The Democratic Party of Hawaii has taken the politically risky step of asking a federal judge to throw out a provision of the state constitution protecting the “secrecy of voting” and the confidentiality of voters’ party affiliations.

The lawsuit filed this week by the Democratic Party of Hawaii challenges the state’s open primary election system, and is creating a very strange spectacle of the dominant political party apparently engaged in a civil war with itself.

On one side is the state Democratic Party organization, which hopes to persuade a federal judge that our primary elections since 1980 have unconstitutionally restricted the party’s “right of association” guaranteed by the First Amendment of the U.S. Constitution.

The defendant in the the case is the State of Hawaii, which has been controlled for most of the last five decades by elected officials from that very same Democratic Party. Democrats have thoroughly dominated the legislative, executive, and (largely) the judicial branches of state government, as well as controlling all or most of Hawaii’s Congressional delegation.

Now the party is suing, although virtually all elected Democrats oppose the move.

So what in the world is going on?

A Longstanding Public Debate

There’s nothing new about the tension between those favoring opening primary elections to most voters, and those who think primary choices properly belong to the political parties. It’s been reflected in political debates in Hawaii at least since the 1960s, if not before.

Hawaii’s current “open primary” system went into effect after the state constitution was amended in 1978 to protect “the secrecy of voting and choice of political party affiliation.” That amendment put an end to Hawaii’s “closed primary” system, which required voters to join a political party or publicly declare their party “preference” when registering to vote, in order to vote in the party’s primary elections.

Since 1980, primary voters receive copies of all party ballots, and then choose the ballot for the party of their choice while discarding the others. The choice they make, however, remains secret.

An issue paper prepared by the Legislative Reference Bureau in advance of the 1978 Con-Con summarized the arguments for and against the closed primary. They haven’t changed much over the intervening years.

“Proponents of the closed primary maintain that party candidates should be selected only by those who subscribe to the basic philosophy of the party, and that the party must be responsible for the candidates chosen,” the LRB reported.

“Proponents of the open primary maintain that it permits voters who are not members of the 2 major political parties to participate in the nomination of candidates, and it guarantees secrecy of the ballot,” according to the LRB. “In addition, it stimulates more discriminate and independent voting since the voter is not bound by party affiliation.”

The 1978 Con-Con couldn’t help being colored by the overarching political issues and debates of the day, including concerns over the kinds of government secrecy and manipulation revealed by the Watergate scandal, and Congressional investigations of government spying on citizens, which included Army spying on civilian activists in Hawaii.

The move to protect information about political affiliations was playing out against what at the time was recent political history of a president with an “enemies list” and targeted attacks against his political opponents. Both openness and personal privacy were very much on the public’s mind.

“That was a time when everybody was for more openness, it was the era of freedom of information and sunshine laws, and there was a national trend away from selection of candidates in smoke-filled rooms,” said Honolulu attorney Robert H. Thomas, whose professional practice includes election law issues. “There was a thought the open primary would stem the tide of decline of voter participation.”

Of course, Hawaii’s voter turnout continued to plunge, and still ranks down at or near the bottom of all 50 states. Proponents of the open primary say turning away voters by restricting primary participation to party members once again will only further depress voter turnout.

The Democratic Party argument describes this as a straightforward First Amendment issue.

It points to a 13-year old U.S. Supreme Court case, California Democratic Party v. Jones, which found that state’s “blanket primary” infringed on the rights of political parties.

In the California system, primary election ballots listed all candidates for an office regardless of their political party affiliation, and all voters were free to consider all the candidates. The top vote-getter from each party became the party’s candidates for that race in the general election.

In the Jones decision, the Supreme Court rejected this approach, saying the party’s rights to organize, and to exclude those they disagree with, are vital.

