This background file includes news articles, and letters to the editor by leading Democrats, regarding a possible shift to a closed primary system.  Also included: US Supreme court rulings on two relevant cases.

Types of primaries:

(no party registration)

• Blanket primary, anybody can vote in the primaries of several parties on one ballot

• Open primary, anybody can vote but only in the primary of one party (current Hawaii system)

(party registration)

• Modified closed primary, only party members and independents can vote in a party’s primary

• Closed primary, only party members can vote in a party’s primary

A Challenge to Hawaii's Open Primary System?

From inversecondemnation.com

Do primary voters choose candidates or do they choose parties?  The Honolulu Advertiser posts an interesting story about a possible federal constitutional challenge to Hawaii's system of open primary voting, "Hawaii Democrats may sue to close primaries." 

Under article II, section 4 of the Hawaii Constitution:

no person shall be required to declare a party preference or nonpartisanship as a condition of voting in any primary or special primary election.

Haw. Rev. Stat. § 12-31 provides more details:

Each voter shall be issued the primary or special primary ballot for each party and the nonpartisan primary or special primary ballot.  A voter shall be entitled to vote only for candidates of one party or only for nonpartisan candidates.

Hawaii's process, under which a voter is provided with several ballots, then chooses one secretly to vote is is known as an "open" primary.  Open primaries allow crossover voting since voters can participate in a party's primary election, without regard to the voter's affiliation.  This is in contrast to the "blanket" primary where the voter is free to vote for any candidate regardless of party affiliation, and a "closed" primary where the voter must choose party affiliation prior to election day and is provided only a party ballot.

The question posed by the lawsuit being considered is whether the U.S. Constitution mandates a particular form of primary election, one that allows the parties to determine who votes in their primaries, rather than having the state dictate the process.  The Court has held that California's blanket primary system unconstitutionally restricted political parties' First Amendment freedoms of association.  California Democratic Party v. Jones, 530 U.S. 567 (2000).

However, the Court has also held that a closed primary system was unconstitutional, since it infringed upon the associational rights of a party that wished to open its primary to non-party voters.  Tashjian v. Republican Party of Connecticut, 479 U.S. 208 (1986).

If filed, it could be a very interesting case.

http://the.honoluluadvertiser.com/article/2007/Dec/16/op/hawaii712160331.html

VOTING: ISLE PRIMARY ELECTION LAW UNCONSTITUTIONAL

Don't tell anyone! Hawai'i's primary election law is unconstitutional. In 2000, the U.S. Supreme Court struck down, as unconstitutional, a California proposition that would have allowed voters to vote in any party's primary.

This year the District Court for Arizona, citing the Supreme Court's California ruling, refused to allow Arizona's voters not registered as Libertarians to cast a ballot in Libertarian primaries.

So why is there reluctance to change Hawai'i's primary election law? Fear. Many elected officials, both Democrats and Republicans, like the current unconstitutional law.

Democrats already have a super-majority in both the state Senate and House.

There is fear that if Democrats propose a change in our unconstitutional primary system, voters will see it as a power grab by elected Democrats, not as correction to an unconstitutional system.

Republicans like the current system because they can mess with the Democratic primary election, helping to nominate the weakest Democrat to run in the general election and/or the candidate closest to representing Republican values.

The current system is much like allowing Georgia to select Hawai'i's quarterback in the Sugar Bowl, or like allowing owners of the Pacific Beach Hotel to select the head of the ILWU or the representatives of the Hawai'i Chamber of Commerce to select the head of the HGEA.

Why are we speaking up when it would be easier to let the current unconstitutional system go unchallenged? Because primary elections are intended to nominate the candidates who best represent the values and principles of their respective parties.

We want Democrats to nominate candidates willing to stand up for the values and principles of Democrats.

Richard Port
Democratic national committeeman

LAWSUIT TIMELY WAY TO CHANGE ELECTION LAW

Sooner or later, the election laws here will change to reflect our free association rights under the First Amendment to the U.S. Constitution. In strong Republican states, primary election laws have already been modified to reflect the U.S. Supreme Court ruling in California v. Jones (2000). In fact, Hawai'i is among a handful of states whose primary election laws still fail to comply with Supreme Court case law.

The argument within the Democratic Party of Hawai'i seems to be: How should change be implemented? I believe Democrats should take the initiative by filing a lawsuit immediately for at least four reasons.

1) Both the 2006 Hawai'i Democratic Convention and current State Central Committee approved filing such a lawsuit by substantial votes.

2) The current primary election law in Hawai'i violates the U.S. Constitution.

3) Who votes in party primaries is an issue best addressed by political party members.

