N.J. Secretary of State: Constitution Does Not Protect the Right to Vote

On Tuesday, December 3, New Jersey Attorney General John Hoffman filed an opposition brief with the U.S. Third Circuit Court of Appeals, challenging the

EndPartisanship.org coalition's appeal.

While the coalition argues that an equal and meaningful vote in all integral stages of the election process is a fundamental right, the state continues to argue that only Republicans and Democrats enjoy this right, even though this integral stage of the election is funded, administered, and sanctioned by the state.

The appellants, who include registered Republicans, Democrats, as well as unaffiliated voters, filed the lawsuit in March in the U.S. District Court in Newark. In August, the court ruled in favor of the state, citing the defendant’s argument that the lawsuit “proceeds from the premise that all registered voters have a fundamental right to vote in the primary election conducted by political parties they are not members of.”

EndPartisanship.org filed an appeal in November with the Third Circuit Court of Appeals.

"[N]either this court nor the Supreme Court has recognized that unaffiliated voters have a fundamental right to participate in primary elections even when those elections are an integral part of the electoral process," the state argues.However, the Supreme Court has only ruled that political parties cannot be forced to allow nonmembers to participate in their candidate selection process as they are private organizations. The coalition has made it clear in several briefs and motions that it is not challenging the right of political parties to hold private nomination proceedings, but argues that "the State cannot fund, administer, and sanction an integral stage of its election process that excludes a near majority of all registered voters.” (Plaintiffs' appellant brief, filed on November 3, 2014.)

In other words, if the state is going to provide a platform for the Republican and Democratic parties and their voters to participate in an important part of the election, the state must also provide a forum for all other voters to have a meaningful opportunity to participate. In New Jersey, over 47 percent of voters are not affiliated with either major party.Ironically, the New Jersey secretary of state points out that "t is beyond cavil that voting is of the most fundamental significance under our constitutional structure." (Appellees cite

Burdick v. Takushi, 504 U.S. 428, 433 (1992) (quoting Illinois Bd. of Elections v. Socialist Workers Party, 440 U.S. 173, 184 (1979).) Yet, the secretary goes on to cite United States v. Classic (a case that held that the fundamental right to vote extends to the primary election) to suggest that the Supreme Court only extends this right after a voter has cast a ballot in the primary election.

"[Classic] only 'speaks to the constitutional protections that obtain once a primary vote is cast, and is silent as to who under state law has the right to cast one.'"

By this argument, even where a primary effectively controls the choice in elections, a state can limit the persons who actually hold the fundamental right to vote. This argument seems to contradict the very nature of a fundamental right.

Later in the reply, the New Jersey secretary of state goes further and rejects their own rational in Classic, flatly asserting that, "[T]here is, in fact, no constitutional right to participate in primary elections."

Finally, the state argues that voters who are not members of the Republican and Democratic parties, but want to participate in the state funded, administered, and sanctioned primary elections should "simply join the party." (Appellees quote California Democratic Party v. Jones, 530 U.S. 567, 573 n.5 (2000).)