The Democratic Party of Hawaii has brushed aside the state’s defense of the open primary, describing a system where all voters, regardless of their political affiliation, can select the party’s nominees as a "blunt instrument that wreaks broad constitutional damage by negating freedom of association."
In a filing Monday in federal court, the party argues that open primary elections have the dual flaws of being all-inclusive and anonymous. The open primary, the party contends, grants every voter the privilege of choosing the party’s nominees without any of the responsibilities of party membership.
The state argues that the open primary is justified because of the state’s interest in removing barriers to voting, protecting voter privacy, and supporting a vibrant multiparty system, but the party calls that argument "insufficiently compelling."
The state contends the party has failed to show a "severe burden" to its free association rights.
The open primary, the party contends, places a "severe burden" on the party’s First Amendment right to free association, the legal threshold that courts weigh when deciding whether election laws are constitutional.
"True political association would require, as a bare minimum, that two persons know of each other, in order to voluntarily choose to collaborate with each other," Tony Gill, the attorney representing the party, wrote in the court filing.
"The ‘open’ primary prohibits DPH from either knowing or choosing," said Gill, referring to the Democratic Party of Hawaii. "The ‘open’ primary strips DPH and its members of discretion about whether to associate with vast numbers of anonymous persons.
"It is not even possible for DPH to locate these people and engage them in conversation, yet these anonymous people have been granted full rights to select DPH standard bearers and thereby define DPH policy, without any of the responsibilities of membership. This diminishes DPH’s ability to build true political community, based on mutuality and the free choice to associate."
The Democratic Party sued the state in June to overturn the open primary system, which voters approved through a constitutional amendment in 1978. The party wants only party members or voters who publicly affiliate with the party before a primary to be able to select the party’s candidates for the general election.
The party and the state Attorney General’s Office, which is representing Scott Nago, the chief election officer, have filed competing briefs in advance of a hearing on Oct. 7 before Judge J. Michael Seabright in U.S. District Court.
The Attorney General’s Office declined to comment on the party’s filing on Monday.
Several top Democrats have opposed the lawsuit and worry that it sends the wrong message to voters, who have overwhelmingly preferred Democratic candidates in elections since statehood. The party has only 65,000 members among the state’s more than 700,000 registered voters.
But Democrats behind the lawsuit say that because most voters choose to participate in Democratic primaries, the nomination process is influenced by independents, Republicans and others who may not share the party’s platform or goals.
Gill, who is known among Democrats as a gifted — and often acerbic — debater, called the state’s goal of supporting a vibrant multiparty system troubling.
"Using the power of the state to equalize political outcomes, in a district where most citizens think one way, is a dangerous idea," Gill wrote. "Excusing political fecklessness by penalizing political competence is a dangerous idea. Also, if the purported state interest is to preserve parties as interest groups that are ‘viable and identifiable’ and able to engage in robust debate, how can any party take a nonconventional view, if all voters can select its candidates?"