4) Each political party will have an opportunity in the 2008 presidential election cycle to discover the registered voters who are voting in their primary elections.

A lawsuit is a timely way to comply with a Supreme Court ruling eight years ago.

Guy Archer

Wednesday, December 12, 2007

Hawaii Democrats may sue to close primary

By Derrick DePledge Advertiser Government Writer

http://the.honoluluadvertiser.com/article/2007/Dec/12/ln/hawaii712120427.html

Several state Democrats, concerned about the influence of crossover voting, want to exclude independents and Republicans from Democratic primaries.

The Democrats, who want to legally challenge the state's open primary system, worry that crossover voting can produce nominees who do not reflect the party's platform.

But the party's leadership has wavered, fearing a closed primary would keep thousands of potential voters away.

Democrats have been the dominant political party in the Islands since the 1950s, but only about 20,000 of the state's more than 662,000 registered voters belong to the party.

Voters can join by simply filling out a membership card, but most do not. Last year, for example, more than 236,000 voters participated in the Democratic primary for U.S. Senate between U.S. Sen. Daniel Akaka and then-U.S. Rep. Ed Case.

The state's open primary system allows voters to choose which party's ballot to pull on election day. A closed primary would require voters to declare their party affiliation before the election to be eligible to vote for a party's candidates.

"The party is tired of having unknown people nominating its candidates by a secret, shadowy process," said Tony Gill, a labor attorney who is prepared to file suit against the state on the party's behalf. "Here's another way of putting it: You don't let another team pick your quarterback."

Neal Milner, a University of Hawai'i-Manoa ombudsman and political analyst, said a closed primary would lower voter turnout but would likely lead to nominees who are closer ideologically to the party's platform.

"The question I would have is why would they want to do this, because it would certainly reduce turnout," he said. "I think it's about getting the candidates some of them want."

The Democratic Party of Hawai'i agreed to a resolution at its state convention last year supporting closed primaries to deter crossover voting. Activists have been pressuring the party's leadership for months to file a lawsuit against the state's chief elections officer challenging the state's open primary system as unconstitutional.

Many of the party's elected leaders, including U.S. Sen. Daniel K. Inouye, fear a lawsuit could be a tactical mistake and a public-relations embarrassment. The Hawai'i State AFL-CIO, one of the party's most important political allies, has threatened to withhold financial support from the party if a suit is filed.

The rift is between some of the party's liberal activists, who believe too many of the party's elected leaders have drifted from the party's platform, and pragmatists who want the party to appeal to an increasingly independent electorate.

Several Democrats declined to comment publicly and some involved had hoped the dispute could be quietly resolved internally. The party is known for its factionalism and, with its leadership aging, competing camps are positioning for future control.

DEEPER ISSUES

The rift over the open primary system is an example of deeper frustration about whether the party is fully taking advantage of its majority power to advance some of the more liberal elements of its platform, some Democrats said.

Many political analysts in Hawai'i believe crossover voting has not had much of an impact on primaries.

But crossover voting does occur. Case openly urged all voters to vote in his primary with Akaka last year and was able to attract many independents and Republicans. Case took 45 percent of the vote despite the fact that party leaders, both in Hawai'i and Washington, D.C., were uniformly behind Akaka.

The Case campaign, which infuriated many traditional Democrats, was not the motivation behind the call for a lawsuit but it has been cited by several Democrats as evidence of how the primary system can be influenced by crossover voting.

"The current primary law in Hawai'i is unconstitutional," said Richard Port, a former party chairman.

The U.S. Supreme Court has ruled that political parties have a First Amendment right of association that the states must consider when regulating the structure of primaries. In 1986, in Tashjian v. the Republican Party of Connecticut, the court found that a closed primary system in Connecticut improperly deprived Republicans from allowing independent voters to vote in Republican primaries.

HAWAI'I LAW FLAWED?

In 2000, in California Democratic Party v. Jones, the court invalidated a blanket primary system in California where voters were allowed to choose from all candidates regardless of party.

"In no area is the political association's right to exclude more important than in the process of selecting its nominee," Associate Justice Antonin Scalia wrote in the court's majority opinion in the California case. "That process often determines the party's positions on the most significant public policy issues of the day, and even when those positions are predetermined it is the nominee who becomes the party's ambassador to the general electorate in winning it over to the party's views."

California modified its primary system in 2001 to let political parties decide before each election whether to allow voters who decline to state their party preference to participate in the party's primary.

The system allows parties to accept independent voters while rejecting voters from competing parties. In the upcoming California presidential primaries, for example, Democrats have agreed to accept independents while Republicans have not.

