`Conjecture and guesswork'

September 30th, 2013
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The state Attorney General's office argued again on Monday that the Democratic Party of Hawaii has failed to show how the the state's open primary system violates the party's right to free association.

In a filing in federal court, Marissa Luning and Deirdre Marie-Iha, deputy attorneys general representing Scott Nago, the state's chief election officer, argue that the party has failed to present any factual claims to the court and instead expects the court to rely on "conjecture and guesswork."

The party sued the state in June, alleging that the open primary system infringes on its First Amendment right to free association because all voters, regardless of party, can choose to participate in party primaries and select the party's candidates for general elections. The state has countered that the open primary is justified by the state's interest in removing barriers to voting, protecting voter privacy, and supporting a vibrant multiparty system.

Voters approved the open primary system through a constitutional amendment in 1978.

The core issue is whether the open primary places a "severe burden" on the party's right to free association.

From Luning and Marie-Iha:

...the party has failed to come forth with any facts to support its claim that Hawaii's open primary laws have "severely burdened" its association rights. As a result, this court would have to engage in conjecture and guesswork in order to conclude that the party's associational rights have been severely burdened. Because the party has failed to demonstrate -- factually -- a severe burden on its associational rights, Defendant is entitled to summary judgment.

A hearing on the lawsuit is scheduled for next Monday before Judge J. Michael Seabright in U.S. District Court.

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