Appeal

December 13th, 2013
By

The Democratic Party of Hawaii has appealed a federal judge's ruling in November that upheld the state's open primary system as constitutional.

The party has argued that allowing all voters to participate in the party's primaries is a violation of the First Amendment right to free association.

U.S. District Judge J. Michael Seabright ruled that the party failed to show that the open primary system places a "severe burden" on its First Amendment rights -- the legal standard for courts when reviewing election law challenges -- and also failed to present evidence documenting the harm to the party.

David Sgan, an attorney representing the party, filed the notice of appeal on Thursday. The appeal will be heard by the 9th U.S. Circuit Court of Appeals.

21 Responses to “Appeal”

  1. Kolea:

    Is the Party just making the same arguments they presented to Seabright? Or are they responding to his suggestion they need to provide some, well, evidence?

    While I am tempted to withold comment until I have read the filings, I will resist that temptation. It sounds like some of the Party leaders had been so convinced by Tony Gill's arguments that they cannot believe Seabright could disagree. Sort of like when someone repeats what they said, only louder when speaking to a non-English speaker.


  2. Johnson:

    I don't understand what they're doing. Is it that important to them to reduce voter participation in our representative democracy even further, when we already have one of the lowest per capita turnouts in the nation?


  3. Bart Dame:

    Johnson,

    Your comment suggests some assumptions which I am not sure are correct. First, I question the assumption that Hawaii's low voter turnout would be affected in the way you suggest. Hawaii had a much higher turnout in the 60s and 70s, under a closed primary system, than it does under the current, semi-open one. When the state constitution was amended at the 1978 Con-Con to shift to the open system, its advocates claimed it would lead to increased voter turnout. That prediction was false and turnout continued to fall.

    Another bit of evidence you might consider. More than half the states have closed primaries. Yet they have higher turnout than Hawaii, with our open system. So the correlation between an open primary system and voter turnout does not appear to be supported by any of the available evidence.

    Let me suggest instead of starting with a reflexive concern whether a specific change to the voting system might lead to a drop in voting, we might start by asking why so few people in Hawaii bother to vote. Then, we might think how to change those conditions. The conventional way to view non-voters is as if they are "irresponsible" or otherwise unenlightened. As someone who has been deeply involved in election-related activities: as an official election observer for 6 years, a frequent monitor of the Elections Commission, a lobbyist for voter-verifiable election systems, as well as a party activist and campaign volunteer, it might be assumed I look down on people who do not vote.

    I believe it is helpful to assume non-voters are (at least) as rational as voters. That they are exercizing "rational choice." They ask what is the logical result if they vote, or of they do NOT vote and wonder if the difference in outcome is enough reason to bother. To the extent the results are predictable in advance, there is less motive to vote. The extreme dominance of Democratic elected officials in The Hawaii legislature means voting for you local legislator is unlikely to change the outcome of the legislative session. Does it matter, in real terms for most people if Brian Schatz or Colleen Hanabusa is elected to the Senate seat?

    Let me suggest part of the reason people do not bother to vote is because there are few challengers to the incumbents. And the incumbents run as Democrats because that is the way to attain more influence, as a member of the Majority Caucus. As a result, the actual views of Democratic elected officials are a melange, a mishmash of ideas and self-interest, uninspired and uninspiring to voters?

    It can be argued, very reasonably, that Hawaii's open primary law has helped elevate politicians motivated more by careerism than principle and, rather than strengthening the two-party system, has led to the political domination by one, unprincipled alliance of the Status Quo? Which demoralizes voters and leads them to ask, quite reasonably, "Why bother?"

    Finally, I sense in your brief comment a misunderstanding of the purpose of a primary election. A primary is not simply a first round in a two-stage election. A primary election is a NOMINATING process whereby the candidates of the parties are chosen to run as representatives of their respective parties in the General Election. That is the argument which prevailed in the US Supreme Court ruling the Democrats are using as the basis for their lawsuit. The party's view, and I believe they are correct, is that people indifferent to or hostile to the Democrats do not have a right to help pick the Democratic nominee. Let the Republican aligned voters pick the GOP candidate, the Libertarians and Greens pick their champions and they all face off in the General, which is the time for all voters to make the final selection.

