(Photo: Daniella Heminghaus/New Jersey Monitor)
A group of five independent voters, including political commentator Michael Smerconish, filed a lawsuit Wednesday asking a Pennsylvania court to lift the community’s ban on independent voters participating in the primary elections.
Pursuant to Art. 2812 of the Election Code, persons not registered as members of the two major political parties cannot vote in partisan primaries.
The group, which also includes David Thornburgh, president of Ballot PA Action and son of former Gov. Dick Thornburg, says the provision is unconstitutional.
This violates the right “to cast an equally weighted vote” and “to have an equal opportunity to have votes translated into representation” enshrined in the state constitution’s Free and Equal Elections Clause, the lawsuit claims.
“After 88 years of being treated as second-class Pennsylvanians, 1.4 million independent voters will finally be brought to justice,” Thornburgh said in a statement.
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The filing of an application in Commonwealth Court follows unsuccessful petition to state Supreme Court to exercise its power to hear extremely essential or sensitive cases without first being heard by lower courts. In August, the Supreme Court rejected the group’s appeal to the King’s Bench.
“Our current laws disenfranchise independent voters,” said Shanin Specter of Kline & Specter, which represents independent voters. “It is time for independent voters to have the same rights as Republican and Democrat voters.”
In addition to Kline and Specter, the five petitions represent: Faegre Drinker Biddle & Reath.
The modern petition includes expert testimony, citing Pennsylvania election data that shows how denying unaffiliated voters a chance to participate in primaries weakens the power of their votes.
Professor Wesley Pegden, a professor in the Department of Mathematics at Carnegie Mellon University, analyzed election data from 2002 to 2020 for all House and Senate elections. He also looked at mayoral and school board elections in the counties where the petitioners live, as well as primary local elections for mayor and other leadership positions throughout the state.
The analysis measured voter influence, or the number of votes needed to reverse the election result. The smaller the margin, the more individual votes matter in a given race, Ballot PA Action said in a press release.
“Because Democratic and Republican voters can vote in two elections – the primary and general elections – and independents can only vote in the general election, the influence of the partisan voter is greater when the election is contested,” the organization said.
Pegden found that the average influence of Democratic and Republican voters in legislative elections from 2002 to 2020 was almost twice as vast as the influence of independent voters. The only time at which affiliated and unaffiliated voters have equal influence is when the primary and general elections for office are uncontested.
“In other words, the only elections in which independent voters have as much influence as partisan voters are those in which no voters have any choice at all,” Ballot PA Action said.
According to the Department of State, more than 1.4 million Pennsylvanians are registered to vote as unaffiliated or members of a minority party. As of Nov. 3, the latest data, the Democratic and Republican parties have 3.8 million and 3.6 million registered voters, respectively.
In recent years, legislation to end the ban on independent or unaffiliated voters casting ballots in primary elections also failed.
Rep. Jared Solomon (Philadelphia) has a bill currently in the state House that would allow unaffiliated voters to participate in Democratic or Republican primaries, but would not allow third-party voters. The bill was passed by the House State Government Committee in May.
Sen. Lisa Boscola (D-Northampton) introduced a bill to end closed primaries in 2023, but it did not make it past the State Senate Government Committee. Boscola said earlier this year that she intended to reintroduce the bill.
Sources vary, but Pennsylvania is one of 9-11 states with closed primaries, where only voters registered as Democrats or Republicans can vote.
According to the National Conference of State Legislatures, in other states, voters can cast primary ballots through a variety of systems – from registering with a party at the polls to selecting which party ballot to vote for at the voting booth.
