Buckle up. It’s been a big week for the movement and this issue of the Primary Buzz is more extensive than usual.

Groundbreaking Lawsuit Takes Closed Primaries to Court in Pennsylvania

Four independent voters, including well-known journalist Michael Smerconish and long-time political reform advocate and Chairman of Ballot PA Action David Thornburgh, have filed litigation against the Commonwealth of Pennsylvania, arguing that its closed primary system violates their constitutional rights under the state’s Free and Equal Elections Clause.

They filed their lawsuit directly with the Pennsylvania Supreme Court and assert that the state’s election code, which bars independent voters from casting a ballot in primary elections, creates a “two-tiered electorate”—one in which independents are treated like second-class citizens who have no meaningful say in who represents them.

Supporters of the lawsuit include state lawmakers who have pushed open primary reform in the legislature, including Rep. Jared Solomon of Philadelphia, Jennifer Bullock of Independent Pennsylvanians, Harry Hou of Students for Ballot PA, and Open Primaries which has been a key supporter of the campaign for primary reform in the Keystone State since its launch 8 years ago.

OP SVP Jeremy Gruber joined state leaders in Philadelphia this week to announce the case. With Independence Hall and the Liberty Bell in the background, he spoke of the import of bringing this case now:

“Pennsylvania’s system of closed primaries is fundamentally unjust, and it’s making government at all levels worse,” David Thornburgh added. “It’s time for the Commonwealth to open our primaries and give every voter a voice.”

Michael Smerconish has posted a compelling account of his journey to becoming an independent and a plaintiff in the suit. Check it out here.

The case is already getting heavy press across the state and beyond, including the Philadelphia Inquirer, PA Capital-Star and the Associated Press. 

We’ll keep you posted as the case proceeds. Read on for additional thoughts from OP SVP Jeremy Gruber.

NYC Charter Revision Commission Fails to Put Open Primaries on the Ballot

A proposal to switch New York City to an open primary system will not be added to this November’s ballot, the head of the mayor’s Charter Revision Commission announced Wednesday.

Richard R. Buery Jr., who chairs the commission looking at changes to the City Charter, made the statement just days before the panel was set to take a final vote on various propositions. “After careful consideration and extensive input from stakeholders from across the city, we will not consider the question of open primaries with the top two,” he announced.

The announcement made clear that the decision was not made on the merits of the proposal but a reaction to the political forces in the city that had opposed the initiative.

Buery, noted that he was “personally disappointed” the open primaries proposal won’t be advanced to the ballot. But, he said, there wasn’t a “clear consensus” on how to advance it and he hoped other civic leaders would gather support for the plan in the future. 

Hundreds of NYC independents had testified before the Commission during months of hearings about the democracy crises the city was facing by shutting out 1.1 million independent voters in closed primaries and the Commission heard more testimony on it than any other subject over months of hearings. Many noted NYC’s outlier status on the issue, with 85% of cities using nonpartisan primaries. That provoked a city-wide conversation that shook up status quo politics.

Indeed the Commission had issued a heavily researched and very compelling interim final report that specifically evaluated top two primaries and found they would make a “significant and lasting impact to elections in NYC.” 

They had also commissioned a detailed voting rights analysis of top two from former US Attorney Loretta Lynch and the top law firm of Paul, Weiss, Rifkind, Wharton & Garrison LLP. Their findings? That top two open primaries in New York City would strengthen the ability of protected classes, including Black, Hispanic and Asian voters, to participate in the political process.

IVN takes a deep dive into the political forces in NYC that stood in the way of putting primary reform on the ballot and enfranchising the city’s 1.1 million independent voters. 

The opposition, largely from the progressive left, can be organized into several categories-unions seeking to maintain privileged status within the Democratic Party, the Working Families Party wanting to ensure a guaranteed ballot line in the general election, groups wanting to preserve the ascendancy of the progressive wing of the Democratic Party in closed contests and “reform” groups like Common Cause and Rank the Vote NY who argued that opening the primaries to a million new voters would interfere with the city’s use of RCV in the primaries.

As Shawn Griffiths of IVN concludes about the opposition:

You can also check out OP’s latest video exposing how “progressive” NYC Comptroller Brad Lander led the fight against full voting rights for NYC independents.

