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Courts Will Protect the Voting Rights of Party Members, But Why Not Independents?

New York state cannot cancel the Democratic presidential primary, according to a ruling by a federal judge on Tuesday after top Democratic leaders tried to remove presidential candidates from the June primary ballot.

The state’s Democratic leadership reportedly used concerns over Coronavirus as the reason for dropping the presidential contest, yet still planned to move forward with down-ballot races. This prompted an outcry, claiming Gov. Andrew Cuomo was just trying to help presumptive Democratic nominee Joe Biden while stomping on the voting rights of New Yorkers.

US District Court Judge Analisa Torres ruled that removing presidential candidates from the ballot "deprived Democratic voters of the opportunity to elect delegates who could push their point of view in that forum," and added that the “loss of these First Amendment rights is a heavy hardship."

Former Democratic presidential candidate Andrew Yang had spoken out against the decision to cancel the presidential primary and praised Tuesday’s ruling, saying:

“I’m glad that a federal judge agreed that depriving millions of New Yorkers the right to vote was wrong. I hope that the New York Board of Elections takes from this ruling a newfound appreciation of their role in safeguarding our democracy.”

In a Zoom conference call Open Primaries President John Opdycke also called the ruling a win for Democratic voters who should not be deprived of their right to vote. Other legal experts in the pro-voter reform space agreed.

“One of the positive aspects of the ruling is the assertion -- both implicitly and explicitly – that if the state is going to pay for the primaries then they cannot be manipulated by the party or the party’s leadership,” said Harry Kresky, legal counsel for IndependentVoting.org.

Yet Kresky and the other legal minds on the Zoom call pointed out that the case presents a stark contrast to how the courts treat the voting rights of party members versus the voting rights of independent voters.

“What I found interesting is that if New York State, in fact, had open primaries where voters did not have to change their registration to participate and then they closed the primary then those people who brought the challenge would have been independents and the courts would have treated this differently,” said National Action Network Executive Vice President Michael Hardy.

New York conducts closed primary elections, meaning there are still many New Yorkers who are denied an opportunity to select the presidential candidate of their choice. Yet, the courts have been much more reluctant to protect their right to an equal voice in elections.

Primary reform groups like the Independent Voter Project and Open Primaries have gone to court to defend the voting rights of independent voters in taxpayer-funded primary elections, arguing that public funds are paying for an electoral system in many states that gives an explicit advantage to the political parties and their members – thus denying all voters an equal say in the democratic process.

Yet, courts in places like New Jersey have yet to recognize the constitutional hardships that exist for voters who are told their right to vote is conditioned on joining a private organization. “Simply join a party,” the courts have said. 

Open Primaries Vice President Jeremy Gruber says the parties have increasingly asserted their status as private organizations in the public and the courtroom. Yet, he optimistically sees increasing opportunities for primary reformers on the legal front as a result.

“It follows whether public funds should be used to pay for these elections and whether voters should be forced to associate to vote in public elections,” he said.

The court in New York recognized that Democratic voters should not be denied the right to vote, just like Republican voters should not be denied the right to vote ,just like independent voters should not be denied the right to vote.

Pro-voter reformers have joined forces to spread the word that all voters deserve a right to meaningful participation in the democratic process, and they are taking this message to voters, elections administrators, and policymakers. Voters deserve a voice, they deserve choice, and they deserve competitive elections.

It's a big moment for reformers, a time of victories and a period for action. Here are some of the biggest stories you may have missed in the last week:

Ranked Choice Advocates Score Major Legal Victory to Get Voting Reform on the Massachusetts Ballot

Speaking of major court decisions. Voter Choice for Massachusetts 2020 was handed a big win in court after a judge ruled that they could collect electronic signatures online in their campaign to get ranked choice voting (RCV) on the November ballot.

The campaign already got over 111,000 signatures certified in December to put RCV on the ballot. However, in Massachusetts, the petition process for ballot initiatives has two stages. Voter Choice for Massachusetts cleared the first stage, and now it has to get 13,347 additional signatures by June 17.

“We are profoundly grateful for the Supreme Judicial Court’s order which allows voters to exercise their right to petition the government and act as engaged citizens even as many of us are sheltering at home,” said Cara McCormick, senior advisor for the campaign.

“With this order, no voter or volunteer will have to choose between staying safe and getting involved in our campaign to help form a more perfect union with ranked choice voting.”

Here is a little background:

Voter Choice for Massachusetts was forced to cancel or postpone in-person events and activities as a result of the COVID-19 pandemic. Social distancing also meant that it would be impossible to gather signatures door-to-door while the June 17 deadline remained in place.

On April 26, the RCV campaign joined 3 other initiative campaigns in a joint lawsuit to get the Massachusetts Superior Judicial Court to allow electronic signature gathering.

