A petition to Pa.’s highest court could determine if independents vote in primaries

by John Cole, Pennsylvania Capital-Star
July 15, 2025

With Independence Hall in Philadelphia serving as the backdrop, a group announced on Tuesday they have filed a petition asking the state Supreme Court to rule primary election laws in Pennsylvania are unconstitutional.

“We’re speaking to the seven justices of the Pennsylvania Supreme Court, and we aim to convince them that excluding independent voters from primary elections is not just unfair in some vague, moral sense, but that it violates the Pennsylvania Constitution,” said David Thornburgh, chairman of Ballot PA Action, a coalition aimed at overturning the state’s closed primary laws.

Thornburgh, along with Michael Smerconish, a longtime political television and radio host, Jeffery Doty, an owner of a grocery store, and Rachel Shanok, a physical therapist, filed a King’s Bench Petition, which goes directly to the state highest court.

Pennsylvania, home to approximately 1.4 million people registered as independent, unaffiliated, or members of a third party, is one of at least nine states that doesn’t allow independent voters to participate in primary elections. That means to cast a ballot in a party’s primary, a voter must be registered with that particular political party.

“If we are successful, then the current statute will be declared unconstitutional, and therefore it will be non-functional, and that will mean immediately that independents can vote in party primaries,” said Shanin Specter, co-founding Partner, Kline & Specter PC, the legal firm representing the group. “Republican, Democratic, Green, Constitution, Libertarian, whatever.”

“The legislature would be free to fashion other potential schemes with respect to voting, but such a scheme would have to protect the right of Independents to vote in primary elections, and…that’s the core of what we’re seeking,” Specter added. 

He also noted that 15% of the state’s electorate are registered independents in Pennsylvania. In 1937, when this law was enacted, that number was just 3%.

If you find yourself turning to our coverage more and more, please consider making a donation to strengthen our independent, nonprofit newsroom.

SUPPORT

Reinforcing the point, Smerconish, a Republican-turned-Independent, cited a Gallup poll that said 43% of Americans self-identify as Independent.

“When independents can’t vote in primary elections, I think that we all suffer because our missing voice is often one of moderation,” Smerconish said. “We live in very polarizing times and I firmly believe that when independent voices are excluded from the nomination process, we foster a rise of extremes at both ends of the political spectrum.”

“And better would be a system that forces candidates to have to appeal to a broader cross-section of primary voters, including those from whom compromise is not a dirty word,” he added.

Voter turnout in Pennsylvania appeared to be lower in 2025 than the previous two off-year municipal primary elections. Supporters of reforming the state’s primary laws believe opening up them to registered independents will increase voter turnout.

Jeremy Gruber is the senior vice president of Open Primaries, a national election reform organization dedicated to opening primary elections around the country to independent voters. He said the voting population of 14 states is less than the total number of registered independent voters in Pennsylvania. 

He argued it’s a voting rights crisis that independents aren’t allowed to vote in primaries.

“Today, the largest and fastest group of voters are being discriminated against and excluded by these primaries,” Gruber said. “This case filed today follows a long history of litigation: From women’s suffrage through the Civil Rights era, to the modern day, the history of voting rights in the United States is intertwined with litigation, which has served as a crucial catalyst in the evolution of legislation by highlighting discriminatory practices and spurring reform.”

“Almost every voting rights reform ever passed in this country started with a case just like this one,” he added.

Why a King’s Bench Petition?

By filing a King’s Bench petition, the group is able to bypass the normal course of litigation through the lower courts.

“Ultimately, it has to be the Pennsylvania Supreme Court who makes the decision to declare unconstitutional the current statute, and for that reason, there’s no reason to wait,” Specter said. “There’s no reason to have a lower court decide the issue first, the case will be decided eventually in the Pennsylvania Supreme Court, and they should do so as quickly as possible.”

Specter acknowledged that the state Supreme Court could decline to accept the King’s Bench petition, which would then result in them filing the action in the Commonwealth Court. He said the losing side would “doubtlessly appeal,” and he believes that there is a “very, very, very, high chance” that the justices would accept that appeal. 

It is unclear how quickly a ruling could be made. 

Every morning get our top stories right in your inbox. Subscribe to the Pennsylvania Capital-Star’s Morning Guide now.

SUBSCRIBE

A supporter of open primaries announces opposition to petition

The Committee of Seventy, a government reform group, has been a leading voice in Pennsylvania advocating for the state to end its closed primary elections.

However, they find themselves opposed to the effort of making this change via a King’s Bench petition, arguing while it is “well intended,” it is the “wrong approach to address this longstanding issue at this moment.”

“All voters should have the opportunity to participate in all elections, but making that a reality is in the hands of the legislature,” The Committee of Seventy released in a statement on Tuesday.  “We fully respect the rule of law and the separation of powers established by our constitutions.” 

Thornburgh, who led the organization for several years but stepped aside as CEO in 2022, argued that they’ve worked on the issue for six-and-a-half years and now is the right time to move forward. He also noted that they are asking the court to rule on its constitutionality, and it would ultimately go back to the legislature, if they agree.

“And the legislature could choose any number of ways to solve the problem, if you will,” Thornburgh said. 

Open Primary Author calls lawsuit “historic”

State Rep. Jared Solomon (D-Philadelphia) has authored legislation that would allow unaffiliated voters to participate in either the Democratic or Republican primary, but would not allow third-party voters. He released a statement in support of the lawsuit.

“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,” said Solomon. “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.”

Pennsylvania Capital-Star is part of States Newsroom, a nonprofit news network supported by grants and a coalition of donors as a 501c(3) public charity. Pennsylvania Capital-Star maintains editorial independence. Contact Editor Tim Lambert for questions: info@penncapital-star.com.