More On The Democratic Party’s “Open Primary” Challenge

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Robert Thomas

BY ROBERT THOMAS – 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.

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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.


  1. As a former delegate to the '78 Con Con I remember it very differently.Most of the delegates though nonpartisan were democrats and later many were in the legislature and even Governor. These fellow members saw the novelty of this voting method as a way to integrate not segregate the parties and thus the electorate. Later the legislature made the districts single members thus replacing a minority party participation. Now the democrats want a way to control the outcome of the primaries with party members only with the fear of crossover votes or independents skewing the turnout numbers. What hypocrisy. But the few control the many in Hawaii and even the amount of ballots were controlled to stop dissidents in the last election with zero repercussions . Think not? What ever happened to the Attorney Generals review ordered by Neil? Nada.
    So think about the last time you remember the full participation of most voters- some 20 years ago. when will the majority take back the process? When they fell that their vote counts. Take the presidential caucus process as the turnout was large and though at different times for the parties the thousands who turned out had a say. Now you must be one of the few to vote.

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