The Democratic Party of Hawaii’s challenge to the state’s open primary system went down in flames last week when it was rejected by Federal Judge Michael Seabright.
Seabright’s full decision is available here. Once again, the news stories I saw about the decision failed to link to the decision. While most people probably won’t actually read the decision, some will. And others will benefit from knowing that the decision is available and is something that readers can learn from. It cost me 10 cents a page to download from the federal courts’ PACER system. It costs virtually nothing to post and share it with you. I’m still puzzled why links to these primary documents aren’t a routine part of daily reporting.
My earlier assessment of the case proved to be relatively on point. In a Civil Beat column last month, I wrote:
The Hawaii Democratic Party’s confidence in its case is reflected in its legal strategy. The party is making a “facial” challenge, arguing there are no possible circumstances in which the law could be legal. Consistent with this position, the party has not introduced any evidence to support its allegation that the law constitutes a “severe burden” on its constitutional rights.
Judge Seabright’s decision rests on precisely these two points.
Seabright suggested a number of situations, drawn from other election law cases, in which Hawaii’s law would not necessarily impinge on the associational rights of political parties, as the Democratic Party of Hawaii argued. And, more importantly, Seabright faulted the party’s failure to produce any factual evidence that the open primary system is a “severe burden” on the rights of the party and its members. As I had noted, the California case relied on most heavily by the party was itself a data driven decision informed by survey results, statistical analysis, and expert witnesses. The Democratic Party of Hawaii, on the other hand, apparently believed clever repartee and stinging rhetoric are a proper substitute for basic evidence.
Honolulu attorney Robert Thomas, commenting on the decision on his Inverse Condemnation blog, wrote:
We believed the analysis would focus more on the Party’s right to determine whom it wants to associate with (those whose political views have been assured by their membership in the Party), and not, as the court held, on the degree to which the affiliated Democrats may actually agree with the Party’s positions. Should it be enough that the Party doesn’t want anyone but card-carrying Party members to select its general election standard-bearers, even if a huge majority of the non-card-carriers may agree with the Party’s positions?
But as I pointed out in my CB column, the party wasn’t asking to limit primary participation to card-carrying members.
Instead, the party says the remedy is to limit primary voters to be party members “and other voters, even if not party members,” who “are willing to publicly declare their affiliation with it.”
The party platform calls for the primary to be open to those “willing to declare their affiliation” through “public registration to vote, or through membership in the party.”
In light of the party’s failure to prove that it suffers a severe burden to First Amendment rights as a result of the open primary system, the court was free to give more weight to the otherwise legitimate reasons the state gave for adopting the open primary, including a desire to encourage broader voter participation.
Ironically, a fund appeal from the Democratic Party of Hawaii arrived in our mail the same week the court’s decision was released. The fund appeal encouraged donations in order to fight Republican “voter suppression” tactics, and cited a number of the more familiar instances on the mainland designed to lower voter turnout. It made no mention that this lawsuit was also aimed at shutting many people out of voting in the Democratic primary elections, even dissing those who vote Democratic without ever actually joining the party, accusing them of “political fecklessness” and dismissing them as “lazy Democratic-leaning persons, who don’t want to be bothered with associating properly….”
The whole effort seems to me to have been a waste of time or, worse, actually damaging to the party and its future prospects.
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i guess it depends on what you consider damage. my guess is some within the party would like to make the party smaller and more ideologically disciplined. that would be nice except which ideology in the democratic party will be the winner — the environmental/progressive faction or the labor/development faction? i think our state would benefit from having three parties: Christian fundamentalist party, old boy democratic party and a vibrant environmental/progressive party. but i wonder if that would not, in the end, move hawaii more to the right than it already is. and if that is the case, i would consider that damage.
Ian, thanks for capturing the decision and making it available. I agree the monopoly newspaper is negligent in the way it almost never provides full text of important documents it summarizes; and have often said so in online comments to news reports. But I’m a big fan of Ken Kobayashi and think he does a great job accurately reporting court proceedings and decisions.
I hope the Democrat Party refrains from appealing the decision on open primaries. I’m an independent. In each primary election I choose a party based on which office (federal or state) seems to have the biggest controversy and which party has an important primary contest which is most competitive, where my vote might actually make a difference. For example, in 2012 I decided before the primary that in the general I would vote Republican for President but would vote Democrat for U.S. Senate and House (for reasons explained last year); and then I chose to vote in the Democrat party because of the Case vs. Hirono contest, and voted for Hirono (for reasons I explained last year). So long as the Hawaii Republican party is astonishingly weak, with lackluster Democrat-lite (RINO) candidates, I will probably vote in the Democrat primary; and am glad Judge Seabright’s decision allows me to continue doing so. It’s the only way I feel my vote might count for something, because the Democrat party is a monopoly in the same way as the Star-Advertiser.
Is a political party part of the government? Why should the government have the right to tell a party how to select its representatives? If primaries are open, they should be first two past the post, rather than first D, first R, first Green, etc. The two winners should face off in the General, even if they are both Democrats. Let the parties choose their representatives however they want.
Then you can pull your party off the state-funded ballot. You have no business taking other people’s money to fund your machine.
