Davis, Agnor, Rapaport & Skalny, LLC (“DARS”), one of the region’s leading law firms, in conjunction with Open Primaries Education Fund, announced today that the firm has filed a lawsuit on behalf of five plaintiffs across the state against the Maryland State Board of Elections (“MDSBE”), challenging the State’s closed primary elections as unconstitutional. The Complaint, filed in the Circuit Court for Anne Arundel County, alleges that the MDSBE is denying Maryland citizens their fundamental right to vote, and seeks to stop the State from funding “closed” primary elections in violation of the Maryland Constitution.
The Complaint alleges that the plaintiffs listed below, as registered “Unaffiliated” voters in the State of Maryland, have been unconstitutionally denied their right to vote.
- Serena Bryson, Prince George’s County
- Kimberle Fields, St. Mary’s County
- Amber Ivey, Baltimore City
- Robert Sartwell, Anne Arundel County
- Dona J. Sauerburger, Anne Arundel County
“It’s ultimately a question of suffrage,” says former Lt. Governor Boyd K. Rutherford, DARS counsel for the Plaintiffs. “We are not seeking to require the political parties to allow Unaffiliated voters to vote in partisan party Primary Elections. This action is to prevent the State from funding these primaries that unconstitutionally exclude Unaffiliated voters.” In addition, states Rutherford, “The State’s endorsement and funding of partisan Primary Elections unconstitutionally denies over 950,000 duly registered Maryland citizens their right to vote in State elections.”
The Complaint identifies specific constitutional issues, alleging that the State’s funding of partisan Primary Elections violates the Maryland Constitution, which guarantees that all duly registered voters shall be entitled to vote in “all elections to be held in this State.” The State’s funding of these closed primary elections violates the Plaintiffs’ rights, as Unaffiliated voters, to vote and participate in all elections held in the State as guaranteed by Article 1, Section 1 of the Maryland Constitution of 1867, and secured by Articles 7 (the “Free Elections Clause”) and 24 (the “Equal Protection Clause”) of the Maryland Declaration of Rights.
“Voters who have chosen not to affiliate with a political party have a Constitutional right to vote in every election held in our State” says Senator Bobby Zirkin, a registered Democrat and former Chair, Maryland Senate Judicial Proceedings Committee. “During my time in office, I found the most success came from reaching across party lines and drowning out divisiveness. We should all seek to see more Marylanders participate in the selection of their elected representatives.”
Nearly one quarter of voters in many Maryland Counties are registered as unaffiliated, vaulting from 16% in 2012 to 22% in 2025. This shift away from the major parties by Maryland voters – if not their elected representatives – is commensurate with national trends.
“As a former state and local elected official, the concept of full participation in the electoral process has been my clarion call to citizens. The denial of Unaffiliated voters’ access to the Primary ballot of their choice automatically eliminates these voices, and artificially restricts their civic rights to determine who they most passionately support to effectively represent their interests,” states Rick Weldon, a now Unaffiliated voter who is a former Republican member of the Maryland House of Delegates.
Maryland trails most states by having closed Primary Elections, with 37 states having open primaries. In the past five years alone, Alaska, Colorado, Maine, and New Mexico have opened their primaries, as well as the cities of St. Louis and Washington, D.C. New Mexico is the most recent, following the passing of a bipartisan reform bill granting more than 330,000 Independent voters the right to vote in that state’s primary elections starting in 2026.
“Our aims in filing this complaint include increasing voter turnout and fighting for disenfranchised voters,” says Rutherford. “According to a 2024 Bipartisan Policy Center report (The Open Effects of Open Primaries on Turnout and Representation), states that moved from closed to open primaries typically saw a 5% increase in voter turnout. And a study published that same year in the Journal of Political Institutions and Political Economy found that citizens of states with non-partisan Primary Elections were 12% more likely to vote in the 2022 mid-term Primary Elections than those with closed Primary Elections.”
Several Maryland jurisdictions have non-competitive General Elections. The winner of the Primary Election is virtually guaranteed to win the General Election. Accordingly, candidates and elected officials in these jurisdictions only need to appeal to an increasingly smaller group of hardcore party voters in their respective primary elections instead of crafting a message for a wider more diverse electorate. By broadening candidates’ appeal to a wider electorate – to include the 22% of Maryland‘s Unaffiliated voters – voter participation will likely improve.
“Nearly a million Maryland voters shut out of voting is a crisis. Independent voters are the fastest growing group of voters in America, but they are treated as second-class citizens in Maryland and across the country. We cannot continue to publicly fund and administer elections that shut these voters out if we want to continue to call ourselves a democracy,” said Jeremy Gruber, SVP of the Open Primaries Education Fund.
What could it mean for taxpayers if the State is prevented from funding closed primaries? The cost of elections is significant. For example, Defendant Jared DeMarinis was reported in a 2024 Baltimore Sun article stating that the cost of the special election in Prince George’s County was likely to be $4 million, with $2 million of that for the Primary Election and $2 million for the General Election. Thousands of Prince George’s County taxpayers saw their tax dollars pay for a Primary Election where they were excluded from participating.
“What does this mean? Put simply, it is taxation without [a choice in] representation,” says Rutherford. Joining Rutherford as counsel for the Plaintiffs are Michael W. Davis, Eric W. Gunderson, and Hannah L. Martinson.
“Our firm is proud to have been retained as counsel in this case, underscoring the importance of affording all Maryland citizens with equal voting rights,” says Paul G. Skalny, Attorney and Managing Director of DARS. “As our Government Relations practice continues to grow, I can’t think of a better team to be in the Plaintiffs’ corner. The former Lt. Governor and our dedicated attorneys are uniquely equipped to stand up for the rights of the nearly one million Marylanders who have been denied their constitutional right to vote.”
About Davis, Agnor, Rapaport & Skalny, LLC
As a leading law firm in the Baltimore – Washington region, Davis, Agnor, Rapaport & Skalny, LLC partners with businesses and non-profit organizations, as well as individuals and families, to protect our clients’ interests, solve their problems, and create strategic opportunities to help them thrive. Driven by a deep commitment to our core values, our talented team of attorneys and professionals seamlessly blends big-firm sophistication and expertise with smaller-firm creativity and attention.
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For more information, visit www.darslaw.com.
About the Open Primaries Education Fund
The Open Primaries Education Fund is a national non-profit organization that conducts research advances litigation and educates the public and policymakers on electoral reform.
For more information, visit https://openprimarieseducationfund.org/
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