There’s no going back now.  The forces that have stood against our right to vote are on the wrong side of history.

OP President John Opdycke remarked on the announcement:

Every successful change movement has used litigation to catalyze change.  Every one-think about that. That’s why we’ve spent years at Open Primaries developing a litigation platform and strategy. I can’t tell you how excited I am now that we are actively pursuing and supporting legal challenges to closed primaries all over the country. As you know, Pennsylvania now joins an active case we have formally filed in Maryland in partnership with former Maryland Attorney General Boyd Rutherford, as well as cases we are supporting in Oregon and Wyoming.

From Women's Suffrage through the Civil Rights era to the modern day,  the history of voting rights in the United States is intertwined with litigation, which (whether successful, unsuccessful or even pursued short of a final verdict) has served as a crucial catalyst in the evolution of legislation and initiatives by highlighting discriminatory practices, shaping legal interpretation, and spurring reform. The impact isn’t always linear, but it is decisive.  Just about every voting rights reform in America has its origin in litigation.

One (of many) examples can be found in The Voting Rights Act of 1965, which was spurred by decades of grassroots activism and legal battles challenging discriminatory voting practices, particularly in the South. Cases like Smith v. Allwright (1944), which declared the white primary unconstitutional, paved the way for federal intervention to dismantle barriers to voting faced by African Americans. A more recent example can be found in our own movement’s work, where a challenge to New Mexico’s closed primaries that the Open Primaries Education Fund filed with the New Mexico Supreme Court several years ago has been credited with building support for the successful passage of legislation for open primaries earlier this year.  

Ballot initiatives and legislation are focused by design on solutions. But litigation is squarely focused on the problem of closed primaries. That makes litigation more crucial than ever to the future success of primary reform. 

Update:

In an earlier column, I discussed No Labels Party v Fontes, 24-563, in which five members of No Labels (which qualified as a party to run candidates in Arizona in 2024) had filed to run for down ballot office as members of the party. No Labels had sued the AZ SOS to have them disqualified, claiming party officials had only intended to run a presidential candidate and that they had an absolute first amendment right to approve who could run (and for what offices) from their party. 

This week the 9th Circuit Ct of Appeals, in a unanimous decision, found against No Labels. Judge Salvador Mendoza Jr summarized the decision: “A party does not have 'monolithic control over its own members and supporters.' In fact, we have long rejected the idea that political parties have the right to nominate 'whomever they want, however they want.'"

The decision is a significant win for voters against the party bosses who too often want to limit their choices at the ballot box. It also goes to show that anti-voter sentiment runs deep, even among certain elements of the reform world.

Washington DC:

Initiative 83 for open primaries and RCV was approved by a supermajority of DC voters in every Ward last November. The initiative's pathway to full adoption, though, runs through the CIty Council, which must amend the city budget to include funding for it. 

Now the CIty Council has seen fit to move forward and fund the RCV portion of the initiative but in an unprecedented and undemocratic expression of voter suppression has so far refused to recognize the will of the voters and the city’s close to 80,000 independents by budgeting for open primaries. 

The Council will vote one more time on funding on July 28 and Lisa Rice, the proposer of Initiative 83, the CEO of Grow Democracy DC, a proud independent voter and an Open Primaries National Spokesperson is continuing to lead the effort to whip up votes on the Council. 

This is an all hands on deck moment. If you can help them get over the finish line, they need your support. Click here to donate and if you’re a DC resident or know someone who is, you can click here to contact the CIty Council and voice your support.

Oklahoma: 

Andy Moore, Founder and CEO of Let’s Fix This OK and ED of NANR joined Oklahoma City’s News 9 this week to talk about democracy issues in the Sooner State, the fight for open primaries and his support for State Question 836 for Top Two primaries. He argues that closed primaries exclude voters and skews elections toward the extremes. Watch the full interview here.

Venture capitalist, political strategist and writer Bradley Tusk has a new TED Talk out that argues that low voter turnout — especially in local elections and primaries — drives dysfunction across every level of government and hands power to the most partisan extremes, while leaving out the vast majority of Americans who support pragmatic, common-sense solutions on even the most hot-button issues. His solution is to make voting significantly more accessible by meeting people where they already are — on their phones. Check him out here and learn more about his work at Mobile Voting.

Have a great weekend

The Open Primaries Team