Democratic Party of Hawaii v. Nago
Filing
27
ORDER (1) DENYING PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT 4 ; (2) DENYING PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION 4 ; AND (3) GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT 15 . Signed by JUDGE J. MICHAEL SEABRIGHT o n 11/14/2013. ~ Order follows hearing held October 7, 2013. Minutes of hearing: doc no. 24 ~ (afc)CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
DEMOCRATIC PARTY OF
HAWAII,
)
)
)
Plaintiff,
)
)
vs.
)
)
SCOTT T. NAGO, in his Official
)
Capacity as the Chief Election Officer )
of the State of Hawaii,
)
)
Defendant.
)
_______________________________ )
CIVIL NO. 13-00301 JMS-KSC
ORDER (1) DENYING PLAINTIFF’S
MOTION FOR PARTIAL SUMMARY
JUDGMENT; (2) DENYING
PLAINTIFF’S MOTION FOR
PRELIMINARY INJUNCTION; AND
(3) GRANTING DEFENDANT’S
MOTION FOR SUMMARY
JUDGMENT
ORDER (1) DENYING PLAINTIFF’S MOTION FOR PARTIAL
SUMMARY JUDGMENT; (2) DENYING PLAINTIFF’S MOTION FOR
PRELIMINARY INJUNCTION; AND (3) GRANTING DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT
I. INTRODUCTION
The court upholds Hawaii’s open primary election against this facial
constitutional challenge.
The Democratic Party of Hawaii (“DPH”) challenges the
constitutionality of Hawaii’s open primary election, contending that article II, § 4,
of the Hawaii Constitution (and the Hawaii statutes that implement it) facially
violates the First Amendment of the United States Constitution by allowing voters
to select a political party’s general-election candidates (other than a Presidential
candidate) without publicly declaring their affiliation with that party. As explained
to follow, a party’s First Amendment right of free association includes the right to
limit its association to people who share its views. Arguing that association is a
“two way street,” the DPH contends that this right is severely burdened if a party
does not know who is associating with it, and thus has no opportunity to restrict
persons from participating in the nomination of a party’s candidates. Further
arguing that Hawaii has no narrowly-tailored, compelling state interest justifying
such a burden, the DPH seeks to prevent Defendant Scott T. Nago, in his official
capacity as the Chief Election Officer of the State of Hawaii (“Nago” or the
“State”), from administering this unconstitutional law any further.
Before the court are (1) Cross Motions for Summary Judgment; and
(2) a Motion for Preliminary Injunction by the DPH seeking to enjoin Nago from
enforcing or applying Hawaii’s primary election laws in any way that violates the
First Amendment. Based on the following, the DPH’s Motion for Partial Summary
Judgment and Motion for Preliminary Injunction are DENIED. The State’s
corresponding Motion for Summary Judgment is GRANTED. The DPH’s facial
challenge fails. Judgment shall issue in favor of the State.
2
II. BACKGROUND
A.
Factual Background
Hawaii law requires candidates in any general election (except for a
Presidential election) to be nominated in the preceding primary election. See
Hawaii Revised Statutes (“HRS”) § 12-1 (“All candidates for elective office,
except as provided in Section 14-21, shall be nominated in accordance with this
chapter and not otherwise.”)1 & § 12-2 (“No person shall be a candidate for any
general or special general election unless the person has been nominated in the
immediately preceding primary or special primary.”). And article II, § 4, of the
Hawaii Constitution requires these primary elections to be “open.”2 That is,
1
HRS § 14-21, regarding the nomination of presidential electors, requires political
parties to select such electors by “state party or group convention pursuant to the constitution,
bylaws, and rules of the party or group[.]” This action does not challenge § 14-21.
2
Generally, an “open” primary allows a person to vote without being “required to
declare publicly a party preference or to have that preference publicly recorded.” Democratic
Party of the U.S. v. La Follette, 450 U.S. 107, 111 n.4 (1981). “The major characteristic of open
primaries is that any registered voter can vote in the primary of [any] party.” Id. (quoting R.
Blank, Political Parties, An Introduction 316 (1980)). A voter, however, “is limited to that
party’s nominees for all offices. [A voter] may not, for example, support a Republican nominee
for Governor and a Democratic nominee for attorney general.” Cal. Democratic Party v. Jones,
530 U.S. 567, 576 n.6 (2000).
Such an open primary differs from a “blanket” primary that allows a voter to choose “any
candidate regardless of the candidate’s political affiliation.” Id. at 570. More specifically, a
blanket primary is one “in which all candidates are combined on a single ballot and may be
voted upon by voters affiliated with any party.” Alaskan Independence Party v. Alaska, 545
F.3d 1173, 1178 (9th Cir. 2008). In contrast, in a “closed” primary, “only persons who are
members of the political party . . . can vote on its nominee.” Jones, 530 U.S. at 570. And in a
“semi-closed” primary, a party “may invite only its own registered members” as well as
(continued...)
3
Hawaii’s Constitution provides that votes in a primary election must be cast
without requiring voters to “declare a party preference.”
Specifically, as amended in 1978, the Hawaii Constitution provides:
The legislature shall provide for the registration of voters
and for absentee voting and shall prescribe the method of
voting at all elections. Secrecy of voting shall be
preserved; provided that no person shall be required to
declare a party preference or nonpartisanship as a
condition of voting in any primary or special primary
election. Secrecy of voting and choice of political party
affiliation or nonpartisanship shall be preserved.
Haw. Const. art. II, § 4 (emphasis added). This provision was ratified by Hawaii’s
voters in November 1978, after delegates debated different types of primary
elections in the 1978 Constitutional Convention. See Doc. No. 16-1, Nago Decl.
¶¶ 4, 5; II Proceedings of the Constitutional Convention of Hawaii of 1978 (“1978
Proceedings”) 746-84 (1980).
Prior to 1978, section 4 simply stated: “The legislature shall provide
for the registration of voters and for absentee voting; and shall prescribe the
method of voting at all elections. Secrecy of voting shall be preserved.” Haw.
Const. art. II, § 4 (1968). And in the decade before the 1978 amendment to the
Hawaii Constitution, Hawaii utilized a “closed” primary based upon statute. As
2
(...continued)
independent voters. Clingman v. Beaver, 544 U.S. 581, 584 (2005).
