Closed primaries called ‘the voting rights issue of our time’ in landmark PA lawsuit

It sounds like the setup to a punchline: a TV host, a grocery store owner, a civic organization leader, and a physical therapist gathered outside Independence Hall. 

But instead of humor, they came with a lawsuit — asking Pennsylvania’s highest court to declare the state’s closed primaries unconstitutional.

Under the Commonwealth’s current primary system, only registered Democrats or Republicans are allowed to participate in their party’s respective primaries, making Pennsylvania one of nine states with closed primaries. 

As Pennsylvania’s independent population grows, four plaintiffs — CNN's Michael Smerconish, David Thornburgh, Jeffery Doty, and Rachel Shanok — filed a King’s Bench petition to give Pennsylvania’s 1.4 million independents the ability to vote in primary elections. 

“This is the voting rights issue of our time,” said Jeremy Gruber, the Senior Vice President of Open Primaries, an advocacy group spearheading the open primaries movement. “When a majority of voters are shut out of the elections that matter, that is a crisis of democracy.”

Thornburgh, chairman of Ballot PA and former president of the Committee of Seventy, said the petition is grounded in research on Pennsylvania legislative elections spanning the past 25 years. That research found that fewer than 10% of state House and Senate races were effectively decided in the general election, meaning the most consequential voting took place during the primaries.

“We call them primary elections without thinking about why we call them primary elections,” said Thornburgh. “Well, they’re in fact primary. They’re the only elections.”

Unaffiliated voters have been steadily rising throughout the United States, with 43% of the country identifying as independent in 2024. Particularly, young voters and people of color — Latino, Asian, and African American voters — are increasingly choosing to be independent, as well as over half of veterans. 

Amid these demographic shifts, the Pennsylvanian petitioners have joined a broader litigious effort for open primary elections. Over the past three months, Open Primaries has filed similar cases in Maryland, Oregon, and Wyoming. Gruber said that as many Americans grow disenchanted with the two major parties, it’s been a “perfect storm” for litigation. 

Some of the lawsuits hinge on the notion that, despite primary elections being treated as private events, they are funded by taxpayer dollars, even from those who are barred from participation. In Pennsylvania, primary elections cost local and state governments approximately $75 million. 

However, Thornburgh said that the King’s Bench petition relies on a different argument, one based on the Pennsylvania State Constitution. The lawsuit cites the Free and Equal Elections clause, which essentially guarantees fairness for all voters. Given the outsized influence of primaries compared to often noncompetitive state general elections, the plaintiffs argued that Pennsylvania’s closed primary system violates that clause.

“In keeping out independents from primaries, you’re not only diluting a vote, you’re going further,” said Thornburgh. “As one of our lawyers said, you’re evaporating that vote.” 

As one could predict, the most staunch open primaries opponents are typically Democratic and Republican party leaders. They often believe that allowing non-members to influence candidate decisions can lead to political manipulation. 

A spokesperson for the Pennsylvania Republican Party echoed those sentiments in a statement to Philly Daily: “Closed primaries help ensure the process remains fair, transparent, and true to the will of each party’s voters. It’s about protecting the integrity of our elections and ensuring that Republican nominees are chosen by Republicans.”

The Pennsylvania Democratic Party did not respond to a request for comment. 

Other lawsuit critics have said that they would have rather seen policy on open primaries derive from the legislature, not the courts. The Committee of Seventy, the government reform group formerly led by Thornburgh, released a statement July 15 denouncing the lawsuit while reaffirming its support for open primaries.

“We fully respect the rule of law and the separation of powers established by our constitutions,” the statement said. “This petition, however, seeks to circumvent the standard processes of the courts and move directly to the Supreme Court of Pennsylvania – a move we believe would hinder meaningful legislative progress to reform Pennsylvania’s primary system.”

In response to these points, Gruber said that they, too, would have preferred the legislature to take the initiative. But, he acknowledged that the legislature has introduced open primary bills for more than ten years, and despite a recent attempt passing in the House, none have come to fruition. 

“Litigation has always been the inspiration and foundation for voting rights legislation,” said Gruber. “It’s really ahistorical to think that the court should not be involved in Pennsylvania.”

State Rep. Jared Solomon (D-Philadelphia) has authored the most recent bill for primary election reform. House Bill 280, which would allow unaffiliated — but not third-party — voters to participate in primary elections, is currently being considered by the House. 

Solomon, who has since endorsed the petition, told Philly Daily that he introduced House Bill 280 because “one person, one vote, is something that we can all agree upon.”

“You can’t take people’s taxpayer dollars, and then not let them participate fully like every other Pennsylvanian who is registered in a major party,” he said.

Moving forward, the King’s Bench petitioners are waiting to see if the state Supreme Court will accept the petition. If it does, Thornburgh said there is a high likelihood that the court will agree with their argument and rule the current system unconstitutional.  An important aspect of the lawsuit is that they only asked for the constitutional test. The petitioners offered remedies, but did not mandate any specific solution — that would be for the legislature to decide. 

If the state Supreme Court denies the petition, it would only have avoided a ruling. The petitioners would likely refile in the lower courts and inevitably work their way back up to the highest court. 

“So, we haven’t lost if that’s the decision that they come to,” said Thornburgh. “It just means we have to take a different path to that decision.”