Hawaii’s Open Primary Not Unconstitutional

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Robert Thomas

BY ROBERT THOMAS – Here’s a ruling we’ve been waiting for in the Hawaii Democratic Party’s federal court challenge to Hawaii’s “open primary” process. U.S. District Judge J. Michael Seabright yesterday denied the Party’s motions for summary judgment and preliminary injunction, and instead granted the State’s cross-motion, effectively ending the case.

The court held that the open primary system is not facially unconstitutional, concluding that there may be circumstances in which an open primary does not interfere with a political party’s First Amendment rights, and that the Party had not supplied any evidence that its associational rights had been “severely” burdened by the open primary requirement. Althought it dismissed the lawsuit — the Party raised only a facial claim — the court left open the possibility of an as-applied challenge:


The State concedes that a ruling in its favor on the facial challenge in this case would not preclude an “as-applied” challenge in later proceedings with a fully-developed evidentiary record. Oct. 7, 2013 Tr. at 43-44. This recognition is consistent with Ninth Circuit caselaw distinguishing facial and as-applied challenges..

Slip op. at 12-13 n.7. Thus, the bottom line is that maybe the Party should have brought an as-applied challenge and submitted evidence demonstrating the severity of the burden on its associational rights.

Although the court’s order is straightforward, and at 36 pages, fairly concise, here are the key points. As noted above, the case turned on whether Hawaii’s mandatory open primary — in which voters are allowed to freely choose one party or another’s ballot on Primary Day, and then vote only that ballot — represents a “severe burden” on the Democratic Party’s First Amendment associational right to limit those who choose its standard-bearers to Party members.

The Party asserted that being forced by state law to open its selection process to anyone who asks for a Democratic ballot on Primary Day severely burdened its right to serve as its own gatekeeper. The Party analogized the the burden on its rights to those in California Democratic Party v. Jones, 530 U.S. 576 (2000), where the Court held that a blanket primary (where voters are provided a single ballot with all candidates) was a severe burden.

The district court, however, rejected the Party’s assertion that it is being  “forced to ‘associate’ with voters who are ‘adherents of opposing parties,’ and ‘who have worked to undermine and oppose’ the DPH [Democratic Party of Hawaii].” Slip op. at 32-33. The court refused to “assume” that this is the case, and noted that Jones, by contrast, was decided on an evidentiary record:

The court, however, cannot assume (1) that such “non-adherents” have burdened the DPH by voting in a Democratic primary in the past, (2) that DPH candidates have in fact been forced to change their message to cater to these non-DPH voters, much less (3) that the DPH has been “severely” burdened over the past thirty-three years that Hawaii has had an open primary.

Slip op. at 33. The court noted that many of the “affiliated” Democrats (those who vote a Democratic ballot, but who are not formally Party members) likely are Democrats in reality, and actually agree with the Party:

Of course, it is possible (even likely) that some “crossover” voters (i.e., members of, or sympathizers with, a rival party) have temporarily affiliated with the DPH by voting Democrat in a Hawaii primary election. But it is also possible (even likely) that — given Hawaii’s demographics — a large percentage of primary voters who were not formally registered with the DPH, but who affiliated with it by voting in a Democratic primary, fully considered themselves to be Democrats, and thus were not working to “undermine and oppose” the DPH. And if Hawaii primary election voters choosing a Democratic ballot have views that completely agree with the DPH’s platform, then the DPH is not being forced to associate with those who are antithetical to its views. The DPH would likely not be “severely” burdened by not being able to reject persons who fully embrace its values. The possibility of crossover voters might make no difference.

Slip op. at 33-34 (footnotes omitted). Hawaii, after all, is super-blue:

Both the DPH and the State agree as a matter of common knowledge that Hawaii is a heavily Democratic State. See, e.g., Doc. No. 15-1, Def.’s Counter-Mot. at 8; Doc. No. 19, Pl.’s Reply at 4. This fact is supported by publicly-available polls — according to an August 3, 2012 Gallup poll, “[a]long with the District of Columbia, Rhode Island and Hawaii rank as the most Democratic states in the country[.]” L. Saad, Heavily Democratic States Are Concentrated in the East (Aug. 3, 2012), available at https://www.gallup.com/poll/156437/heavily-democraticstates-concentrated-east.aspx (last visited Nov. 14, 2013). As an example, Hawaii’s current State Senate consists of twenty four Democrats and one Republican, and its House consists of forty four Democrats and seven Republicans. See https://www.capitol.hawaii.gov/members/legislators.aspx?chamber=S (last visited Nov. 14, 2013).

Slip op. at 33 n.14. We must admit to being caught a bit flat-footed by the court’s focus on the state of mind of what is perhaps a majority of the affiliated Democratic voters. We believed the analysis would focus more on the Party’s right to determine whom it wants to associate with (those whose political views have been assured by their membership in the Party), and not, as the court held, on the degree to which the affiliated Democrats may actually agree with the Party’s positions. Should it be enough that the Party doesn’t want anyone but card-carrying Party members to select its general election standard-bearers, even if a huge majority of the non-card-carriers may agree with the Party’s positions?

We’re not sure, but maybe the next stop is the Ninth Circuit.

Stay tuned.

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Order (1) Denying Plaintiff’s Motion for Partial Summary Judgment; (2) Denying Plaintiff’s Motion for Preli…




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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.