Ninth Circuit Shields Hawaii Open Primaries

by Nicholas Fillmore, Court House News, August 19, 2016

HONOLULU (CN) — Preserving a nearly 40-year-old tradition of open primaries in Hawaii, the Ninth Circuit rejected claims that the system tramples the Democratic Party's free-speech rights.

Hawaii had been a state for only 20 years when it switched to an open primary system in 1979. The closed primary system — where only registered Republicans can vote in the Republican primary, or Democrats in the Democratic primary — remains a fixture of just 11 states today.

Nostalgic for the old days, the Democratic Party of Hawaii brought a federal complaint in 2013 to keep outsiders from determining its platform.

Though the party said open primaries violated its associational rights under the First Amendment, a federal disagreed and sided with the state's chief election officer, Scott Nago, at summary judgment.

Affirming that outcome Monday, the Ninth Circuit said Democrats offered little insight as to the political preferences of voters participating in its primaries.

"The party provided no evidence showing a clear and present danger that adherents of opposing parties determine the Democratic Party's nominees," U.S. Circuit Judge A. Wallace Tashima wrote for a three-person panel. "Nor had the party shown that Hawaii's open primary system causes Democratic candidates to moderate their policy stances."

In support of its suspicion that its races had been overrun by outsiders, the Democrats noted that their party has just 65,000 formal members but turnout for the Democratic primaries in Hawaii hit a quarter of a million people.

Tashima disagreed, however, that this is enough to show that crossover voting accounted for the approximately 185,000 other votes in the Democratic race.

The problem for the Democrats' argument is that Hawaii does not require voters to register with any political party.

"Thus, the 185,000 people voting in Hawaii's Democratic primaries who are not formal party members may nevertheless personally identify as Democrats," Tashima found.

The Ninth Circuit distinguished the Hawaii Democrats' challenge from U.S. Supreme Court precedent that struck down California's system of blanket primaries.

In the 2000 case California Democratic Party v. Jones, the court found it possible to track the number of crossover voters.

But Hawaii's open system, Tashima said, affords no way to ascertain "forced association."

Though Hawaii adopted its open primary system to boost voter turnout, only 34.7 percent of the electorate turned out for the state's Aug. 13 primary election — a record low.

As expected, the numbers bode well for Democrats.

On the national stage, Sen. Brian Schatz is poised to win his first general election with 162,891 votes, representing 86.17 percent of votes in the Democratic primary.

Republican challenger John Carroll got his party's nod with just 26,747 votes (74.58 percent).

Schatz was selected by former Gov. Neil Abercrombie to fill Daniel Inouye's seat following Inouye's death in 2012. The move ignored Inouye's deathbed wish that the seat should go to Congresswoman Colleen Hanabusa, whom Schatz went on to defeat in a 2014 special election.

Hanabusa is poised to take back the House seat she vacated to run against Schatz in 2014. Her successor, Mark Takai, a fellow Democrat, died in July from pancreatic cancer. Hanabusa captured 74,013 votes (80.37 percent) Saturday, compared with Republican nominee Shirlene Ostorv's 13,645. Ostrov, a retired Air Force Colonel, ran uncontested.

And in the second congressional district, Democratic incumbent Tulsi Gabbard has 80,020 votes compared to Republican nominee Angela Kaaihue's 7,499.

An Iraq veteran and outspoken opponent of war, Gubbard broke with the Democratic Party to support Bernie Sanders in the presidential primaries.

Locally, a nonpartisan blanket primary failed to identify a majority candidate for mayor. Top vote-getters, incumbent Democratic Mayor Kirk Caldwell, and former interim U.S. Rep Charles Djou will face one another in a general runoff.

Caldwell, beleaguered by cost overruns on the Honolulu Rail Project and a persistent homeless problem, captured 74,057 votes to Djou's 72,520.

The Democratic Party did not respond to requests for comment about the Ninth Circuit ruling.

PDF: Court Ruling