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A lawyer representing five unaffiliated voters is asking an Anne Arundel County Circuit Court judge to deny a motion to dismiss their suit challenging a state law that limits the participation of unaffiliated voters in Maryland primary elections.
The plaintiffs, represented by former Lt. Gov. Boyd Rutherford, are asking a judge to rule that state funding for partisan primaries violates their rights under the Maryland Constitution. An attorney representing the state is asking the judge to dismiss the lawsuit. The case is scheduled for an Oct. 20 motions hearing.
“This case, at its core, is a voting rights case,” Rutherford wrote on behalf of his clients. “It is not, as defendants suggest, a case brought to assert some violation of the Maryland Election law and to challenge a particular election outcome. Nor is it a taxpayer case.”
Instead, Rutherford said his clients are asserting that primary elections for the Democratic and Republican parties should not be paid for with tax dollars if nearly 1 million unaffiliated voters in the state cannot participate.
“In order to participate in their local elections process, they are faced with a ‘Faustian Choice’ : either they sacrifice their political beliefs and moral convictions and affiliate with one of the two majority parties for the opportunity to participate in the selection of a candidate, or stay silent and allow an increasingly smaller group of activists to select candidates,” Rutherford wrote.
“Yet, the Maryland Constitution does not require membership in a private party to exercise a citizen’s right of suffrage. The plaintiffs are challenging the state’s sponsorship of a closed primary system that denies plaintiffs their constitutional rights to vote ‘at all elections to be held in this state.’”
Rutherford represents five registered independent Maryland voters who are challenging state law that limits their ability to vote in primary elections. All five said they were barred from voting in the 2022 and 2024 primaries because they chose not to affiliate with a party.
Primary elections in Maryland are considered partially closed. Voters are required to affiliate with the Democratic or Republican parties to vote in most primary contests. Unaffiliated voters in Maryland can cast votes in state primaries only in nonpartisan races.
The lawsuit says the current current primary voting system is incompatible with the Maryland Constitution’s guarantee that voters have a right to vote in all elections in the state. If successful, the challenge could either force the state’s two majority parties to fund their own primaries or open the door to wider participation by unaffiliated voters.
Daniel Kobrin, an assistant attorney general representing the Maryland State Board of Elections, asked the court in July to dismiss the lawsuit, arguing its claims were based “solely as taxpayers.”
The motion filed by Kobrin also asks the judge to declare that the five voters have no right to challenge the restrictions on primary elections because of previous court decisions.
Kobrin noted two decisions by the Supreme Court of Maryland that said, “voters have no right under the state constitution to vote in the primary elections of a party to which they do not belong.”
In another case, the U.S. Supreme Court upheld closed primaries and a political party’s First Amendment right “not to associate,” which means it cannot be required to allow unaffiliated voters to participate, according to the motion filed by the board’s attorney
But Rutherford wrote that neither of those cases “involves a challenge to the constitutionality of the state’s endorsement of a closed primary system.”
“This is an open question that the Maryland Courts have yet to decide,” he wrote. “Accordingly, plaintiffs do in fact assert actionable constitutional claims, and the facts alleged provide sufficient basis upon which relief could be granted.”
