Independent Voter Project Appeals N.J. Court Decision that Only Democrats and Republicans Have Right to Vote

Independent Voter Project Appeals N.J. Court Decision that Only Democrats and Republicans Have Right to Vote

Created: 03 November, 2014
Last update: 15 October, 2022

On Monday, November 3, the coalition filed an appellant brief with the U.S. Third Circuit Court of Appeals in New Jersey, maintaining the argument that the current primary system in the state grants the Republican and Democratic parties a monopoly over the election process while denying 47 percent of the electorate equal and meaningful access to the voting process:

“Appellants have not asked this court (and did not ask the lower court) to issue a decision that would require political parties to allow non-party members to access their Candidate Nomination Proceedings. Rather, Appellants have proceeded from the premise 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

The plaintiffs, who include registered Republicans, Democrats, as well as unaffiliated voters, filed the lawsuit in March in the U.S. District Court in Newark, demanding that every voter, regardless of party affiliation (or lack thereof), be guaranteed equal and meaningful access to all integral stages of the election process. Though primary elections are pivotal in electing candidates, nearly half of New Jersey voters are denied access to them, giving the major parties — two private organizations — an unfair advantage in elections.

The lower court’s failure to address Appellants’ constitutional claims and the use of inapplicable case law catapults a derivative right of political organizations to control their associations ahead of an individual’s fundamental rights: (1) to vote at all integral stages of an election process and, (2) to be treated fairly and equally regardless of affiliation or non-affiliation with a specific political organization. This is because the right of the political parties asserted by Appellee springs only if the State, in its discretion, decides to provide those political parties with a forum for their candidate nomination proceedings, whereas the individual’s right to vote is fundamental. The State must respect and balance both rights. In other words, a state may only fund, administer, and sanction a public election process that protects a political party’s private right of association (a derivative right) and the right of its citizens to cast a meaningful vote (a fundamental right). - Plaintiffs' appellant brief

New Jersey Attorney General John Hoffman, on behalf of Secretary of State Kim Guadagno, argued that the plaintiffs wanted to force political parties to allow non-members to participate in their candidate selection process. However, at no point in the plaintiffs’ complaint or subsequent motions do they demand this. Further, the state argues that if independent New Jersey voters feel disenfranchised by the process and want to be guaranteed the right to full participation, they can "just join a party."

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.”

Though primaries are an integral stage of the election process, evidenced by the fact that only one out of 12 congressional races will be even remotely competitive in the 2014 midterm elections, the purpose of the current system in New Jersey is to elect candidates from two private, political organizations — giving them power over the election process not granted by the U.S. Constitution.

Plaintiffs wrote to the court:

A political party can always hold a Candidate Nomination Proceeding without the blessing or funding of the State. The issue of whether the State should fund, administer, and/or sanction the results of these proceedings requires an inquiry as to the State’s regulatory interest in doing so, balanced against the individual right to vote. Arguing that the State is required to pay for these partisan Candidate Nomination Proceedings as part of the process for electing public representatives at the expense and exclusion of non-affiliated voters raises the question: what, in return, do the non-affiliated voters receive other than a dilution of their vote? The answer: taxation without representation.

The current system promotes an explicitly private purpose, denying millions of New Jersey voters the right to equal and meaningful access to elections, while requiring them to pay for these elections. Shouldn't public elections serve the interests of the public?

Read the full appellant brief:

Photo Credit: bikeriderlondon /

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About the Author

Shawn M Griffiths

Shawn is the Election Reform Editor for He studied history and philosophy at the University of North Texas, and joined the IVN team in 2012. He has several years of experience covering the broad scope of political and election reform efforts across the country, and has an extensive knowledge of the movement at large. A native Texan, he now lives in San Diego, California.