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Reform in 2023: It’s time for the civil rights community to embrace independent voters

Opinion

The Rev. Martin Luther King Jr.

"So long as I do not firmly and irrevocably possess the right to vote, I do not possess myself," the Rev. Martin Luther King Jr. said in 1957. "I cannot make up my mind – it is made up for me."

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Jeremy Gruber
By Jeremy GruberDec 28, 2022
Jeremy Gruber
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As 2022 draws to a close, The Fulcrum has invited leaders of democracy reform organizations to share their hopes and plans for the coming year. This is the seventh in the series.

Gruber is the senior vice president of Open Primaries. He previously worked for the American Civil Liberties Union and several other civil rights organizations.

Independent voters decided nearly every outcome in the midterm elections and sent many “election deniers” packing. Their reward is that 20 million of them – including millions of voters of color – will be shut out of voting in the 2024 presidential primaries. That number could double if efforts to close the primaries accelerate in 2023.

The civil rights community, which has long insisted that ours is a democracy in progress, has always been at the forefront of the fight for justice in the United States. But it has continued to remain silent on the question of full voting rights for independent voters.

Independent voters are now the largest or second largest group of registered voters in almost every state in the country. They are also the fastest growing group of voters. It’s an accelerating phenomenon driven by dissatisfaction with partisanship and distrust of status quo institutions. But choosing to distance yourself from Democratic or Republican membership comes with a price tag. In many states, independents are locked out of participating in primaries – public elections paid for by taxpayers and administered by our government. It’s systematic voter suppression and exclusion.

The ACLU’s website states that “voting is the cornerstone of our democracy and the fundamental right upon which all our civil liberties rest. The ACLU works to protect and expand Americans’ freedom to vote.” That work has, properly, focused on equal voting rights for racial minorities. There is no moral equivalency between being denied the right to vote because of the color of your skin and the choice not to join a political party – but that is no excuse for silence. The denial of the right to vote, for whatever reason, is an attack on our core values of freedom and equality. It’s felt painfully by millions of independent voters every primary election.

As the Rev. Martin Luther King Jr. declared in his “Give Us the Ballot” speech in 1957:

So long as I do not firmly and irrevocably possess the right to vote, I do not possess myself. I cannot make up my mind – it is made up for me. I cannot live as a democratic citizen, observing the laws I have helped to enact – I can only submit to the edict of others.

When you alternately ignore, justify or distinguish independent voters as a group not worthy of voting rights protections, you miss entirely King’s vision that every citizen has a voice in our democracy.

What’s perhaps most peculiar about the silence of the civil rights community with regards to independent voters is how many independent voters are people of color. Forty percent of Asian Americans, 37 percent of Latinos and 30 percent of African Americans are independent. You wouldn’t know it from the work of any of the organizations entrusted with protecting these key voting groups. Asian Americans Advancing Justice, Unidos US, the NAACP and others fight every day against efforts that make it harder for minorities to vote; unless, of course, they happen to be independents.

A hundred years ago, in the “white primary cases,” the Supreme Court struck down primary elections designed to disenfranchise African Americans in the South. The civil rights community led that effort. In 2023, MAGA elements of the Republican Party in these same states are threatening to close the primaries. If successful it will have a negative impact on all voters, but it will particularly impact African-Americans. As Rep. Joe Neal of the South Carolina legislative black caucus declared back in 2010 after successfully defeating a lawsuit to close the primaries:

The South Carolina federal court has upheld the rights of voters in South Carolina, especially the minority community, to free and unfettered access to the polls. This measure (closed primaries) would have eliminated the ability of hundreds of thousands of African Americans to have a voice in who represents them in many positions of influence in South Carolina.

The civil rights community has ignored this development, despite growing recognition that closed primaries disempower voters of color.

Our country is changing. Voters' relationship to the two parties is in flux. It’s simply untenable to continue to shut out millions of independent voters from our elections. It’s time for the civil rights community to take this on. Our democracy in progress needs you.


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What Is No Longer Legal After the Supreme Court Ruling

  • Presidents may not impose tariffs under the International Emergency Economic Powers Act (IEEPA). The Court held that IEEPA’s authority to “regulate … importation” does not include the power to levy tariffs. Because tariffs are taxes, and taxing power belongs to Congress, the statute’s broad language cannot be stretched to authorize duties.
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  • Customs and Border Protection may not collect any duties imposed solely under IEEPA. Any tariff justified only by IEEPA must cease immediately. CBP cannot apply or enforce duties that lack a valid statutory basis.
  • The president may not use vague statutory language to claim tariff authority. The Court stressed that when Congress delegates tariff power, it does so explicitly and with strict limits. Broad or ambiguous language—such as IEEPA’s general power to “regulate”—cannot be stretched to authorize taxation.
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  • Congress retains exclusive constitutional authority over tariffs. Tariffs are taxes, and the Constitution vests taxing power in Congress. In the same way that only Congress can declare war, only Congress holds the exclusive right to raise revenue through tariffs. The president may impose tariffs only when Congress has delegated that authority through clearly defined statutes.
  • Section 122 of the Trade Act of 1974 (Balance‑of‑Payments Tariffs). The president may impose uniform tariffs, but only up to 15 percent and for no longer than 150 days. Congress must take action to extend tariffs beyond the 150-day period. These caps are strictly defined. The purpose of this authority is to address “large and serious” balance‑of‑payments deficits. No investigation is mandatory. This is the authority invoked immediately after the ruling.
  • Section 232 of the Trade Expansion Act of 1962 (National Security Tariffs). Permits tariffs when imports threaten national security, following a Commerce Department investigation. Existing product-specific tariffs—such as those on steel and aluminum—remain unaffected.
  • Section 301 of the Trade Act of 1974 (Unfair Trade Practices). Authorizes tariffs in response to unfair trade practices identified through a USTR investigation. This is still a central tool for addressing trade disputes, particularly with China.
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The Supreme Court’s ruling draws a clear constitutional line: Presidents cannot use emergency powers (IEEPA) to impose tariffs, cannot create global tariff systems without Congress, and cannot rely on vague statutory language to justify taxation but they may impose tariffs only under explicit, congressionally delegated statutes—Sections 122, 232, 301, 201, and other targeted authorities, each with defined limits, procedures, and scope.

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