A Morristown official’s legal challenge to overturn the New Jersey primary system shifts to Pennsylvania this week.
The Third Circuit Court of Appeals in Philadelphia is scheduled to hear arguments on behalf of Morristown Council President Rebecca Feldman and eight others who contend New Jersey’s primaries are unconstitutional.
The plaintiffs lost the first round last summer, when U.S. District Judge Stanley Chesler dismissed their case. But the Independent Voter Project, a nonprofit representing Feldman’s group, filed an appeal that will be heard in Philadelphia by Appellate Judges Kent Jordan and Brooks Smith and Senior Judge Franklin Stuart Van Antwerpen.
“I am continuing as a plaintiff because someone needs to stand up to the system and demand equal and fair representation. There is so much dismay about ‘low voter turnout’ yet that is exactly what this unequal system fosters,” said Feldman, who was elected to the town council as an Independent.
“This will be the first real opportunity to see whether an appellate court will challenge an institution that has stacked the deck against the individual voter,” said Chad Peace, a lawyer for the Independent Voter Project.
Feldman’s side contends that state Democratic and Republican primaries disenfranchise unaffiliated voters, who represent nearly half the electorate.
Because most legislative districts have been drawn as “safe” for either Democratic or Republican candidates, the only real contests are in the primaries, they assert. Those primaries are closed to voters who don’t register as Democrats or Republicans.
Forcing someone to join a private organization to participate in the electoral process violates an individual’s constitutional rights, according to Feldman’s group, which also questions why private primaries should be supported with public money.
Judge Chesler saw things differently in his ruling:
“… Their entire lawsuit – at least the federal portion of it – 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 is, however, not the law. The Supreme Court has drawn an important distinction between casting a ballot in a general election, which implicates the ‘fundamental’ right to vote, and nominating a candidate for general election, which does not.”
The judge overlooked a key question, according to Peace.
“Does each voter have a right to vote at an integral stage of the election process that is funded, administered, and sanctioned by the State,” Peace said. “In other words, is the primary election process, taken as a whole, a private or public process?”
Joining Feldman and the Independent Voter Project in the lawsuit are 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 Committee for a Unified Independent Party Inc.
Feldman, who ran for state Assembly in 2013, said public response to the lawsuit mostly has been favorable.
“I have been encouraged by how many people appreciate what we are doing and, frankly, the most common response I get is that our suit is just about common sense,” the councilwoman said.
Feldman refrained from any predictions about the appeal. But she continues to believe “we have a very compelling case and that we are on the right side of the argument.”
Whatever the ruling, one thing is all but certain:
“A decision either way will likely be appealed to the Supreme Court,” said Peace. “Our team is prepared to pursue this effort to a final decision by the Supreme Court. We have the resources to do so.”