By Kevin Coughlin
Morristown was pivotal in the War for Independence.
Now, a town official is waging a War for Independents, which she hopes will revolutionize New Jersey voting and preserve the democratic ideals that brought George Washington’s troops here so long ago.
Council President Rebecca Feldman, an Independent, is suing to scrap the state’s primary system.
“My goal is for all voters to have a say in every election to determine who represents them, without having to associate with a private organization,” said Feldman, 50, who ran for state Assembly as an Independent in the predominantly Republican 25th District last fall.
Feldman is among seven plaintiffs–four unaffiliated voters, one Democrat and two Republicans–who are suing the New Jersey secretary of state to come up with another way of choosing candidates.
The legal challenge is underwritten by a coalition of nonprofits called EndPartisanship.org that says it aims to open elections to more voters nationwide and end political gridlock.
New Jersey primaries are unconstitutional because they exclude nearly half the state’s voters, according to the lawsuit, filed this month in U.S. District Court, Newark.
Most legislative districts have been drawn as “safe” for either Democratic or Republican candidates, the suit asserts, so the only real contests are in the primaries. And those primaries are closed to voters who don’t register as Democrats or Republicans–some 48 percent of the electorate in the Garden State and 42 percent of voters across the United States. The plaintiffs say this:
- Violates citizens’ fundamental right under the Fourteenth Amendment to an equal and meaningful vote, regardless of party affiliation.
- Tramples citizens’ First Amendment right not to associate with private organizations; voters should not be required to surrender their First Amendment rights in order to exercise their Fourteenth Amendment rights.
- Rips off taxpayers, whose public funds are subsidizing private elections–in violation of the state Constitution.
New Jersey spent at least $12 million on last summer’s special primary for U.S. Senate, according to EndPartisanship.org. Yet fewer than 8 percent of registered voters participated–working out to about $92 per vote cast–while 2.6 million unaffiliated voters were shut out, the organization said.
“There are many, many voters who have given up on the electoral system because they know it’s a rigged, exclusionary system,” said Jackie Salit, president of New York-based IndependentVoting.org., which teamed with the Independent Voter Project of California to start EndPartisanship.org.
“We think opening the process will allow for even greater debate, discussion and participation in the system and the kind of government we want. We think that’s a good thing. When it first began, the Tea Party tried to raise some of those issues but were swallowed by the party system in a heartbeat. If you eliminate the power of partisanship, we’ll start to end partisan gridlock and partisan bickering,” said Salit, who ran the Independent campaigns of former New York Mayor Michael Bloomberg and authored Independents Rising.
New Jersey was chosen as the battleground because of its high number of unaffiliated voters, its constitutional provision barring public spending for private purposes, and its “intense partisanship,” according to lawyers for EndPartisanship.org.
Officials from the state Republican and Democratic organizations and the governor’s office did not immediately respond to requests for comment.
While Sen. Cory Booker (D-NJ) generally “believes in more inclusion,” he could not comment until he reads the lawsuit, a spokeswoman said. Morristown Mayor Tim Dougherty, a Democrat, also refrained from commenting until he studies the case.
Morris County’s Republican chairman did not give the lawsuit much credence.
“Good luck, Rebecca. I think you’re going nowhere,” said John Sette. “I have been on the board of elections for 19 years, and the GOP chairman for 12 years. Not one person has complained about the primaries, for either side.”
Sette said Feldman had chosen not to run in primaries because “she’d get knocked off.” He noted that one of her Republican opponents, incumbent Assemblyman Michael Patrick Carroll, defeated her in Morristown in the general election. “What does that tell you?”
Carroll, who is a lawyer, said Feldman may have a case concerning state funding of the primaries. The Republican and Democratic parties “are clearly private organizations,” he said. And if Feldman wants to challenge how districts are carved, “I’m with her,” the Assemblyman said.
They part ways after that. New Jersey primaries don’t disenfranchise anyone; they evolved to counter the influence of party bosses, Carroll said.
“I trust the plaintiffs are not desirous of getting the bosses back in?” Carroll said.
“I think the system works just fine,” said Assemblyman Anthony M. Bucco, the other Republican re-elected in last fall’s 25th District race. “Rebecca had the ability to register as a Democrat–she has done that before, I believe–and she could have run as a Republican. Nobody is excluding anyone.”
PRIVATE PARTIES AND ‘TOP TWO’
Voter frustration is real, according to Peter Woolley, professor of political science at Fairleigh Dickinson University and co-founder of the school’s PublicMind poll.
“The districts clearly favor one party’s voters or the other’s, and this limits competitiveness, and limits the public discussion, and limits accountability to the voting public,” he said via e-mail.
But Woolley expressed doubts that Feldman’s case would succeed.
“I’d be surprised if the suit got very far. Primary elections are for and by parties. If there is nothing stopping a voter from joining a party, or from voting in the primary after joining the party, then it’s hard to argue that the voter is being excluded,” Woolley said. “Voters already have a variety of ways of getting non-party candidates on the ballot.”
“It’s really a long shot,” said Ross Baker, a political science professor at Rutgers University.
For one thing, he contends, partisanship is not an issue in the Garden State.
“That’s the weakest argument of all–only someone who knows nothing about New Jersey politics would say it’s a partisan state,” Baker said. “New Jersey politics are transactional. Democrats make deals with Republicans, and Republicans make deals with Democrats. It’s very non-ideological.”
