There’s been a lot of speculation about what led Democratic Party Chair Dante Carpenter to announce on Tuesday, after weeks of controversy, that the Party would not file a legal challenge to Laura Thielen’s candidacy. Some people have said it must have been pressure from Party members who thought it would be politically tone-deaf to exclude a candidate many voters find attractive. Carpenter himself somewhat implausibly claimed the Party didn’t have the money for a legal challenge.

I have a simpler theory: the Party didn’t go to court because it knew the court would declare the Party’s rules to be illegal.

Although I’ve been a Party member since 2004, and a member of the Party Rules Committee at the recent convention, I don’t have any special access to party deliberations. Far from it: I’m Laura Thielen’s husband of over two decades, and her campaign manager for the last four months (seems longer, though). I’m also an attorney, and (as you might imagine) I’ve taken a hard look at the legality of the Democratic Party’s candidate screening procedure. The views expressed here are entirely my own, not my employer’s.

The Party’s main argument seems to be that it has the constitutional right to choose which of its members can run in the primary. This argument was resoundingly rejected in 2008 by the United States Court of Appeals for the Ninth Circuit, whose decisions on constitutional matters are binding on Hawaii courts. In a suit by the Alaska Independence Party, the court ruled that the state of Alaska had every right to require political parties to allow primary election voters, not party leaders, to choose the party’s candidate.

In reaching this conclusion, the court discussed at some length the philosophy and history behind the fact that almost every state requires parties to choose candidates through primaries. The court noted that the purpose of primaries is “to remove party nominating decisions from the infamous smoke-filled rooms and place them instead in the hands of a party’s rank-and-file, thereby destroying the corrupt alliance between wealthy special interests and the political machine.” Ultimately, the court found that the key right at stake was not that of the candidate or the party, but the interest of the state and the voters “in eliminating the fraud and corruption that frequently accompanied party-run nominating conventions.”

Hawaii’s statutes on access to the primary ballot embrace these principles. Under Hawaii Revised Statute (HRS) 12-3, an individual qualifies for the primary ballot for the party of her choice if she swears that she is a member of that party. That’s it. There is another provision, in HRS 12-8, designed to allow political parties to challenge a candidate, but the only legitimate ground for a party’s objection is that “the candidate is not a member of the party pursuant to the party’s rules.” Here, the Party admits that Laura is a member under the Party’s rules, but says that she can’t run because she is not a member “in good standing.” That phrase is simply is not part of the law, so the court would not recognize it.

Some have argued that the Hawaii law is just a statement of minimum qualifications to which the Party can add. That argument is wrong in light of HRS 12-1, which bars anyone from adding hurdles to the primary process: “All candidates for elective office, except as provided in section 14-21 [applicable to presidential campaigns], shall be nominated in accordance with this chapter and not otherwise.”

The compelling Ninth Circuit decision, along with the clear and simple language of Hawaii law, would have doomed any Party challenge to Thielen’s candidacy. I have little doubt that after threatening since March to go to court to take Thielen’s name off the ballot, and authorizing just such an action in late May, the Party finally looked at the law and realized that it couldn’t win.

The strangest thing about this process is that Laura told the Party months ago that its rule was illegal, before the Party finally rejected her candidacy, and before the matter ever drew public attention. (Civil Beat, April 6, “Party Chair Dismissed Legal Opinion on Thielen”. Through a detailed letter by attorney Eric Seitz, she told the Party that she could not obey a rule that conflicted with Hawaii law and that denied the voters the right to a real choice in the primary. If the Party had paid attention to the law back then, we all would have been spared a lot of drama, and we’d all be exactly where we are now: with the decision on the next State Senator for Kailua, Waimanalo and Hawaii Kai in the hands of the voters, where it should be.

About the author: Tom Helper has practiced law in Honolulu for over 20 years. He lives in Waimanalo.