voting" is covered in the Constitution, "Parties" are not. So saying the thesis of the law suit is not correct because 'we are not a true democracy' is a non sequitur (the conclusion does not follow from its premises statement). Apples and oranges - and a downright silly argument that is used way too often.

Robert Sonia
Robert Sonia

We are a constitutional republic. Big difference then a Democracy

Dennis Pederson
Dennis Pederson

So those old parties have a First Amendment right of association? Well, not on my dime! Do they need reminding? No Taxation without Representation.

Scott Hesterman
Scott Hesterman

Independents are numerous, yet because they refuse to band together to proffer candidates, they whine they have no voice. Suck it up and join or start a new group.

Scott Hesterman
Scott Hesterman

#3 is key: no public funds for private organizations. Primaries should not be run by the government nor paid for out of public money. The other two resolve themselves this way.

Brooke Pierce
Brooke Pierce

Because they're doing it on the public dime. And many of us live in areas where an overwhelming majority of people are registered with one party -- which means that elections are effectively decided in that party's primary. So I'm paying for elections that determine my local government, and I don't have a say in them.

BrianShank
BrianShank

Mark, that's not a general election, it is a run-off, and that is what it should be called. Also, what top two proponents are calling a primary is really just an election. California voters need to realize that the general election now consists of a two-round system that begins in June, and they should definitely participate in the first round as well as the second one. Since such a small number of voters typically have participated in (party nomination) primaries, I believe it is hindering the participation rate to continue to refer to the open blanket election as a primary.

Susan66
Susan66

How about independentvoting.org or endpartisanship.org? You miss the point. Independents are organizing. 

scpeacer
scpeacer moderator

Are you advocating for forced affiliation?

RichardWinger
RichardWinger

The November election, by federal law ever since 1872, for Congress, is not a run-off.  Federal law says states must have the election itself in November.  If states want a run-off for Congress when no one gets 50%, they must hold it after November.  The only two states with congressional run-offs are Louisiana and Georgia.


The US Supreme Court in Foster v Love, issued in 1997, told Louisiana to stop holding its congressional elections in September, with a run-off in November.  The decision was unanimous.  That is why the California and Washington state systems always hold an election for all offices in November, even if someone in June got 100% of the vote.  The June event is not an election because no one can be elected in June.

RichardWinger
RichardWinger

Louisiana was just using common sense in 1997 when it said that the first round would be in November, and only if no one got 50% would a run-off be held in December.  85% of the time someone does get 50% in November.  The real puzzle is why Washington state and California didn't imitate Louisiana.  It is horribly wasteful to force a candidate who got 50% or more to run again 4 or 5 months later.  It is really ridiculous that California forces a candidate who got 100% of the vote in June to run again in November, especially given that California has no write-in space in November, so the candidate can't possibly be defeated in November.  In fact a one-candidate election with no write-in space is a farce.  But we had 3 elections like that in November 2012 and we will probably have more in November 2014, because there are 21 partisan races this year in which only one person filed to be on the primary ballot (but there will be write-in candidates in June for most of these districts, almost certainly).

shankbrianb
shankbrianb

@RichardWinger

Richard,

What are the federal limits placed on a state government for what an election can be named? In CA, is it unlawful for the first round polling event to be named with the word "election?" For example, it is used to describe May primaries and June primary run-offs in Arkansas. Furthermore, would it be legal for CA to use the name "run-off election" for the second-round election held in November or is CA forced to use the name "general election?" I believe that naming the first round polling event a primary is sending the wrong message to voters, and it is discouraging badly needed participation.

Why did Louisiana decide to move the election dates from Sept and Nov to Nov and Dec rather than simply allow the top two finishers to always advance to the November run-off regardless of percentage of vote received?