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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.
鈥淭his case, at its core, is a voting rights case,鈥� on behalf of his clients. 鈥淚t 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.鈥�
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.
鈥淚n order to participate in their local elections process, they are faced with a 鈥楩austian Choice鈥� : 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,鈥� Rutherford wrote.
鈥淵et, the Maryland Constitution does not require membership in a private party to exercise a citizen鈥檚 right of suffrage. The plaintiffs are challenging the state鈥檚 sponsorship of a closed primary system that denies plaintiffs their constitutional rights to vote 鈥榓t all elections to be held in this state.’鈥�
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.
says the current current primary voting system is incompatible with the Maryland Constitution鈥檚 guarantee that voters have a right to vote in all elections in the state. If successful, the challenge could either force the state鈥檚 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 , arguing its claims were based 鈥渟olely as taxpayers.鈥�
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, 鈥渧oters have no right under the state constitution to vote in the primary elections of a party to which they do not belong.鈥�
In another case, the U.S. Supreme Court upheld closed primaries and a political party鈥檚 First Amendment right 鈥渘ot to associate,鈥� which means it cannot be required to allow unaffiliated voters to participate, according to the motion filed by the board鈥檚 attorney
But Rutherford wrote that neither of those cases 鈥渋nvolves a challenge to the constitutionality of the state鈥檚 endorsement of a closed primary system.鈥�
鈥淭his is an open question that the Maryland Courts have yet to decide,鈥� he wrote. 鈥淎ccordingly, plaintiffs do in fact assert actionable constitutional claims, and the facts alleged provide sufficient basis upon which relief could be granted.鈥�
