Chad Peace
The fight, state by state: Voters suing to open closed primaries in Maryland, Pennsylvania, Oregon, Wyoming. Parties suing to close open primaries in Texas, South Carolina. A repeal fight in California. Ballot efforts in Massachusetts, Florida, South Dakota, Nevada, Colorado, Arizona, Idaho, Washington D.C., Alaska. A new law in New Mexico.
There is one question underneath the fights over primary elections spreading across the country, and it is not complicated. Does the right to vote at a decisive stage of a publicly funded election come from citizenship, or from joining a political party?
That single question is being asked right now in at least eight states, in three different venues. Independent voters are suing to get into closed primaries. Political parties are suing to close open ones. And voters and legislatures are being asked to decide it directly. The forms differ. The question does not.
The newest move came this week. On July 21, 2026, the Independent Voter Project, author of California's Proposition 14, and More Choice California sent the Attorney General an informational letter about the official description voters will read for a measure to repeal California's nonpartisan primary, asking that the ballot title and summary tell voters plainly that it would strip a right they now hold. It is the same question California confronted at the ballot in 2010, that Florida confronted in 2020, that South Dakota and Nevada confronted in 2024, that Massachusetts voters may decide in 2026, and that federal judges in Texas and South Carolina are being asked to decide today.
No single state can end the argument, because the answer turns on the U.S. Constitution. Sooner or later it goes to the Supreme Court, which turned away its most recent chance in October 2025. When the Court finally takes it up, the alignment will be unusual. For once the two parties want the same thing, control of the primaries they run with public money. A ruling that the right belongs to the voter would override closed-primary Democrats in the Northeast and primary-closing Republicans in the South in a single decision. This is analysis, not prophecy. But the structure of the fight points one way: both parties on one side, and the voters on the other.
The Same Question, Asked Every Way It Can Be Asked
The contest has no single battlefield. It moves between three, and the movement itself is the story. When reformers win a court ruling, the parties turn to the legislature. When they win at the ballot box, the parties go to court. Each venue can change one state's rules, but none can resolve the constitutional question at the center, which is why the same fight keeps reappearing in a new form somewhere else.
Voters Trying to Open Closed Primaries
In the courts
Maryland. Five unaffiliated voters represented by former Lt. Gov. Boyd Rutherford, working with the Open Primaries Education Fund, sued the state in May 2025 in Bryson v. Moore. They argue the partially closed primary charges all taxpayers while shutting out nearly one million voters who decline to join a party, citing the state constitution's guarantee of the right to vote in "all elections held in this State." A judge found they had standing in October 2025, then dismissed the case in November, ruling the constitution does not require access to a party's nomination process. The appeal is pending. Gov. Wes Moore, the named defendant, has said the closed system "has run its course," though critics note he has not moved to change it.
Pennsylvania. A group of independent voters including radio and television host Michael Smerconish, backed by Ballot PA, sued for the right to vote, refiling in Commonwealth Court in December 2025 after the state Supreme Court declined to fast-track the case. Roughly 1.4 million voters registered outside the two parties are barred under Section 2812 of the Election Code. The petition leans on an analysis by Carnegie Mellon mathematician Wesley Pegden, who found the median voting influence of major-party voters in legislative races from 2002 to 2020 was nearly double that of independents, because party voters effectively get two elections and independents get one.
Oregon. Our Primary Voice and voter Mark Porter sued Secretary of State Tobias Read in June 2025 in Porter v. Read, arguing the closed primary conflicts with a constitutional list of voter qualifications that names only age, residency, and registration. Roughly 1.3 million Oregonians, about 43 percent of the electorate, are registered outside the two parties, now the state's largest bloc, and they are shut out of the primary that decides most races. The case awaits a summary-judgment ruling, and a parallel ballot initiative to open the primaries has stalled short of the signatures it needed.
Wyoming. In Malcom v. Gray, voters challenge the state's 2023 crossover-voting ban and its 96-day party-switch deadline. A district judge upheld the laws in November 2025. The Wyoming Supreme Court, with Secretary of State Chuck Gray as the named defendant, heard oral argument on June 10, 2026, making this the case furthest along at a state high court. Plaintiffs include Jim Roscoe, a former legislator and the state's only independent lawmaker.
At the ballot box, 2020 to 2026
Where the courts are closed, voters have gone to the ballot, and the same question has appeared on it again and again. It usually takes the form of replacing party primaries with a single ballot open to all candidates and voters, sometimes paired with ranked-choice voting in the general election. In 2024 alone the question was on the ballot in five states, and party-aligned committees and outside interests outspent the reformers in most of them.
Massachusetts. The most active current effort. A top-two primary initiative backed by the Coalition for a Healthy Democracy would replace party primaries for state offices with a single ballot. The attorney general certified it in 2025, supporters turned in enough signatures, and in June 2026 the state's Supreme Judicial Court rejected a challenge, part of it brought by members of the Democratic State Committee, clearing the way toward the 2026 ballot.
Florida. A 2020 top-two amendment drew 57 percent, short of the state's 60 percent supermajority requirement, and a new top-two initiative failed to qualify for the 2026 ballot. The court route ran through Michael Polelle, a retired law professor who took his own case to the Supreme Court after being shut out of his county's primaries as an unaffiliated voter. He filed in 2022, the Eleventh Circuit upheld the closed primary, and the justices denied review in October 2025, leaving both routes closed for now.
South Dakota. Amendment H in 2024 would have created a top-two primary for state and congressional offices. Voters rejected it, about 58 percent opposed.
Nevada. Question 3, a top-five open primary with ranked-choice voting, passed in 2022 but had to pass twice to amend the constitution. It failed the second vote in 2024, amid heavy opposition spending, so it did not take effect.
Colorado. Proposition 131 in 2024, a top-four primary with ranked-choice voting, was rejected by voters.
Arizona. Proposition 140 in 2024 would have replaced party primaries with a single nonpartisan ballot. It failed. Arizona is also where the exclusion is starkest: independents can request a party ballot in most primaries, but not in the presidential primary, which they still fund as taxpayers.
Idaho. Proposition 1 in 2024, a top-four primary with ranked-choice voting, was rejected.
Washington, D.C. Initiative 83 in 2024 created semi-open primaries and ranked-choice voting with 73 percent support, giving about 85,000 independents a vote. The Council first funded only the ranked-choice piece, then in June 2026 voted to fund the open primary too.
Alaska. Voters kept the state's top-four open primary with ranked-choice voting in 2024, defeating a repeal by 664 votes, about two-tenths of a point, confirmed after a recount.
In the legislature
New Mexico. After Chavez v. Oliver, filed in 2018, revived a stalled effort, the legislature passed SB 16, and the state opened its primaries to unaffiliated voters. The semi-open law took effect July 1, 2025, letting more than 330,000 independents, about a quarter of the electorate, vote in a major party's primary without joining it. They used it for the first time in the June 2, 2026 primary, which featured contested races for governor in both parties. It is the clearest recent win for voter access, and it came from lawmakers rather than a court or a ballot measure, which is why the parties elsewhere are fighting on all three fronts at once.
Parties Trying to Close Open Primaries
Texas. Texas runs an open primary with no party registration; voters choose a Republican or Democratic ballot each cycle, so no registered voter is denied a vote. In September 2025, the Republican Party of Texas sued in federal court, Republican Party of Texas v. State of Texas, arguing that letting non-Republicans vote in its primary violates the party's First Amendment right of association, and asking that participation be limited to registered Republicans in a state with no party registration.
The case split the state's own leadership. Attorney General Ken Paxton, whose job is to defend state law, sided with the party and asked the court to strike the open-primary provisions. That left Secretary of State Jane Nelson defending Texas law against her own attorney general, with private counsel, on standing and jurisdiction. U.S. Sen. John Cornyn broke with Gov. Greg Abbott and Paxton, warning that closing the primary could backfire on the GOP. Veterans for All Voters moved to file an amicus brief for the open primary, noting Texas has 1.5 million veterans, more than 700,000 of them independents, who would be shut out.
South Carolina. South Carolina also runs an open primary with no party registration. In July 2026, the state Republican Party, led by chairman Drew McKissick, sued the state election commission in federal court seeking party registration and a closed primary, on the same First Amendment theory, after two bills to close the primary stalled in the legislature. These party-driven suits, more than any voter challenge, are the ones most likely to carry the question up to the Supreme Court, because this time it is a political party asking for the ruling.
California: The Reverse Fight, to Keep an Open Primary
California. California is where the question is sharpest, because voters already hold the right the others are fighting over. The state runs a single nonpartisan primary in which every voter, regardless of party, votes for any candidate for congressional and state office. The Constitution calls it a "voter-nominated" system. (Cal. Const., art. II, § 5.) There are no party nominees. Every candidate appears on one ballot.