4
amended in 1970, HRS § 12-31 provided in pertinent part: “No person shall be
entitled to vote at a primary or special primary election who shall refuse to state his
party preference or nonpartisanship to the precinct officials, unless he wishes to
vote only for the board of education.” Further, county clerks kept records of a
voter’s party designation, and a voter was restricted from voting in a different
party’s primary in the next election cycle, unless “he has registered with the county
clerk to change his party to another party or to a nonpartisan designation” “not
later than 4:30 p.m. on the ninetieth day preceding the primary or special primary
election[.]” Id. County clerks also kept records of a new voter’s party selection.
See id. (“In all primary or special primary elections the precinct officials shall note
the voter’s party selection where the voter list indicates no previous party selection.
This information shall be forwarded to the county clerk.”).
Many delegates at the 1978 Constitutional Convention voiced a clear
desire to eliminate the former closed primary system, with a goal of protecting the
privacy of a person’s vote, and encouraging voter participation. See, e.g., II 1978
Proceedings 744 (“[A] large percentage of the electorate in Hawaii continues to
stay away from the polls because of discontent over the closed primary system.
Many people feel this is an invasion of their privacy, that it is repugnant to our
democratic process[.]”) (statement of Delegate Campbell); id. at 766-67 (“An open
5
primary election operates to protect a person’s voting and privacy rights . . . . [A]s
the [closed-primary] system operates now, a voter must declare to a total stranger
his party preference at the time of registration and at the primary voting.”)
(statement of Delegate Odanaka); id. at 768 (“[I]n the earlier days in this State, . . .
if you . . . went in and asked for the wrong ballot -- that would be a stigma attached
to you in your daily lives.”) (statement of Delegate Blean).3
3
The 1978 Constitutional Convention’s Committee of the Whole reported as follows in
recommending adoption of the amendment:
. . . No longer will prospective voters have to register as a
Democrat, Republican or nonpartisan. However, voters will still
be required to vote only for candidates of one political persuasion.
Therefore, any person who votes for candidates in both the
Republican and Democratic primary shall not have his vote
counted.
Your Committee believes that this change is warranted to
encourage voters with minimal party affiliation or those without
any party affiliation to participate in the electoral process.
Implementation is left to the appropriate body but your
Committee wishes to make clear its intent that a person registering
to vote need not state his political affiliation, be it a party
preference or nonpartisan. Thus, the change from the current
system is only in the fact that a voter’s party preference or political
affiliation need no longer be revealed.
I 1978 Proceedings 1025 (Comm. of the Whole Rep. No. 16); see also id. at 996 (“The people of
Hawaii have indicated by polls that they favor a system that will not violate their privacy and not
force them to reveal a political preference before being allowed to vote.”) (Minority Rep. No.
13).
Consistent with this view, in addressing the constitutionality of a Connecticut closed
primary law, Tashjian v. Republican Party of Connecticut, 479 U.S. 208 (1986), observed:
“Considered from the standpoint of the Party itself, the act of formal enrollment or public
affiliation with the Party is merely one element in the continuum of participation in Party affairs,
and need not be in any sense the most important.” Id. at 215. It then noted: “Indeed, acts of
(continued...)
6
The Hawaii Legislature implemented the constitutional amendment in
1979 by amending HRS § 12-31, which now provides:
No person eligible to vote in any primary or
special primary election shall be required to state a party
preference or nonpartisanship as a condition of voting.
Each voter shall be issued the primary or special primary
ballot for each party and the nonpartisan primary or
special primary ballot. A voter shall be entitled to vote
only for candidates of one party or only for nonpartisan
candidates. If the primary or special primary ballot is
marked contrary to this paragraph, the ballot shall not be
counted.
In any primary or special primary election in the
year 1979 and thereafter, a voter shall be entitled to select
and to vote the ballot of any one party or nonpartisan,
regardless of which ballot the voter voted in any
preceding primary or special primary election.
See 1979 Haw. Sess. L. Act 139, § 9 at 317. “The first open primary [in Hawaii]
was in 1980. Hawaii’s primary has been open ever since.” Doc. No. 16-1, Nago
Decl. ¶ 6. “When the primary is conducted, voters must indicate on the primary
ballot which party primary they are participating in. If they attempt to cast votes
for any other party, those votes will not be counted.” Id. ¶ 19.
The DPH claims that these provisions requiring an open primary are
facially unconstitutional because allowing voters to “associate” anonymously with
3
(...continued)
public affiliation may subject the members of political organizations to public hostility or
discrimination; under those circumstances an association has a constitutional right to protect the
privacy of its membership rolls.” Id. at 215 n.5 (citations omitted).
7
a political party violates a party’s First Amendment right of free association. The
open primary conflicts with the DPH’s formal policy that “prefers a nomination
electorate composed of its members, and other voters, even if they are not
members, who are supportive of the DPH and are willing to publicly declare their
affiliation with it.” Doc. No. 4-1 at 16, Pl.’s Mot. at 11. To this end, the DPH has
certified and adopted the following provision in its constitution:4
The Democratic Party of Hawaii shall be open to all
persons who desire to support the Party, who wish to be
known as Democrats, and who live in Hawaii.
The Democratic Party of Hawaii believes that its primary
election, a state-imposed mandatory nomination
procedure, ought to be open to participation of only such
persons as are willing to declare their affiliation with and
support for the Party, either through public registration to
vote, or through maintenance of membership in the Party.
The Party further believes that the current Constitution
and laws of the State of Hawaii, by maintaining secrecy
of affiliation, and by compelling the Party to admit to its
nomination procedures those who may have no interest
in, or actually oppose the interests, values, and platform
of the Party, do violence to the Party’s associational
freedoms and the individual freedoms of its membership
to define their own political views, guaranteed under the
Constitution of the United States. The State Central
Committee and Party Chairperson shall take appropriate
action to correct this injustice.
4
The provision was certified by the DPH “State Central Committee on July 28, 2012,”
although the second paragraph “was adopted by the Convention of the DPH on May 27, 2006.”
Doc. No. 4-2, Carpenter Decl. ¶ 4.
8
Doc. No. 4-2, Carpenter Decl. ¶ 4.
According to its Chairperson, DPH membership records in 2005
showed approximately 20,000 members. Doc. No. 13-1, Carpenter Suppl.