    Not only is the Democrat's position extremely sensible and constitutionally valid, it may push more conservative candidates out of the party and into the GOP, resulting in a more balanced two-party system. But it is certainly not clear it would lead to a decline in voter turnout. That argument, as a reason to interfere with the Democrats right to pick their own candidates, does not withstand close scrutiny.


  4. Especially Incognito:

    Seems those without breath don't need
    to hold their breath. Contradicting in what is
    said. Rant on.

    Says who? Fewer voters? Most of those who
    vote are transplants and there are those who
    are illegal immigrants to vote. Transplanted here but
    have NO Hawaii Birth Certificates. Maybe IDs
    should be checked to see if they are not some
    part-time resident here. Mainland transplant included.


  5. Especially Incognito:

    Seems a transplant assumes it knows
    what is what in Hawaii. Just a missionary
    preaching.


  6. ohiaforest3400:

    Kolea, the appeal is not a second bite at the apple during which the party can present more evidence. The appeal is limited to the 4 corners of the record generated in the court below, which is probably why, at least partly, Seabright repeatedly asked the party if it had any evidence that the open primary system placed an undue burden on it ands its members constitutional rights. None was forthcoming and there is no do-over now; the party is stuck with the record as it is and will be precluded from relitigating the issue if (and when) it loses on appeal.

    Mr. Dame, as usual, I agree with most of what you say. However, voting -- to me -- is every bit as much of a civic obligation as is jury duty. Do you want to be judged by a jury of your peers? Do you want your elected officials elected only by a small number of "motivated" voters. I think people who don't vote, at least to cast a protest vote, as I will do for David Ige, are defaulting on an obligation to their state and fellow citizens. It's not about outcome; it's about participating and talking ownership of one's role as a member of the community. People die in places like Iran to vote even for a rigged slate of candidates; we can all do the same (vote, not die). No participation, no democracy.


  7. Bart Dame:

    ohiaforest3400,

    Thanks for your general agreement. I am sympathetic to your criticism of non-voters. I have made the argument myself. But I no longer see the point of remaining attached to that attitude. Viewing non-voters as suffering from some sort of moral or civic failure doesn't help explain their behavior or to come up with a means of increasing their turnout. At least, not to me.

    We have remove almost all the obstacles to voter registration and made early voting extremely easy. So we cannot assume theri are barriers which still need to be broken down. Yet a majority of those eligible to vote have decided not to do so. We can sulk about this, but that it not helpful.So, I have decided to start from a position of respect. Respecting their right to not vote. Respecting that perhaps the candidates or the political system needs to be changed so they will find a rational reason to change their behavior.

    When I was in sales, (in a minor way), I could get frustrated if the customer was too stupid to understand how great my product was. But that did not increase sales. I had to figure out WHY they were not sufficiently enticed and offer them a better deal. Or better answers to their questions. I am afraid--and I take some responsibility for this as someone deeply involved in electoral politics--that we have failed to convince a lot of voters that our candidates are worth voting for. ( I KNOW the Republicans have failed, even MORE WORSE!) ; )

    Non-voting is particularly acute among younger residents. In part, it has always been the case that more established citizens: homeowners, higher income, feel like they have more at stake and feel the need to influence elections. But the alienation from electoral politics among young people is different than in the past. They do not trust the politicians, do not believe our legislative system is likely to improve their lives and offer them a better future. Is that view unreasonable? It may very well be that older people were conditioned to vote because they still believed it was possible to "change the world." Perhaps they felt more ownership of their society rather than younger people who tend to feel they have no say, except in how they treat their friends, in their private lives, by recycling and "walking the earth with a soft footprint." But voting for a politician? What's the point? What are the politicians offering? And when they DO offer something attractive, how often do they deliver? "The more things change, the more they remain the same."

    So I have reframed my views, have stopped criticizing non-voters and try to imagine if "Another World is Possible," how do we get there from here? And do elections play even a SMALL role in getting us there?


  8. Kaminari:

    I am interested, Ohia, that you consider your vote for David Ige a "protest" vote. From what I have seen, Sen. Ige is a real alternative. For many, he is the only candidate in the race, and a worthy candidate at that.

