A three-judge panel of the 9th U.S. Circuit Court of Appeals has soundly rejected a legal challenge by the Democratic Party of Hawaii to the constitutionality of the state’s primary election system.

The party’s lawsuit contended the state’s open primary places a “severe burden” on the party’s constitutional right of association, and the corresponding right to decide not to associate with  non-Democrats in selecting their nominees for public office.

But in its Aug. 15 decision, the court ruled “the extent to which Hawaii’s open primary system burdens the Democratic Party’s associational rights is a factual question on which the Party bears the burden of proof.”

And because the party “has not developed any evidence” to meet its burden, the court rejected the challenge and upheld the open primary.

The Democratic Party isn’t happy that non-Democrats can vote in the party’s primary races. 

The ruling upheld a 2013 decision by Judge J. Michael Seabright of the U.S. District Court in Honolulu.

The decision stalls, at least temporarily, the party’s pursuit of new restrictions to limit primary voting to those registered voters who have formally joined the party or have otherwise publicly declared their support, although a further appeal to the U.S. Supreme Court seems likely.

Despite moving ahead with the lawsuit, opposition to the open primary remains a controversial position, even within the ranks of party, often pitting the party’s more progressive activists against generally more pragmatic Democratic officeholders.

Democratic activists have advocated bringing more ideological focus and discipline to the party.

Elected Democrats have generally supported a “Big Tent” view of their party as one which should be open to voters with a wide range of attitudes and perspectives, while activists have advocated bringing more ideological focus and discipline to the party.

It remains to be seen whether the debate over the open primary will be impacted by the recent influx of thousands of new members who joined the party in order to support presidential candidate Bernie Sanders, and who have publicly questioned whether they owe any deference to the party’s platform and internal rules.

For example, some high-profile Sanders supporters have rejected the Democratic nominee and instead declared their backing for Green Party candidate Jill Stein, despite party rules which make public support of a rival candidate grounds for possible censure or expulsion. This is reflected in a lively online debate in social media over whether those who signed membership cards in order to back Sanders in the party caucuses should now be required to resign from the party if they publicly throw their support to the Green candidate.

The Old Closed Primary

Up until 1978, Hawaii had a closed primary system in which a voter had to publicly state a party preference when registering to vote, although that choice could be changed later. But the requirement to disclose political party preference was widely seen as a deterrent to voting and an invasion of privacy. Some voters were said to feel intimidated and vulnerable to outside pressure by the need to publicly declare their choice of party.

Delegates to the state’s 1978 Constitutional Convention believed an open primary would both protect personal privacy  and “encourage voters with minimal party affiliation or those without any party affiliation to participate in the electoral process.”

Primary voters do not have to publicly declare which party’s ballot they have selected, nor is any record kept of their choice.

A constitutional amendment proposing an open primary was adopted by the Con Con and approved by voters, then implemented by the Legislature in 1979. The first open primary was held in 1980.

In Hawaii’s “open” primary, each voter must choose a single political party and only vote in its races. Voters do not have to publicly declare which party’s ballot they have selected, nor is any record kept of their choice.

In 2006, 26 years after the state adopted the open primary system, the Democratic Party of Hawaii amended its constitution to call for restricted participation. The party constitution now says primary elections “ought to be open to participation of only such persons willing to declare their affiliation with and support for the party …”

Democratic Unity breakfast after singing 'Hawaii Aloha' at the Dole Cannery Ballroom. 14 aug 2016
Hawaii Democrats celebrated primary wins at the annual Unity breakfast on Aug. 14. Cory Lum/Civil Beat

The Honolulu Advertiser reported at the time that key elected officials, including late U.S. Sen. Dan Inouye, opposed a lawsuit as a “tactical mistake” and potential public relations disaster.

“The rift is between some of the party’s liberal activists, who believe too many of the party’s elected leaders have drifted from the party’s platform, and pragmatists who want the party to appeal to an increasingly independent electorate,” then-Advertiser reporter Derrick DePledge wrote.

Even after the party constitution was changed, it took another seven years of internal wrangling before Democrats moved forward with their lawsuit.

A Loss Of Political Control

The First Amendment guarantees the right of individuals to organize into groups (like political parties and labor unions) to pursue common political or economic interests. But this implies a corresponding right to choose those who we do not want to associate with. Democrats argued Hawaii’s open primary puts a fundamental decision — which candidates will be selected to represent the party — potentially into the hands of those who have no interests in common with Democrats, or who may even be actively opposed to the party’s interests.

In Hawaii, for example, the total number of Democratic Party members is just a small fraction of the number of those selecting the Democratic primary ballot. The party contends this makes it obvious that non-Democrats play an outsized role in choosing the party’s candidates.

Attorney Tony Gill, former chair of the Oahu County Democratic Party and now the attorney representing the Democrats in this case, argued this is constitutionally impermissible on its face as a matter of law.

The total number of Democratic Party members is just a small fraction of the number of those selecting the Democratic primary ballot.

But the three-judge panel said simply, “we disagree.”

Instead, the judges pointed to decisions of the U.S. Supreme Court, and prior 9th Circuit rulings, holding “the extent of the burden that a primary system imposes on associational rights  is a factual issue,” and one for which the plaintiff — in this case the Democratic Party — “bears the burden of proof.”

And because the party failed to produce any empirical evidence to support its case, the judges ruled against the party’s challenge and upheld the open primary as constitutional.

Both the state and the Democratic Party relied heavily on a decision by the U.S. Supreme Court in the 2000 case of Democratic Party of California v. Jones, which struck down California’s so-called “blanket primary” as unconstitutional.

Bernie supporter Nathaniel Harmon fro District 2103 holds a large Bernie 2016 sign on the second day of the Hawaii State Democratic Convention held at the Sheraton Hotel. 29 may 2016. Chad possible hero or lede.
Bernie Sanders backers made their presence known at the Democratic Party of Hawaii’s state convention. Cory Lum/Civil Beat

In California’s blanket primary system, voters received one long ballot containing candidates from all political parties as well as nonpartisans, and were allowed to vote for each office regardless of the candidates’ party affiliation. All voters were free to support a candidate for one party for a particular office, and a candidate for another party for a different office. The top vote-getters in each party then advanced to the general election ballot.

When the Jones case was argued, the plaintiffs produced substantial evidence, including surveys and statistical evidence, bolstering the claims that substantial crossover voting was taking place, and that candidates selected through the blanket primary process tended to be more “middle of the road” in their political stances than those selected by party faithful.

The Supreme Court favorably cited this empirical evidence when striking down the blanket  primary system, which has led the 9th Circuit, in later rulings, to consider empirical evidence as necessary to sustain a constitutional challenge to a primary election system like Hawaii’s. But whether the Supreme Court meant for its comments to be read that way is unclear from the decision.

Attorney Gill believes Hawaii’s primary is, in all material respects, the same as the California system already found to be unconstitutional.

But the Jones decision striking down California’s blanket primary was authored by the late Antonin Scalia, and his death earlier this year, along with the court’s new members, have significantly changed the court’s makeup.

It looks to me like an appeal is highly likely. Stay tuned.

About the Author

  • Ian Lind
    Ian Lind is an award-winning investigative reporter and columnist who has been blogging daily for more than 20 years. He has also worked as a newsletter publisher, public interest advocate and lobbyist for Common Cause in Hawaii, peace educator, and legislative staffer. Lind is a lifelong resident of the islands. Read his blog here. Opinions are the author's own and do not necessarily reflect Civil Beat's views.