Decl. ¶ 5. “DPH membership had been in the 15,000 to 20,000 range for at least a
decade before 2005, and possibly two decades or more.” Id. ¶ 6. “In the period of
the Obama-Clinton campaign for the 2008 election, DPH membership expanded
dramatically.” Id. ¶ 10. “Many persons joined the DPH in order to cast votes for
one or the other in DPH meetings [that is, caucuses], held in early 2008. DPH
membership rose from approximately 20,000 to approximately 65,000.” Id. In
July of 2013, DPH membership was 65,461. Id. ¶ 11. “Memberships are normally
not terminated by DPH unless the member resigns, is known to have died, is
expelled for cause, or for a few other reasons. Membership does not require the
regular payment of dues, which are voluntary.” Id. ¶ 12.
B.
Procedural Background
DPH filed this action on June 17, 2013. Doc. No. 1. In conjunction
with the Complaint, the DPH filed a combined Motion for Partial Summary
Judgment and Motion for Preliminary Injunction.5 Doc. No. 4. On September 16,
5
During the October 7, 2013 hearing, the DPH explained that its summary judgment is
“partial” only to distinguish proceedings on liability (i.e., the constitutionality of Hawaii’s open
primary) from issues regarding a remedy, if the DPH succeeds in establishing that Hawaii law is
(continued...)
9
2013, the State filed its Opposition, and a Counter Motion for Summary Judgment.
Doc. No. 15. On September 23, the DPH filed a combined Reply as to its Motion,
and Opposition to the State’s Counter Motion, Doc. No. 19, and the State filed a
Reply as to its Counter Motion on September 30, 2013. Doc. No. 21. The court
heard oral argument on October 7, 2013.
III. STANDARD OF REVIEW
Summary judgment is proper where there is no genuine issue of
material fact and the moving party is entitled to judgment as a matter of law. Fed.
R. Civ. P. 56(a). Rule 56(a) mandates summary judgment “against a party who
fails to make a showing sufficient to establish the existence of an element essential
to the party’s case, and on which that party will bear the burden of proof at trial.”
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); see also Broussard v. Univ. of
Cal. at Berkeley, 192 F.3d 1252, 1258 (9th Cir. 1999).
“A party seeking summary judgment bears the initial burden of
informing the court of the basis for its motion and of identifying those portions of
the pleadings and discovery responses that demonstrate the absence of a genuine
issue of material fact.” Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th
5
(...continued)
unconstitutional.
10
Cir. 2007) (citing Celotex, 477 U.S. at 323); see also Jespersen v. Harrah’s
Operating Co., 392 F.3d 1076, 1079 (9th Cir. 2004). “When the moving party has
carried its burden under Rule 56[(a)], its opponent must do more than simply show
that there is some metaphysical doubt as to the material facts [and] come forward
with specific facts showing that there is a genuine issue for trial.” Matsushita
Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 586-87 (1986) (citation and internal
quotation signals omitted); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
247-48 (1986) (stating that a party cannot “rest upon the mere allegations or
denials of his pleading” in opposing summary judgment).
“An issue is ‘genuine’ only if there is a sufficient evidentiary basis on
which a reasonable fact finder could find for the nonmoving party, and a dispute is
‘material’ only if it could affect the outcome of the suit under the governing law.”
In re Barboza, 545 F.3d 702, 707 (9th Cir. 2008) (citing Anderson, 477 U.S. at
248). When considering the evidence on a motion for summary judgment, the
court must draw all reasonable inferences on behalf of the nonmoving party.
Matsushita Elec. Indus. Co., 475 U.S. at 587; see also Posey v. Lake Pend Oreille
Sch. Dist. No. 84, 546 F.3d 1121, 1126 (9th Cir. 2008) (stating that “the evidence
of [the nonmovant] is to be believed, and all justifiable inferences are to be drawn
in his favor.” (citations omitted)).
11
IV. DISCUSSION
The DPH’s challenge is limited to a facial attack on Hawaii’s open
primary. Although its Complaint might be read more broadly, the DPH’s
memoranda in these Motions explicitly argue only that Hawaii’s open primary
provisions are facially unconstitutional, and the DPH made clear during oral
argument that its action is only a facial -- not an “as applied” -- challenge.6 See
Oct. 7, 2013 Tr. at 6 (“And that’s my story and I’m sticking to it.”). The parties
agree that there are no factual disputes on the record presented to the court, and
that these Motions should resolve the constitutional issues before the court one
way or the other -- if the court grants the State’s Motion, then judgment should
issue in its favor; and if the court grants the DPH’s Motions, then only questions
regarding an appropriate remedy would remain. Id. at 7. The court proceeds to
address the facial challenge in this light.7
6
In contrast to a facial attack, a “‘paradigmatic’ . . . as-applied challenge is one that
‘tests’ a statute’s constitutionality in one particular fact situation while refusing to adjudicate the
constitutionality of the law in other fact situations.” Hoye v. City of Oakland, 653 F.3d 835, 854
(9th Cir. 2011) (citation and internal quotation marks omitted). “An as-applied challenge
contends that the law is unconstitutional as applied to the litigant’s particular speech activity,
even though the law may be capable of valid application to others.” Foti v. City of Menlo Park,
146 F.3d 629, 635 (9th Cir. 1998).
7
The State concedes that a ruling in its favor on the facial challenge in this case would
not preclude an “as-applied” challenge in later proceedings with a fully-developed evidentiary
record. Oct. 7, 2013 Tr. at 43-44. This recognition is consistent with Ninth Circuit caselaw
distinguishing facial and as-applied challenges -- in upholding a facial challenge to Arizona’s
(continued...)
12
A.
Legal Standards for Assessing Whether a State Election Law Imposes a
Facially Unconstitutional Burden
1.
A Facial Challenge -- “Unconstitutional in All of its Applications?”
Or “A Plainly Legitimate Sweep?”
The parties offer differing standards for the court to apply. The State
requests that the court apply the “Salerno standard:” A successful facial challenge
to a law requires “‘establishing that no set of circumstances exists under which the
[law] would be valid,’ i.e., that the law is unconstitutional in all of its
applications.” Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442,
449 (2008) (quoting United States v. Salerno, 481 U.S. 739, 745 (1987)) (internal
brackets omitted); see also id. at 457 (“[A] facial challenge fails where ‘at least
some’ constitutional applications exist.”) (quoting Schall v Maring, 467 U.S. 253,
264 (1984)). The DPH requests that the court apply a broader standard: “While
some Members of the Court have criticized the Salerno formulation, all agree that
7
(...continued)
Legal Worker Act, Chicanos Por La Causa, Inc. v. Napolitano, 558 F.3d 856 (9th Cir. 2009),
commented:
We uphold the statute in all respects against this facial challenge,
but we must observe that it is brought against a blank factual
background of enforcement and outside the context of any
particular case. If and when the statute is enforced, and the factual
background is developed, other challenges to the Act as applied in
any particular instance or manner will not be controlled by our
decision.
