FairVote and The Center for Competitive Democracy (The Center) have filed an amici curiae brief with the Supreme Court in a case that challenges the constitutionality of New Jersey's closed primary system.
A coalition of 7 individual plaintiffs and nonpartisan organizations, including the Independent Voter Project (a co-publisher of IVN.us), filed a petition for Writ of Certiorari with the U.S. Supreme Court in July, arguing that the current election system in New Jersey gives the Republican and Democratic parties and their members a decided advantage in state elections at the expense of individual voters, including the 47 percent who have chosen not to affiliate with either major political party.
However, the case was dismissed by the Third Circuit and a lower district court, which held that only Republican and Democratic voters have a fundamental right to vote in primary elections, even when those elections are an integral stage of the state's election process.
Petitioners argue that fundamental rights, like the right to vote, may only be conditioned on public citizenship, not membership with a private political party. FairVote and The Center recognize this principle of fundamental rights in their brief:
"Petitioners assert that the right to vote requires states to utilize a process that treats all candidates and voters equally, irrespective of their membership in a major political party, to grant access to the general election ballot," the brief says.
"Recognizing that individual voters’ rights and political parties’ associational rights must be balanced, Petitioners assert that the state may not fund and administer a public election process that fails to protect the voters’ right to cast a meaningful vote in the election of their representatives. Petitioners do not attempt to dictate how primary elections should be conducted. Rather they merely challenge whether states can grant special privileges to political parties that infringe the right of independent voters to participate in meaningful elections."
While FairVote and The Center acknowledge that petitioners are not trying to force a particular election model on New Jersey, they offer a number of alternative systems that they believe balance the individual's fundamental right to have meaningful and equal participation in the voting process and protect the associational rights of political parties.
These possible reforms include:
- Eliminating primaries altogether and having all qualified candidates run in the November election (using Louisiana as an example);
- Firehouse primaries, where political parties hold private nominating proceedings at their own expense.
- A Top-Two or Top-Four system, where the top two or top four vote-getters move on to the general election. FairVote and The Center propose adding ranked-choice voting in the general election under a "Top-Four" system as a viable option.
- The All-Independent Primary, which simply adds a publicly-funded primary election for voters not registered with a political party.
"Although the Petitioner requests only that the current New Jersey primary election system be enjoined—thus allowing the state an opportunity to develop the compliant candidate selection system it deems most appropriate—each option discussed in this brief, and potentially many others, would address Petitioners’ concerns while also preserving the associational rights of political parties," the brief states.
Backed by legal precedent, FairVote and The Center conclude that the petitioners' "legal theory is not foreclosed by cases guaranteeing the rights of political parties" to hold their own nomination proceedings, and if the high court agrees to hear the petitioners' case, it should understand the remedy offered by the alternative election systems discussed in the brief.