This article appeared in the Tuesday, June 18 edition of the Honolulu Star Advertiser
Suit seeks closed primary election
The state’s current system dilutes the nominating process, says the Democratic Party of Hawaii
By Derrick DePledge
POSTED: 01:30 a.m. HST, Jun 18, 2013
The Democratic Party of Hawaii filed a lawsuit Monday in federal court challenging the state’s open primary system as an unconstitutional violation of the First Amendment right to free association.
The lawsuit contends that only voters who are party members or who publicly declare party affiliation in advance should be able to participate in primaries. The open primary system, the suit alleges, enables all voters, including some who are indifferent to or even opposed to the party’s beliefs, to help select the party’s candidates.
Democrats have asked for a preliminary injunction that would prevent the state Office of Elections from holding an open primary.
“We want to be able to select our candidates by and among people that actually want to engage with the Democratic Party in a serious conversation about what the world needs and how we fit in,” said Tony Gill, an attorney who filed the lawsuit on the party’s behalf.
Democratic activists have wanted the party to challenge the open primary system for the past several years out of disappointment that the party’s nominating process has become diluted. But prominent elected Democrats have resisted, arguing that the majority party is built on a “big tent” philosophy that welcomes all voters.
“I do not support the lawsuit,” Gov. Neil Abercrombie said in a statement. “The Democratic Party has always been inclusive, drawing strength from bringing together a diversity of people and perspectives.”
Democrats have dominated Hawaii politics since statehood, so most voters choose to participate in Democratic primary elections, which are administered by the state. In 2012, for example, 81 percent of primary voters pulled Democratic ballots. The party has only about 60,000 card-carrying members, yet more than 237,000 voters participated two years ago.
Many elected Democrats fear voters might be turned off if they have to become party members or publicly declare party affiliation to participate. Hawaii had a closed primary system between 1968 and 1978. Voters approved the open primary on the recommendation of a state constitutional convention in 1978.
Hawaii is one of 11 states with open primary systems, according to the National Conference of State Legislatures.
State House Majority Leader Scott Saiki (D, Downtown-Kakaako-McCully) said he would look into whether House Democrats have standing to intervene and oppose the lawsuit, which is being heard in U.S. District Court.
“We should be sending the message that we are inclusive and tolerant of different perspectives,” he said.
State Sen. David Ige (D, Pearl Harbor-Pearl City-Aiea) said a closed primary system could create barriers for voters. “I’ve been a Democrat my entire career and the party has always been one of inclusion,” he said in an email. “A closed primary would create further barriers for voters and not allow them the opportunity to vote for the person they believe in. We should be encouraging voter participation and not limiting it.”
Mike McCartney, president and chief executive officer of the Hawaii Tourism Authority, had refused to file a similar lawsuit when he served as party chairman several years ago. “The primary should be open to all voters and not closed to the party,” he said. “What we want to do is give people more choices, not less choice.”
Since 2006 the party’s constitution has stated that the open primary system does “violence to the party’s associational freedoms and the individual freedoms of its membership to define their own political views.” The constitution urges the party’s state central committee and party chairman to take action “to correct this injustice.”
Dante Carpenter, the party’s chairman, said in a statement that the lawsuit would help “ensure Democrats are elected at the primary stage by their fellow Democrats.”
The U.S. Supreme Court ruled in California Democratic Party v. Jones in 2000 that a voter-approved blanket primary system in California was unconstitutional because it violated the First Amendment right to free association. The blanket primary had allowed voters to choose candidates freely regardless of party affiliation.
The court ruled that a political party’s right to exclude is most important during the candidate selection process. “The First Amendment reserves a special place, and accords a special protection, for that process, because the moment of choosing the party’s nominee is the crucial juncture at which the appeal to common principles may be translated into concerted action, and hence to political power,” the court held.
If Hawaii Democrats prevail, the Office of Elections would have to devise new primary regulations. Scott Nago, the state’s chief election officer, declined to comment on the lawsuit.
Gill said the Democratic Party is in transition, a critical time that demands the party be able to select candidates. He said open or blanket primaries dilute political parties and make party views less relevant.
“The Democratic Party’s work is not done. It’s time for a generational renewal,” he said. “And the conversation that we have to have about where to go, given the challenges of the current world, is a conversation that is very sensitive. It requires commitment on the part of not only the party, but the people that the party wants to engage, and the people who want to engage the party.
“Conversation is a two-way street. And the key thing about it is that both sides know who they’re talking to.”