I’d really like to read more from Bart Dame about this. His insight here on Democratic Party doings is the best and most thoughtful that I know. Unfortunately, Ian, your observation regarding the party’s attorneys choosing to employ “clever repartee and stinging rhetoric” instead of “basic evidence” is all too typical–and, as you note, can be truly damaging in this instance. To make a big public case about this matter–along the way insulting as “feckless” and “lazy” those Democratic voters who choose to not join the party–and then to blow off the legal challenge with sophomoric courtroom bombast is professionally irresponsible, if not malpractice.
I had been unsure what to write or whether to write a comment to Ian’s post. Now that David has called me out, I took time to actually read the ruling, as well as Robert Thomas’ blog post.
I interpret the judge as saying the Democratic Party MAY be severely burdened by the current open primary system, but it requires some evidence before he is going to accept that claim. After all, there are competing claims from the state, including the state constitution’s recognition of the right to privacy of a voter’s political affiliation.
n general, I agree with the judge. Though I found peculiar his argument that a lot of those voting in the Democratic primary might be supportive of the Democratic Party.
To me, the real question is whether people hostile or indifferent to the aims of the Party currently vote in our primary to the extent they sometimes alter the choice of our candidate or pressure the candidate to change their messaging or positions to appeal to centrist, even conservative non-Democratic voters.
I think that obviously IS happening. But I accept his point the Party should have provided some evidence to support that claim and did no bother.
I disagree with Ian on a couple of points. I disagree it is fair to equate the drive for a closed primary to the voter suppression efforts of the Republicans across the country, which target the elderly, the young, blacks, Latinos and the poor. The aim of THOSE tactics are clearly to suppress participation of those groups in the general election.
Everyone has a right to vote in the general election. The difference here is that Democrats do not believe everybody has a RIGHT to vote in our primary. Let me suggest that is a significant difference. To equate our drive to a closed primary with voter suppression only makes sense if someone believes everyone DOES have a right to vote in the Democratic primary.
But I go further and suggest the open primary has not led to increased voter turnout. Our turnout started to decline in the sixties and has continued to this day. The reasons merit discussion. Supporters of the open primary at ConCon 78 claimed this “reform” would reverse the trend. But clearly, the evidence shows this was a false claim.Yet it continues to be made. And with even less evidence than the DPH provided in our lawsuit.
About 5 years ago, I compiled the data on voter turnout in Hawaii into a chart for internal party debate. I have posting it on my Facebook page, but that might not be visible to everyone.
As for Ian’s question whether the lawsuit will damage the Party, I am unsure what he means. In recent years, the Party has taken on several actions which I think were ill-advised and which have tended to alienate some supporters and allies. The lawsuit fits in that pattern, but, by itself, has not been particularly damaging. Will the Party re-file, as the judge suggested might be possible, with actual evidence? I dunno. I think this filing was done “on the cheap” due to Tony’s confidence in his arguments and the very small budget available for legal costs.
I think failure of the lawsuit MIGHT be a benefit, in that it forces party activists to stop waiting for a “deus ex machina” to come down from the sky and rescue us from the real world challenges facing us. Candidates running on the Democratic ballot line win elections. But the Party, qua Party, doesn’t have much influence. We need to strengthen our relations with both our membership base and elected officials. There are no shortcuts. It requires steady, sober work in order to gain influence based upon CREDIBILITY rather than due to our command over the Party’s Rules and disciplinary procedures.
Aw shucks!
Thanks, Bart–great analysis, as expected. My reference to “damage” to the party concerns overall image. Between the Laura Thielen fiasco and now this (including the snide insider remarks that Ian cites about Demo voters who aren’t party members) it’s beginning to appear to some people that the party wishes to be an exclusive gathering of a self-anointed elite, rather than a broad-based force for progressive ideas. I agree that crossover mischief in primaries might potentially be a problem, but that can cut both ways–and with a heavily Democratic electorate, and often a lack of competition in primaries, it’s at least as likely that Democrats will cross over to undermine the candidacy of an especially Neanderthal Republican. (In fact, I may even have done that myself on a rare occasion.) In the end, of course, it’s the final votes in the general election that matter. But I don’t think the party Democrats do the party any good either with their exclusionary antics of late–or by showing up unarmed at a legal fight that they picked.
“I’m still puzzled why links to these primary documents aren’t a routine part of daily reporting.” In many cases because the daily ‘reporting’ is merely a rewrite of a press release with perhaps a follow up phone call.
Moving on the to merits. It looks to me [after only a cursory reading] that a decision was made by the plaintiff to not practice defensive law which is to assume the judge will only rule for a plaintiff when all possible avenues for ruling for a defendant are sealed off and that is an expensive piece of litigation. Tried on the cheap. Facts are expensive things to litigate. But it is always risky to arm-chair litigate and one must presume that strategic decisions were made in light of resources available. The civil rights law doesn’t allow recapture of expert witness costs which in voting cases can be hundreds of thousands of dollars. To me the harm is obvious and will end up proving itself over a couple of cycles. Those misleadingly calling themselves ‘independents’ should really [in order to have any ethical standing] start their own party rather than be mere opportunists free-loading on the efforts of others. The party could have slating conventions and accomplish similar results by endorsing and then energizing the base by campaigning at it in the primary and actively discouraging free-loading faux independents.
Every day, it seems, I’m bombarded with emails and ads bemoaning the Republican voter suppression through voter ID laws. When will we in Hawaii stop suppressing voters with our voter ID law? Or are such laws only racist and evil on the mainland?
Bart Dame provided this graphic to accompany his comment.
Click for a larger version.