Latest On Democrats’ Challenge To Hawaii’s Open Primary

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Robert Thomas

BY ROBERT THOMAS – Here’s the latest on the Hawaii Democratic Party’s federal court challenge to Hawaii’s “open primary” election system, a case we’ve covered earlier.  Both the Party and the defendant State of Hawaii have sought summary judgment, but according to this report (“Judge hints at ruling in Democratic Party’s lawsuit“), it may be too early in the case for either side to win as a matter of law.

The issue at the heart of the case is whether Hawaii’s mandatory open primary system of choosing a party’s standard-bearer to run in the general election is a “severe burden” on the Party’s right to association.  As this story by Ian Lind in Civil Beat (“Is ‘Open Primary’ a ‘Severe Burden’ on Democrats?“) notes:


That question of whether or not the “open primary” is a “severe burden” on the party will likely determine the eventual outcome of the case.

If the court agrees that the open primary creates a severe burden on the right of association, then it must subject the state’s justifications to “strict scrutiny.” Under this standard, the state’s justifications must be both “compelling” and narrowly drawn, both tough legal standards to meet.

But if the burden on the party’s rights is something less than severe, the court would apply a lower standard of review, perhaps requiring only that the state have a “rational basis” for adopting the open primary.

Honolulu attorney Robert Thomas, who is involved in the legal challenge to the state’s most recent reapportionment plan, says judges are typically reluctant to strike down constitutional provisions on facial grounds.

But a finding of a “severe burden” would likely be fatal to the state’s case and the open primary, Thomas said.

“The question here is whether they have to prove it, or whether the judge can assume it as a matter of law,” Thomas said. “I don’t think that question has been answered.”

Mr. Lind followed up on that report with “Another look at the Democratic Party lawsuit against state’s ‘open primary’” on his own blog, correctly concluding that “[t]he case is a classic clash of two constitutional rights,” the Party’s right to association and to determine who votes to choose the Party’s general election candidate on one hand, and on the other, the voters’ rights to choose their representatives in primary elections, which, in Hawaii’s deep-blue political environment, often determine who wins the general election. The open primary system, which allows anyone to associate on primary election day with the Democratic Party for that day (or longer), is a voter-focused process. The Party’s associational right to choose its standard-bearer, however, could be the trump card, since the U.S. Supreme Court in California Democratic Party v. Jones, 530 U.S. 567 (2000), affirmed that principle is very tough to overcome.

Legalities aside, what to us makes this case intriguing is the very fact that the Democratic Party — whose members form the overwhelming majority of Hawaii’s federal, state, and local elected officials — found this lawsuit a necessary or wise move. You’d think that if the mandatory open primary resulted in general election candidates who diluted Democratic Party values, the Party could gets its elected members to try and change the law, rather than file a lawsuit that most of its elected officials have publicly disavowed, and, as the Civil Beat story notes, the public has shown only a “collective yawn” at.

What this indicates to us is that the Party’s leaders really want a more ideological Democratic Party, and perhaps this lawsuit, while not exactly popular, is part of a long-term gambit to take the Party — and Hawaii — further into the blue territory. If that happens, expect even more aggressive legislation, which, unless the other party suddenly finds political legs that it hasn’t had for decades (or takes advantage of this by positioning itself as the “big tent” party), would mean that Hawaii’s leftward arc would not only continue but would likely accelerate.

The Democratic Party leaders appear to be gambling that the Hawaii GOP will remain weak, so we at least won’t be subject to ideologically-based political battles as we’ve recently witnessed from Washington. But if that prediction is wrong, a couple of results may be in the cards: a pitch by the Hawaii GOP for the middle, for those voters who are no longer welcome in the Hawaii Democrats’ ideological litmus-test primary, and if that is successful, legislative turf wars between a more-idelogical Hawaii Democratic Party and a moderated-but-still-likely-minority Hawaii GOP.

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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 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.


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