On December 17, the New Jersey voters who believe that New Jersey’s primaries violate the U.S. Constitution filed this reply brief. The case is Balsam v Secretary of State of New Jersey, 14-3882, now pending in the Third Circuit. New Jersey has registration by party, and does not let voters voter in a partisan primary unless the voter is a member of the party. However, independent voters are free on primary day to join a party, and then free to disaffiliate immediately after voting in that party’s primary. Some of the plaintiffs are independent voters. Other plaintiffs are registered Republicans and registered Democrats who say that they dislike being registered into their party, and they only register so they can vote in a party primary.

The last page of the brief asserts, “Primary Results Effectively Control the Choice in General Election”. The truth of this sentence is not self-evident, but its truth could perhaps be established with the introduction of evidence. However, this particular case lacks very much evidence. The U.S. District Court dismissed the case before giving the plaintiffs a chance to submit much evidence. It would be interesting to see a trial in this case. That trial could bring out all the methods by which New Jersey makes it virtually impossible for anyone other than a Democrat or a Republican to ever win a partisan election. New Jersey does this by giving the Democratic and Republican Parties their own party column on the ballot, and by forcing every other candidate to run in a column on the side of the ballot labeled “Nomination by Petition.” In 2003, an incumbent New Jersey Assemblyman, Matt Ahearn, changed from the Democratic Party to the Green Party. He then ran for re-election in November 2003 as the Green Party nominee. But the Bergen County ballot put him in a remote corner of the ballot under the heading “Nomination by Petition”, and as a result he only got 10.8% of the vote. He had been a well-regarded member of the legislature and if New Jersey had fair ballot formats, he would have had a chance of being re-elected, and he certainly would have got a far larger share of the vote.

The brief’s assertion that the U.S. Supreme Court upheld Washington state’s top-two system is not the whole truth. The 2008 decision Washington State Republican Party v Washington State Grange said the decision was not deciding the ballot access issue (see footnote eleven). And the decision didn’t even determine conclusively that the system doesn’t violate Freedom of Association; it just said the system doesn’t violate Freedom of Association on its face.