HONOLULU — A federal judge said at a hearing that he will likely rule in favor of a lawsuit challenging Hawaii’s open primary election if he finds there’s a “severe burden” on the First Amendment right to free association.
Judge J. Michael Seabright said at Monday’s hearing that the case could ultimately end up before the U.S. Supreme Court.
The Democratic Party of Hawaii’s lawsuit claims the primary system allowing every registered voter to participate in the party’s nomination process is tantamount to forced political association and is unconstitutional.
The party wants to ensure Democrats are selected at the primary stage by those willing to identify as Democrats. “What the party does not want is anonymous persons deciding its candidates,” Tony Gill, an attorney representing the party, told the judge.
Seabright questioned Gill about why the party hasn’t presented factual evidence showing the political harm from crossover voting in an open primary.
The state attorney general’s office argues the open primary should be upheld because the state has an interest in removing barriers to voting, protecting voter privacy and supporting a multiparty system.
State Deputy Attorney General Deirdre Marie-Iha argued that voters who choose to vote in the Democratic primary are committing an act of affiliation with the party. She noted that those who choose the Democratic primary can’t vote in other party primaries.
If the judge rules in favor of the party and issues a preliminary injunction to halt the open primary, he would not be inclined to decide how a new system should be constructed, Seabright said. He said that should be left up to the state Legislature.