Generally, most Americans like to think of our elections as a public process, designed to elect candidates that best represent the people of a given district.

Right?

Then why is it we spend years listening to political pontifications about which candidate will ‘win over’ the hyper-partisan faithful few that vote in presidential primary elections?

It’s because in state-after-state, both parties have worked for more than a century to subvert the influence of those independent-minded voters who are not unwaveringly faithful to one of the two major political parties — or their narrow agendas.

How have the parties done that?

Systematically, the parties made the primary election THE most important stage of the overall election process through a combination of clever redistricting and careful rewriting of state election laws. As a result, when the November general election comes around, the candidates voters have to choose from have been pre-determined and “legitimized” by the very few partisans who voted in their party’s primary.

 

 

In many states, this means if you are a registered independent or unaffiliated voter, you’ve had absolutely no voice in choosing who appears on the general election ballot. Often times this means less than 5 percent of the electorate is actually deciding who represents 100 percent of that district or state. That makes no sense.

Ted Cruz, for example, was ‘elected’ to the U.S. Senate by virtue of winning his Republican primary in a Republican-dominated state. The number of votes he actually received represented less than 4 percent of registered voters in the state.

Hillary Clinton was ‘re-elected’ to the U.S. Senate in 2006 by virtue of winning her Democratic primary in a Democratic-dominated state. The number of votes she actually received represented about 5 percent of registered voters in the state.

So here is the conflict: According to the U.S. Supreme Court in

Democratic Party v. Jones (2000), party primaries are private affairs, and therefore, the state cannot force political parties to allow non-members to participate in their elections. (Regardless that these “private” political parties enjoy the benefit of the “public” sanction, administration, financing, and invaluable media attention over their “private” elections.)

What this means is voters who do not formally belong to either the Democratic or Republican political parties cannot participate in the vital primary stage of the electoral process.

So here is the question: Shouldn’t a state have an obligation to all voters, not just party members, to provide an equally meaningful opportunity to participate in elections?

On March 17, 2015, a challenge to New Jersey’s closed primary system was heard in the Third Circuit Court of appeals. In oral argument, the attorney for the State of New Jersey said that the rights of political parties to control ‘their’ primary elections outweighed the interests of individual voters. The state said, literally, that voters who feel disenfranchised should simply join one of the two parties, or work hard to find a candidate of their own and go through the petition process to get them on the ballot.

However, the state’s argument seems absurd when placed in historical context.

In the 1960s, both political parties used mal-apportionment to insulate themselves from competition. In short, the party in power would draw some districts larger, by population, to effectively dilute the influence of voters in the opposition party.

In defense of the mal-apportionment, the political parties, and the state legislatures they controlled, argued vigorously that the federal courts did not have jurisdiction to get involved in the apportionment of districts because it was a ‘political question.’

In 1962, the Supreme Court in Baker v. Carr held that the Constitution protected the ‘political right’ associated with the right to vote, and this was a distinct and proper question for the courts as opposed to the ‘political question’ of how to administer an election system.

In 1963, the Supreme Court in Gray v. Sanders said that mal-apportionment was unconstitutional, and first articulated the now famous “one person, one vote” standard in a case that concerned primary elections. The following year, the Supreme Court applied the same standard to a litany of cases going on all over the country in Reynolds v. Sims.

Over time, the major political parties have managed to slowly chip away at the "one person, one vote" standard. So much so that today, we have taxpayer-funded, state administered, and state sanctioned primary elections that serve the interests of increasingly unpopular political parties and their members — at the expense of all other voters.

On March 17, the State of New Jersey argued that, despite the fact that 47 percent of its voters are registered as unaffiliated, the exclusive nature of its primary elections is not a question for the federal courts. The state claimed a legitimate interest in maintaining the status quo, even if that meant preventing nearly half of all its voters from participating in the primary election.

And today, we have a field of potential presidential candidates that will first need to win one of the two major parties' primary elections to be on the November 2016 ballot. Keep in mind, the purpose of these primaries is to select candidates that best represent their individual party on the general election ballot, not to nominate candidates that best represent American voters as a whole.

Why is that? Well, primary candidates must appeal to the most vocal, most active, and increasingly most partisan party members if they want to win their party nomination. To appeal to these partisan members, candidates adopt polarizing, hard-line party positions. So the very few, doctrinaire partisans who turn out for their party’s nomination (in remarkably unrepresentative small, early state caucuses and primaries…. but that’s for another column) effectively choose the ONLY candidates who will appear on the general election ballot.

Therefore, for all intents and purposes, the only meaningful choice in a general election to choose the next president for ALL citizens is between Democratic and Republican extremes, neither of which adequately represents American voters as a whole.

And then we wonder why the candidates, and our political discourse, are so divisive and why Washington is so fundamentally incapable of achieving anything.

It’s really this simple:

Elections should be conducted for the benefit of every citizen and to elect representatives that truly represent their district, their state, and/or their country. But today, our elections don’t do that. Instead, they serve the narrow interests of the political parties. And that’s not right.

Big changes to the American political system don’t come easy. And they shouldn’t. Fools rush in where angels fear to tread.

And it’s understandable that for many voters the very concept of tearing open the rigged duopoly that controls our current election system sounds somehow exotic, really difficult, or even dangerous. Certainly the social and societal upheavals that the country experienced with civil rights legislation followed only after Supreme Court rulings in the 1940s and 1950s. These rulings, which were first seen as radically subversive and politically dangerous, secure the full voting rights of African-Americans.

In 1944, for example, the Democratic Party and the State of Texas argued in federal court that black voters had no right to vote in the Democrat’s private primary elections. The Supreme Court, recognizing the integral roll that the Democratic primary elections served in Texas at that time, held in Smith v. Allwright:

"When primaries become a part of the machinery for choosing officials, state and national, as they have here, the same tests to determine the character of discrimination or abridgement should be applied to the primary as are applied to the general election. If the state requires a certain electoral procedure, prescribes a general election ballot made up of party nominees so chosen and limits the choice of the electorate in general elections for state offices, practically speaking, to those whose names appear on such a ballot, it endorses, adopts and enforces the discrimination against Negroes, practiced by a party entrusted by Texas law with the determination of the qualifications of participants in the primary."

Today, 43 percent of Americans consider themselves politically independent of the two major parties. We hope that our lawsuit will crack the partisan election system and give this diverse and growing group of individual Americans who do not belong to either of the political parties a truly equal and meaningful vote and, in turn, equal representation.

The right to vote derives from citizenship -- not party affiliation.

Find out more about the Independent Voter Project’s Legal Strategy here.

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