State Of Hawaii: Open Primary Is Constitutional Because Pulling A Democratic Ballot Is "An Act Of Affiliation With The Democratic Party"

by Robert Thomas, InverseCondemnation.com

Here's some news: the State of Hawaii thinks that Hawaii has a "vibrant multi-party system."

Really?

The reality, of course, is not only different, it is much different, as a summary of the situation by Honolulu Civil Beat ("One-Party Dominance") points out. An overwhelmingly Democratic congressional delegation, a nearly one-party legislature, only one non-Democratic governor since the initial post-statehood Bill Quinn (R), etcetera, etcetera, etcetera.

Here's more interesting news. To all you "crossover" voters who pulled one party or another's ballot in Hawaii's "open primary" election: the State of Hawaii says that by doing so, you are affiliating with that party. Well, at least enough that the primary system is not violating the Party's right to association with whom it wants, meaning most likely not you.

These are among the gems to be gleaned from the State's counter-motion for summary judgment and memorandum in opp to the Democratic Party's motion for summary judgment, filed earlier this week in the federal lawsuit challenging the open primary process.

The lawsuit -- which perhaps says more about the internal differences within Hawaii's Democratic Party than it does about First Amendment and voting law (despite the fact that Hawaii's legislature is overwhelmingly Democratic, it has not altered the open primary process in the way the Democratic Party lawsuit seeks) -- argues the open primary system violates the constitution because it forces Democrats to potentially associate with -- gasp -- non-card-carrying Democrats during the state-law-mandated primary election.

As we noted here, we think the case may turn on the fact that the open primary is the exclusive method for political parties to select their general election candidates. If Hawaii law was more "open," and provided alternative means for the parties to choose their candidates, then the lawsuit seems like it would be less likely to succeed. The odd part about this, as we noted above, is that with an iron grip on the legislative and executive branches, why can't the Democratic Party just get its member-legislators to amend the statute and close the primary? The fact that a lawsuit was necessary to do what the legislature could have but didn't, points to more going on that we understand. Perhaps someone out there who knows the politics of this (there's always politics, isn't there?) can 'splain it to us.

The State's brief makes as good an argument as it can, arguing that if the Democratic Party's associational rights are indeed burdened by the mandatory open primary system, then the burden isn't all that "severe," because it doesn't really force parties to associate with total strangers.

Say you're a Republican and on election day pull a Democratic ballot. Under the open primary system, you can't then go and pull a Republican ballot. To the State, that means that on that day at least, you are affiliating with the Democratic Party. Democrat-for-a-Day. Your affiliation may be brief, but unlike the "blanket" primary system that has been invalidated as unconstitutional (those provide a ballot with everyone, and a voter can freely wander between parties on a single ballot), your affiliation is exclusive.

That seems somewhat like describing a one night stand as "affiliating" with someone, even if its only for that one evening. Your relationship may be neither deep and meaningful, nor long, but there's no denying it's a monogamous relationship, if only for the moment. A marriage of convenience, so to speak. Makes some sense, no? And hey, the U.S. Supreme Court said it, not us. See California Democratic Party v. Jones, 530 U.S. 567, 577 n.8 (2000) ("The act of voting in the Democratic primary fairly can be described as an act of affiliation with the Democratic Party.").

The State's brief argues this is the critical point: the Democratic Party isn't being forced to affiliate with strangers, but with short-term "affiliates."

Ah, now we get it. doo-be-doo-be-doo ...

And what of the State's point that the public's interest in this system outweighs the Democratic Party's interest in its not-severely-limited associational rights because this promotes our robust multi-party system in Hawaii? Well, under the existing state of affairs, that seems positively laughable. But as the Republicans of the pre-statehood era surely were taught, times do change so perhaps one day, a statement like this that today is more humorous than an accurate reflection of reality, may become reality.

In the meantime, and until such time as the federal court strikes down Hawaii's open primary requirement, political parties will be forced only to associate with their "Affiliates in the Night."

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Link: Defendant Scott Nago's Counter-Motion for Summary Judgment; Memorandum of Law in Opposition to Plaintiff's...