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Hawaii's Open Primary Laws Are Constitutional, 9th Circuit Rules

By Jonathan R. Tung, Esq. on August 17, 2016 | Last updated on March 21, 2019

The Democratic Party has failed to prove that Hawaii's open primary system "severely burdens" the party's associational rights, according to the Independent Voter Project. The open primary system allows members formally registered with another party to vote for nominees outside of party lines.

The decision is the correct one. The Democratic Part of Hawaii brought a rather flimsy argument that was rightfully dismissed. After all, how can the opportunity to vote outside of one's typical associated group be a violation of one's right to freely associate? Isn't that encouraging free association?

Original Suit

The DPH sued Hawaii and its open primary system in 2013, arguing that the state's open primary system "compels" voters who might not otherwise associate with members of another party to do so by accident. The law does this "compelling" by forcing unwitting persons who "may not be members of the party, may have no affiliation with the party ... and cannot be known to the party either before or after the primary election."

Open Primary Law

Under the current law of the state, all voters must either register with either party or check "nonpartisan." However, the law allows someone who registers as a Republican to participate in the Democratic primaries -- or vice versa.

According to Trial Insider, 250,000 persons vote in their primaries, but there are 65,000 registered members of the party. The inference is that approximately 185,000 persons are engaged in so-called "crossover" voting.

Challenge Fails

"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," the Ninth Circuit wrote.

Again, the decision appears to be the correct one. And even if there was substance to the argument, the law still passes constitutional muster because it is a positive power, not a negative one: that is, it confers associative power to the electorate; it does not restrict associative freedoms despite the DPH's arguments.

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