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A group of independent voters is asking Pennsylvania’s Supreme Court to strike down a nearly century-old law barring them from voting in the state’s primary elections.
In a petition filed Tuesday, the plaintiffs argue that excluding independent voters from primaries violates a clause of the state constitution requiring “free and equal” elections. The plaintiffs are four independent voters, including David Thornburgh, a former president of the nonprofit government watchdog group Committee of Seventy.
“How can a constitution with a ‘free and equal’ elections clause deny 1.4 million voters the right to exercise their franchise every single election, simply because they chose not to join some private association?” Thornburgh said at a press conference held Tuesday to announce the lawsuit filing.
The stakes are high because many districts and localities across Pennsylvania lean heavily toward one party or the other, so the primaries often effectively determine who wins the general election. A 2024 Spotlight PA analysis found that the vast majority of state legislative races on the ballot that year were effectively decided in the primary.
Supreme Court has favored ‘open and unrestricted’ elections
The petition rests on the clause in the state constitution that says that “no power, civil or military, shall at any time interfere to prevent the free exercise of the right of suffrage.”
The state Supreme Court has said in the past that the clause means that Pennsylvania’s elections should be kept “open and unrestricted” as much as possible, and that it guarantees voters’ right to “equal participation” in them.
The part of state law that bars voters who aren’t registered with a political party from voting in primaries doesn’t meet that standard, the petition argues.
The plaintiffs are also asking the high court to take up the issue directly, rather than through the normal process of waiting for it to move up through the lower courts. This so-called King’s Bench authority is used when the court considers a matter to be of “immediate public importance.”
The Pennsylvania Department of State, which is named as a respondent, said it was reviewing the petition.
Strong public support for opening up Pennsylvania primaries
Pennsylvania has what is known as a “closed” primary system. This is the most restrictive style of primary election, under which only voters registered with a political party can vote in that party’s primary.
According to the National Conference of State Legislators, Pennsylvania is one of just 10 states with fully closed primaries.
Opponents have pushed for years for a more open system that would allow unaffiliated and independent voters to participate in any party primary. Such a system still wouldn’t permit voters registered with one party to participate in another party’s primary.
According to an August 2024 Franklin & Marshall poll, more than 3 out of 4 Pennsylvania voters support opening up the state’s primary elections to independent voters, who make up a growing share of the state’s electorate.
Pennsylvania has more than 1.4 million voters registered as independent, unaffiliated, or with a third party, compared with roughly half that number 25 years ago. The number of Democrats on Pennsylvania’s voter rolls has been shrinking in recent elections, and while Republican registrations have been growing, the portion of people registering as independent, unaffiliated, or members of a third party has grown more.
Previous efforts to open up primaries to independent voters have failed, with legislative leaders mostly noncommittal about the efforts. Currently, Rep. Jared Solomon (D., Philadelphia) is sponsoring a bill that would allow unaffiliated voters, but not those registered with a third party, to participate in either the Democratic or Republican primary. The bill has made it out of committee, but has yet to receive a final vote in the House.
“As one of the last states in the country with closed primaries, opening up our primary election system is the voting rights issue of our time here in Pennsylvania,” Solomon said in a statement on the petition. “This historic lawsuit takes seriously this fundamental right to vote, and gives voice to the 1.4 million Pennsylvania voters whose tax dollars pay for elections they are shut out of.”
Other states with closed primaries are also facing lawsuits. A group of independent voters in Maryland recently filed a lawsuit there in collaboration with the nonpartisan group Open Primaries, which is also involved in the Pennsylvania effort. Earlier this month, a lawsuit was filed in Oregon challenging the constitutionality of closed primaries there.
Some supporters of the push to open the state’s primaries said they disagreed with the plaintiffs’ decision to go straight to the state Supreme Court. The Committee of Seventy, for example, said it believed the move “would hinder meaningful legislative progress to reform Pennsylvania’s primary system.”
Marian Schneider, a former senior voting rights policy counsel at the ACLU of Pennsylvania who has worked on previous election law cases that sought direct intervention from the Supreme Court, said the courts are often reluctant to depart from regular procedures in this way.
“That is something I think the court is going to be concerned about,” she said.
Shanin Specter, an attorney with Kline & Specter, which is representing the petitioners, said the group will refile in the state’s Commonwealth Court if the state Supreme Court rejects its petition.
Carter Walker is a reporter for Votebeat in partnership with Spotlight PA. Contact Carter at cwalker@votebeat.org.