“The First Amendment protects the freedom to join together to further common political beliefs, which presupposes the freedom to identify those who constitute the association, and to limit the association to those people. In no area is the political association’s right to exclude more important than in its candidate-selection process,” the court said. “That process often determines the party’s positions on significant public policy issues, and it is the nominee who is the party’s ambassador charged with winning the general electorate over to its views. The First Amendment reserves a special place, and accords a special protection, for that process, because the moment of choosing the party’s nominee is the crucial juncture at which the appeal to common principles may be translated into concerted action, and hence to political power. California’s blanket primary violates these principles.”

The same is true of Hawaii’s law which, according to the Democratic lawsuit is difficult to distinguish from the California law at issue in the Jones decision.

One difference is that in California, voters would get a ballot with all candidates listed, and could jump back and forth between the parties, voting for a Democrat in some races and Republicans in others. In Hawaii’s “open primary,” voters must choose to vote only one party’s ballot, although their choice remains confidential. Whether someone chooses to vote the Democratic or Republican primary ballot isn’t publicly disclosed.

And while Hawaii Democrats don’t control which voters are able to select Democratic party primary ballots, they still have control over which candidates can run with the Democratic label.

State law appears to defer to the party’s internal rules in this regard. It became a hot issue when Laura Thielen registered as a Democrat and announced that she would run for office as a Democrat. The party initially attempted to block her from running under the party banner, but later backed down. Thielen won decisively at the polls.

But the party now says it wants to restrict participation in party primaries to its own members, or what it refers to as “affiliates,” described as “other persons who are willing to publicly register as DPH (Democratic Party of Hawaii) voters.

In other words, according to the party, making a confidential party selection isn’t good enough. If you aren’t willing to go public as a Democratic voter, you shouldn’t have the right to participate.

“It’s not a slam dunk, but there’s enough case law to give them a pretty good position from which to argue,” attorney Thomas said. “There are definitely some countervailing arguments, but it’s going to be interesting.”

Big Tent Under Attack

But the most important politics appear to be playing out within the Democratic Party itself.

The idea of returning to a closed primary has been bandied about in party circles, and debated at party conventions, for at least the past decade. The debate has been intense and often personally and politically divisive, driving wedges between different factions of what has traditionally been a party loosely united under “a big tent.”

Office holders have opposed the idea, fearing a voter backlash, and arguing in favor of the “big tent” philosophy as a way to maintain the party’s political power.

In the past, the late Dan Inouye was able to bring the different party factions together just enough to negotiate through their differences and hold off the push to return to the closed party primary. His absence has allowed centrifugal forces to tear at the party’s semblance of cohesiveness.

And there’s the key problem the party faces. The party is now quite distinct from the group of elected officials who run under the party’s label. With virtually all elected Democrats coming out in opposition to the party’s lawsuit, the gulf between the party and its office holders has probably never been wider.

The same separation of interests is playing out in current efforts to impose party “discipline” by using internal party rules to punish Democratic legislators who fail to toe the party line. For example, Oahu County Dems will soon take up a complaint by gay activists against nine House members and two senators who sponsored a bill that would have let voters decide on a constitutional amendment to restrict marriage to between a man and a woman, a position strongly rejected in the party platform.

If the complaint is upheld, the party will have to consider what sanctions to impose on those who have strayed from the platform.

This is all politically dangerous, to be sure.

In California, the public reacted to the Supreme Court decision by simply dumping the party primaries altogether. Now all candidates run in a free-for-all primary, with the top two vote-getters in a race going on to the general election regardless of party. It means the general election often pits two candidates from a single party against each other, and parties are not automatically represented on the general election ballot for each race.

Something similar could happen here. After all, there’s nothing in the state constitution requiring party-based elections. If the party prevails in its constitutional argument, one resolution would be to simply follow California’s lead and further reduce the party influence. With the political stalemate in Washington further diminishing public perceptions of the political parties, a backlash is possible. We’re a long way from that point, and there are a lot of intermediate solutions that are likely to be considered but, as they say, here be dragons.

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