PORTLAND, Ore. >> An attorney for Hawaii Democrats argued Wednesday that voters should have to join the Democratic Party in order to cast ballots in party primaries, a meaningful political association that represents the difference between “being a citizen and buying a can of soup off the shelf.”

Hawaii Democrats claim the state’s open primary violates their free association rights under the First Amendment because all voters can participate. U.S. District Judge J. Michael Seabright in Honolulu ruled against the Democrats in 2013, but the party appealed, and arguments were heard Wednesday by a three-judge panel of the 9th U.S. Circuit Court of Appeals at Pioneer Courthouse in Portland.

Tony Gill, an attorney for the Democratic Party of Hawaii, said voters have no right to participate in party primaries unless they are willing to publicly affiliate with the party, preferably a month or two before the vote.

“This is the difference between being a citizen and buying a can of soup off the shelf,” Gill told the judges. “If I buy a can of soup off the shelf, it doesn’t make me a shareholder in Campbell’s.”

The party’s lawsuit has divided Democrats. Many of the state’s most prominent elected officials have opposed the legal challenge, arguing that the suit undermines the majority party’s message of inclusiveness.

Closed primaries have also been an issue in the Democratic presidential campaign between former U.S. Secretary of State Hillary Clinton and U.S. Sen. Bernie Sanders. Sanders, an independent who chose to run as a Democrat, has criticized closed primaries because independents are unable to vote.

Sanders has performed better in states with open primaries and in party caucuses, like in Hawaii, where the senator swamped Clinton in a caucus in March.

Turnout example

The Democrats’ Hawaii presidential caucus helps illustrate the issue at the heart of the lawsuit. Voter turnout at the Democratic-run caucus — where voters had to join the party — was about 33,000, the second highest in history after the 37,000 that participated when Hawaii-born Barack Obama defeated Clinton in 2008. Turnout in the state-run Democratic primary in 2014 — where all voters could participate — was more than 237,000.

Gill told the appeals court panel Wednesday that voters who do not belong to the party, but are perhaps drawn to a marquee race in a primary, can dilute the party’s nominees down the ballot.

The judges at times seemed bemused by the legal challenge given that Democrats have dominated politics in Hawaii since statehood.

“It’s hard for me to understand where the beef is here when your party controls about 90 percent of all the elected positions in Hawaii,” Judge Richard Tallman said.

Judge Andrew Hurwitz said primary voters “may be died-in-the-wool Democrats who don’t care to join your organization,” adding, “How do we know that you’ve actually been required to associate with ‘bad guys,’ if you’ll use my term?”

Hurwitz pressed Gill over how party registration equates to meaningful association, because voters who want to join rarely get rejected. “Donald Trump shows up and wants to register as a Democrat,” the judge said hypothetically. “He can, can’t he?”

Tallman questioned whether Hawaii Democrats would impose a “litmus test” on platform issues before allowing people to join and vote in primaries.

Voters in Hawaii opted for an open primary after a state constitutional convention in 1978 recommended the change. Part of the rationale against party registration was to discourage plantation-era coercion to vote the party line.

Hawaii Deputy Attorney General Deirdre Marie-Iha told the appeals court that an open primary removes barriers to voter participation. She, too, noted the state’s history of political dominance by Democrats.

“The people who vote in the Democratic primary are Democrats whether they register with the party or not,” she said.

Legal questions

Hawaii Democrats brought the lawsuit based on California Democratic Party vs. Jones, a U.S. Supreme Court decision in 2000 that threw out a blanket primary system in California in which voters were allowed to choose from all candidates regardless of party.

U.S. District Judge Seabright’s 2013 ruling in Honolulu against the party rested on two findings: that the party failed to prove the open primary was a “severe burden” on free association rights because other political parties might want all voters to participate; and that the party failed to present evidence that open primaries have enabled independent or Republican voters to influence the party’s message.

Seabright’s second finding — that Democrats failed to present any evidence of the impact of the open primary — could be key.

The 9th Circuit has issued conflicting rulings on the subject.

In Arizona, Libertarian Party vs. Bayless in 2003, the appeals court upheld a challenge by Libertarians to a semiclosed primary because nonmembers were allowed to help choose the party’s precinct committeemen. But the appeals court refused to apply the ruling to Democrats and Republicans because of a lack of evidence about the impact.

In Democratic Party of Washington State vs. Reed in 2003, the appeals court found that a blanket primary is an unconstitutional violation of free association regardless of whether the political parties showed proof.

The 9th Circuit, which is also reviewing an open primary lawsuit from Montana Republicans, will take the arguments from Gill and Marie-Iha under advisement.

Privacy and politics

Outside Pioneer Courthouse, Marie-Iha said the state is defending the open primary to preserve “access for the voters to the ballot, making it easier for people to vote, and protecting voters’ privacy.”

Gill said the issue is whether a political party should be “vulnerable to the flavor of the day.”

“What matters to a Democrat is the survival of the Democratic Party as an organization,” he said. “And people who say, ‘I will walk away if I don’t get my candidate,’ are not Democrats.”