A federal judge indicated Monday that the Democratic Party of Hawaii’s lawsuit challenging the state’s open primary election will rise and fall on whether allowing all voters to choose the party’s candidates places a “severe burden” on the party’s right to free association.
Judge J. Michael Seabright said he will likely rule in favor of the party if he finds that the open primary is a “severe burden” on the First Amendment right to free association. The “severe burden” test is the legal standard courts use when determining whether election laws are constitutional.
The state attorney general’s office has urged the court to uphold the open primary, arguing that regardless of whether the burden on the party is severe or modest, the state has an interest in removing barriers to voting, protecting voter privacy and supporting a vibrant multiparty system.
Seabright used a hearing on the lawsuit Monday in U.S. District Court to isolate the core issue of whether the open primary, on its face, is unconstitutional.
Tony Gill, an attorney representing the Democratic Party of Hawaii, said the party wants voters to publicly affiliate before a primary, either by becoming a party member or by making some form of public declaration. He described affiliation as a two-way street — the right of voters to affiliate with the party of their choice and the right of the party to accept or reject that affiliation.
Gill described the open primary as a one-way affiliation that leaves the party with no idea who is choosing the party’s candidates for the general election.
“What the Democratic Party does not want is anonymous persons deciding its candidates,” he told the judge.
Seabright questioned Gill about why the party has chosen not to present any factual evidence showing the political harm from crossover voting in an open primary. The party has about 65,000 members, yet more than 237,000 voters participated in the Democratic primary in 2012, a clear sign that most voters, regardless of party, prefer to vote in the Democratic primary because of the party’s historic political dominance.
But Seabright said he could not draw conclusions from those numbers — or the state’s Democratic dominance — alone, and at several points asked Gill why the party did not need to present evidence of a “severe burden.”
GILL said that the issue is not crossover voting, but public affiliation.
Deputy Attorney General Deirdre Marie-Iha, representing Scott Nago, the state’s chief election officer, argued that voters who choose to vote in the Democratic primary are committing an act of affiliation with the party. The act is not an empty one, she told the judge, since voters who choose the Democratic primary are precluded from voting in other party primaries.
Marie-Iha said the U.S. Supreme Court made a similar finding about affiliation in a footnote to California Democratic Party v. Jones, the 2000 ruling that held that California’s blanket primary was an unconstitutional violation of the party’s right of free association.
A blanket primary — where voters can chose candidates from several political parties — is different from Hawaii’s open primary, in which voters must stick with one party ballot of their choice. No court has ruled directly on whether an open primary is constitutional on its face, and Seabright said the Hawaii case could ultimately end up before the Supreme Court.
Seabright said that if he were to rule in the party’s favor and issue a preliminary injunction halting the open primary, he would schedule additional hearings on the remedy. The judge said, however, that he would not be inclined to decide how a new primary system should be constructed, a decision that would be left up to the state Legislature.
The judge also said that he would want to hear a specific timeline for constructing a new primary given the deadlines the state faces in preparing for next year’s August primary and November general election.
Hawaii had a closed primary system from 1968 to 1978. Voters approved the open primary through a constitutional amendment in 1978.