In Hawai'i, the state had a closed primary system in the decade before the 1978 constitutional convention. But voters agreed on open primaries after the 1978 convention and the existing primary system has been in place for the past three decades.

Hawai'i is among 10 states with open primaries, according to the National Conference of State Legislatures.

Mike McCartney, who stepped down as Democratic Party chairman this year to become executive director of the Hawai'i State Teachers Association, refused to file a lawsuit challenging the state's open primary system because he said voters should decide whether to change the process. Voters will be asked next year whether to hold a constitutional convention in 2010.

McCartney also said a lawsuit would not be worth the party's money or energy. "I think there are more important issues the public wants us as a party to solve," he said.

Jeani Withington, a Big Island attorney who is the acting party chairwoman until the next state convention in May, said she has asked the state Campaign Spending Commission and the Federal Election Commission for guidance on how the party should pay Gill's law firm if it files the suit. She also said the party would have to come up with a public-relations campaign to explain the constitutional issues to voters.

"I just want to make sure that what is being done is done properly," Withington said.

PARTY OPINION DIVIDED

A vote to rescind party authorization for the lawsuit narrowly failed amid procedural confusion at a state central committee meeting last month in Kona. Another vote is possible at a state central committee meeting in January on O'ahu.

State House Majority Leader Kirk Caldwell, D-24th (Manoa), said fighting for a closed primary sends the wrong message for a party that prides itself on being diverse and inclusive. He said Democrats should be exploring how to increase voter participation through election-day voter registration or expanded voting by mail.

Restricting the primary to card-carrying Democrats only, Caldwell and other elected leaders worry, could alienate voters who favor Democrats on issues but may not want to reveal their party preference for privacy or cultural reasons.

Caldwell believes the call for a closed primary is an attempt by some activists to enforce greater party discipline. The platform and the resolutions adopted last year — in addition to favoring a closed primary — contain several controversial positions that many elected Democrats do not actively support, such as impeaching President Bush, repealing the state's three-strikes law against violent criminals, and backing civil unions for gay couples.

"We're so diverse as a party that few candidates are going to be able to pass the litmus test they are going to ask for," Caldwell said.

HOLDING BACK

Jennifer Goto-Sabas, Inouye's chief of staff in Honolulu, described the situation as in a "definite state of limbo." The party's official position is for the chairman to file suit, and Gill is awaiting word on when to proceed. But Inouye and other elected leaders want the party to hold back. "We've let our position be known," she said.

Privately, some Democrats said they did not want the infighting to surface because it could be exploited by Republicans. Gov. Linda Lingle, who won a landslide re-election victory last year, has done well with independents and moderate Democrats by downplaying her Republican label.

Willes Lee, the state's GOP chairman, said Republicans would not support a closed primary.

"We're looking for more people to get involved in the process, not looking to keep people out," he said. "I can see that as detrimental to the process, period. In my view, in America in general, more people are considering themselves independent — that is, with a small 'i.' And I don't think either party should be exclusive."

Reach Derrick DePledge at ddepledgehonoluluadvertiser.com">ddepledgehonoluluadvertiser.com.

Posted on: Thursday, January 17, 2008

Hawaii Democrats vote to keep open primary

By Derrick DePledge Advertiser Government Writer

State Democrats voted last night to rescind a call for the party to file a lawsuit against the state alleging the state's open primary system is unconstitutional.

The Democratic Party of Hawai'i had been on record since May 2006 in favor of closing the party's primaries to prevent crossover voting by Republicans or independents. But the party's leadership, and many of its top elected officials and labor union allies, opposed a lawsuit and resisted attempts by party activists to force the issue.

Elected Democrats, including U.S. Sen. Daniel K. Inouye, argued that a lawsuit was a public-relations mistake that could limit voter participation.

"E komo mai. Everyone is welcome," said Lance Holter, the party's Maui chair, after the party's state central committee voted against the lawsuit. "We want independents to vote. We want to offer them hospitality."

Hawai'i is among 10 states with open primaries. Island voters, since after a state constitutional amendment in 1978, have been able to choose on election day which party's ballot to pull regardless of whether they are party members.

The U.S. Supreme Court has held that political parties have a First Amendment right of association that the states should consider in primary systems.

Some party activists believe the state's law is unconstitutional given the court's rulings and want voters to at the very least declare their party preference before they can vote. The party had passed a resolution supporting closed primaries at its 2006 state convention.

John Buckstead, the party's Big Island chairman, said the party should be able to know who is voting for its nominees. He said an argument used in 1978 that open primaries would increase voter turnout has not proved true. Primary voter turnout in Hawai'i has fallen from 74.6 percent in 1978 to 42.2 percent in 2006.

