ALBUQUERQUE (KRQE) – Should independent voters be able to vote in primary elections? One Albuquerque voter says “yes” and he’s filed a lawsuit to try to make it legal. Tuesday morning, a judge will hear from his attorney at a hearing in district court.

The attorney filed a lawsuit against the state last summer to partially open New Mexico’s primaries to independent voters, or those who don’t declare an affiliation with a particular political party. It comes after the independent voter wasn’t allowed to cast his ballot in last summer’s primary election.

That voter’s attorney says in the past June primary, more than 60 percent of all the positions on the ballot were decided in the primary election.

“What more basic right is there in a democracy than the right to vote? And when that’s taken away, that is a serious attack on democracy,” says attorney Ed Hollington.

Hollington is David Crum’s attorney, the independent voter who couldn’t cast a ballot last year.

Hollington argues New Mexico’s constitution gives all registered voters the right to vote in all public elections for public offices; he says that includes primaries.

“These are public elections. All taxpayers pay for these elections and I find it astounding that the party would take a position to have the right to deny someone the right to vote in a publicly-funded election,” says Hollington.

Yet, according to the primary system the legislature chose in 1969, independent voters can’t cast their ballots in these elections. Hollington says that means the legislature has violated the state constitution. Now, he’s hoping a judge will rule in their favor and open up primary elections to the state’s nearly 250,000 independent voters.

“Independents would go to the primary election. They would ask for either a democrat or a republican ballot or if there was another major party, they could ask for that, and then they would cast their votes on those parties,” says Hollington.

Hollington says opening up the elections would not result in democrats being able to vote for republicans and vice versa. He says he would expect both parties to be on board but, the Republican party actually filed a response asking the judge to dismiss the lawsuit.

Attorneys for the New Mexico Republican Party say current state law protects their rights.

The legislature passed a law more than 30 years ago preventing those who don’t affiliate with a certain party from voting in primary elections. John Anderson, the Attorney representing the state’s Republican Party, says that law is not unconstitutional.

In fact, he says requiring a voter to affiliate with a certain party in advance of the election doesn’t make it a closed election. He adds, Hollington’s proposal of letting independents choose a certain party’s ballot at the polls isn’t enough.

“The act of requesting a ballot or choosing to vote in a party’s primary is not a sufficient act of affiliation in our view and, I would add, in the supreme court’s view to overcome the party’s freedom of association,” explains Anderson.

The attorney says the primary is an internal process and current law protects the party’s right to freedom of association.

“The plaintiff’s view really seems to rest entirely on the New Mexico constitution while disregarding the freedom of association afforded to political parties under the first amendment of the US Constitution,” explains Anderson.

Anderson tells us he doesn’t believe there’s a conflict between the state and federal constitution, but if there was, the federal constitution would trump New Mexico’s.

New Mexico’s Republican Party asked the judge to dismiss the lawsuit.

There will be a hearing on the lawsuit Tuesday morning in district court. Hollington says it’s likely the judge will rule from the bench on this issue.