Lawsuit challenges Maryland’s closed primary elections

A handful of unaffiliated Maryland voters has filed a lawsuit against the state’s board of elections, alleging the board is denying citizens of their right to vote and seeking to stop the state from funding closed primary elections.

In a complaint filed this week in the Anne Arundel County Circuit Court, five unaffiliated Maryland voters — Serena Bryson, Kimberle Fields, Amber Ivey, Robert Sartwell and Dona Sauerburger — contend the Maryland State Board of Elections, two of its officials, and Gov. Wes Moore have violated the state’s Free Elections Clause and Declaration of Rights by organizing or allocating state funds to support statewide and local primary elections in 2022 and 2024 in which unaffiliated voters were prohibited from casting ballots.

The five voters from four different counties are seeking a declaratory judgment that closed primary elections violate their right to vote and are asking the court for permanent injunctive relief to prevent the board of elections and state from conducting, organizing or funding closed primary elections.

Jared DeMarinis, state administrator of elections for the Maryland State Board of Elections who is also named in the lawsuit, did not respond to a request for comment. A spokesperson for Moore’s office declined to comment Thursday.

The voters are represented by Boyd Rutherford, former lieutenant governor for Republican Gov. Larry Hogan, and three of Rutherford’s colleagues at Davis, Agnor, Rapaport & Skalny in Columbia.

“As a result of the State-endorsed exclusion of unaffiliated voters from voting in primary elections, the Board of Elections conducts and holds Statewide and local primary elections that are ‘closed’ to registered, unaffiliated voters,” the complaint said. “This results in a situation where a segment of voters is not able to vote in a State election, but also in a situation where citizens’ tax dollars are being used to fund and conduct an election in which they are prohibited from participating.”

The voters allege the process is analogous to taxpayers funding the selection of officers to private clubs or private entities, where unaffiliated voters are part of a growing contingent over the past decade.

According to a voter registration activity report by the Maryland State Board of Elections, 957,228 voters in Maryland are registered as unaffiliated as of April, an increase of more than 100,000 unaffiliated registered voters from April 2023.

“It’s ultimately a question of suffrage,” Rutherford said in a news release. “The state’s endorsement and funding of partisan primary elections unconstitutionally denies over 950,000 duly registered Maryland citizens their right to vote in state elections.”

Todd Eberly, professor of political science and public policy at St. Mary’s College of Maryland, said courts historically have not been sympathetic to the argument against closed primaries, with the U.S. Supreme Court in 1976 upholding closed primaries in Nader v. Schaffer and the 11th Circuit Court of Appeals just in April upholding Florida’s closed primary system.

“It’s an interesting question [the plaintiffs] are putting forward in that they’re not outright challenging the rights of parties to have closed primaries, but they’re saying if you do it, you have to pay for it, and of course the parties do not want to pay for their primaries,” Eberly said in a phone interview.

Though Maryland allows voters to re-register as a different party, Eberly said the board of elections is effectively “forcing” voters to register as a party with which they might not otherwise identify in order to participate in a primary election.

Eberly said that in the 1970s when the nation’s highest court upheld closed primary elections, only about 7% of Maryland voters were affiliated with a party other than the Democratic or Republican parties, but today, nearly 24% of Maryland voters are unaffiliated.

Eberly said the question posed by the five voters’ lawsuit is ripe for the courts, based on the growing number of voters declining to affiliate with the major political parties.

Gilda Daniels, professor of election law at the University of Baltimore School of Law, said the lawsuit poses an interesting argument but will likely be “a difficult road.”

Daniels said the board of elections will likely argue that unaffiliated voters can vote in the general election, despite some primary elections determining the winning candidate.

Still, Daniels said the lawsuit may be “part of a larger strategy,” where the voters are posing the question in hopes that future courts or legislatures may be amenable to changing course.

“Even though the case may or may not be successful, I think it also provides an opportunity to have a discussion around what kind of system we want in the state of Maryland,” Daniels said.