A federal judge has upheld New Jersey’s closed primary system, rejecting a legal challenge from Morristown Council President Rebecca Feldman and others who contended the taxpayer-funded primaries unfairly exclude nearly half the state’s voters, who are unaffiliated.
At least a dozen states have “closed” primaries–open only to registered Democrats and Republicans–and these have passed legal muster at numerous levels, U.S. District Judge Stanley Chesler wrote in a 12-page decision issued last week.
Filed last winter by a coalition of nonprofits called EndPartisanship.org, the lawsuit “proceeds from the premise that all registered voters have a fundamental right to vote in the primary elections conducted by political parties they are not members of. This, however, is not the law,” ruled the judge, presiding in Newark.
“The Supreme Court has drawn an important distinction between casting a ballot in a general election, which implies the ‘fundamental’ right to vote, and nominating a candidate for general election, which does not,” wrote Judge Chesler, granting New Jersey Secretary of State Kim Guadagno’s motion to dismiss the case.
Harry Kresky, one of the lawyers representing Feldman and eight other plaintiffs, said they are weighing an appeal.
“We think the Court misunderstood our argument. The judge addressed this as a case of Independents wanting to participate in party politics. That’s not what this case is about. It’s about whether the state of New Jersey can fund and administer a system that’s for the parties and not for anyone else,” said Kresky, adding he was surprised that no oral arguments were heard in the case.
“This is only the first round,” said Feldman, an Independent on the town council, in a statement. “The other plaintiffs and I never thought it would be easy to get beyond the hold the major parties have on our election system.”
The former state Assembly candidate was joined in the suit by Mark Balsam, Charles Donahue and Hans Henkes, all unaffiliated voters; Democrat Jaime Martinez; Republicans Tia Williams and William Conger, a Morris County resident; and the Independent Voter Project and the Committee for a Unified Independent Party Inc.
Because most legislative districts have been drawn as “safe” for either Democratic or Republican candidates, the only real contests are in the primaries, they asserted. 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.
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.
An appeal would be lodged in the federal Third Circuit, which covers New Jersey, Pennsylvania and Delaware. State constitution questions could be taken to the state Superior Court, Kresky said. A decision must be made within a month.
But finding a sympathetic judge “would be hard anywhere in the country,” said Peter Woolley, provost of Fairleigh Dickinson University in Madison and a longtime political science professor. Chances for a successful appeal are slim, he predicted.
“The key to it is, unaffiliated voters choose to be unaffiliated. They have opportunities to affiliate if they want to,” said Woolley, suggesting it’s fairly simply for voters to change parties. Rebecca Feldman acknowledged registering as a Democrat to vote in the 2008 presidential primary.
Woolley said it’s in the state’s interest to support organized parties and campaigns, “which are conversations with the voters. There is no guarantee that if you removed any barriers to voter participation, it would increase significantly.”
Unaffiliated candidates actually face fewer hurdles to appear on the general election ballot, said the judge, referring to a petition process that enables them to bypass primaries altogether.
While the plaintiffs did not propose a replacement for New Jersey’s primaries, the Independent Voter Project in 2010 backed California’s switch to a “Top Two” open-primary system. This approach, also adopted by Washington State, enables voters and candidates from numerous parties to participate in these primaries, which send the top two vote-getters to the general election.
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