Important Litigation Milestones
Open Primaries Education Fund Files Landmark Challenge to Taxpayer Funding of Closed Primary Elections
New Mexico: “No taxation without representation”
Open Primaries Education Fund has filed a lawsuit against New Mexico Secretary of State Maggie Toulouse Oliver challenging the state’s expenditure of funds to supervise and administer its closed primary elections. New Mexico is one of only 9 states with completely closed primary elections, which disenfranchise the state’s 270,000 registered independent voters-22% of New Mexicans and the fastest growing segment of the electorate.
OPEF has retained the New Mexico based law firm of Bardacke Allison, headed by former Attorney General Paul Bardacke, who will be lead counsel in bringing this landmark legal challenge. OPEF is also working closely with national election law expert Harry Kresky, who has been active in legal efforts to open primary elections to independents for two decades. At issue is the unconstitutional use of taxpayer money to pay for primary elections that benefit private political party activities.
The case has been filed on behalf of four New Mexico citizens and registered voters from across the state. Courtney Chavez and Rick Edwards are unaffiliated voters and residents of Bernalillo County. Patrick Lopez is a registered Republican and resident of Santa Fe County and Gordon Hill is a registered Democrat and resident of Doña Ana County. It has been endorsed by New Mexico Common Cause
OPEF is seeking a writ of mandamus from the New Mexico Supreme Court to compel the Secretary of State to cease expending public funds on the implementation of party primary elections under the existing electoral framework.
If successful, this case will force a dramatic change in current primary elections in New Mexico, requiring the opening of them to all voters in order to receive state funding. Challenges in other states may follow. The case shines a bright light on how both the Democrat and Republican parties manipulate elections to serve their interests at the expense of every American.
The lawsuit notes that: “New Mexico’s closed primary elections are exclusionary and held for the benefit of major political parties, which are purely private entities. Even though the primary election is closed and exclusionary, primary elections are paid for by public funds and New Mexico taxpayers, while the major political parties reap the benefits.”
Jeremy Gruber, Open Primaries Education Fund Senior Vice President and the organization’s lead attorney on the litigation, declared: “For far too long, the Democrat and Republican parties have been the gatekeepers of our primary elections, deciding who can and can’t vote in them, all the while happily taking millions of dollars in taxpayer funds to run their private elections. No more. 26 million voters across the country are shut out of elections they pay for and our great democracy has suffered deeply as a result. This case is part of a nationwide effort to take back our elections for the people.”
John Opdycke, President of Open Primaries Education Fund added:
“the New Mexico Constitution says neither the state nor any county, school district, or municipality, except as otherwise provided in this constitution, shall directly or indirectly lend or pledge its credit or make any donation to or in aid of any person, association, or public or private corporation. There is a clear case to be made that funding exclusionary elections violates this clause. The political parties have had it both ways; private organizations when it comes to determining the rules for participation, but public when it comes to taxpayer subsidies. Our goal is to change that.”
Read the full complaint HERE
Read the NM Secretary of State response HERE
Read our response to the NM Secretary of State HERE
New York: Our Day in Court
Open Primaries Education Fund is supporting trial attorney Mark Moody, who sued the New York state and city Board of Elections shortly after 2016’s primary elections, claiming that millions of New Yorkers– including President Donald Trump’s own kids– were barred from voting in the presidential primary because they didn’t change their party affiliation before the October 2015 deadline.
In December 2016, lawyer and activist Mark Moody delivered his legal argument on the unconstitutionality of New York’s closed primary system. Moody also argued that New York’s change of party affiliation deadline — the earliest in the country — places an unfair burden on voters.
Two lawyers — one from the Board of Elections and another from Attorney General Schneiderman’s office — stood in defense of an electoral system that prohibits 3.2 million voters from participating in the most impactful round of voting.
After approximately an hour of legal debate, and fifteen minutes of deliberation, New York State Supreme Judge Arthur Engoron issued a ruling — vested in prior decisions by the Supreme Court and circuit courts of other states — that New York’s closed primary system and change of party affiliation deadline might be arcane, but they are not unconstitutional. He dismissed the challenge. Moody argued unsuccessfully in the trial court that the system is unconstitutional because it disenfranchises voters who are not registered with a major party.
This was an important and positive step forward for our movement after an historically chaotic primary season in New York. We made ourselves heard loud and clear, by packing the courtroom and forcing the establishment to admit, on the record, that the rights of parties are paramount.
Mark’s appeal in the New York Supreme Court will be heard in September 2018.
Download the brief here.