Five Maryland voters who are not affiliated with any political party filed a lawsuit this week asking a state judge to declare Maryland’s restrictions on primary elections a violation of the state constitution.
Maryland, which has a partially closed primary system, requires voters to affiliate with the Democratic or Republican party if they want to vote in the primary election. The five unaffiliated voters, represented by Republican former Lt. Gov. Boyd Rutherford, said the elections — paid for with tax dollars — are a violation of their right to vote.
“The point is, it really is a voting rights issue,” Rutherford, who is now an attorney with Davis, Agnor, Rapaport & Skalny in Columbia, said in an interview. “It’s not an attack on the parties. It’s a question of what is fair for 22% — over a fifth of the voting population — approaching 25% of the voting population that has chosen not to be affiliated.”
The 15-page lawsuit filed in Anne Arundel County Circuit Court on behalf of the five unaffiliated voters challenges the current primary election system. All five said they were barred from voting in the 2022 and 2024 primary elections because they opted not to affiliate with either major political party.
Requiring party affiliation to vote creates a barrier of “partisan primaries that the state endorses and supports and funds, which is contrary to the plain reading of the state constitution and the Declaration of Rights,” Rutherford said.
It is a subject with which Rutherford has some personal experience. In 2015, he told The Washington Post that he was a registered independent but changed his affiliation to Democrat to vote in primary elections in the District of Columbia.
A spokesperson for the Maryland State Board of Elections did not provide a comment on the pending litigation.
John Willis, who served as secretary of state under Gov. Parris N. Glendening, and is a professor of public affairs at the University of Baltimore, said the lawsuit is misplaced.
“Primary elections are for political parties. They’re not for 4 million individual voters,” said Willis, who is also an attorney. “They’re a process for nominating candidates for a general election. The whole notion that they’re somehow open to everybody, the public — there’s no constitutional right to that.”
Unaffiliated voters in Maryland can cast votes in state primaries for nonpartisan races such as the election of judges and school board members.
But. the voters in the lawsuit compare the process to “taxpayers funding the selection of officers to private clubs or in this case private entities.”
Rutherford said it is the use of taxpayer dollars that conflicts with his clients’ rights.
“We’re just saying the state should not be paying for it, because the state would be paying for something that’s unconstitutional,” Rutherford said. “This is, again, it’s a voting rights question, so the state should not be supporting something that is unconstitutional.”
In Maryland, the number of voters who identify as unaffiliated has grown to nearly one in five voters in the state. Willis said that growth is a “legitimate thing to talk about.”
“But I don’t think it’s a lawsuit. I think it’s a political debate or a philosophical debate. It’s an OK political debate to have, but I don’t think it’s a legal constitutional debate.”
To Willis, the appropriate venue for making a change is the legislature.
Rutherford, in an interview, said the legislature is unlikely to make those changes.
“I don’t think the legislature sees it in their interest, even though they should, because it is a question of voting rights,” Rutherford said. We think the courts need to take it up, just like the Voting Rights Act or Brown versus Board of Education. The legislature alone is not going to do it.”
Willis said the current political system dates back more than 100 years. “Since the Civil War, in Maryland, we’ve been a two-party system,” he said.
Legislation sponsored in 2023 by Sen. Cheryl C. Kagan (D-Montgomery) called for allowing unaffiliated voters to affiliate with a party as late as the day before the start of early voting.
Kagan, who was not available for an interview, said in 2023 testimony that many unaffiliated voters “do not understand our closed primary system.” Then, when they arrive to vote, they are told they can vote in nonpartisan races. That sometimes causes voters to become “frustrated — and sometimes quite angry,” Kagan’s written testimony said.
Her bill and an identical House bill both died in their respective committees.
In 2000, the Maryland Republican Party did briefly change its rules to let unaffiliated voters cast ballots in its presidential primary. The change was short-lived.
A spokesperson for the Maryland Democratic Party declined to comment on the pending lawsuit. A representative of the Maryland Republican Party was not immediately available for comment.
The lawsuit is backed by the Open Primaries Education Fund, a nonprofit that advocates for allowing unaffiliated voters to participate in primary elections. The group also promotes the use of litigation toward that goal.
Rutherford said the group and its local affiliate reached out to him about challenging the state primary system after the two-term lieutenant governor authored an opinion piece calling for allowing unaffiliated or independent voters to participate in primary elections.
And while the debate over Maryland’s primary system is not new, Rutherford said the lawsuit is novel in its approach.
“It’s been challenged in other states, one, generally in the federal courts. Not as much so in the state courts,” said Rutherford, adding that he believes there has never been a challenge under the Maryland Constitution.
The constitution, Rutherford said, sets out specific rules for qualifying voters. Maryland residents 18 years old and older “shall be entitled to vote at every election, all elections,” Rutherford said.
“They said all elections,” Rutherford said. “Nowhere in the constitution does it state anything about primaries or political parties or anything of that notion. And then the Declaration of Rights, which is part of the constitution, goes further by stating that it talks about the right of suffrage.”
Maryland is one of nine states that have a partially closed primary system, according to the National Conference of State Legislatures. In such systems, the parties can choose to allow unaffiliated voters to vote in their respective primary elections.
Seven states are considered open to unaffiliated voters. Those systems allow unaffiliated voters to vote in the party primary of their choice. Voters who are affiliated with a political party must vote in that party’s primary.
Another 15 states have open primaries — voters are not asked to affiliate with a party. Voters can then choose which primary they wish to cast a ballot in.
Maryland Matters is part of States Newsroom, a nonprofit news network supported by grants and a coalition of donors as a 501c(3) public charity. Maryland Matters maintains editorial independence. Contact Editor Steve Crane for questions: editor@marylandmatters.org. Follow Maryland Matters on Facebook and X.
