By Joe Castor:
This past August the United States District Court in New Jersey dismissed a complaint brought by voters and independent interest groups to open state primaries and prevent the state from funding closed primaries. The coalition, formed by Endpartisanship.org, is appealing to the Third Circuit to end state funded primaries for the two major parties. Their complaint alleges that the New Jersey statute impermissibly funds closed primaries to the detriment of unaffiliated candidates and voters generally. Endpartisanship.org is a coalition of various groups that believe the two party system has been unfairly supported by the states and that the taxpayer funds supporting the parties creates an unfair advantage to the detriment of independent candidates. This is their first lawsuit as a coalition and it seems that they may have hit a major roadblock.
The New Jersey statute is similar to many other states’ closed primary systems. The statute limits participation in the primary to voters “newly registered at the first primary at which he is eligible to vote” or those whom for fifty-five days prior to the primary have been, “deemed… a member of that party”. The only political parties recognized in New Jersey for this purpose are the two major parties. The state claims the purpose of this law is in order to prevent “party raiding”, a process by which members of an opposing party attempt to select their favored nominee, and other problems that can occur with a more open primary process.
New Jersey has a substantial population of unaffiliated voters. Independents make up 47.6% of the electorate. The primary election process costs taxpayers approximately $12 million. These voters feel their tax dollars are being impermissibly spent by a slim majority of the electorate, all while helping to elect candidates that do not share their values.
In his opinion for the United States District Court, Judge Stanley Chesler, believes the coalition has misunderstood much of the legal precedent that they have forwarded in order to support their claim. The plaintiffs allege that since no case denies the existence of a fundamental right to vote in a primary election that denying the vote to independents is unconstitutional. However, as Judge Chesler points out in his opinion, the Supreme Court has stated, “In no area is the political association’s right to exclude more important than in the process of selecting its nominee.” Parties must be able to ensure that the person representing them at the general election is truly a candidate of their choice. The court states that this right is stronger than the interest of unaffiliated voters participating in the primary process. The court has used its authority to prevent racial discrimination in primaries but that is a substantially different claim then the one raised here. The very reason that political parties function is to identify themselves as an aligned interest group, and to allow the usurpation of their candidate selection process would infringe their right to associate freely.
The court is also unpersuaded that the challenged statute prevents independent groups from adequately participating in the general election. While these groups would not receive state funding for a primary, independent candidates can gain a place on the ballot through a petition process. The court states that this has often been an easier method of obtaining ballot access than the party primaries.
Independent voter frustration is understandable in increasingly partisan times, yet the closed primary system is unlikely to fall. The states have a strong interest in the integrity of the primaries conducted in their state and the burden on independent voters is not nearly enough to raise the level of scrutiny for a challenge of this nature to be successful. This coalition may try their luck in another state, but in New Jersey, closed primaries appear to be here to stay.