Tuesday, August 16, 2016
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Ninth Circuit Upholds Open Primary, Says It Does Not Violate Democrats’ Rights
By a MetNews Staff Writer
Hawaii’s open-primary law does not violate the First Amendment associational rights of the state’s Democratic Party or its members, the Ninth U.S. Circuit Court of Appeals ruled yesterday.
Senior Judge A. Wallace Tashima said the party failed to show that the law is unconstitutional on its face.
Hawaii voted to implement an open primary in 1978. The law requires primary voters to make a choice on primary day as to which party primary they wish to vote in, but the choice is made in the secrecy of the voting booth and no declaration of preference is required.
In 2006, the state Democratic Party amended its constitution to provide for a closed primary in which voters could only participate if they registered as Democrats or maintained party membership. In 2013, it challenged the open-primary law as unconstitutional.
Chief D Judge J. Michael Seabright of the U.S. District Court for the District of Hawaii granted summary judgment in favor of the defendant, state Chief Elections Officer Scott Nago.
Tashima joined by Judges Richard C. Tallman and Andrew D. Hurwitz, said the district judge was correct because the party failed bear the burden of proving that the law burdens the party in the manner it claims.
The fact that only 65,000 Hawaii voters formally affiliate with the party, while about 250,000 vote in Democratic primaries, doesn’t prove that “crossover voting” is depriving Democrats of the right to choose their own candidates, or that there is a “clear and present danger” of its doing so, Tashima said. Since Hawaii voters do not register by party with state elections officials, he said, the membership statistic “is ambiguous at best.”
Nor did the party show that the open primary forces its candidates to moderate policy stances, Tashima wrote.
The case is Democratic Party of Hawaii v. Nago, 13-17545.
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