Robert Thomas
Robert Thomas

BY ROBERT THOMAS – Here’s the latest brief in the Democratic Party’s federal court challenge to Hawaii’s “open primary” system (the Party’s reply brief, which both is its final word supporting its motion for summary judgment, and its response to the State of Hawaii’s counter-motion for summary judgment).

This brief responds to the State’s argument that the mandatory open primary (in which voters can pull a ballot for any party on election day, regardless of the voter’s party affiliation or nonaffiliation) isn’t that much of a burden on the Democrats’ freedom to associate with whom they choose. The Party asserts its associational rights are overly burdened by prohibiting it from insuring that its card-carrying members are the ones who are making the choice for the Party’s general election standard-bearer.

Yes, the brief argues, Hawaii may be overwhelmingly blue, but don’t penalize us for being good at what we do by making us hang out with those who haven’t sworn allegiance to our goals (those whom the brief labels “lazy Democratic-leaning persons”):

Defendant notes that Hawai`i is currently a heavily Democratic state; no surprise there. Defendant then asserts that there are “safe districts” in which Democrats are so highly likely to be elected, that the Democratic primary, for all practical purposes, selects the representative. (The existence of “safe districts” is the assertion of counsel alone, since Defendant Nago’s Declaration makes no such claim.) Defendant then says that if citizens in safe districts must register with the DPH to vote in the election that will decide their representation (emphasis in original at D. 27), the viability of the other parties may be threatened. This conclusion should be inspected closely.

Defendant starts with the assumption that the district is so overwhelmingly Democratic, that no other party stands a chance. There are just so many Democratic voters there, that candidates of other parties might as well give up and hitch a ride out of town. In such a district, Defendant says, if the voters, who are already overwhelmingly aligned with DPH, must register with the DPH in order to vote with the DPH, the viability of the Republican, Green, Libertarian, and other parties “may be threatened.” D. 27.

This argument is nonsense on so many levels: it presumes the conclusion (other parties crushed) and then delights in proving what it assumed (other parties crushed); it adduces a cause (registration) which operates after the effect (initial hopelessness of election of non-DPH candidates); “safe districts” are hypothetical, not proved on the record; and nothing makes the speculative injury to other parties more likely than speculative advantage to them, because if DPH is allowed to define its nomination electorate, lazy Democrat-leaning persons, who don’t want to be bothered with associating properly, might simply support other parties.

Frankly, Defendant’s goal is troubling. Using the power of the state to equalize political outcomes, in a district where most citizens think one way, is a dangerous idea. Excusing political fecklessness by penalizing political competence, is a dangerous idea. Also, if the purported state interest is to preserve parties as interest groups that are “viable and identifiable” and able to engage in robust debate, how can any party take a non-conventional view, if all voters can select its candidates?

Brief at 4-6.

Hold on a minute. The political power of the state is often used to equalize politicial outcomes. One thread of the Supreme Court’s one-person-one-vote jurisprudence, and many of its Voting Rights Act decisions are premised on just that. Apparently, there’s nothing wrong with using governmental power to insure particular outcomes. But a fair reading of the final paragraph above would suggest that what the Party is arguing is that the political power of the state (which, ironically, the Party at least putatively controls with an iron grip) should not be used to insure that everyone has a fair shot, because in Hawaii “citizens think one way.” In other words, when Hawaii’s voting patterns are such that only Democrats have a shot. Ah, now we get it: democracy is two wolves and a lamb deciding what’s for dinner, and if non-Democrats want their fair shot, they should get the citizens to stop thinking “one way.” Bon courage!

The philosophical heart of the case is whether a primary election is about a voter’s choice or a party’s choice, but nothing we’ve read in the briefing so far has changed our initial prediction that the case is going to turn on the mandatory nature of the open primary. Our read of Hawaii law is that there’s no other way for a political party to choose its general election standard-bearer. Thus, however odd it may seem in an overwhelmingly Democratic state where the primary in many cases serves as the de facto general election, the Party’s right to pick whom it wants as its candidate to stand before the public in a meaningless election has a good shot at winning out over the State’s argument for a voter’s choice of whom he wants to serve as his representative.

See more at Plaintiff’s Reply In Support of Plaintiff’s Motion for Partial Summary Judgment and Preliminary Injunction,…

 

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Robert H. Thomas is one of the preeminent land use lawyers in Hawaii. He specializes in land use issues including regulatory takings, eminent domain, water rights, and voting rights cases. He has tried cases and appeals in Hawaii, California, and the federal courts. Robert received his LLM, with honors, from Columbia Law School where he was a Harlan Fiske Stone Scholar, and his JD from the University of Hawaii School of Law where he served as editor of the Law Review. Robert taught law at the University of Santa Clara School of Law, and was an exam grader and screener for the California Committee of Bar Examiners. He currently serves as the Chair of the Condemnation Law Committee of the American Bar Association’s Section on State & Local Government Law. He is the Hawaii member of Owners’ Counsel of America, a national network of the most experienced eminent domain and property rights lawyers. Membership in OCA is by invitation only, and is limited to a single attorney from each state. Robert is also the Managing Attorney for the Pacific Legal Foundation Hawaii Center, a non-profit legal foundation dedicated to protecting property rights and individual liberties. Reach him at rht@hawaiilawyer.com He is also a frequent speaker on land use and eminent domain issues in Hawaii and nationwide. For a list of upcoming events and speaking engagements.