Id. at 861 (citing Crawford v. Marion Cnty. Election Bd., 553 U.S. 181, 200 (2008)).
13
a facial challenge must fail where the [law] has a ‘plainly legitimate sweep.’” Id.
at 449 (quoting Washington v. Glucksberg, 521 U.S. 702, 739-40 & n.7 (1997)
(Stevens, J., concurring)). When addressing facial invalidity, courts “must be
careful not to go beyond the [law’s] facial requirements and speculate about
‘hypothetical’ or ‘imaginary’ cases.” Id. (citations omitted).
Ultimately, the court’s conclusion is not impacted by the choice
between these alternative formulations (“no set of circumstances” or “plainly
legitimate sweep”). That is, the court’s ruling would be the same under either
standard. See United States v. Stevens, 559 U.S. 460, 472 (2010) (“Which standard
applies in a typical case is a matter of dispute that we need not and do not address
[in this case.]”).
Courts disfavor facial challenges for several reasons. “Claims of
facial invalidity often rest on speculation. As a consequence, they raise the risk of
‘premature interpretation of statutes on the basis of factually barebones records.’”
Wash. State Grange, 552 U.S. at 450 (quoting Sabri v. United States, 541 U.S. 600,
609 (2004)).
Facial challenges also run contrary to the fundamental
principle of judicial restraint that courts should neither
anticipate a question of constitutional law in advance of
the necessity of deciding it nor formulate a rule of
constitutional law broader than is required by the precise
facts to which it is to be applied.
14
Id. (citations and internal quotation marks omitted). Further, “facial challenges
threaten to short circuit the democratic process by preventing laws embodying the
will of the people from being implemented in a manner consistent with the
Constitution.” Id. at 451 (citations and internal quotation marks omitted). That is,
“‘[a] ruling of unconstitutionality frustrates the intent of the elected representatives
of the people.’” Id. (quoting Ayotte v. Planned Parenthood of N. New Eng., 546
U.S. 320, 329 (2006)). A challenger seeking to invalidate a statute “in all its
applications” bears a “heavy burden of persuasion.” Crawford v. Marion Cnty.
Election Bd., 553 U.S. 181, 200 (2008).
2.
A “Severe Burden” on First Amendment Rights?
“The Constitution grants States broad power to prescribe the ‘Times,
Places and Manner of holding Elections for Senators and Representatives,’ Art. I,
§ 4, cl. 1, which power is matched by state control over the election process for
state offices.” Clingman v. Beaver, 544 U.S. 581, 586 (2005) (citations and some
internal quotations omitted). Accordingly, “States have a major role to play in
structuring and monitoring the election process, including primaries.” Cal.
Democratic Party v. Jones, 530 U.S. 567, 572 (2000). For example, “a State may
require parties to use the primary format for selecting their nominees, in order to
assure that intraparty competition is resolved in a democratic fashion.” Id.
15
(citations omitted).
But this does not mean that States are free to regulate all aspects of a
primary election -- “when States regulate [a political] parties’ internal processes
they must act within limits imposed by the Constitution.” Id. at 573. In this
regard, “the First Amendment, among other things, protects the right of citizens ‘to
band together in promoting among the electorate candidates who espouse their
political views.’” Clingman, 544 U.S. at 586 (quoting Jones, 530 U.S. at 574).
This freedom “necessarily presupposes the freedom to identify the people who
constitute the association, and to limit the association to those people only.” Jones,
530 U.S. at 574 (quoting Democratic Party of the U.S. v. La Follette, 450 U.S. 107,
122 (1981)). “That is to say, a corollary of the right to associate is the right not to
associate.” Id. “Freedom of association would prove an empty guarantee if
associations could not limit control over their decisions to those who share the
interests and persuasions that underlie the association’s being.” Id. (quoting La
Follette, 450 U.S. at 122 n.22).
And so, when considering a challenge to a state election law, the court
must “weigh the character and magnitude of the asserted injury to the rights
protected by the First and Fourteenth Amendments that the plaintiff seeks to
vindicate against the precise interests put forward by the State as justifications for
16
the burden imposed by its rule, taking into consideration the extent to which those
interests make it necessary to burden the plaintiff’s rights.” Burdick v. Takushi,
504 U.S. 428, 434 (1992) (citations and quotation marks omitted).
“Election regulations that impose a severe burden on associational
rights are subject to strict scrutiny, and [courts] uphold them only if they are
‘narrowly tailored to serve a compelling state interest.’” Wash. State Grange, 552
U.S. at 451 (quoting Clingman, 544 U.S. at 586) (emphasis added). “If a statute
imposes only modest burdens, however, then ‘the State’s important regulatory
interests are generally sufficient to justify reasonable, nondiscriminatory
restrictions’ on election procedures.” Id. (quoting Anderson v. Celebrezze, 460
U.S. 780, 788 (1983)).
In short, the court must assess whether Hawaii’s open primary
necessarily and facially “severely burdens” a political party’s First Amendment
right to free association. If so, then the court will uphold the open primary
provisions only if they are narrowly tailored to meet compelling state interests.
The analysis changes, however, if the burden is not “severe.” Rather, “lesser
burdens will be upheld as long as they are justified by a state’s important
regulatory interests.” Alaskan Independence Party v. Alaska, 545 F.3d 1173, 1177
(9th Cir. 2008) (citations and quotation marks omitted).
17
B.
Application of Legal Standards
1.
The DPH’s Arguments
The DPH, relying primarily on Jones, argues that Hawaii’s open
primary violates a party’s -- any party’s -- First Amendment associational rights
because a party is, or can be, forced to “associate” with anonymous voters who do
not share its views, and such voters should not have a say in a party’s selection of
its nominees. See Jones, 530 U.S. at 574 (“In no area is the political association’s
right to exclude more important than in the process of selecting its nominee.”).
Jones emphasizes that the associational right is particularly important in this
context because the nomination process “often determines the party’s positions on
the most significant public policy issues of the day, and even when those positions
are predetermined it is the nominee who becomes the party’s ambassador to the
general electorate in winning it over to the party’s views.” Id. at 575 (citing
Timmons v. Twin Cities Area New Party, 520 U.S. 351, 372 (1997) (Stevens J.,
dissenting)). It is “the crucial juncture at which the appeal to common principles
may be translated into concerted action[.]” Id. (quoting Tashjian v. Republican
Party of Conn., 479 U.S. 208 216 (1986)). And thus Supreme Court “cases
vigorously affirm the special place the First Amendment reserves for, and the
special protection it accords, the process by which a political party ‘selects a
18
standard bearer who best represents the party’s ideologies and preferences.’” Id.
