The Day Will Come
I envision that someday, before I die, I’ll be able to beam with satisfaction that the U.S. Supreme Court has more fully recognized the rights of unaffiliated voters in our nation’s ongoing struggle to achieve full and equal voting rights for all of its citizens. And this Touro Law Review article, Let All Voters Vote: Independents and the Expansion of Voting Rights in the United States by Jeremy Gruber, Michael A. Hardy, & Harry Kresky will be pivotal, as a key turning point in that noble fight.
I remember when the light went on for me: once I saw that electoral reform to expand voting access for unaffiliated voters wasn’t just “a nice idea,” “a self-interested cause for independent voters,” “an intriguing challenge,” – but that this was actually a constitutional issue, a civil rights issue for a whole segment of the population who are being disenfranchised, and it’s central to the preservation of our Democracy – I could no longer rest, or “move on to other issues.”
For me, it started with a simple question posed to me in 2011, unbeknownst to the questioner. Up until that point, I had become personally aware of the ways in which party-controlled caucuses and conventions could be corrupted and manipulated by party insiders to adopt rules and select candidates not reflective of the will of the people. I had also seen the negative effects of gerrymandering, and how a district heavily lopsided towards one party sees all of the competitive action in its party nomination, and not in the general election, as the party nominee of the majority party is basically the de facto winner of the general election.
Nonetheless, I hadn’t looked outside the box. Though I was a disgruntled Republican by 2011, I hadn’t yet unaffiliated, and in my mind, I was still thinking in terms of advocating to transition our state (UT at the time) from a caucus/convention system of nominating candidates to a party primary system. Yet I knew that such a change would only correct for the first problem, not the second, especially in closed primary states.
But then a state public officeholder (R), asked me a question, via chat, not specifically related to party primaries. It was a theoretical question more related to the proper role of government and proper use of funds. He wrote:
Should party affiliation be listed on the ballot – is that an inappropriate role of the government to favor those businesses (aka political parties)? In other words, should party affiliation be left to candidate and party literature and marketing collateral, not government records and ballots?”
Well, now, that’s an interesting question. It would surely change the dynamics, wouldn’t it? I do think it’s disingenuous for parties to always claim they’re private entities and do whatever they want when they play such a [quasi]-public role.”
I couldn’t get it out of my head: that things didn’t have to be done the way they’ve always been done. I started researching the law, by reading the Jones and Washington State Grange cases, and I became familiar with California and Washington’s top-two primary systems. By the middle of 2012, I had unaffiliated with the Republican Party and had taken up the cause of advocating for a nonpartisan primary system (jungle primary) that utilizes ranked choice voting and/or allows for more than two candidates to emerge, by using ranked choice voting in the general election. I was mostly just working with “what was allowed by law,” but felt – with little validation or support from others – that the Court should be striking down an egregious system that disenfranchises so many voters.
Soon thereafter, the independent movement (IndependentVoting.org) found me, and pulled me in.
It was so good to be put in contact with so many people who have been on the forefront of these issues for decades, as well as others who were newer to it.
I was thrilled to witness the unfolding of the New Jersey case, Balsam, wherein Harry Kresky and Chad Peace (two of my favorite people) represented unaffiliated voters in challenging New Jersey’s closed primaries. Then I got to meet Michael Hardy, as well, another attorney who has been part of this fight for a long time, and thoroughly understands the civil rights nature of this issue. They have continually been involved in other important cases pertaining to voting rights and independent voters.
During these last several years, we’ve seen more and more people unaffiliate and become independent voters, and more people join and create vibrant independent, democracy-reform-oriented groups. We’ve seen important developments take shape, and have celebrated small and large victories here and there.
But this Touro Law Review article is unmatched on this issue, as it covers the legal case for unaffiliated voters in more depth than I have yet seen. The article very clearly and beautifully lays out how the next step in our country’s march towards full voting rights for every citizen is “the recognition of the rights of unaffiliated voters as a new frontier in the civil rights / voting rights struggle.” It demonstrates how the “judicial system is [currently] insufficiently sensitive to the rights of those unaffiliated voters and to the impact of their disenfranchisement,” but that our current circumstance of now having more people identify as independent than with either major party is an opportunity for an awakening by the public and the courts — that allowing the full participation of unaffiliated voters in primary elections is an Equal Protection issue under the Constitution.
Harry, Michael and Jeremy walk us through: the history of the party system; the case law of balancing the rights of association of the parties with the rights of individuals and the interests of the state; the ways in which the Court has and has not allowed for the regulation of primaries and the exclusion or inclusion of voters; and the Voting Rights Cases and White Primary Cases that together demonstrate an enlightened evolution to recognize voting as a fundamental right, not only in general elections, but in primary elections as well. This article aptly and soundly reveals how, when taking all of the principles articulated by the Court through the years, including the fundamental principles upon which our Country is founded, calls for the full integration of unaffiliated voters into the process and the rejection of party membership as a qualifier to vote in an integral part of the electoral process.”
The plight of unaffiliated voters and candidates needs to be revisited by the Court as the “next step in the further development of our democracy.” This superb article is critical, and a must read for every judge, attorney, politician, activist and citizen who has any interest in strengthening our democracy.
Tiani Xochitl Coleman is a mother of five, a graduate of Cornell Law School, and president of NH Independent Voters.