Judge appears skeptical of claim that unaffiliated voters can sue Maryland over closed primaries

by Christine Condon, Maryland Matters
October 20, 2025

An Anne Arundel County Circuit Court judge issued a partial ruling Monday in favor of a group of unaffiliated Maryland voters who are challenging the state’s closed primary election system.

A fuller victory might be harder to come by, though.

Judge Pamela K. Alban determined the voters had standing to file their case, but she has yet to decide whether she’ll dismiss the case on other grounds raised by the defendants — or allow it to proceed. She said she will issue a written ruling in the coming days.

Alban indicated she was skeptical of the voters’ arguments in their lawsuit that their claims were not resolved by prior case law, but said she planned to continue considering the “nuance” of the law.

“I want to think about it a bit more,” Alban said. “I imagine no matter what I do, this may not be the end.”

Attorneys for the plaintiffs, a group of five Maryland voters who are not affiliated with a political party, were quick to say after Monday’s hearing that they would appeal a dismissal by Alban. But former Maryland Lt. Gov. Boyd Rutherford, one of the attorneys, said he is “hopeful” for a favorable result.

Across the country, primary election structures vary widely. Maryland has a “partially closed” system, because political parties can choose to allow unaffiliated voters to join, according to the National Conference of State Legislatures, which said Maryland is one of 18 states with either completely closed or partially closed primaries.

The group of voters in the Maryland suit are challenging the fact that the state government funds primary elections that are not open to all voters, since voters must generally affiliate with the Democratic or Republican party to cast their ballots in primaries — unless it’s a non-partisan race. Their suit names the State Board of Elections and various state officials as defendants.

Daniel Kobrin, an assistant attorney general representing the defendants, argued that the case was focused on an alleged “waste of taxpayer money,” and that the plaintiffs didn’t have the standing to sue based on their status as taxpayers.

Eric Gunderson, an attorney for the voters, said that the plaintiffs are not arguing that the state shouldn’t fund primaries. Rather, they are arguing that, if the state continues to sponsor those elections, they should be open to all. The political parties could opt to fund their own primary elections if they wished to continue restricting participation, Gunderson said.

Alban agreed with him, ruling that the case was an elections matter — not a taxpayer one — and that the five plaintiffs had standing to sue because they are all registered voters in the state.

But Kobrin also argued in his filings that previous cases have already decided the issue, and so the Maryland voters’ suit should be dismissed. In particular, he referenced a pair of rulings from the Maryland Supreme Court, from 1946 and 2004, respectively — Hennegan v. Geartner and Suessman v. Lamone.

“Candidly, I think that’s your strongest argument,” the judge told Kobrin, before opening up the floor for him to speak on the legal precedent.

Kobrin asserted that, per prior court rulings, the state’s “well established” reasons for sponsoring primary elections must be weighed against the burden faced by unaffiliated voters, who are fenced out of the process. The state’s needs outweigh the voters’ burden, he said.

If the state didn’t hold primaries, it would run the risk of general election ballots looking more like “NFL pre-season rosters, with hundreds of names,” Kobrin joked. Primaries, he said, “avoid the chaos of a general election with dozens of candidates for each race.”

Kobrin also argued that, although the Maryland Constitution provides the right to vote, it doesn’t necessarily confer upon all Marylanders the right to participate in party primaries.

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“Of course there’s a right to vote,” Kobrin said. “What they don’t have is the right to participate in partisan races with a party they’re not affiliated with.”

Turning to Gunderson, the judge called the legal precedent his “biggest challenge.”

Gunderson argued that neither of the two main cases cited by Kobrin centered on the issue at the center of their claim: the state’s decision to put its resources toward primary elections.

“If the parties want to have closed primary systems, they should pay for them,” he said.

Because neither of the two state Supreme Court cases deal directly with that issue, Gunderson argued that they shouldn’t bar the plaintiffs from moving forward with their case, and arguing about the precedent in trial.

But Alban prodded back, adding that Gunderson’s “seemed like a really tight reading of those cases.”

Maryland Matters is part of States Newsroom, a nonprofit news network supported by grants and a coalition of donors as a 501c(3) public charity. Maryland Matters maintains editorial independence. Contact Editor Steve Crane for questions: editor@marylandmatters.org.