Buckstead and other activists who favored the lawsuit also believe that more of the party's candidates would follow the party's platform if primaries were closed. "That would tend to hold them more accountable after they get elected," he said.

Richard Port, a former Democratic Party chairman and one of those who pushed hardest for a lawsuit, said the vote last night essentially means the party is ignoring the will of convention delegates.

"The basic problem is there is going to be less and less difference between the Democratic Party and the Republican Party," Port said of the keeping the primaries open. "So what we're getting, essentially, is a mishmash of Republicans joining the Democratic Party to dilute the values of our party."

Democrats on the state central committee, many who had come for opening day of the state Legislature, met privately for more than three hours at the YWCA across from the state Capitol. The debate, according to people who were inside, at times turned testy.

Some activists who wanted the lawsuit — according to several accounts — at first used procedural motions to delay and then threatened to walk out to prevent a quorum necessary for a vote.

Doug Pyle, the co-chair of the party's legislative committee, said he supported a lawsuit but wanted more time to explain the issue to voters. He said many of the activists believe that if the state's open primary system was ruled unconstitutional by the courts, the state Legislature would likely respond by modifying the primary system so that the parties could choose whether to accept independent voters.

For example, California's blanket primary system, where voters were allowed to choose from all candidates regardless of party, was struck down as unconstitutional by the Supreme Court in 2000. California then changed its primary system in 2001 to allow parties to decide prior to each election whether voters who decline to state their party preference can participate in the party's primaries.

Pyle said most activists would only want to screen out Republicans.

"It's clearly unfair for someone who is a registered member of one party to manipulate the nomination process of another party," he said.

State House Speaker Calvin Say, D-20th (St. Louis Heights, Palolo Valley, Wilhelmina Rise), said the internal debate over the lawsuit has made the party look as if it wanted to exclude voters.

Many elected Democrats have fought to keep the majority party relevant as demographic and cultural shifts have led many voters to describe themselves as independents.

"I think we should give the public the opportunity to vote for who they want to in the primary," Say said.

Jeani Withington, the party's interim chair, also opposed filing the lawsuit. A motion to rescind the lawsuit had failed at a state central committee meeting in Kona in November. But Withington declined to authorize the suit and stalled activists after it soon became clear there would be enough votes by yesterday's meeting. The vote was 36-5.

"It means that the party is alive and well," she said afterward. "We've had a very active debate. This has been going on, as you know, for several months. What happened tonight showed the passion that people have for the Democratic Party.

"People want to stand up and let people know they are Democrats, and we'll be looking for a solution to that, because we want to give more meaning to being a member of the Democratic Party."

Reach Derrick DePledge at ddepledge@honoluluadvertiser.com. 

SUPREME COURT OF THE UNITED STATES

CALIFORNIA DEMOCRATIC PARTY et al. v. JONES, SECRETARY OF STATE OF CALIFORNIA, et al.

http://www.law.cornell.edu/supct/html/99-401.ZS.html

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

No. 99—401. Argued April 24, 2000–Decided June 26, 2000

One way that candidates for public office in California gain access to the general ballot is by winning a qualified political party’s primary. In 1996, Proposition 198 changed the State’s partisan primary from a closed primary, in which only a political party’s members can vote on its nominees, to a blanket primary, in which each voter’s ballot lists every candidate regardless of party affiliation and allows the voter to choose freely among them. The candidate of each party who wins the most votes is that party’s nominee for the general election. Each of petitioner political parties prohibits nonmembers from voting in the party’s primary. They filed suit against respondent state official, alleging, inter alia, that the blanket primary violated their First Amendment rights of association. Respondent Californians for an Open Primary intervened. The District Court held that the primary’s burden on petitioners’ associational rights was not severe and was justified by substantial state interests. The Ninth Circuit affirmed.

Held:  California’s blanket primary violates a political party’s First Amendment right of association. Pp. 4—19.

Tashjian, Secretary of State of Connecticut v. Republican Party of Connecticut

http://supreme.justia.com/us/479/208/

A Connecticut statute (§ 9-431), enacted in 1956, requires voters in any political party primary to be registered members of that party. In 1984, appellee Republican Party of Connecticut (Party) adopted a Party rule that permits independent voters -- registered voters not affiliated with any party -- to vote in Republican primaries for federal and statewide offices. The Party and the Party's federal officeholders and state chairman (also appellees) brought an action in Federal District Court challenging the constitutionality of § 9-431 on the ground that it deprives the Party of its right under the First and Fourteenth Amendments to enter into political association with individuals of its own choosing, and seeking declaratory and injunctive relief. The District Court granted summary judgment in appellees' favor, and the Court of Appeals affirmed.