Lawsuit Filed to End Taxpayer-Funding of Closed Primary Elections

SANTA FE, N.M. – The Open Primaries Education Fund filed a lawsuit Wednesday against New Mexico Secretary of State Maggie Toulouse Oliver, challenging the public funding of the state’s closed primary elections. Only registered party members can participate in the primaries, yet the burden falls on all taxpayers to foot the bill for these elections.

OPEF says it has retained the New Mexico based law firm, Bardacke Allison, which is headed by former Attorney General Paul Bardacke. At issue is the unconstitutional use of taxpayer money to pay for primary elections that benefit private political party activities.

“New Mexico’s closed primary elections are exclusionary and held for the benefit of major political parties, which are purely private entities. Even though the primary election is closed and exclusionary, primary elections are paid for by public funds and New Mexico taxpayers, while the major political parties reap the benefits,” the lawsuit says.

There are approximately 270,000 registered independents in New Mexico — 22% of the registered voter population —  who do not have access to primary elections unless they re-register with the Republican, Democratic, or Libertarian Party.

OPEF says if the lawsuit is successful, it will require New Mexico to open its primary elections to all voters in order to receive state funding. The organization says challenges in other states may follow as well.

“For far too long, the Democratic and Republican parties have been the gatekeepers of our primary elections, deciding who can and can’t vote in them, all the while happily taking millions of dollars in taxpayer funds to run their private elections. No more,” says Jeremy Gruber, senior vice president of OPEF and its lead attorney.

“26 million voters across the country are shut out of elections they pay for and our great democracy has suffered deeply as a result. This case is part of a nationwide effort to take back our elections for the people.”  

John Opdycke, president of Open Primaries Education Fund, added:

 “The New Mexico Constitution says: ‘neither the state nor any county, school district, or municipality, except as otherwise provided in this constitution, shall directly or indirectly lend or pledge its credit or make any donation to or in aid of any person, association, or public or private corporation.’ There is a clear case to be made that funding exclusionary elections violates this clause.  The political parties have had it both ways; private organizations when it comes to determining the rules for participation, but public when it comes to taxpayer subsidies. Our goal is to change that.”

A similar lawsuit was filed in New Jersey back in 2014 by a coalition of nonpartisan groups and individual plaintiffs, led by the Independent Voter Project. The lawsuit challenged the constitutionality of the state’s closed primary system.

At the time, the courts upheld the state’s argument that if voters wanted equal access to the election process, they should “simply join a party.” The Independent Voter Project petitioned the Supreme Court to hear the case, which decided not to hear it at that time.

Harry Kresky, an attorney who helped with the New Jersey lawsuit, is also participating as a counsel in the OPEF lawsuit.

Both cases highlight the extent to which the Democratic and Republican Parties manipulate elections to serve their interests at the expense of ALL voters. Stay tuned for more developments on the OPEF lawsuit.

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