    What I find ironic is that those in the Democratic Party who are pushing for the Closed Primary are staunch allies of the current governor, while given how disenchanted rank and file Democrats are with the current governor, a Closed Primary is likely to favor David Ige over the current governor.


  9. ohiaforest3400:

    BD, I'll accept -- for a moment -- your premise that we need not to judge non-voters but rather determine what keeps them from voting and address those underlying issues. Contrary to your suggestion, I make no moral criticism of non-voters; I'm too selfish for that. The fact is that we need all voting-eligible members of the community to grab an oar and pull; if some don't, the rest of us are left to pick up the slack, and I don't want to have to do that.

    Returning to your point, I found it peculiarly unsatisfying that you identify causes for non-voting (some would say you're making excuses), but you don't actually offer any solutions, OTHR than voting. OK, you DO say that perhaps "the candidates or the political system needs to be changed." But what do you mean by that? And what on earth do you mean when you question whether "elections play even a SMALL role in getting us" to "Another World"? It sounds like you are envisioning a departure from participatory democracy. If so, what are you suggesting take its place? Some sort of self-selected council of wise elders who will patronizingly look out for our best interests since we won't take ownership of them for ourselves?

    The lack of satisfactory answers in this regard makes me go back and look at the assumptions on which your respect for not-voting rests. To put it quite bluntly, they appear to me to be enabling rationalizations. For example, you suggest that many young people don't vote because they lack the ownership in "the system" that older people feel; they lack homes and income and are more interested in their friends and recycling and in occupying a benign presence in the world. If you are correct, they are in deeper trouble than us oldsters. They have the biggest stake in preventing the despoiling of the planet, in blunting our propensity to wage war, in making corporations serve our needs and not their wants, than we have ever had. If they don't get on the path of steering the direction of our public policy as executed by the gummint, they will be living in a "Mad Max" world of desperation which we can only hope arrives after we have exited, stage left.

    Perhaps it will take a global disaster that threatens the very existence of humanity (atmosphere suffocating after-effects of a meteor strike, invasion of a locust-like alien species, a la "Independence Day," etc.) to get us off the navel-gazing you seem only too willing to accept as the new normal. In the meantime, I will stick to the aphorism -- as corny as it may be -- coined by JFK: "Ask not what your country can do for you; ask what you can for your country." I will start by voting every chance I get, participating any way I can, and being responsible for the outcome. Non-voters can smugly disavow any responsibility for what we become but, if push comes to shove, smugness won't feed the family and friends or keep a roof over their heads.


  10. Especially Incognito:

    The sales person is stupid if
    they cannot communicate is selling a product.
    Some salesman calls me stupid
    and I will have that person fired.

    Think you are smart, seems not if you cannot make a sale.


  11. Hawaiino:

    If I may interrupt this, with just one small exception, very well considered discussion. I have to ask a question or two. I may be breaching blog protocol, if so, please withhold this comment.

    Has anyone ever responded to Especially Incognitos (EI) obfuscations? Has anyone called him(her) out and asked them to explain any of the offered inanities? Can there be one? It's gone on for a long time. I assume that the comments EI provides are for most readers just a speed bump on the way to the next comment. Still, flow is interrupted and the meanness of spirit on display is, at the least, uncharitable.

    For me EI is no Chauncy Gardner...Perhaps a simpleton but no universal wisdoms gleanable.


  12. ohiaforest3400:

    Kaminari, thanx for the reminder that "the cup is half full, not half empty." I am voting for David Ige because I have had personal opportunity to compare him with the incumbent and prefer him. I referred to that vote as a "protest" vote, instead, because it was shorthand for what most people, the campaign fundraising numbers, and the conventional wisdom are telling me. But, based on what I've argued above, it's my vote to cast and I need to own it.

    Hawaiino, your point has been raised before as to posters similar to EI, although some have been far meaner and more inane. They still post, altho' not as prolifically as EI, but I suppose some of their stuff might not have been approved for posting. You have the right idea: it's pretty easy to tell who and what is a mere speed bump so just drive, er, view around it.


