It looks like there’s a new push underway to return to “closed” primary elections in Hawaii.
In November, Oahu Democratic Party Chairman Tony Gill appealed to the board of the University of Hawaii Professional Assembly, the faculty union, to support a federal lawsuit challenging Hawaii’s open primary.
Gill, who also serves as UHPA’s legal counsel, told the board of directors the open primary “allows voters from one party to unfairly influence the outcome of another party’s primary if they so choose,” according to a report of the meeting mailed to all UH faculty.
In a closed primary, voters must declare their party preference before voting in the primary election of their designated party. Hawaii had a closed primary system until it was overturned by the 1978 Constitutional Convention, which proposed a constitutional amendment doing away with the party preference requirement. The amendment was approved by voters, and we’ve been an open primary state ever since.
According to the UHPA board report:
Mr. Gill explained that the freedom of association provision of the First Amendment of the U.S. Constitution supports a process that allows political parties to determine who can vote in their primary and that Hawaii’s primary election law is out of compliance with the freedom of association provision in the U.S. Constitution. In order to rectify this error, a lawsuit must be filed and Mr. Gill asked UHPA to consider supporting this federal litigation.
After what was described as a “lengthy discussion,” UHPA voted to cover up to $20,000 in out-of-pocket expenses related to the legal challenge.
The Board’s motion also clarified that UHPA’s financial support would not cover actual attorney’s fees and that the Democratic Party of Hawaii, which is making the challenge, will attempt to cover any expenses on its own and will also seek other interested parties to assist in covering out-of-pocket legal expenses.
Gill and others point to a U.S. Supreme Court decision in the case of California Democratic Party v. Jones (2000), summarized by Oyez.org.
In a 7-2 opinion delivered by Justice Antonin Scalia, the Court held that California’s blanket primary violates a political party’s First Amendment right of association. “Proposition 198 forces political parties to associate with — to have their nominees, and hence their positions, determined by — those who, at best, have refused to affiliate with the party, and, at worst, have expressly affiliated with a rival,” wrote Justice Antonin Scalia for the majority. “A single election in which the party nominee is selected by nonparty members could be enough to destroy the party.” Justice Scalia went on to state for the Court that Proposition 198 takes away a party’s “basic function” to choose its own leaders and is functionally “both severe and unnecessary.” Justices John Paul Stevens and Ruth Bader Ginsburg dissented. “This Court’s willingness to invalidate the primary schemes of 3 States and cast serious constitutional doubt on the schemes of 29 others at the parties’ behest is,” Justice Stevens wrote, “an extraordinary intrusion into the complex and changing election laws of the States.”
Although the 2006 Hawaii Democratic Party convention passed a resolution favoring a closed primary and authorizing legal action, internal debate scuttled previous attempts to challenge the current law.
A Honolulu Advertiser story by Derrick DePledge in December 2007 described the intra-party debate.
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.
Andrew Walden, writing in the Hawaii Free Press in 2009, compiled a number of previous news articles about the issue.
Democrats are not alone in opposing the current open primary. Hawaii Republicans have also targeted the law. The Hawaii County GOP adopted a resolution in 2009 urging a lawsuit to block the open primary provision of the state constitution, although the state GOP failed to follow suit.
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The historical trend seems to be for greater political openness and the growing irrelevance of political elites in candidate selection. What does this suggest for the future of candidate selection?
It could mean that primaries will be abandoned altogether in the future. This could mean the adoption of a two-round system, in which the two most voted for candidates of an initial election square off against one another if neither of them get an outright majority.
However, this does not take into account new voting technology. In the future, voters could vote from their cell phones or computers. This system would require almost no cost or supervision, and would be immensely convenient. In this case, an exhaustive ballot system could be adopted.
Similarly, instant runoff voting could also be adopted with little inconvenience.
The appeal of such systems is that over time voters would get more accurate portrayals of the candidates as the candidates were slowly eliminated one by one. Currently, this is what happens with primaries, but with very few voters actually making the fateful decisions, especially in the national presidential primary system. Elections would be longer and more drawn out, and with more inclusive numbers of voters.
Now, these innovations might not be the best systems. I am not arguing that they are. What I am arguing is that there is a historical trend toward greater political openness that comes with warts and thorns, and this has to be dealt with and managed. The same historical pattern that elevated primaries to their place of importance may sunder them in the future. The move toward scrapping primaries might be seen as an eventuality that we must deal with as best we can, and it is best that we know the devil/angel coming our way.
The evolution of the electoral system – from Congressional caucus, to conventions, to primaries – might be said to reflect a greater trend in societies that modernize.
Beginning with the agricultural revolution 10,000 years ago, there was a trend away from the fluid, egalitarian social structure of hunter-gatherer and semi-nomadism; agricultural societies tend to have a rigid kind of caste system, with feudalistic ties of loyalty (the US South is a prime example in the modern world).
But as societies modernize and industrial capitalism takes hold, a paradox emerges, as the society becomes even more hierarchical and stratified and yet an egalitarian ethos takes hold and the old caste boundaries dissolve. An example of this transition is found in the novels of Charles Dickens, with an industrializing Britain awkwardly negotiating the dance between the old aristocracy that refuses to die altogether and the rise of new money. Britain still has a hybrid system of caste and class, as did the US South in the twentieth century.
But outside of the South, the US has always epitomized this odd new class system, with its cultural homogeneity and sense of equality and its vertiginous gaps in wealth and power. Such a society is marked by an incredible openness and fluidity, coupled with a desire for elites to disguise themselves publicly as ‘just ordinary folks’ (think of Jimmy Carter).
A political philosopher like Alexis de Tocqueville would point out that the modern trend toward cultural homogeneity and political equality – a trend at work in France before the overthrow of the monarchy (and promoted by the monarchy) — also promoted centralization of power as the complex old order (the Church, the aristocracy) withers and can no longer serve as a system of checks and balances (hence, Napoleon). A political philosopher like Edmund Burke would add that such modern societies not only tend to trample established laws and liberties as ambitious new men of talent unbound by the old rules emerge, but coupled with new a new ideology of universal human rights (Jacobinism), they tend to be imperialists constantly invading and exploiting other countries in the name of freedom and equality.
Both Tocqueville and Burke were champions of the American system. Tocqueville was fascinated with how the American tendency toward political involvement drew people out of their private lives to create social organizations (civil society) that served as a check on the modern forces of centralization. Burke admired how the American system preserved the British system of laws and civil rights that kept ambitious young upstarts in check, even while this traditional system in the US over time seemed to extend greater freedoms to such outsiders to participate in the life of society and advance themselves.
I am just trying to provide a big picture here of how there seems to be a trend in modern history toward greater equality, inclusiveness and openness that is potentially dangerous if not handled well. So it might be time now to think ahead of what comes after this primary system.