(quoting Eu v. S.F. Cnty. Democratic Cent. Comm., 489 U.S. 214, 224 (1989)).
Jones struck as unconstitutional a California blanket primary system
in which a primary ballot listed “every candidate regardless of party affiliation and
allow[ed] the voter to choose freely among them.” Id. at 570. A California
primary voter was not required to affiliate in any manner with a party before voting
for that party’s candidate. Such a blanket primary thus “force[d] 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.” Id. at 577. Jones characterized such a blanket
primary as “qualitatively different from a closed primary [where] even when it is
made quite easy for a voter to change his party affiliation the day of the primary,
and thus, in some sense, to ‘crossover,’ at least he must formally become a member
of the party; and once he does so, he is limited to voting for candidates of that
party.” Id.
Jones relied on evidence (for example, statistical surveys of past
primary elections, and expert witness testimony) establishing a “clear and present
danger” that a party’s nominee could be “determined by adherents of an opposing
party.” Id. at 578. Moreover, statistics demonstrated that “[t]he impact of voting
19
by non-party members is much greater upon minor parties.” Id. And the record
supported that “these substantial numbers of voters who help select the nominees
of parties they have chosen not to join often have policy views that diverge from
those of the party faithful.” Id.
Further, the evidence indicated that “the deleterious effects” were “not
limited to altering the identity of the nominee” -- the blanket primary actually
forced nominees to change their message and views. Id. at 579. Indeed, it was
“the whole purpose of [the blanket primary] . . . to favor nominees with ‘moderate’
positions. It encourages candidates -- and officeholders who hope to be
renominated -- to curry favor with persons whose view are more ‘centrist’ that
those of the party base.” Id. at 580. The blanket primary forced parties “to
adulterate their candidate-selection process . . . by opening it up to persons wholly
unaffiliated with the party.” Id. at 581. It “ha[d] the likely outcome -- indeed . . .
the intended outcome -- of changing the parties’ message.” Id. Such a severe
burden was not justified by the interests proffered as “compelling” by California,
id. at 582-85, and was not “narrowly tailored” to further them. Id. at 586.
The DPH likens Hawaii’s open primary to the blanket primary that
Jones struck down. Because a party has no other option but to nominate
candidates by primary, see HRS § 12-1, the DPH contends that a party is powerless
20
to exclude, for example, (1) those who are indifferent to its beliefs; (2) those whose
interest in the party is “fleeting or transient, or a matter of momentary convenience
or accident;” (3) “adherents of opposing parties;” or (4) those “who have worked to
undermine and oppose” the party. Doc. No. 4-1, Pl.’s Mot. at 15. It argues that
“Hawaii voters can nominate the candidates of [] political organization[s] they
would, as matter of conscience, refuse to join, and by which, in a reciprocal
exercise of conscience, they would be rejected.” Id. at 16. The DPH thus
concludes that (1) the open primary imposes a severe burden, and is facially
unconstitutional as a matter of law; and (2) the DPH suffers irreparable harm, and
the public interest therefore favors the entry of a preliminary injunction preventing
Nago from enforcing and applying Hawaii’s open primary provisions. Id. at 2930.8
8
The DPH also relies on La Follette, which struck a Wisconsin open primary provision
as inconsistent with a Democratic National Party rule providing that “only those who are willing
to affiliate publicly with the Democratic Party may participate in the process of selecting
delegates to the Party’s National Convention” for selection of a Presidential candidate. 450 U.S.
at 109. La Follette, however, did not decide that Wisconsin’s open primary itself was facially
unconstitutional, and did not address its application outside of a Presidential nomination process.
Indeed, it suggested that an “open” feature might itself be permissible:
The Wisconsin Supreme Court considered the question before it to
be the constitutionality of the ‘open’ feature of the state primary
election law, as such. Concluding that the open primary serves [a]
compelling state interest by encouraging voter participation, the
court held the state open primary constitutionally valid. Upon this
issue, the Wisconsin Supreme Court may well be correct.
(continued...)
21
The DPH’s challenge fails for two reasons. First, even if Jones
applies to this open primary challenge, there are realistic factual situations that
would not “severely” burden other parties’ associational rights -- and thus, given
legitimate and important state interests, the open primary is not “unconstitutional in
all of its applications.” Wash. State Grange, 552 U.S. at 449. Second, the DPH
has failed to prove a severe burden -- “Jones treated the risk that nonparty
members will skew either primary results or candidates’ positions as a factual
issue, with the plaintiffs having the burden of establishing that risk.” Ariz.
Libertarian Party v. Bayless, 351 F.3d 1277, 1282 (9th Cir. 2003) (emphasis
added). Proving a severe burden must be done “as-applied,” with an evidentiary
record, and the current record is simply insufficient. Wash. State Grange, 552 U.S.
at 457-58. The court explains these two reasons more fully below.
2.
A Purely Facial Challenge Fails
The DPH’s facial challenge is premised on the open primary being a
severe burden per se. And in doing so, the DPH emphasizes its own party
“preference” (adopted into the DPH Constitution) to have voters who are willing to
declare their affiliation with the DPH publicly. Its formal policy is that it should
8
(...continued)
Id. at 120-21.
22
not be compelled to affiliate, in the nomination process, with persons “who may
have no interest in, or actually oppose the interests, values, and platform” of the
DPH. Doc. No. 4-2, Carpenter Decl. ¶ 4. The DPH thus argues that, under Jones,
it is “severely” burdened by being forced to associate with those who do not share
its values (or by being forced to associate with those whose values it does not
know).9
Initially, it is far from clear the extent to which Jones’ holding (arising
from a blanket primary) applies to an open primary. Indeed, Jones stated that
California’s prior blanket primary was “qualitatively different” from a closed
primary system where it may be “made quite easy for a voter to change his party
9
The DPH makes much of the mandatory nature of Hawaii’s open primary. That is,
unlike in some other states with open primaries, Hawaii law does not allow a party to “opt out”
and nominate a general election candidate by other means. See HRS §§ 12-1, 12-2. Other courts
have relied on such an “opt out” possibility to uphold (facially) an open primary against a forced
association constitutional challenge under Jones. See Miller v. Brown, 503 F.3d 360, 367 (4th
Cir. 2007) (“[W]e need not decide whether Virginia’s open primary statute, viewed in isolation,
impermissibly burdens a political party’s right to associate with those who share its beliefs. . . .
