Petition to SCOTUS Says Closed Primaries Are Unconstitutional

A coalition led by the

Independent Voter Project (IVP) filed a petition for Writ of Certiorari with the Supreme Court of the United States on Tuesday in a case challenging the constitutionality of New Jersey’s closed primary system.

The coalition, which includes IndependentVoting.org and 7 individual plaintiffs, argues that the current election process in New Jersey gives political parties and their members a decided advantage in the election process at the expense of individual voters, including the 47 percent who choose not to affiliate with either major political party.

“The natural consequence of New Jersey’s election process is [...] the institutionalization of minority rule,” the writ says. “Indeed, interest of the Republican and Democratic political parties are so embedded in the State’s establishment that the State of New Jersey finds itself here today defending a system that overtly and unnecessarily protects the private rights of two political organizations at the expense of the voting rights of its own citizens.”

In lower court proceedings, New Jersey argued that “democracy isn’t easy,” and that it is up to voters to “do the hard work” it takes to compete with the major parties without further explanation.

In April, the Third Circuit Court of Appeals affirmed a lower district court’s decision to dismiss the lawsuit. In his ruling, District Court Judge Stanley R. Chesler cited the state’s argument that if voters feel disenfranchised by the current electoral process, they can “simply join party.”

“The notion that two political organizations have built up some type of special equity that outweighs the individual’s fundamental right to vote offends the most basic building block of our democracy,” the petitioners write.

The voting rights issue is growing nationwide. The Supreme Court not only upheld Arizona's independent redistricting commission on June 29, but the ballot initiative process, which voters can use to decide their own political destinies. The Supreme Court will also once again consider the meaning of "one person, one vote" in Evenwel v. Abbott. The redistricting process in Texas is being challenged, but the plaintiffs argue that the state should draw electoral districts based on voting population rather than the entire population as reported by the U.S. Census.

In Congress, U.S. Representative John Delaney (D-Md.) re-introduced the Open Our Democracy Act. Along with making Election Day a national holiday and creating a path for redistricting reform, the bill would also establish "open primaries" for all U.S. House and Senate races in the nation. The primary election model advocated in the bill resembles the nonpartisan, top-two primary systems in California and Washington state.IVP authored California's landmark nonpartisan, top-two primary election reform, which voters approved under Proposition 14 in 2010. However, the organization has made it clear that it does not seek to establish top-two as the only alternative system.

“To be clear, Petitioners are merely seeking an injunction against the current closed primary election process. In its place, Petitioners simply request the Court mandate […] that New Jersey implement a system that gives every voter, regardless of their party affiliation, an equally meaningful vote at every integral stage of the process,” the writ states.

“There are several systems that respect the rights of voters and the rights of political parties, such as ranked-choice voting, approval voting, instant run-off voting, proportional voting, and so on. We should be debating the merits of these systems instead of holding on to old systems that actively preclude otherwise qualified voters from participating,” said S. Chad Peace, an attorney for the Independent Voter Project. “It is not a coincidence that voters have less confidence in their representatives. It is because, by law, voters are excluded from full participation in the election process.”

IVP cites previous court rulings (including Reynolds v. Sims and Gray v. Sanders, where the Supreme Court first articulated the "one person, one vote" standard), arguing that the Supreme Court has already upheld the fundamental right all voters have to full and equal participation in all integral stages of the elections process multiple times -- something the lower courts have not disputed in their decisions.