  13. Kaminari:

    Ohia, I chuckled at your half full perspective because I think that previously maybe it was easy to consider David Ige a half full cup because of his quiet demeanor. But, it seems that he has shaken off the reserve given the urgency of the State's need. I happened to be at an event that he was an invited guest at, and he electrified the gathering. He is a 100th Bn son, and perhaps like his father before him, he is answering the call to arms and duty, and if we are fortunate will serve as exemplarily as the 100thBn/442ndRCT. Many of them were quiet and appeared ordinary, but they served valiantly and found it in themselves to become quite extraordinary.

    In this topsy turvy election, it is going to be the irony of ironies if NA's allies succeed in closing the Primary to his detriment. LOL


  14. Especially Incognito:

    50/50.
    Don't underestimate any Japanese.
    They smile at you but stab you in the back.
    Nature not to confront but they can.
    Japanese are not good speakers unless
    they train to be.


  15. ohiaforest3400:

    Kaminari, "half-full" was meant as an optimistic/positive take, one that emphasizes what we have, not what we don't, whereas as "half-empty" dwells on the opposite. If David Ige turns out to be a "full cup," as you suggest, then so much the better!


  16. Especially Incognito:

    “You must be shapeless, formless, like water. When you pour water in a cup, it becomes the cup. When you pour water in a bottle, it becomes the bottle. When you pour water in a teapot, it becomes the teapot. Water can drip and it can crash. Become like water my friend.” Bruce Lee


  17. Kaminari:

    Ohia, LOL, I knew that you were being optimistic versus pessimistic! :D But, I wanted to share that what I saw and heard completely rocked. People's cups ranneth over with hope and happiness after talking to Ige. Was quite moving to see.

    Happy Holidays to you! I enjoy reading your comments! Same to you, Kolea and BD !


  18. Especially Incognito:

    "If I may interrupt this, with just one small exception, very well considered discussion. I have to ask a question or two. I may be breaching blog protocol, if so, please withhold this comment.

    Has anyone ever responded to Especially Incognitos (EI) obfuscations? Has anyone called him(her) out and asked them to explain any of the offered inanities? Can there be one? It's gone on for a long time. I assume that the comments EI provides are for most readers just a speed bump on the way to the next comment. Still, flow is interrupted and the meanness of spirit on display is, at the least, uncharitable.

    For me EI is no Chauncy Gardner...Perhaps a simpleton but no universal wisdoms gleanable." Hawaiiano

    Freedom of Speech to quirp, Hawaiiano. Its takes a genious like you, Hawaiiano to know. How I know?


  19. Especially Incognito:

    "Hawaiino, your point has been raised before as to posters similar to EI, although some have been far meaner and more inane. They still post, altho' not as prolifically as EI, but I suppose some of their stuff might not have been approved for posting. You have the right idea: it's pretty easy to tell who and what is a mere speed bump so just drive, er, view around it." ohiaforest3400

    The thing about speed bump is you run over it. It is still there.
    I find another genious in play.


  20. charles:

    Interesting discussion. The deep dive to try and understand why people don't vote falls into the same well as What is the Meaning of Life?

    Some social scientists would take Bart's premise that voters have the right not to vote as well and many do just that. Others say that there are those who are more or less satisfied with the status quo so just keep truckin' on. It's also true to a degree that people feel alienated from the political process so voting is just as alien a process.

    I've also observed that people need something to vote for and that motivates people more than voting against something. Look at the voter turnout in the late 50s, early 60s when the Dems took control of the political system and voter turnout was in the 90s.

    You also have to consider the "flattening" of power levels in society where there are far more places of influence than before. For example, clearly organized labor doesn't enjoy the influence they had back in the day. Union membership has gone down and the rank-and-file doesn't vote as a unified entity as they once did.

    Lastly, there's the cultural aspect. Japanese vote at the highest rate of all voters. Back in the day when over 40% of Hawaii residents were Japanese, it led to a higher turnout compared to today where Japanese are in the low 20s.

    There's many other reasons but these are the ones that come to mind.


  21. Especially Incognito:

    Japanese are a minority in Hawaii.
    Filipinos are getting to be the majority
    and many of them don't vote.
    Others like Samoan, Micronesians
    are here on a permanent vacation.
    They only care about playing sports.


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