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Registered New Jersey Voters Sue Garden State for Funding Democratic, Republican Primary Elections With Taxpayer Money

First Posted: Jun 29, 2014 08:27 AM EDT

New Jersey residents have sued the Garden State for using taxpayer funds for primary elections they can't participate in. The seven residents live in a state where 2.6 million voters are denied a primary election vote unless they align with the Democratic or Republican parties. As a result, the New Jerseyans and two nonprofit organizations are suing New Jersey Secretary of State Kim Guadagno.

According to the complaint, in 2013, 32.5 percent of New Jersey voters were registered Democrats, 19.7 percent were registered Republicans and 0.2 percent registered with a third party, while 47.6 percent registered as unaffiliated voters. The plaintiffs state that Guadagno "barred" approximately half of New Jersey's registered voters from participating in the state's 2013 primary elections, which cost taxpayers nearly $12 million.

Guadagno is being sued because the role of secretary of state includes the position of New Jersey's chief election officer. Guadagno is responsible for implementing New Jersey Election Law and administering the state's election system. The plaintiffs claim New Jersey violated its Constitution by using public state funds for "private" purposes. The "private" purposes refer to the Democratic and Republican parties, which are classified as "private associations."

The plaintiffs' attorney, Harry Kresky, told Latin Post the litigation "is on the grounds that the state can't spend taxpayer money —which is paid by all taxpayers, not just Democrats and Republicans — to establish a primary system that creates two classes of voters: One class is party members that can vote in primaries to select candidates and the general election, and then [the other class is] independents that can only vote in the general election.

"We're saying that's unconstitutional," added Kresky, noting a provision in the state Constitution says taxpayer money cannot fund private associations.

Kresky said the plaintiffs' approach is to highlight the Democratic and Republican parties as examples of private associations.

The plaintiffs are registered unaffiliated voters Mark Balsam, Charles Donahue, Hans Henkes and Rebecca Feldman. In addition, registered Republicans William Conger and Tia Williams and Democrat Jaime Martinez are with the unaffiliated plaintiffs. The two nonprofit organizations in the case are the Independent Voter Project and the Committee for a Unified Independent Party.

New Jersey was specifically picked for the litigation because nearly half of its registered voters are unaffiliated. States such as New York were not chosen due to "partisan" courts, according to Kresky.

"Right now, we have a very partisan, closed [primary] process in New York State, and in many ways, New York State's election process is one of the most backward in the country," said New York City Independence Party Chair Cathy Stewart.

According to Stewart, the U.S. may be the only country in the world where the government pays for primary elections with taxpayer money.

"Here's the bottom line [for] me: This is a democracy. People in this country from day one have fought, given their lives, invested endless energy in winning the right to vote," Stewart said. "We should be able to vote in every round. Now, if the Democrats and Republicans want to hold private elections, great, go hold them. You're a private organization. But don't use my tax money."

Stewart added: "The reform we are advocating for in New York is a nonpartisan primary. Let's have all the candidates [on] the same ballot — Green Party, Libertarian, Working Families, Independence, Republican and [Democratic] — so you see all the candidates, and then let's have every voter have the same status. Have everyone go vote on that one ballot, and have the top two vote getters move on to the general election ballot in November. That would create [a] far different political climate for those elections."

The nonpartisan primary concept is used by several states, including California, Louisiana and Washington.

"[Having a nonpartisan primary] changes the political dynamics and the political calculus and repositions voters," Stewart said.

In preparation for the New Jersey litigation, California has been referred to as a prime example of a nonpartisan, or open, primary.

"California, this is where it all started," Kresky said.

The attorney explained that California first adopted a complicated "blanket primary" process in 2000 by referendum. The Sunshine State held partisan registrations, but registered voters could vote in whichever partisan primary election. This format proved problematic, and the Supreme Court ruled it unconstitutional, "but it didn't explicitly rule on open primary systems," Kresky noted.

Several years later, Washington State passed a referendum known as "top two."

"In 'top two,' there isn't any more party primaries. Any voter goes to the polls and candidates can list their party affiliation or their party preference and vote for one candidate in round one and the top two vote getters go on to the general election," Kresky said.

The Supreme Court ruled the "top two" primary process constitutional, and California, under Gov. Arnold Schwarzenegger, adopted Washington's method in 2010.

While the registered unaffiliated plaintiffs in the lawsuit are not able to vote in New Jersey's primary elections, they are not asking the Garden State to suddenly adopt open primaries. The plaintiffs are asking for no more taxpayer money to go to any political party primary elections in which the parties continue to be private associations.

"My role is simply as a citizen. It goes a bit beyond even being an independent voter," plaintiff Donahue told Latin Post. "I feel that the way the system currently is set up, it fosters two things that are very damaging: One, it fosters voter indifference, and secondly, ... it makes the candidates more [beholden] to the parties than the voters. I'm more interested in voting on ideologies as opposed to parties."

John Hoffman, acting attorney general of New Jersey, has filed a motion to dismiss the lawsuit. Hoffman stated that the plaintiffs and the two nonprofit organizations "do not have a constitutional right" to participate in primary elections. He also said New Jersey's current closed primary system "fully comports" with the requirements of the First Amendment.

"Plaintiffs' Equal Protection challenge similarly fails because they neither belong to a suspect class nor enjoy a fundamental right to participate in primaries, and the 'closed' primary system is rationally related to the state's legitimate interests in protecting the associational rights of political parties, maintaining ballot integrity, avoiding voter confusion and ensuring electoral fairness," Hoffman wrote.

Donahue added, "We're there for the long haul. I hope it comes out in our favor. I think there's some very bright people involved in the process. If you really examine the issues, it's not really something that's complex in terms of the fundamental aspects of it."

A decision in July will determine if the case will continue or get dismissed. Regardless of the outcome in New Jersey, discussions are underway with a group of lawyers to start similar litigations in other states.

Mark Balsam, Charles Donahue, Hans Henkes, Rebecca Feldman, Jaime Martinez, William Conger, Tia Williams, Independent Voter Project, and Committee for a Unified Independent Party, Inc. v. Kim Guadagno:

Balsam v. Guadagno Motion to Dismiss:

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