The state attorney general’s office has defended the state’s open primary as constitutional, arguing that even if it places a burden on political parties, that burden is justified because of the state’s interest in removing barriers to voting, protecting voter privacy and supporting a vibrant multiparty system.
The Democratic Party of Hawaii filed a lawsuit in June alleging that the open primary violates the party’s free association rights under the First Amendment. In filings in federal court on Monday, the state, which is representing Scott Nago, the chief election officer, counters that the party has failed to demonstrate how the open primary infringes on its rights.
Voters, regardless of party affiliation, are allowed to choose a political party and vote for that party’s candidates on the open primary ballot. The Democratic Party maintains that the open primary enables voters who are hostile or indifferent to the party’s platform to help select the party’s candidates for the general election. The party believes that only voters who are party members or who publicly declare their party affiliation before the primary should be entitled to determine the party’s candidates.
But the attorney general’s office counters that the party has failed to show a "severe burden" to its free association rights — a legal standard used by the courts when deciding whether election laws are constitutional — in part because voters do affiliate with the party in the open primary through the act of choosing to vote only for that party’s candidates.
"And regardless of whether that burden is judged to be severe or modest, the state’s interests in supporting the democratic process, removing barriers to voting, privacy, and supporting a vibrant multi-party system are sufficient to justify the open primary and uphold its constitutionality," Deputy Attorneys General Deirdre Marie-Iha and Marissa Luning said in court filings.
The attorney general’s office also contends that even if the court decides that the open primary is unconstitutional, the court should leave it to the state Legislature — and not the court or the party — to recast state laws governing the primary and voter registration. "Refashioning the primary, should it prove necessary, is the sole prerogative of the Hawaii State Legislature," Marie-Iha and Luning argued.
A hearing on the party’s motions for a preliminary injunction and partial summary judgment is scheduled for Oct. 7 before Judge J. Michael Seabright in U.S. District Court. The state has filed a countermotion for summary judgment in favor of Nago.
Nago has informed the court that preparing for the August primary begins months in advance, so any court injunction seeking to alter the process could potentially delay the primary election and then possibly the November general election. Nago also warned of the potential for voter confusion if any aspect of the primary election is changed.
Tony Gill, the attorney representing the Democratic Party of Hawaii, said he is preparing a reply to the state’s filings for the court next week. "I understand the points they’re making. We think we can handle them," he said.
VOTERS in 1978 approved a constitutional amendment for an open primary on the recommendation of a state constitutional convention. Hawaii is one of 11 states with open primary systems, according to the National Conference of State Legislatures.
The party’s lawsuit has exposed differences between some of its most dedicated activists and elected officials.
Most voters choose to participate in Democratic primaries because the party has dominated island politics since statehood. Activists are concerned that primaries are diluted by voters — including Republicans and independents — who might not share the party’s platform and core values. But many elected officials, including Gov. Neil Abercrombie and several leading state lawmakers, believe restricting the primary could reduce voter participation and conflict with the party’s "big tent" message of inclusion.
