United States District Court, D. Hawai'i
For Democratic Party of Hawaii, Plaintiff: David A. Sgan, T. Anthony Gill, Wade C. Zukeran, LEAD ATTORNEYS, Gill, Zukeran & Sgan, Honolulu, HI; Linda M. Aragon, LEAD ATTORNEY, Gill & Zukeran, Honolulu, HI.
For Scott T. Nago, in his official capacity as Chief Election Officer of the State of Hawaii, Defendant: Deirdre Marie-Iha, Marissa Hime Iolana Luning, LEAD ATTORNEYS, Department of the Attorney General-State of Hawaii, Honolulu, HI.
J. Michael Seabright, United States District Judge.
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
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.
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." )  & § 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."  That is, 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 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 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). 
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 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: 
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.
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 ...