An agreement was reached by Secretary of State William Gavin and the campaign on a resolution to allow online petition distribution and electronic signature collection by mail or email. The judgment stated, though, that the electronic signature could not simply be a typed name.

 “Voters who wish to sign the Form online shall apply an electronic signature with a computer mouse, stylus, or finger, in-person directly on the Form. A typewritten name, uploaded image, or computer-generated generic signature shall not be considered a genuine signature of a voter,” stated Justice Barbara Lenk in the court’s judgment.

Thus, Massachusetts became the first state to allow electronic signatures for ballot initiative campaigns in 2020, and Voter Choice Massachusetts is in a good position to collect all the signatures it needs using online tools.

“Our campaign looks forward to working with Secretary Galvin who has worked diligently to preserve what is embodied in the Massachusetts constitution to allow the people — for this election only — to sign petitions electronically,” said McCormick.

With so much support behind ranked choice voting, Massachusetts could soon follow in Maine’s footsteps, which adopted the first voter-approved statewide RCV law in 2016 and passed RCV for presidential elections.

The second stage of petition gathering runs from May 6 to June 17. Stay tuned for more.

Vote at Home Isn’t The Only Reform with Huge Momentum Behind It Right Now

Since the start of the COVID-19 pandemic, the mainstream conversation on reform has been focused specifically on vote at home. However, ranked choice voting also continues to make significant gains as well.

In fact, voters got a look at what kind of results these two reforms can accomplish when added together. Kansas, Wyoming, Alaska, and Hawaii expanded mail-in voting with ranked choice ballots in April while other states were forced to postpone their elections.

What happened? In each state turnout soared and voters were empowered with more choice on the ballot.

Take Kansas, for example. Nearly 147,000 mail-in ballots were cast in the Democratic presidential primary using ranked choice voting. That turnout more than tripled the turnout in the 2016 Kansas Democratic caucus. In other words, even in the midst of a health crisis, turnout skyrocketed.

Voters could cast their vote without compromising their own personal safety. It is what Vote at Home CEO Amber McReynolds and FairVote CEO Rob Richie, a leading expert and advocate on ranked choice voting, call “pandemic-proof elections.”

Meanwhile, Voter Choice for Massachusetts scored its legal victory and is now in the process of gathering electronic signatures to put RCV on the November ballot, while an initiative already on the Alaska ballot would adopt a nonpartisan primary system with ranked choice voting.

In Utah, the Republican and Democratic Parties held their respective state conventions, and made history by using RCV in conjunction with online voting to determine party nominations for November elections. This, RCV advocates say, further illustrates the nonpartisan nature of the voting reform.


In San Diego, More Choice SD partnered with Modern Times Beer to host a virtual “rank your beer” event, showcasing how a top-four primary system with RCV can improve elections for voters and candidates in a fun manner.

Featured guests during the event included San Diego City Councilmember Mark Kersey, Author, Stanford professor, and Hoover Institution Senior Fellow Larry Diamond, Modern Times Beer General Counsel David Israel, League of Women Voters of San Diego President Lori Thiel, FairVote representative Pedro Hernandez, and RepresentUs volunteer Amy Tobia.

San Diego participants had an opportunity to try 4 Modern Times beers and then participate in a ranked choice voting poll in which they ranked the beers in order of preference. The result was multiple rounds of automatic runoff in which a consensus favorite was determined.

While participants tasted and ranked their beer, Tobia gave a presentation on ranked choice voting and what it would mean for elections generally. She focused the presentation on 4 main benefits of RCV, and that it provides “more choice, more competition, more diverse ideas, and more civil campaigns.”

These 4 points resonated with the attending guests.

Diamond said passing a nonpartisan top-four primary system with ranked choice voting could “provide momentum for the rest of California.” He said voters are “certain to have diversity in the general election” with this system, and that it increases the odds of independents making it to November.

RELATED: Independent Voter Project Hosts Top-Four Primary Forum

“Too many times now when people go to the ballot they have the choice of the ‘lesser of two evils,’” said Councilmember Kersey. He added that generally the current system favors ideological extremes while shutting out independent and centrist voices. He believes More Choice SD would lead to “greater choice for voters in November.”

More Choice SD has officially submitted an initiative to appear on the November ballot. It will soon be taken up in committee in the San Diego City Council, which Kersey says he looks forward to helping get through.

Also in RCV news:

FairVote conducted a week of action for ranked choice voting starting on May 3 to mobilize supporters to spread the word on RCV, including sharing an explainer video, participating in RCV polls, a deep-dive webinar into what RCV is and what it can offer elections, writing letters to the editor, and more.

FairVote Minnesota hosted a virtual conference with US Rep. Dean Phillips (MN-3) and Dr. Lee Drutman, author of the new book, “Breaking the Two-Party Doom Loop.” Drutman says partisanship during the COVID-19 pandemic has presented a quite literal doom scenario, but reforms like ranked choice voting offer hope for the future.