Virginia allows political parties to nominate candidates not only by state-run primary but also by
other methods controlled and funded by the party. And, by merely choosing any of these other
options, a party is free to limit its candidate selection process to voters who share its political
views. Thus the ‘forced association’ that the Supreme Court has condemned [in Jones] simply is
not present here.”); Greenville Cnty. Republican Party Exec. Comm. v. South Carolina, 824 F.
Supp. 655, 664 (D.S.C. 2011) (“[C]ourts have repeatedly rejected attempts to facially attack state
election statutes on the basis of forced association where state law provides legitimate
alternatives that do not restrict freedom of association.”).
Nevertheless, it is “too plain for argument” that “a State may require parties to use the
primary format for selecting their nominees[.]” Jones, 530 U.S. at 572 (emphasis added). And
the lack of an alternative does not necessarily mean the open primary requirement is facially
unconstitutional under Jones.
23
affiliation the day of the primary, and thus, in some sense, to ‘cross over’[.]” 530
U.S. at 577. In such a system, “at least [the voter] must formally become a
member of the party; and once [the voter] does so, he is limited to voting for
candidates of that party.” Id. And, in this particular sense, such a closed primary
may be virtually indistinguishable from Hawaii’s open primary where voters can
“affiliate” with a party on the day of the primary. In fact, Jones distinguished an
open primary system from California’s blanket primary system:
In this sense, the blanket primary also may be
constitutionally distinct from the open primary . . . in
which the voter is limited to one party’s ballot. See La
Follette, [450 U.S.] at 130, n.2 (Powell, J., dissenting)
(“[T]he act of voting in the Democratic primary fairly
can be described as an act of affiliation with the
Democratic Party. . . . The situation might be different in
those States with ‘blanket’ primaries -- i.e., those where
voters are allowed to participate in the primaries of more
than one party on a single occasion, selecting the primary
they wish to vote in with respect to each individual
elective office”). This case does not require us to
determine the constitutionality of open primaries.
Id. at 577 n.8.
Even applying Jones’ reasoning here, however, the DPH’s facial
challenge necessarily raises other parties’ perspectives, an issue not squarely
24
addressed in Jones.10 At its core, Jones found the blanket primary process
unconstitutional because it “adulterated” the process by opening the primary “to
persons wholly unaffiliated with the party.” Id. at 581. But another party
(particularly a smaller and less recognized party) might well have a preference
different from the DPH’s. Another party might happily embrace any voter willing
to affiliate with it in any manner -- even voters affiliating anonymously in the
privacy of the ballot booth. Another party might adopt a formal policy to welcome
voters with diverse views -- even those that might differ from a party’s public
campaign positions. A party with such policies would not be forced to change its
message at all, as was central to the reasoning in Jones. 530 U.S. at 579-80. These
possibilities are far from hypothetical or speculative.
In Clingman, for example, the Libertarian Party of Oklahoma (“LPO”)
wanted to open its primary to all registered voters regardless of party
affiliation, whether Republican, Democratic, Reform, or independent. 544 U.S. at
581. “[T]he LPO [was] happy to have their votes, if not their membership on the
party rolls.” Id. at 589.11 And in Tashjian, the Republican Party of Connecticut
10
Jones was brought by a coalition of parties across the political spectrum (the
California Democratic, Republican, and Libertarian Parties, and the Peace and Freedom Party).
530 U.S. at 571.
11
Clingman ultimately upheld Oklahoma’s semiclosed primary, under which a political
(continued...)
25
adopted a rule permitting independent voters to vote in Republican primaries for
federal and state offices, 479 U.S. at 210, “[m]otivated in part by the demographic
importance of independent voters in Connecticut politics.” Id. at 212.
Tashjian found unconstitutional a Connecticut closed primary that
required voters in any primary to be registered as party members, contrary to the
Republican Party of Connecticut’s rule inviting independents to vote in its
primaries. The Supreme Court reasoned that the closed primary “impermissibly
burdens the right of [the party’s] members to determine for themselves with whom
they will associate, and whose support they will seek, in their quest for political
success.” Id. at 214. “The Party’s attempt to broaden the base of public
participation in and support for its activities is conduct undeniably central to the
exercise of the right of association.” Id. Although Tashjian addressed a closed
primary, it demonstrated that the constitutional analysis in a primary election law
challenge -- whether a state’s primary system “severely burdens” a party’s
associational rights -- depends fundamentally on the party’s own views as to who it
wants to associate with because it is “the right of [a party’s] members to determine
11
(...continued)
party could invite only its own registered members and registered independents to vote in its
primary. 544 U.S. at 590. Such a system did not severely burden either a voter’s or the LPO’s
associational rights because voters (even those already registered with another party) could have
affiliated with the LPO “with only nominal effort” and were “not ‘locked in’ to an unwanted
party affiliation.” Id. at 590-91.
26
for themselves with whom they will associate.” Id.
The DPH disagrees that the burden turns on a party’s policy or
desires, contending that an unconstitutional law is still unconstitutional even if one
embraces it. The DPH argues that “[a] political party that prefers the ‘open’
primary suffers a lack of liberty by having no other choice.” Doc. No. 19, Pl.’s
Reply at 10. “[A] citizen may not want to stand in a public forum and make
political speeches, but being prohibited from doing so is still a loss of liberty.” Id.
But the DPH’s logic assumes too much. The right at issue is the right to associate,
which includes the corollary right not to associate. And although the DPH may not
want to associate with non-members, other parties may embrace association with
anyone -- party members or not -- willing to vote in that party’s primary. Another
party, as in Tashjian, may want to “broaden the base of public participation” in its
primary,” 479 U.S. at 214, and thus it would have no “asserted injury” under the
First Amendment. Burdick, 504 U.S. at 434. Put differently, a party (particularly
small parties) welcoming all voters would not face any burden on its associational
rights, and the open primary would be fully consistent with its right to associate.
