For the past 30 years, voters in Hawaii’s primary elections have been able to vote for candidates they prefer without being registered with any political party — but the Democratic Party here wants to challenge that system in court.
Hawaii is among 11 states that conduct "open" primaries, according to the National Conference of State Legislatures, but attorney Tony Gill resigned as chairman of the Oahu Democrats to argue in court that the system violates the First Amendment’s freedom of association, which has been extended by courts from freedom of speech. Eleven other states comply with that freedom by conducting "closed" primaries, limiting voters to those registered with a party prior to election day.
Two dozen states have what the conference classifies as "hybrid" systems, including what Gill describes as a "semi-closed" system that he advocates. In those states, including Alaska, a political party may decide whether to permit voters who are unaffiliated to cast ballots in their party, along with registerered members.
"They don’t have to be members of the party," Gill said of the party’s proposal. "They can be completely unaffiliated. They could never have seen a Democrat close-up, but they’re interested enough in the policy of the party to say, ‘My name is Joe Blow, I live at so-and-so and I’d like to pull your ballot.’ That enables us to talk to them …The conversation is the key part."
The permission to vote without registering as a party member would be required 60 or 90 days before the primary election.
"In that manner, the party can define itself and select its standard-bearers," Gill said. "We value the input of people who want to converse with the party."
However, being denied the right to vote on the Democratic ballot without having registered with the party, many people will not bother to vote, said political analyst Dan Boylan, professor emeritus of history at the University of Hawaii-West Oahu. He predicted that required party registration would result in voter turnout being "even less than it is, and it’s practically nothing now," far below the national average.
The Democratic Party "has succeeded in making itself the only game in town," Boylan noted. "That being the case, increasingly people are drawn to the primaries to vote there because they feel that’s going to be their effective vote."
In a state dominated by the Democratic Party, many voters who may be Republican, third-party loyalists or true independents draw the Democratic ballot because that’s where the action is on primary election day.
That will certainly be the case next year, when U.S. Senate incumbent Brian Schatz squares off with U.S. Rep. Colleen Hanabusa for Schatz’s seat. The race could depend largely on organization, Boylan said.
As former state Democratic Party chairman and leader in Hawaii of Barack Obama’s 2008 presidential campaign, Schatz "will have a terrific organization" in his first election for the seat he holds, Boylan said. At the same time, Hanabusa "would have the support of unions, which might very well be able to get their people out and have the organizational ability to beat the drum."
If the semi-closed primary system in in force, Boylan concluded, "I think it’ll all come down to organization and the question will be who has the better organization."
What it would also mean is little or no influence by the large number of voters not officially affiliated with the Democratic Party.
David Chang, the state’s Republican Party chairman, acknowledges that many GOP supporters cross the lines, even though "I encourage my voters to not switch over, to vote in the Republican Party so we could show the strength of our party through the primary system. I really do not believe that’s a significant difference in how the election plays out."
"I think having an open opportunity for all of Hawaii’s citizens is much better than having a closed primary," Chang said. "If we’re trying to limit the people’s ability to choose good candidates, I think it goes against our democratic values."
Democratic Party Chairman Dante Carpenter pointed out that only 30,000 of the state’s 700,000 voters are registered Democrats. He said the lawsuit will be aimed at bringing "some depth and meaning and some semblance of the public good" to the voting system.
The 1978 state constitutional convention authorized the open primary to replace the prior closed system, which had been in place for 10 years. Prior to that, Hawaii’s election system was what Gill described as "functionally identical" to the present system, and benefited "the Republican oligarchy" from 1900 to 1968. The essentially closed primary election in 1978 resulted in a voter turnout 74.6 percent of eligible voters. Since then, the primary turnout has fallen to 42 percent.
Don’t blame the open primary for failing to spark high turnouts, cautioned Neal Milner, professor emeritus of political science at the University of Hawaii.
"That’s one variable that you don’t like and assuming that the effects come from that," Milner said. "There have been a lot of other changes since that time." One of those, he pointed out, "is the Republican Party as a competitive party pretty much disappeared, so that you have fewer competitive elections since 1978 than you do now.
"The turnout in the ‘60s was extraordinarily high," he added, "and I think by 1978 it had started to drop a little anyway. I wouldn’t right now get into the argument of what the numbers show and the effect of that. … It’s certainly more complex than to think that just because you changed the nature of the primary that that would make a difference."
Gill said he will challenge the system adopted in the 1978 convention as a violation of the First Amendment right to freedom of association. He cited a 2000 ruling by the U.S. Supreme Court that invalidated California’s "blanket" primary system, which allowed a person to vote for primary candidates of any party affiliation, for example, a Republican for governor, a Democrat for attorney general and a Libertarian for state assembly.
In a footnote in that ruling, the high court said California’s blanket system "may be constitutionally distinct from the open primary." Gill said he will argue that "the principle correctly does apply in this circumstance."
How voters will respond to the Democratic position on the issue remains to be seen in a political atmosphere where voters don’t identify with a party.
"The growing group in politics in the state and nationally is the independent group," Boylan said. "Both parties are fighting apathy in this state and lack of interest in politics and political activity. That’s bad for both of them. So if you suddenly limit who can participate in your primary elections, then you’re, I think, making a huge, huge mistake."
"It could be a public relations mistake," Gill acknowledged. "It’s just that eventually we have to honor what we say we believe in."