US Rep. Philips says RCV “makes happier elected, and it makes happier voters.”


Will Independent Voters Save a Republic in Crisis?

One of the driving forces that has led to the historic momentum behind pro-voter reforms like vote at home, ranked choice voting, nonpartisan primaries, and more is the expansive growth of independent voters across the country.

Consistently, independent voters make up at least 40% of the electorate. Independents outnumber members of at least one major party in states that register voters by party affiliation, and both major parties in a large handful of these states.

So, the million-dollar question in a time of crisis is, can independents save the US political system?

Independent Voting President Jackie Salit and academic Thom Reilly examine this question closely in the chapter they co-wrote in “Democracy Unchained: How to Rebuild the Government for the People.” The book is a collection of writings from American political and reform thinkers.

Salit and Reilly previously collaborated on the ASU Morrison Institute, USC Schwarzenegger Institute, and Independent Voting research paper, “Gamechangers? Independent Voters May Rewrite the Political Playbook.” In it, the two explore a similar question; specifically, what are the ramifications to American politics when a plurality of voters identify as independent? 

The authors discussed their chapter in “Democracy Unchained” and the 2017 research paper during a Zoom virtual conference with Open Primaries.

On a personal level, Salit says, she and Reilly “started to see this role that independents were playing of being a bridge between people whose views were more calcified and ideologically determined.” This, she says, could be seen in communities and inter-personal relationships across the country.

“On a broader level, independents really feel very strongly that the political system categorizes people and keeps people apart by invoking a certain set of political identities.” - Jackie Salit

This forced categorization, Reilly adds, is what drives so many to identify outside the Republican and Democratic Parties. Many people don’t want to be forced into strict ideological boxes, but want to “think independently and be engage on a wide set of issues.”

One of the biggest hurdles independent voters have to overcome though is a perception that they are a myth.

What made Gamechangers such a game-changing research paper is it challenged a prevailing thought in academia that independents made up, at most, only 7% of the electorate. This has for years added fuel the two-party narrative that independent voters largely don’t exist because at the end of the day, most voters will choose a Republican or a Democrat on the ballot.

“When people identify as independents we take that to have great meaning,” said Salit. She added that when the system only gives voters a choice between a Republican and a Democrat, it makes it impossible to reflect the independent-mindedness of many voters. They will choose based on the options presented to them.

“The whole framework is always phrased that we have defined our political structure as being only between Republicans and Democrats,” said Reilly

It is true of politicians. It is true in the media. It is true in the polls. It is true in most halls of academia. All of these institutional forces keep the cogs of the nation’s partisan machine turning. Reilly and Salit have thrown a wrench in that machine.

“I have seen over and over again a tremendous sense of humanistic values from independents across the board. Many of them wouldn’t pass an ideological test, but they are people who care deeply about this country, their families, and their fellow Americans,” said Salit.

“Part of the reason we wanted to write this chapter is we wanted to bring forth this vast community of Americans who are saying, ‘Hey, there is something vastly wrong with our system.’”

Independent voters, Reilly and Salit argue, not only exist in the millions across the country, but they are hungry for change. They see a democratic process and a Republic in crisis and they want to do something about it.

Thus, the momentum we have seen behind pro-voter reform movements – from local jurisdictions to the national level – will only continue to grow in 2020 and beyond as voters demand a greater voice, more choice and accountability, and a fairer political process.

Also In Reform News…

  • RepresentUs hosted its third Unrig Roundtable, titled “The #YouthVote in a Climate of Emergencies.” RepresentUs Director of External Affairs Renaldo Pearson moderated a panel that included American Conservation Coalition President and Founder Benji Backer, NextGen America Digital Communications Associate and Social Media Influencer Program Administrator Alexia Lewis, and Zero Hour Co-Founder Jamie Margolin. The roundtable focused on what youth voters care about and what groups can do to mobilize these voters in November and future elections.
  • Former Gehl Foods CEO and prominent reform activist Katherine Gehl has announced pre-orders for her new book, “The Politics Industry: How Political Innovation Can Break Partisan Gridlock and Save Our Democracy.” Gehl co-authored a groundbreaking Harvard Business School paper with Harvard Business School professor Michael Porter (who co-authored the book) in 2017 called “Why Competition in the Politics Industry is Failing America.” Gehl’s book, which focuses on the same topic and what can be done to increase competition in US elections, comes out on June 23. All proceeds from the book will go to Gehl’s group, the Institute for Political Innovation.
  • The Independent Party of Oregon has launched its 2020 online primary using STAR voting. It is the first binding election to use STAR voting. Voting lasts until May 12.
What is this story missing? Let us know. >>What is this story missing? Let us know. >>

About the Author

Shawn Griffiths

Shawn is an election reform expert an editor of IVN.us. He studied history and philosophy at the University of North Texas. He joined the IVN team in 2012.

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