Shot

September 26th, 2013
By

Robert Thomas, an attorney who writes a blog on legal matters, offered his assessment Thursday of recent filings in the Democratic Party of Hawaii's lawsuit challenging the state's open primary.

Thomas, who has been involved in legal challenges to reapportionment and who has represented the Star-Advertiser in an open-records case against the state, predicts the party might prevail.

His take is that the case is about whether primary elections are about voter choice or party choice:

The philosophical heart of the case is whether a primary election is about a voter's choice or a party's choice, but nothing we've read in the briefing so far has changed our initial prediction that the case is going to turn on the mandatory nature of the open primary. Our read of Hawaii law is that there's no other way for a political party to choose its general election standard-bearer. Thus, however odd it may seem in an overwhelmingly Democratic state where the primary in many cases serves as the de facto general election, the Party's right to pick whom it wants as its candidate to stand before the public in a meaningless election has a good shot at winning out over the State's argument for a voter's choice of whom he wants to serve as his representative.

4 Responses to “Shot”

  1. Bart Dame:

    I think Robert Thomas is correct. I think the US Supreme Court ruling in the Jones case was pretty clear. The government has no right to force a private political group to accept outsiders in helping choose that party's nominee. I am a little stunned at how few people have bothered to read that ruling before insisting the merits of the case are obvious to them.

    Thomas clearly HAS read the ruling.

    Having said that, I do not believe the Party should insist on a closed primary, even as I uphold our right to make that decision. Virtually all of our elected officials disagree with us, as do most of the unions, a group strategically allied with us. If we are unable to convince our closest allies of the merits of our case, I think it is a serious mistake to rely instead upon a court. Even as I expect we will win in court. Even as we lose in the "court" of public opinion.

    And the benefits of a closed primary have been oversold to party activists. it is probable the legislature will enact a system similar to that adopted in California immediately after the court ruling. Under such a system, the primary electorate would remain ALMOST the same as it is currently. While there are a lot of Republican-aligned voters currently voting in the Democratic primary, under a closed primary system, most of those people would still vote in our primary, affecting our choice of candidates. Only the few card-carrying Republicans (and Greens) would be barred.

    Those pushing this lawsuit are pretty confident they will win in court. But this is a political matter an not all legal victories translate into political victories. The legislature, if they are upset enough, can create a primary system through statute which would satisfy the requirements of the court, while NOT satisfying the desire of the Democratic officers pushing this.


  2. armchair:

    elected politicians rarely agree with changes to the electoral system. that's why we have people like Kevin Cronin and Scott Nago running the elections


  3. Bart Dame:

    Apparently, my comments above have been misunderstood as saying I think the legislature will move towards a Louisiana-style "Jungle Primary" system. That was not my intent, but I can see how my writing might have lent itself to that interpretation.

    When I suggested "the legislature will enact a system similar to that adopted in California," I was referring to the particular features of the semi-closed primary system the California legislature created for the 2002 elections in response to the 2000 US Supreme Court ruling against the previous open primary system. The 2002 California system was called "semi-closed" because while the primary was closed to formal members of other parties, each party could allow voters unaffiliated, or independent, from another party to vote in their primary.

    I believe the Hawaii Legislature is likely to adopt a system similar to the 2002 California semi-closed primary system if the Democratic Party lawsuit is successful. That is the system which I believe wil not make a very big change in the makeup of voters in the Democratic primary, as only card-carrying Republicans, Libertarians or Greens would be excluded.

    Some readers apparently thought I was saying the Hawaii Legislature would adopt the current California primary system, which is sometimes referred to as the "Louisiana" or "Jungle" primary system. The most accurate description would be a "nonpartisan blanket primary." I doubt our legislators will adopt the blanket primary system. The majority of them like running under the Democratic label and do not want to give that up.


  4. Especially Incognito:

    Seems like someone wants Hawaii
    to be like the mainland. What works
    there, may not work here. This is an Island.


Leave a Reply