The state Supreme Court has rebuffed an attempt by independent voters to get the state’s closed primary system declared unconstitutional.

It could very well end up back in their laps anyway as the lawsuit is “highly likely” going to be refiled in Commonwealth Court, said David Thornburgh, one of the plaintiffs. Thornburgh, the son of former Republican Gov. Dick Thornburgh, has been a prominent advocate for voting reforms in Pennsylvania — leading efforts to rein in gerrymandering and more recently to open the state’s closed primary system to allow independent voters to participate.

Thornburgh said the independent voters expect that no matter where the lawsuit starts, it’s going to likely end up at the Supreme Court, so they thought: “How about if we start there rather than, you know, wind our way through the chutes and ladders to get there.”

Under the closed primary system, only Republicans and Democrats can vote in each party’s respective primary. Advocates maintain that the system unfairly disenfranchises independent voters even as their tax dollars are used to run the primary elections.

Pennsylvania is one of 14 states with closed primaries.

Advocates have been lobbying for years to get lawmakers to approve legislation opening the primaries without success. The House State Government Committee approved an open primary bill, House Bill 280, in May but it hasn’t come up for a vote before the full chamber.

Since many races are settled in the primaries with candidates unopposed in the general election, the closed system effectively disenfranchises independent voters, according to the petition filed as part of the lawsuit.

The closed primary system also fuels political polarization by giving an edge to candidates who appeal to the party bases.

Proponents of opening the primaries have also argued that allowing independent voters to help select party nominees would make it more likely that candidates who win those nominations have broader appeal to voters.

Thornburgh, political pundit Michael Smerconish and two other independent voters Jeffery Doty and Rachel Shanok filed a King’s Bench petition in July seeking to appeal directly to the Supreme Court.

“Our goal was to get those 1.4 million independent voters to vote in the primary elections as soon as we could,” Thornburgh told CapitolWire Wednesday. “They’ve been waiting 88 years” since the state set up the closed primary system.

The Pennsylvania Supreme Court has previously held that “every voter has the same right as every other voter,” and that the Legislature can’t enact laws that dilute votes, according to the petition filed by Thornburgh and the other voters.

“(Current law) creates a two-tiered electorate, empowering party-affiliated voters while relegating independents to a powerless class whose participation comes too late to matter,” the petition argues.

In court filings, Attorney General David Sunday opposed the bid to get the Supreme Court to consider the lawsuit under the direct-appeal route taken by the independent voter.

Sunday noted that the closed primaries have been in place since 1937 and the voters offered no clear explanation for why the system creates an emergency now.

Sunday also argued that forcing the major political parties to allow non-party members to vote in their primaries would violate the protections in the First Amendment of the U.S. Constitution.

“Judicial resolution of this question without consideration of well-established associational rights risks a federal challenge. Petitioners nonetheless ask this Court to upend the current system without mentioning the federal constitutional tripwires,” Sunday wrote in court documents.

About 16% of registered voters are unaffiliated with the major political parties.

Thornburgh said that the number of people who would abandon their political affiliations with the major political parties would likely increase if the state opened the primaries to them.

National polls show that about 40% of voters self-identify as independents.

“Pennsylvania has a strong partisan tradition, so I don’t know that it would get that high,” he said.