Members Only: Hawaii Democratic Party Seeks Closed Primary
by Robert Thomas, InverseCondemnation June 18, 2013
A slight detour into our other favorite area of law, election law and voting rights. Yesterday, the Democratic Party of Hawaii (finally, after years of hemming and hawing) pulled the trigger on a federal court lawsuit seeking to invalidate Hawaii's "open primary" laws (Haw. Const. art II, § 4, Haw. Rev. Stat. ch. 12), asserting they violate the Party's First Amendment freedom of association.
Here are the Complaint and the Motion for Partial Summary Judgment and Preliminary Injunction, filed yesterday.
Here's more on the story from the Honolulu Star-Advertiser (subscription may be necessary for full content). Or, try this story from Civil Beat (although it's just a republishing of the Party's press release).
Complaint, Democratic Party of Hawaii v Nago, No. CV13-00301 JMS KSC (D. Haw. 6-17-2013)
Plaintiff's Motion for Partial Summary Judgment and Preliminary Injunction, Democratic Party of Hawaii v N
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by Robert Thomas, InverseCondemnation, June 19, 2013
Ian Lind has more on the federal lawsuit by the Hawaii Democratic Party that seeks to invalidate Hawaii's "open primary" system. Start here at his blog ("Dem lawsuit: Bold strategy or self-inflicted injury?"), then continue to the full story at Honolulu Civil Beat ("Hawaii Monitor: Primary Politics").
Hawaii adopted the open primary system in the 1978 constitutional convention:
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 way the system currently works is that when you go to the polling place to vote in the primary election, you are handed three ballots: one for each major party, plus an independent ballot. You vote one ballot, and one only. You return that one, and dump the other two. Your choice remains secret. This allows any voter to participate in choosing one party's standard-bearer for the general election, and in a place like Hawaii where one party overwhelmingly dominates politics and the primary election is often determinative, allows those who are not (or who don't want to be) party members or registered Democrats to have input on who gets elected. On the other hand, it allows strategic crossover voting. For example, those who identify as Republicans can pull a Democratic ballot and vote for whom they believe would be the weakest opponent for the Republican candidate in the general election.
Two issues to watch in the case. First, the plaintiff's Complaint and the Motion for Partial Summary Judgment and Preliminary Injunction assert that state law requires political parties to use the primary system as their exclusive means to choose a candidate for the general election. Thus, parties are prohibited from using some other process such as a caucus or convention. We're thinking the liability part of the case may turn on this issue. If the plaintiff's reading of the law is correct, it would seem to cut in its favor on its forced association argument (bet you never knew that the Hawaii Democratic Party was such a supporter of the Citizens United decision, did you?).
Second, the remedy, in the event the court buys the plantiff's argument that the open primary is unconstitutional. The complaint asks the court to prohibit the State from holding an open primary, but doesn't expressly say what alternative would be acceptable. We assume a closed primary would be acceptable, but there are other alternatives. For more on this, see Mr. Lind's report.
One final note. Even if the lawsuit succeeds, it seems about as welcome as a dog in a game of skittles by Democratic elected officials, including the Governor, the House Majority Leader, and others, who have distanced themselves from the lawsuit, if not voiced their outright opposition, at least publicly. The Hawaii Republicans seized on this, and issued a press release that in essence said "come on in, the water's fine," and that if the Democrats want a closed shop, the door's open at the GOP.