Consequently -- regardless of which test for facial invalidity (“no set
of circumstances” or “plainly legitimate sweep”) is proper here -- there are realistic
(perhaps even likely) factual situations where a party’s associational rights would
27
not be “severely” burdened by Hawaii’s open primary. Given a lesser burden, the
open primary is clearly supported by important and legitimate State rights such as
protecting the privacy of a person’s vote, and encouraging voter participation by
removing barriers to vote. See, e.g., Clingman, 544 U.S. at 593 (“When a state
electoral provision places no heavy burden on associational rights, a State’s
important regulatory interests will usually be enough to justify reasonable,
nondiscriminatory restrictions.”) (citations and internal quotation marks omitted).
In short, the open primary has a “plainly legitimate sweep.” Wash. State Grange,
552 U.S. at 449. There are “at least some” constitutional applications of Hawaii’s
open primary. Id. at 457. And it is not “unconstitutional in all of its applications.”
Id. at 449. Therefore, the DPH’s purely facial challenge to Hawaii’s open primary
fails.
3.
An Evidentiary Record Is Necessary
The DPH’s challenge fails for a second, independent reason -- the
court cannot measure whether the burden is severe (or not) without proof -- and
proof requires an evidentiary record.
The DPH argues that this court can address its facial First Amendment
challenge after ensuring “that there are no troublesome facts hidden beneath the
surface, so that the claim really can be decided on the record” and after making
28
certain that “there truly is but one avenue for its application.” Doc. No. 19, Pl.’s
Reply at 8. It asserts that the open primary is unconstitutional by emphasizing the
primary’s impact on its own policies (although not explicitly challenging the
primary “as applied” only to the DPH). But even given the DPH’s interpretation of
a “facial challenge,” and even if the court could address the DPH’s challenge
without looking to the possible impact on other parties, the court cannot -- on the
present record -- assess whether the DPH’s associational rights have been burdened
without considering evidence as to the extent, if any, of that burden.
Jones determined that California’s blanket primary constituted a
“clear and present danger” that a party’s nominee would be “determined by
adherents of an opposing party,” but it did so based on evidence. 530 U.S. at 578.
For example, the court had data quantifying the percentage and characteristics of
likely “cross over” voters, and considered testimony measuring the likely impact of
unaffiliated voters. Id. at 578-79. Expert opinions, surveys, and statistical data of
prior elections indicated that the blanket primary had the intended effect of
“changing the parties’ message.” Id. at 580-82. And historical evidence revealed
that the blanket primary was adopted by voter initiative, “[p]romoted [by
California] largely as a measure that would ‘weaken’ party ‘hard-liners’ and ease
the way for ‘modern problem-solvers.’” Id. at 570.
29
Recognizing that Jones relied on evidence to establish the burden on
those political parties, Bayless subsequently held that a challenge to a primary
election (and in particular, the severity of the burden on a party’s associational
rights) raised a factual issue that must be proven. 351 F.3d at 1282. In reviewing a
facial challenge to the constitutionality of an Arizona primary election system,
Bayless reasoned:12
The district court . . . erred in failing to consider
separately whether the participation of nonmembers in
the selection of candidates is constitutional under
[Jones]. Although forcing the Libertarians to open their
primary to nonmembers for the selection of party
candidates raises serious constitutional concerns, we
conclude that the resolution of the constitutional issue
turns on factual questions not decided by the district
court. We therefore remand so that the district court may
consider the severity of the burden this aspect of the
primary system imposes on the Libertarian Party’s
associational rights, [and] whether the state has
sufficiently justified that burden[.]
Id. (emphasis added). It explained that
Jones treated the risk that nonparty members will skew
either primary results or candidates’ positions as a
factual issue, with the plaintiffs having the burden of
establishing that risk. On remand, the district court
should separately consider the constitutionality of
12
See Ariz. Libertarian Party, Inc. v. Bd. of Supervisors of Pima Cnty., 216 F. Supp. 2d
1007, 1009 (D. Ariz. 2002) (“Plaintiffs raise a facial challenge to the open primary election law
in Arizona and are not challenging how that law is applied specifically to the Libertarian Party in
Pima County.”) (district court decision reversed by Bayless).
30
nonparty members voting for Libertarian party
candidates for public office, including the primary
system’s potential to change the party’s nominee or the
candidates’ positions.
Id. (emphasis added).
And in a subsequent election law challenge (after Washington State
Grange), Crawford reemphasized the inherently factual nature of the relevant
inquiry. Referring to the “heavy burden” necessary to invalidate an election law
“in all its applications,” Crawford reiterated that a court errs by “fail[ing] to give
appropriate weight to the magnitude of that burden when [analyzing] a preelection
facial attack on . . . primary election procedures.” 553 U.S. at 200 (citing Wash.
State Grange, 552 U.S. at 442). Crawford upheld an Illinois voter registration law,
reasoning in part that the evidentiary record was insufficient: “[O]n the basis of
the evidence in the record it is not possible to quantify either the magnitude of the
burden on [an identified] narrow class of voters or the portion of the burden
imposed on them that is fully justified.” Id. Given an insufficient record in that
facial challenge, Crawford could “not conclude that the statute imposes
‘excessively burdensome requirements’ on any class of voters.” Id. at 202.
Under this precedent, this court cannot consider the DPH’s challenge
without analyzing proof of a burden. See also Alaskan Independence Party, 545
F.3d at 1180-81 (rejecting a facial challenge to an Alaska primary election law
31
because the record did not demonstrate that the law conflicted with a party’s
specific bylaws); Idaho Republican Party v. Ysura, 660 F. Supp. 2d 1195, 1201 (D.
Idaho 2009) (requiring “an evidentiary hearing or trial” to determine whether
Idaho’s open primary violated the Idaho Republican Party’s associational rights,
given a lack of evidence as to “whether and to what extent ‘crossover voting’ exists
in Idaho, and whether and to what extent the threat of such ‘crossover’ voting
affects the message of [that party] and its candidates”).13 Cf. Greenville Cnty.
Republican Party v. South Carolina, 824 F. Supp. 2d 655, 665 (D.S.C. 2011)
(“[Jones] is additionally distinguishable in that the lower court and the appellate
courts reviewing California’s blanket primary law evaluated the law after benefit
of a trial which focused, substantially, on testimony regarding the effects of
cross-over voting. There is no similar empirical evidence before the court
today[.]”).
