Thoughts on Unaffiliated Voters’ Future Role in Primary Elections By David Reel

Under current Maryland election law, political parties have the power to decide whether or not to hold closed primary elections.

For example, with closed primary elections, only voters registered with the Republican Party can vote in Republican primary elections, and only voters registered with the Democratic Party can vote in Democratic primary elections.

Unaffiliated voters and voters registered with other parties can vote in post-primary general elections, nonpartisan municipal elections, local judicial elections, and school board elections.

When most Maryland voters were registered as Republican or as Democratic voters this was not widely viewed as an issue requiring review or attention.

That could change based in large part on unaffiliated voter registration numbers.

Currently 907, 638 of Maryland voters are registered as unaffiliated in contrast to 1,007,000 voters who are registered Republican and 2,211,316 voters who are registered Democratic.

Currently, 123,324 of Congressional District 1 (which includes all of the Eastern Shore) voters are registered as unaffiliated in contrast to 242,659 voters who are registered Republican and 185,754 voters who are registered Democratic.

Currently, 5,905 of Talbot County voters are registered as unaffiliated in contrast to 11,597 who are registered as Republican and 10,534 who are registered as Democratic.

The unaffiliated voter registrations numbers in Maryland have been noticed by the Open Primaries Foundation. This national organization advocates for open primary elections in America and should not be confused with the Open Society Foundation founded and funded by George Soros.

An Open primaries Foundation spokesperson recently said “The Open Primaries Foundation is dedicated to closing closed primary elections around the country. Maryland is just the beginning.” Another Foundation spokesperson recently said “Nearly a million Maryland voters shut out of voting is a crisis. Independent voters are the fastest growing group of voters in America, but they are treated as second-class citizens in Maryland and across the country. We cannot continue to publicly fund and administer elections that shut these voters out if we want to continue to call ourselves a democracy.”

The Open Primaries Foundation is now collaborating with a Maryland law firm and five Maryland voters on a lawsuit challenging state funding of closed primaries.

All five voters are registered unaffiliated voters and were barred from voting in the partisan 2022 and 2024 primary elections in Anne Arundel County.

The lawsuit claims that state election officials are violating Article 1, Section 1 of the state constitution, which guarantees that every qualified U.S. citizen who is a resident of Maryland shall be entitled to vote in the ward or election district in which the citizen resides at all elections to be held in this State. The suit also maintains state election officials are violating Articles 7 and 24 of Maryland’s Declaration of Rights.

The lead attorney for this lawsuit is former Maryland Lieutenant Governor Boyd Rutherford.

Recently, Rutherford has said the following regarding the lawsuit:

“The constitution says all elections. Nowhere in the constitution does it state anything about primaries or political parties or anything of that notion.”

“It [the lawsuit] is not an attack on the parties. It does not require the political parties to allow Unaffiliated voters to vote in partisan party elections. This action is to prevent the state from funding these primaries that unconstitutionally exclude Unaffiliated voters.”

“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.”

Some suggest this issue could be and should be addressed in the General Assembly. While that is always possible, it is not probable, at least in the near future.

In 2023, two open primary bills in the General Assembly were never voted out of a committee.

Rutherford has also said “I don’t think the legislature sees it in their interest, even though they should, because it is a question of voting rights. 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.”

I agree and suggest that lack of legislative action on this issue affirms Niccolo Machiavelli’s timeless observation on change:

“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.”

That said, I optimistically predict that eventually the legal challenge will succeed, and the General Assembly will approve changes to the current law to allow for some form of open primaries in Maryland.

Until then, Maryland’s unaffiliated voters will continue to be observers of, rather than participants in partisan primary elections.

David Reel is a public affairs and public relations consultant who lives in Easton.