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Is The Tide Turning? Ninth Circuit Upholds Open Primaries in Hawaii

by Shawn M. Griffiths, published

PORTLAND, ORE. - In a major victory for the California-based Independent Voter Protect (authors of California’s 2010 groundbreaking nonpartisan primary system), the Ninth Circuit Court of Appeals echoed a lower court's decision Monday to uphold Hawaii's open primary system. The court ruled that the Democratic Party of Hawaii failed to provide sufficient evidence that state election law severely violates its First Amendment right to association.

The Democratic Party of Hawaii (DPH) brought a facial argument against the open primary system in 2013, arguing that because state election law allows anyone to vote in a party primary, the party is compelled to potentially associate with voters who "may not be members of the party, may have no affiliation with the party... and cannot be known to the party either before or after the primary election.”

Voters in Hawaii are not required to declare party affiliation when registering to vote. Under current primary law, which was adopted by voters in 1978, all voters are allowed to choose between a Democratic or Republican ballot on election day. Once a voter chooses a party's ballot, they cannot switch over to vote for a candidate in the other party.

District Court Judge Michael Seabright ruled in November 2013 that though this creates ambiguity with regards to a voter's party affiliation, the court cannot simply assume this ambiguity severely burdens the associational rights of the party. Seabright stated that since the grievance brought by the plaintiffs is a factual question, the Democratic Party bears the burden of proof -- a burden the party did not satisfy.

The three-judge panel on the Ninth Circuit came to the same conclusion. Writing the court's opinion, Judge A. Wallace Tashima said, "The Democratic Party’s facial challenge fails because the Party has not developed evidence showing that Hawaii’s open primary system severely burdens its associational rights."

Wallace later added:

"The Democratic Party’s preference for limiting primary participants to registered Party members, coupled with the fact that more people vote in Democratic primaries than are formally registered with the Party, is not sufficient to show that Hawaii’s open primary system severely burdens the Party’s associational rights."

Again, similar to Seabright's ruling, the Ninth Circuit panel stated that since Hawaii does not give voters the option to register with a party, "the 185,000 people voting in Hawaii’s Democratic primaries who are not formal Party members may nevertheless personally identify as Democrats."

"The Hawaii Democratic Party attempted a pre-emptive strike against open primaries. Had it prevailed, the major parties would have achieved full control over who could participate in their state-funded primary elections, the taxpayers be damned. Will the Democrats ask the U.S. Supreme Court to review the case? With Justice Scalia gone, the fate of open primaries may depend on whom the next president picks to fill his spot," said Harry Kresky, who along with attorney Chad Peace co-authored an amicus brief in the case on behalf of the Independent Voter Project (who in full disclosure is a publisher of and

The Democratic Party of Hawaii is not the only major party to challenge the constitutionality of open primaries in order to restrict primary election access to party members only. In Montana, for instance, the state Republican Party joined a lawsuit to overturn the state's open primary law. However, it dropped out of the lawsuit in April after three courts refused to close June's primary elections.

The Independent Voter Project, along with a coalition of nonpartisan organizations and 7 individual plaintiffs, filed a lawsuit challenging the constitutionality of New Jersey's closed primary in 2014. The lawsuit alleged that the closed primary gives private political parties and their members extra and exclusive access to an integral stage of the election process, while disenfranchising many voters including nearly 50% of the electorate who do not identify with any political party.

READ MORE: Lawsuit Filed in NJ Federal Court Challenges Constitutionality of Partisan Primary Elections

The New Jersey lawsuit was dismissed by a federal district judge and the Third Circuit Court of Appeals. Both courts said the state can limit the fundamental right to vote in primary elections and if voters want to vote in the primary, they can "simply join a party." IVP petitioned the Supreme Court to hear the case, but the high court has so far refused to take it up.

Read the Ninth Circuit's full opinion:

Photo Credit: AP

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