The DPH simply asserts that it will be, or can be, forced to “associate”
with voters who are “adherents of opposing parties,” and “who have worked to
13
Idaho Republican Party v. Ysursa, 765 F. Supp.2d 1266 (D. Idaho 2011), later
determined that Idaho’s open primary was unconstitutional, but did so on an as-applied basis
after a bench trial. See id. at 1277 (finding the Idaho open primary statute “is unconstitutional as
applied to the Idaho Republican Party”) (emphasis added). On appeal, the Ninth Circuit vacated
the district court’s judgment with instructions to dismiss the case as moot, after Idaho’s
legislature changed its primary system. See Idaho Republican Party v. Ysursa, No. 11-35251
(9th Cir. Sept. 19, 2011) (Order granting Appellees’ Motion to Dismiss Appeal).
32
undermine and oppose” the DPH. Doc. No. 4-1, Pl.’s Mot. at 15. The court,
however, cannot assume (1) that such “non-adherents” have burdened the DPH by
voting in a Democratic primary in the past, (2) that DPH candidates have in fact
been forced to change their message to cater to these non-DPH voters, much less
(3) that the DPH has been “severely” burdened over the past thirty-three years that
Hawaii has had an open primary.
Of course, it is possible (even likely) that some “crossover” voters
(i.e., members of, or sympathizers with, a rival party) have temporarily affiliated
with the DPH by voting Democrat in a Hawaii primary election. But it is also
possible (even likely) that -- given Hawaii’s demographics14 -- a large percentage
of primary voters who were not formally registered with the DPH, but who
affiliated with it by voting in a Democratic primary, fully considered themselves to
be Democrats, and thus were not working to “undermine and oppose” the DPH.
And if Hawaii primary election voters choosing a Democratic ballot have views
14
Both the DPH and the State agree as a matter of common knowledge that Hawaii is a
heavily Democratic State. See, e.g., Doc. No. 15-1, Def.’s Counter-Mot. at 8; Doc. No. 19, Pl.’s
Reply at 4. This fact is supported by publicly-available polls -- according to an August 3, 2012
Gallup poll, “[a]long with the District of Columbia, Rhode Island and Hawaii rank as the most
Democratic states in the country[.]” L. Saad, Heavily Democratic States Are Concentrated in
the East (Aug. 3, 2012), available at http://www.gallup.com/poll/156437/heavily-democraticstates-concentrated-east.aspx (last visited Nov. 14, 2013). As an example, Hawaii’s current
State Senate consists of twenty four Democrats and one Republican, and its House consists of
forty four Democrats and seven Republicans. See http://www.capitol.hawaii.gov/members/
legislators.aspx?chamber=S (last visited Nov. 14, 2013).
33
that completely agree with the DPH’s platform, then the DPH is not being forced
to associate with those who are antithetical to its views. The DPH would likely not
be “severely” burdened by not being able to reject persons who fully embrace its
values. The possibility of crossover voters might make no difference.15
Even if anonymity creates some burden to the DPH, the court cannot
assume -- without a developed evidentiary record -- that the DPH is severely
burdened (as opposed to being merely inconvenienced) by such a system,
especially a system adopted specifically to protect privacy of the vote and to
encourage voter participation. And the current record in this case establishes no
more than that the DPH has a formal preference to associate with those who are
willing to publicly declare their support for the DPH, and that approximately
65,000 people have formally registered with the DPH in a heavily Democratic state
with a population of over one million people.
In short, the DPH’s arguments rest on assumptions about voter
behavior that cannot be judged without evidence. The DPH’s challenge thus fails
for this second reason. See Wash. State Grange, 552 U.S. at 457 (“Each of [the
15
“It may be the case, of course, that the public avowal of party affiliation . . . provides
no more assurance of party loyalty than does [a] requirement that a person vote in no more than
one party’s primary. But the stringency, and wisdom, of membership requirements is for the
association and its members to decide -- not the court -- so long as those requirements are
otherwise constitutionally permissible.” La Follette, 450 U.S. at 123 n.25.
34
challenger’s] arguments rests on factual assumptions about voter confusion, and
each fails for the same reason: In the absence of evidence, [a court] cannot assume
that . . . voters will be misled.”). Just as in Washington State Grange, such a
factual determination “must await an as-applied challenge.” Id. at 458.16 Having
failed to succeed on the merits, it follows that the DPH’s request for a preliminary
injunction also fails. See Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20
(2008) (“A plaintiff seeking a preliminary injunction must establish that he is
likely to succeed on the merits, that he is likely to suffer irreparable harm in the
absence of preliminary relief, that the balance of equities tips in his favor, and that
an injunction is in the public interest.”).
16
The DPH relies on Democratic Party of Washington v. Reed, 343 F.3d 1198 (9th Cir.
2003), which, in addressing a facial challenge to Washington’s former blanket primary,
characterized Jones as determining that California’s blanket primary statutes “on their face”
restricted free association and only looked “at the evidence to determine whether the state
satisfied its burden of showing narrow tailoring toward a compelling state interest.” See id. at
1203 (“[Jones] does not set out an analytic scheme whereby the political parties submitted
evidence establishing that they were burdened. Instead, Jones infers the burden from the face of
the blanket primary statutes.”). Regardless of how Reed may characterize it, Jones reviewed a
district court’s findings of fact and conclusions of law after four days of testimony, see Cal.
Democratic Party v. Jones, 984 F. Supp. 1288, 1292-93 (E.D. Cal. 1997), aff’d 169 F.3d 646
(9th Cir. 1999), rev’d, 530 U.S. 567 (2000), and relied on this well-developed factual record at
all stages of the strict scrutiny analysis. In any event, the court is persuaded by Bayless, which
the Ninth Circuit decided several months after Reed, and is completely consistent with laterdecided Supreme Court precedent, Washington State Grange and Crawford, as detailed above.
35
V. CONCLUSION
For the foregoing reasons, the court upholds Hawaii’s open primary
against the Democratic Party of Hawaii’s facial constitutional challenge. The DPH
has failed to prove that the open primary is facially unconstitutional. Accordingly,
the court DENIES the DPH’s Motion for Partial Summary Judgment and Motion
for Preliminary Injunction, Doc. No. 4, and GRANTS the State’s
Counter Motion for Summary Judgment. Doc. No. 15. Judgment shall enter in
favor of the State, and the Clerk of Court shall close the case file.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, November 14, 2013.
/s/ J. Michael Seabright
J. Michael Seabright
United States District Judge
Democratic Party of Haw. v. Nago, Civ. No. 13-00301 JMS-KSC, Order (1) Denying Plaintiff’s
Motion for Summary Judgment; (2) Denying Plaintiff’s Motion for Preliminary Injunction; and
(3) Granting Defendant’s Motion for Summary Judgment
36
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?