Right now a federal court of appeals is considering the Constitutionality of New Jersey’s closed primary election system – and FairVote is weighing in. Click here to read FairVote’s amicus curiae brief in Basalm v. Guadagno, and read the coverage of our participation on IVN.us.

In New Jersey, nearly half of all voters have chosen to exercise their First Amendment right to not affiliate with either of the two major political parties. Those voters are not allowed to vote on primary election day. New Jersey allows the Democratic and Republican Parties to put their nominees on the general election ballot, making their nomination process an integral part of the election. New Jersey further holds a publicly funded election – open to party members only – to choose those nominees.

In short, New Jersey’s public elections consist of two interconnected parts, but the first part excludes almost half of New Jersey voters from participation. This seems unfair to independent voters in New Jersey, and so a group of such voters has sued in federal court, claiming that New Jersey’s closed primaries violate their right to vote.

The United States is the only country where the government conducts nominating elections for private political parties. The role of primary elections in the United States is poorly understood. Indeed, the district court seems to have misunderstood the context in which U.S. primary elections occur by assuming that by attacking closed primaries the plaintiffs sought only to “pry open” the primary elections. To prevent a similar misunderstanding in the court of appeals, FairVote has filed a brief explaining the history of primary elections and the various options open to states.

States are not limited to either holding closed or open primaries. For the first hundred years of United States elections, not only were there no primary elections as we know them today, there were generally not even any ballots with names printed on them at all. Early in the nation’s history, voting might mean writing the names of candidates on paper and putting them in a box.

The system we use today is called “the Australian ballot.” That is, a secret ballot with the names of nominees preprinted on it that may not leave the polling place. The trouble is, if the government is going to print the names of nominees on every ballot, it must have some means of knowing who the nominees are. That gives rise to the issue of ballot access.

The typical method of ballot access in the U.S. is to provide officially recognized political parties an automatic spot on the ballot for their nominees and then to choose those nominees in publicly held primary elections. That is not the only option, however.

States could allow candidates to simply petition for access directly to the general election ballot without holding any primary election whatever. That is exactly what Louisiana does today, which is why the 2014 general election for senator in Louisiana this year was a race between four Democrats, three Republicans, and one Libertarian. Then, if no candidate receives a majority of votes in the general election, a runoff is held between the two candidates who received the most votes irrespective of political party. Louisiana’s qualified absentee voters participate in both the general election and runoff simultaneously by filling out a ranked ballot along with their general election ballot; in the runoff, the ranked ballot will count as a vote for whichever runoff candidate they ranked highest.

Even better, states like New Jersey could use no primary election and allow all voters to elect using ranked choice voting. This practice is already used in a number of U.S. cities with great success.

States could continue to hold primary elections in ways that fully incorporate independent voters in the process while also respecting the association rights of political parties. Indeed, FairVote’s Top Four proposal is a great example. Every candidate and every voter would be treated equally irrespective of political party in every stage of the election, and it would create an open and competitive primary and general election.

Whatever the court decides, FairVote is proud to participate. If nothing else, the court should be fully informed of the context for primary elections in the United States.