The assertion that political parties actually are private clubs was made by southern Democrats early in the last century, to exclude black voters from primaries, Baker said.
Closed primaries like New Jersey’s emerged many decades ago, he said, to prop up the major parties at a time when their ranks were thinning.
“A tight, strong party system was considered really important in a democracy. There was more accountability, knowing where to place blame when something goes wrong,” Baker said. “In New Jersey, where the parties are pretty powerful, I think the prospects for a challenge of this kind are bleak.”
The lawsuit does not suggest how to replace the present primaries. But in 2010, the Independent Voter Project helped prod California to a “Top Two” open-primary system, also adopted by Washington State. All voters and candidates from numerous parties can participate in these primaries, with the top two vote-getters advancing to the general election.
While well-financed Democrats and Republicans presumably still enjoy an advantage in Top Two primaries, in theory they are less beholden to special interests because they must appeal to a broader swath of voters to win re-election, proponents say.
A report by the Schwarzenegger Institute of the University of Southern California says partisanship in that state’s legislature appears to have diminished somewhat since the Top Two system started. But the study could not say with certainty if the new primaries were the reason.
The plaintiffs joining Rebecca Feldman are Mark Balsam, Charles Donahue and Hans Henkes, all unaffiliated voters; Democrat Jaime Martinez; and Republicans Tia Williams and William Conger, a Morris County resident.
“It was a difficult decision to register as a Republican,” Williams said in the lawsuit. “Unfortunately, I felt obligated to do so to enjoy the same voting rights as many others.”
The Independent Voting Project proposed the lawsuit to Jackie Salit’s group in New York, Salit said.
“Bridgegate” had not yet erupted. But EndPartisanship.org was aware that New Jersey taxpayers were footing the bill for primaries that required Independents to join a party to vote, Salit said. A special primary was held last August to choose candidates to succeed the late Sen. Frank Lautenberg. The coalition started searching for New Jersey voters willing to become plaintiffs in the case to overhaul the primary system.
Rebecca Feldman, meanwhile, was running for Assembly as an Independent and heard about IndependentVoting.org during a radio interview.
During the course of her campaign, she said, she met unaffiliated voters who said they wanted to register with a political party only temporarily, to vote in the primary. But they refrained for fear of public or professional retribution, she said.
Feldman had personal experience there. In 2008, she registered as a Democrat to vote in the primary race between presidential contenders Hillary Clinton and Barack Obama. This became an issue in her Assembly race. It bothered her.
And so, she said, did the use of public funds by the Democratic and Republican parties to exclude unaffiliated citizens from voting.
“I fundamentally had a problem with the idea that a relatively small percentage of the people who voted in the June primary decided for the entire county who would represent them,” said Feldman, who has a degree in industrial design from the University of Cincinnati and is the mother of two teenaged daughters.
She garnered more than 9,200 votes in the November general election, but Republicans Anthony M. Bucco and Michael Patrick Carroll each got nearly four times as many votes to win re-election. They even won Morristown, Feldman’s hometown.
Salit bristled at what she perceived as a lack of respect for Feldman as an Independent candidate.
“Groups dedicated to promoting women candidates like Emily’s List and the Center for Women and Politics turned their backs on her. Rebecca’s move took a lot of guts, but instead of supporting her, the ‘feministas’ abandoned her. It was pretty outrageous,” Salit said.
“Rebecca is a woman with real courage, and the lawsuit is really a natural next step for her as an Independent.”
FROM DEATH ROW TO ‘KILLER TOMATOES’
The New Jersey case is spearheaded by three lawyers with diverse backgrounds.
Brooklyn attorney Samuel Gregory, lead counsel for EndPartisanship.org, defended clients on death row when New York had a death penalty. He specializes in criminal defense and civil rights matters, teaches trial advocacy at St. John’s University and lectures at the New York and Brooklyn law schools. He has appeared as a legal analyst on CNN, MSNBC and the former CourtTV.
“Today, representatives are accountable to a small partisan base of voters,” Gregory said in a statement.
“Those who choose not to participate in divisive partisan politics are pushed out or left out of meaningful participation in the electoral process. We believe the system’s first obligation should be to individual voters, not to political parties. When every voter matters, leaders are rewarded for being good representatives, not good party leaders.”
Harry Kresky, counsel to Independent Voting, is the team’s national legal adviser. He holds degrees from Columbia University, is admitted to practice before the U.S. Supreme Court and has represented numerous Independent candidates. In 2004, he successfully defended Ralph Nader against legal attempts to oust him from the presidential ballot in West Virginia and New Mexico. Kresky writes frequently about election issues for The Huffington Post.
At 30, S. Chad Peace is the team’s youngest member. But he grew up in a political arena. His father, Steve Peace, is a former California state senator who chairs the Independent Voter Project and advises San Diego Padres owner John Moores. Chad serves as legal adviser for the IVP and national legal strategist for EndPartisanship.org.
He’s also carrying on another family tradition, pushing for remakes of the Attack of the Killer Tomatoes series that his father co-wrote and co-starred in (as character Wilbur Finletter).
“We always say don’t take Killer Tomatoes too seriously,” Chad Peace said. “But, at its core, it was a commentary on the general absurdity of politics. If anything, that general absurdity is more pervasive now than ever before.”
Video from End Partisanship website: