Dems Lose Hawaii Open Primary Challenge

Hawaii’s open primary system does not violate the constitutional association rights of the Democratic Party, a federal appeals court ruled Monday.

Since 1979, the Hawaii state Constitutional has allowed that a voter must declare either a party preference or nonpartisanship as a condition of voting in any primary of special election.  In 2013, the Democratic Party sued seeking to limit participation in primary elections to its formal members, or voters who declare themselves Democrats.  It lost at the trial court level.

The 9th U.S. Circuit Court of Appeals ruled today that the Democratic party failed to show that the open primary system “severely burdens” the party’s associational rights.

The open primary system can allow for cross-over voting, meaning Republicans could vote in Democratic contests and the other way around.

The Democrats maintained that it has 65,000 registered members in Hawaii but 250,000 people vote in its primaries, inferring to the court that 185,000 people are crossover voting.

Hawaii, however, does not provide for partisan registration, thus the 185,000 people voting in Hawaii’s Democratic primaries who are not formal party members “may nevertheless personally identify as Democrats,” the court said.

“We hold that the extent to which Hawaii’s open primary system burdens the Democratic Party’s associational rights is a factual question on which the party bears the burden of proof. Because the party has not developed any evidence to meet this burden, its facial challenge fails,” wrote Judge Wallace Tashima, joined by Judges Richard Tallman and Andrew Hurwitz.

Case: Democratic Party of Hawaii v. Nago, No. 13-17545


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