In May 2026, Democratic consultant Steve Maviglio filed a constitutional amendment to repeal it. The effort picked up bipartisan muscle fast, with former state GOP chair Ron Nehring endorsing it and Reform California's Carl DeMaio pledging funding and signature gatherers to what is now called "Undo the Top-Two." If it qualifies and passes, it would reach voters in November 2028 and take effect in 2030. The lineup behind the repeal is the national alignment in miniature. A Democratic operative, a former Republican state chair, and a Republican organizer are working the same side, because their shared interest is not partisan advantage but restoring party control over who may participate in the primary. On the parties-versus-voters divide, the "Undo the Top-Two" backers sit with the parties. What they are trying to take back from California voters is exactly what the Texas and South Carolina parties are asking federal courts to hand them.
On July 21, 2026, IVP and More Choice California sent Attorney General Bonta an informational letter about the circulating title and summary his office issued on July 14. They did not file a legal challenge. They asked only that the official ballot title and summary, if the measure qualifies, tell voters plainly that it repeals the existing right of every voter to vote for any candidate in the primary and returns control over participation to the parties. As IVP legal counsel S. Chad Peace wrote, a voter reading the current summary "would not understand that the measure removes a right the voter now holds."
The point is constitutional. Under California Democratic Party v. Jones, 530 U.S. 567 (2000), the state cannot compel a party to open its nomination to non-members. So once nomination returns to the parties, the universal right Californians hold today cannot be restored by statute. It exists only because the primary is nonpartisan. Standing against the repeal is More Choice California, a cross-party coalition backing a Right to Vote Amendment for Article II, Section 2, which would bar excluding any eligible voter "from meaningful participation at any integral stage of any publicly funded election, including primary elections, on any basis including political party preference," while leaving parties free to run their own privately funded nomination process. Roughly 5.3 million No Party Preference voters, per the Secretary of State's May 2026 report, and nearly 6.9 million counting minor-party registrants, would have that existing right written into the constitution.
How the Courts Have Ruled Before
None of this is new law, and the precedents cut in more than one direction. In Tashjian v. Republican Party of Connecticut, 479 U.S. 208 (1986), the Court held a party may open its own primary if it chooses. In California Democratic Party v. Jones, 530 U.S. 567 (2000), it struck California's blanket primary, ruling the state may not force a party to let outsiders pick its nominee. Those cases protect a party's control over its own nomination.
But the reverse claim has failed. In Democratic Party of Hawaii v. Nago, 833 F.3d 1119 (9th Cir. 2016), the Hawaii Democratic Party tried to force the state to close its open primary and lost, and the Supreme Court denied review in 2017. That is the precedent the Texas and South Carolina parties are testing again. The Independent Voter Project has litigated the voters' side directly, challenging New Jersey's closed primary in Balsam v. Guadagno (2015) and testing related ground in California in Boydston v. Weber (2023); the Court denied review in both. IVP, Open Primaries, and the Forward Party then urged the Court to take Polelle in 2025, noting that 57 percent of Florida voters had backed a nonpartisan primary in 2020. The Court declined again.
The Question Only One Court Can Settle
The Supreme Court answered part of this in 1941. In United States v. Classic, 313 U.S. 299, it held that where the primary is an integral part of choosing who governs, the right to vote reaches the primary too. In most districts today, drawn safe by partisan gerrymanders, the primary is the election and the general is a formality. Closing that primary to party members does not merely inconvenience independents. It removes them from the only vote that decides the outcome, while still charging them to run it.
Every state fight is a version of this. A ballot measure in South Dakota, a lawsuit in Wyoming, a party's federal complaint in Texas, a repeal in California, a statute in New Mexico. Different instruments, one question: do the parties own the primary, or do the voters. State courts and state ballots can move a single state, but they cannot bind the others or settle the federal issue, so the question keeps escalating. It ends in one place.
When the Supreme Court takes it up, the usual alignment breaks. The voters shut out are not partisans losing a policy fight. They are the fastest-growing bloc in the electorate, asked to fund a nominating process built to keep them on the sidelines. And the two parties, which agree on almost nothing, agree on this: the primary belongs to them. A ruling that it belongs to the voters would be a defeat both parties share. That is the case that could turn both of them against the Court, and it is coming whether the justices welcome it or not.
Disclosure: The Independent Voter Project co-publishes IVN and has been a party or amicus in several of the matters described above, including Balsam, Boydston, Polelle, and the California effort. IVP legal counsel S. Chad Peace authored the July 21 letter to the Attorney General.