Federal Judge: Hawaii’s Open Primary Is Constitutional
UPDATED 11/15/2013 1 p.m.
A federal judge today ruled that the way Hawaii conducts its primary elections is constitutional.
The Democratic Party of Hawaii sued Scott Nago, Hawaii’s chief election officer, in June, arguing that the state’s open primary system infringed on the right of the party and its members to decide who is eligible to vote in the Democratic primary.
Voters do not have to be registered Democrats to pull a party ballot. The lawsuit was brought to “vindicate” the party’s “associational freedoms” guaranteed under the 1st Amendment, according to the lawsuit.
U.S. District Judge Michael Seabright, however, said the Democratic Party “has failed to prove that the open primary is facially unconstitutional.”
Robert Thomas, a local attorney who does voting and election law, said Seabright’s ruling means the case has effectively been dismissed.
“The lawsuit is dead meat,” he said. “The only choice is go up the food chain — the 9th Circuit Court of Appeals or higher — or seek other relief, which Judge Seabright didn’t preclude. But I think that would have to be in a separate lawsuit.”
According to Seabright’s ruling, Democrats did not convince him that the primary system placed a “severe burden” on the party’s right to free association.
“Given a lesser burden, the open primary is clearly supported by important and legitimate State rights such as protecting the privacy of a person’s vote, and encouraging voter participation by removing barriers to vote,” the judge wrote.
Dante Carpenter, party chairman, said, “We haven’t seen the opinion yet, so we reserve comment. But the option is to pursue an appeal or another tack at the same jurisdiction.”
Updated
Anne Lopez, special assistant to the attorney general, told Civil Beat Friday, “Attorney General David M. Louie stated that he was very pleased that Judge J. Michael Seabright fully rejected the Democratic Party of Hawaii’s attempt to limit Hawaii’s primary election to registered members of Hawaii’s political parties. By upholding Hawaii’s open primary system, voters will be able to continue to participate in the party primary of his or her choice.”1
One-Party Dominance
The Democratic Party sought a court order to effectively stop the August 2014 primary from being conducted under current state law. Nago himself is not accused of wrong-doing; he is simply following the law he is sworn to uphold.
But Democrats don’t like that law. The lawsuit has attracted criticism, given that Democrats control both houses of the Legislature, the governor’s office and all four of Hawaii’s seats in Congress. Democratic dominance in local politics started before statehood.
The lawsuit is largely the work of attorney Tony Gill, former chair of Oahu chapter of the party and a member of a prominent family active in local politics. The brief cites a 2000 U.S. Supreme Court decision — Democratic Party of California v. Jones — that struck down California’s “blanket primary” system in which voters were provided with a list of all candidates for each office and could cross party lines. The candidates with the greatest number of votes would face off in a general election.
Hawaii Democrats allege that the Hawaii Constitution prevents the party from “exerting any control over who may participate in the nomination of its candidates.” The lawsuit expresses concern that voters “who have no sympathy” for the party’s platform and goals can cross party lines to help a “weaker candidate.”
But Seabright had a different interpretation of state law:
It is possible (even likely) that some “crossover” voters (i.e., members of, or sympathizers with, a rival party) have temporarily affiliated with the DPH by voting Democrat in a Hawaii primary election. But it is also possible (even likely) that — given Hawaii’s demographics — a large percentage of primary voters who were not formally registered with the DPH, but who affiliated with it by voting in a Democratic primary, fully considered themselves to be Democrats, and thus were not working to “undermine and oppose” the DPH.
Seabright continued: “And if Hawaii primary election voters choosing a Democratic ballot have views that completely agree with the DPH’s platform, then the DPH is not being forced to associate with those who are antithetical to its views. The DPH would likely not be ‘severely’ burdened by not being able to reject persons who fully embrace its values. The possibility of crossover voters might make no difference.”
