Many perspectives, 1 simple etiquette

Do You Have to Join a Party to Vote? Third Circuit to Decide

Author: Jim Jonas
Created: 13 March, 2015
Updated: 21 November, 2022
4 min read
On March 5, 2014, the

Independent Voter Project, supported by a broad coalition of organizations from across the country, filed suit in New Jersey federal court, arguing that New Jersey’s closed primary election system is unconstitutional as it is conducted for the private benefit of two increasingly unpopular and private political parties to the complete exclusion of the 47 percent of independent and third-party voters in the state.

As predicted, the state's political party machines, along with New Jersey’s elected officials, didn’t like the Independent Voter Project’s argument. Judge Stanley Chesler dismissed the case at the circuit level on summary judgment, citing opinions out of context. Chesler’s opinion cited precedent concerning an independent voter’s right to participate in Republican and Democratic primaries and he actually suggested that, among other things, “a voter who feels disenfranchised … should simply join party.”

On Tuesday, March 3, in a major development, the U.S. Third Circuit Court of Appeals granted oral argument in the case to be heard on March 17, 2015, in Philadelphia.

Though it’s a long, long road to actually winning a final judgment, for oral argument to be heard in the Third Circuit is a huge advance and should be celebrated for its potential impact on the movement for nonpartisan election reform.

Most politicos and political observers understand that the vast majority of elections are decided in primaries. Thus, disenfranchising independent voters at the primary stage should be recognized as a violation of the right to equal protection under the law.

Most simply, it’s just not right.

The Independent Voter Project’s attorneys will continue to argue in federal appeals court:

Specifically, the Independent Voter Project's suit asserts two main grievances under federal law:

  1. New Jersey’s closed primary system violates a voter’s First Amendment right of non-association as voters are required to join a political party to participate in the taxpayer-funded primary process; and,
  2. New Jersey’s closed primary system violates the Fourteenth Amendment’s Equal Protection Clause as the primary system gives political parties and their members superior access to the election franchise, which has the effect of diluting the influence of voters who choose not to join the Republican or Democratic parties.

Additionally, the suit argues that the closed primary system violates New Jersey’s state constitutional prohibition against the private use of public funds.

The Independent Voter Project has never challenged the right of the parties to have private and exclusive primary elections. In fact, their suit supports this fundamental constitutional right of private parties. But the Independent Voter Project also asserts the fundamental, constitutional right of the individual voter to fully participate in the public election process without being forced to join a private organization.

So, on Tuesday, March 17, on appeal, the Independent Voter Project will ask the court to answer the questions originally asked:

  • Are the State of New Jersey’s non-presidential primary elections an integral stage of the election process in New Jersey?
  • Does every voter have a fundamental right to vote in all integral stages of an election?
  • Do appellants state a claim under the Equal Protection Clause of the Fourteenth Amendment of the U.S. Constitution when the state creates two classes of voters: (i) registered voters who ‘qualify’ to vote in primary elections by virtue of joining the Democratic or Republican political parties; and, (ii) registered voters who are not ‘qualified’ to vote in primary elections because they have not joined the Republican or Democratic parties?
  • Do appellants state a claim under the First Amendment of the U.S. Constitution when the state requires voters to join the Republican or Democratic parties as a condition to gaining access to an integral stage of the state’s election process?
  • Did the lower court err by relying on precedent related to a political party’s right to control their candidate nomination proceedings, rather than precedent related to rights of individual voters to participate in the election process?

Big, sweeping changes don’t come easily in this country -- and for very good reason. And this suit is asking for a big, sweeping change.

At the core, the argument comes down to a simple question: for whose benefit are elections held? Should those elections be paid for, administered, and conducted by the state for the benefit of private political parties? Or, should elections be about protecting and defending the rights of each individual voter – regardless of their partisan affiliation or non-affiliation – to have an equal and meaningful vote in the political process?

As voters in New Jersey and states across the country continue to leave the traditional political parties in droves, the courts will have more and more difficulty in ruling against the simplicity of the Independent Voter Project’s argument. And, regardless of the outcome of this particular court case, the momentum for nonpartisan, independent election reform that supports the rights of individual voters over private political parties is gathering speed.

If you are interested in learning more about this specific case and the legal and political challenges and opportunities ahead, you can join a conference call for media and supporters next Monday, March 16, at 2:00 p.m. EDT. Click here to register for the conference call.

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