On July 3, the New Jersey voters who wish to vote in Democratic or Republican primaries, but who do not wish to be listed as members of those parties, even for one day, filed their brief in Opposition to Defendant’s Motions to Dismiss. The case is Balsam v Guadagno, U.S. District Court, 14-cv-1388.
The brief argues that it is unconstitutional for New Jersey, or any state, to spend money on partisan primaries, unless all voters are able to vote in those primaries, regardless of their affiliation or non-affiliation with those parties. The theory behind the brief would permit a state to hold a classic open primary, and 18 states do have open primaries. In an open primary, any voter is free to choose any party’s primary ballot, and voter registration forms do not ask applicants to choose a party or to choose independent status. Most southern states have open primaries.
The theory behind the brief would also permit semi-closed primaries, as long as the independent voter who chose a partisan primary ballot did not need to list himself or herself as a party member, even for a few minutes. The semi-closed primary used in California between 2001 and 2010 would satisfy the objections of the plaintiffs, because in California, independents who requested a partisan primary ballot were never deemed to be members of that party, even for one minute. By contrast, in New Jersey, an independent who requests a major party primary is then listed as a party member, but that voter is free to immediately dis-affiliate after casting the primary vote.
The brief discusses the top-two system used in California and Washington, but it erroneously says that the U.S. Supreme Court upheld top-two systems. The U.S. Supreme Court has only upheld top-two systems against the argument that they violate freedom of association. The U.S. Supreme Court has not settled the issue of whether they violate the rights of voters in general elections. See footnote eleven of Washington State Grange v Washington State Republican Party, 552 U.S. 442 (2008). The brief also erroneously says that the top-two system in California was created by an initiative; actually the legislature put it on the ballot.