Another Brief Opposing Constitutionality of N.J. Primary Filed

On Monday, the Equal Vote Coalition (EVC) filed an amicus brief with the U.S. Third Circuit of Appeals in the case, Balsam v. Guadango (the lawsuit filed by the EndPartisanship.org coalition), supporting the argument that the closed partisan primary in New Jersey does not protect the fundamental right all voters have to an equal and meaningful vote.

The Equal Vote Coalition was founded by Mark Frohnmayer, an entrepreneur and technologists from Oregon, who was the chief petitioner of 2014 Oregon Initiative Petition #54, the Unified Primary, which sought to implement an election system that ensured all votes carry equal weight in Oregon. The initiative, however, did not garner enough signatures in time to appear on the general election ballot.

The foundation of Frohnmayer’s argument for the Unified Primary and the coalition’s argument in the amicus brief is based on the idea that all voters, no matter who they are or what party they are a member of (or not a member of), have a fundamental right to an equal vote, which means every vote must carry equal weight.

According to the coalition, the Supreme Court has not only ruled that the concept of an equal vote is protected under the Equal Protection Clause of the Fourteenth Amendment in the U.S. Constitution, but that it is also “a thread that defines the essential character of the nation itself.”

EVC quotes Gray v. Sanders, 372 U.S. 368, 381, 83 S.Ct. 801, 9 L.Ed.2d 821 (1963):

“Once the geographical unit for which a representative is to be chosen is designated, all who participate in the election are to have an equal vote – whatever their race, whatever their sex, whatever their occupation, whatever their income, and wherever their home may be in that geographical unit. This is required by the Equal Protection Clause of the Fourteenth Amendment. The concept of ‘we the people’ under the Constitution visualizes no preferred class of voters but equality among those who meet the basic qualifications.”

The Supreme Court declared that this encompasses the principle of one person, one vote.

However, according to the amicus brief, the current voting franchise in New Jersey does not ensure every vote carries equal weight. The coalition further argues that the courts can use a simple test to determine how this standard is measured. This standard has been around since the time of the ancients and is founded on the principle of balance.

If Voter A chooses Candidate 1 and Voter B chooses Candidate 2 ... their votes counterbalance, which means they carry equal weight.
“The voting franchise provides votes of equal weight to all the voters if and only if for each possible vote expression that one voter may cast in an election, there exists another expression of the vote that another voter can cast that is in balance – such that the outcome of an election is the same whether both or neither votes are counted,” the coalition argues.

Simply put, if Voter A chooses Candidate 1 and Voter B chooses Candidate 2 (assuming there are no other candidates in the race), their votes counterbalance, which means they carry equal weight and the outcome of the election “reflects the will of the majority.”

New Jersey’s secretary of state argues that if voters want full participation in the process, they can simply join a party. In fact, advocates of traditional partisan primary systems argue that whatever voter inequality exists is a result of the individual’s choice because they choose not to affiliate with a political organization, and therefore choose not to participate.

EVC argues that this ignores the true inequality that traditional partisan primaries, like the closed primary system in New Jersey and primary systems in most states in the U.S., create:

“[S]egregating the choice along the boundaries of political organization creates an inherent inequality in the weight of the vote for ALL voters. No matter what political affiliation a voter chooses, she cannot balance the vote expression of any voter who does not share her same political affiliation – no matter the algorithm used for computation of the vote outcome.”

In other words, even if all voters chose a party, inequality would still exist under traditional partisan primary systems — voters in Democratic primaries can’t counterbalance the vote of citizens who participate in Republican primaries.

As the court considers the arguments over whether or not the current primary system adheres to the principles established in the U.S. Constitution, EVC asks the court to adopt the equality test proposed in the amicus brief and reject New Jersey’s primary system, which segregates voters by political affiliation.

Read the full amicus brief:

Get all the up-to-date information on the lawsuit here.