A federal judge ruled Tuesday that he lacks jurisdiction to compel the state Board of Elections to set up an Independence Party presidential primary open to all unaffiliated voters.

U.S. District Judge Jed Rakoff (search) ruled in December that the nearly 2.3 million New York state voters not enrolled in a political party should be allowed to vote in Independence Party primaries.

But the Nov. 1 deadline for submitting a request for a March 2 primary election had passed by then, and the party's efforts to get the state Legislature to pass a law to enable its primary failed.

Independence Party lawyers Gary Sinawski and Harry Kresky asked Rakoff in a Jan. 31 letter to direct the Board of Elections to conduct a primary "in which voters who are not enrolled in any political party can participate."

But Rakoff told Kresky on Tuesday, "The bottom line is this was clearly not a primary embraced in the court's order then or now, because you haven't qualified for this primary."

Rakoff said he was denying the motion solely on the basis of jurisdiction, adding that the party would have to file a separate lawsuit to force a primary.

Kresky said outside the Manhattan federal courtroom, "We'll just think about what we do now."

Board of Elections spokesman Lee Daghlian (search) had no immediate comment.

In his Dec. 3 ruling, Rakoff said the provision of New York state's election law that prohibited voters not affiliated with any party from voting in Independence Party primaries was unconstitutional.

Opening the Independence Party's primaries to non-enrolled voters could generate far more interest and clout for the party, which voted in February 2003 to expand its primaries beyond its statewide membership of 280,000.