More than five hundred years ago, political observer and philosopher Niccolo Machiavelli wrote a timeless and thought-provoking message on resistance to change.
He wrote, “It must be remembered that there is nothing more difficult to plan, more doubtful of success, nor more dangerous to manage, than introducing new ways of doing things. For the initiator has the enmity of all who would profit by the preservation of the old ways of doing things and merely lukewarm defenders in those who would gain by the new ones.”
This observation is being tested by ongoing efforts in Maryland to change the rules relative to participation in and state funding of partisan primary elections.
This issue is driven in large part by the increasing number of individuals in Maryland who have chosen to register to vote as unaffiliated, often referred to as independents.
In April of this year, more than 22% of registered voters in Maryland were registered as unaffiliated. That number was less than 21% in 2023.
Another 2% of individuals in Maryland have chosen to register with a third party.
The bottom line is almost a quarter of the registered voters in Maryland are not registered as a Republican or Democratic voter and as a consequence, they cannot vote in primary elections.
One can assume this trend will not only continue, but also accelerate.
In April of this year, more than 36% of new voter registrations, not changes to existing registrations, were unaffiliated.
In May of this year, five unaffiliated Maryland voters filed a lawsuit in Anne Arundel County District Court. They are working with an advocacy group — Open Primaries Education Fund (not to be confused with the Open Society Foundation, funded by George Soros).
The plaintiffs in the suit acknowledge political parties may have the right to exclude citizens from their primary elections, but it is unconstitutional for the state of Maryland to organize and pay for those elections.
They claim the only way the state can be in compliance with the state constitution is if the state Democratic and Republican parties fund their respective primary elections or if both parties allow all qualified citizens, regardless of their party affiliation, to vote in primaries.
The defendant in the lawsuit is the Maryland State Board of Elections, the state agency that manages primary elections.
An assistant state attorney general representing the Board of Elections has requested the Anne Arundel County District Court dismiss the lawsuit based on four claims.
One claim is that a lawsuit filed by only five taxpayers is insufficient to establish standing for such a challenge.
Another claim is that the merits of the unaffiliated voters’ challenge have already been considered and rejected in two previous court decisions–one handed down by a state court and one by a federal court.
The Supreme Court of Maryland issued a decision that “voters have no right under the state constitution to vote in the primary elections of a party to which they do not belong.”
The U.S. Supreme Court has upheld closed primaries and a political party’s First Amendment right “not to associate” and therefore cannot be required to allow unaffiliated voters to participate in their primary elections.
Complicating matters further on a judicial resolution on this matter is the opinion of a former senior voting rights attorney at the American Civil Liberties Union (ACLU).
He has said the courts are often reluctant to depart from regular procedures on changing election laws and prefer to seek legislative consideration and action.
While pursuing changes in the Maryland General Assembly is always an option, recent history is that pursuing open primary legislation in that arena has failed to get traction.
In the 2023 General Assembly session, one bill was introduced in the Maryland Senate, and one was introduced in the Maryland House of Delegates, both on open primaries.
Each bill only had one sponsor, which is a clear indication that neither bill had even minimal support in the General Assembly.
As a result, neither bill was voted from committee, an essential step on the always challenging process to enact a new law or revise an existing law in Maryland.
Also, no open primary legislation has been introduced in the General Assembly since then.
Going forward, I predict two outcomes on some form of open primaries in Maryland.
I predict that in every court case, including any appeals to higher courts, the definitive decision will ultimately be that any changes to the election laws must be approved by the general assembly and signed by the governor.
I also predict that, without widespread public demand for any election law changes in Maryland, they will never be approved in the General Assembly and by the governor.
If my predictions occur, it will affirm that Machiavelli’s observation –“There is nothing more difficult to plan, more doubtful of success, nor more dangerous to manage, than introducing new ways of doing things” is as relevant today as it was when he wrote it in 1513.
David Reel is a public affairs and public relations consultant who lives in Easton.
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