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The Honolulu Advertiser
Posted on: Wednesday, December 12, 2007

Hawaii Democrats may sue to close primary

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By Derrick DePledge
Advertiser Government Writer

Several state Democrats, concerned about the influence of crossover voting, want to exclude independents and Republicans from Democratic primaries.

The Democrats, who want to legally challenge the state's open primary system, worry that crossover voting can produce nominees who do not reflect the party's platform.

But the party's leadership has wavered, fearing a closed primary would keep thousands of potential voters away.

Democrats have been the dominant political party in the Islands since the 1950s, but only about 20,000 of the state's more than 662,000 registered voters belong to the party.

Voters can join by simply filling out a membership card, but most do not. Last year, for example, more than 236,000 voters participated in the Democratic primary for U.S. Senate between U.S. Sen. Daniel Akaka and then-U.S. Rep. Ed Case.

The state's open primary system allows voters to choose which party's ballot to pull on election day. A closed primary would require voters to declare their party affiliation before the election to be eligible to vote for a party's candidates.

"The party is tired of having unknown people nominating its candidates by a secret, shadowy process," said Tony Gill, a labor attorney who is prepared to file suit against the state on the party's behalf. "Here's another way of putting it: You don't let another team pick your quarterback."

Neal Milner, a University of Hawai'i-Manoa ombudsman and political analyst, said a closed primary would lower voter turnout but would likely lead to nominees who are closer ideologically to the party's platform.

"The question I would have is why would they want to do this, because it would certainly reduce turnout," he said. "I think it's about getting the candidates some of them want."

The Democratic Party of Hawai'i agreed to a resolution at its state convention last year supporting closed primaries to deter crossover voting. Activists have been pressuring the party's leadership for months to file a lawsuit against the state's chief elections officer challenging the state's open primary system as unconstitutional.

Many of the party's elected leaders, including U.S. Sen. Daniel K. Inouye, fear a lawsuit could be a tactical mistake and a public-relations embarrassment. The Hawai'i State AFL-CIO, one of the party's most important political allies, has threatened to withhold financial support from the party if a suit is filed.

The rift is between some of the party's liberal activists, who believe too many of the party's elected leaders have drifted from the party's platform, and pragmatists who want the party to appeal to an increasingly independent electorate.

Several Democrats declined to comment publicly and some involved had hoped the dispute could be quietly resolved internally. The party is known for its factionalism and, with its leadership aging, competing camps are positioning for future control.


The rift over the open primary system is an example of deeper frustration about whether the party is fully taking advantage of its majority power to advance some of the more liberal elements of its platform, some Democrats said.

Many political analysts in Hawai'i believe crossover voting has not had much of an impact on primaries.

But crossover voting does occur. Case openly urged all voters to vote in his primary with Akaka last year and was able to attract many independents and Republicans. Case took 45 percent of the vote despite the fact that party leaders, both in Hawai'i and Washington, D.C., were uniformly behind Akaka.

The Case campaign, which infuriated many traditional Democrats, was not the motivation behind the call for a lawsuit but it has been cited by several Democrats as evidence of how the primary system can be influenced by crossover voting.

"The current primary law in Hawai'i is unconstitutional," said Richard Port, a former party chairman.

The U.S. Supreme Court has ruled that political parties have a First Amendment right of association that the states must consider when regulating the structure of primaries. In 1986, in Tashjian v. the Republican Party of Connecticut, the court found that a closed primary system in Connecticut improperly deprived Republicans from allowing independent voters to vote in Republican primaries.


In 2000, in California Democratic Party v. Jones, the court invalidated a blanket primary system in California where voters were allowed to choose from all candidates regardless of party.

"In no area is the political association's right to exclude more important than in the process of selecting its nominee," Associate Justice Antonin Scalia wrote in the court's majority opinion in the California case. "That process often determines the party's positions on the most significant public policy issues of the day, and even when those positions are predetermined it is the nominee who becomes the party's ambassador to the general electorate in winning it over to the party's views."

California modified its primary system in 2001 to let political parties decide before each election whether to allow voters who decline to state their party preference to participate in the party's primary.

The system allows parties to accept independent voters while rejecting voters from competing parties. In the upcoming California presidential primaries, for example, Democrats have agreed to accept independents while Republicans have not.

In Hawai'i, the state had a closed primary system in the decade before the 1978 constitutional convention. But voters agreed on open primaries after the 1978 convention and the existing primary system has been in place for the past three decades.

Hawai'i is among 10 states with open primaries, according to the National Conference of State Legislatures.

Mike McCartney, who stepped down as Democratic Party chairman this year to become executive director of the Hawai'i State Teachers Association, refused to file a lawsuit challenging the state's open primary system because he said voters should decide whether to change the process. Voters will be asked next year whether to hold a constitutional convention in 2010.

McCartney also said a lawsuit would not be worth the party's money or energy. "I think there are more important issues the public wants us as a party to solve," he said.

Jeani Withington, a Big Island attorney who is the acting party chairwoman until the next state convention in May, said she has asked the state Campaign Spending Commission and the Federal Election Commission for guidance on how the party should pay Gill's law firm if it files the suit. She also said the party would have to come up with a public-relations campaign to explain the constitutional issues to voters.

"I just want to make sure that what is being done is done properly," Withington said.


A vote to rescind party authorization for the lawsuit narrowly failed amid procedural confusion at a state central committee meeting last month in Kona. Another vote is possible at a state central committee meeting in January on O'ahu.

State House Majority Leader Kirk Caldwell, D-24th (Manoa), said fighting for a closed primary sends the wrong message for a party that prides itself on being diverse and inclusive. He said Democrats should be exploring how to increase voter participation through election-day voter registration or expanded voting by mail.

Restricting the primary to card-carrying Democrats only, Caldwell and other elected leaders worry, could alienate voters who favor Democrats on issues but may not want to reveal their party preference for privacy or cultural reasons.

Caldwell believes the call for a closed primary is an attempt by some activists to enforce greater party discipline. The platform and the resolutions adopted last year in addition to favoring a closed primary contain several controversial positions that many elected Democrats do not actively support, such as impeaching President Bush, repealing the state's three-strikes law against violent criminals, and backing civil unions for gay couples.

"We're so diverse as a party that few candidates are going to be able to pass the litmus test they are going to ask for," Caldwell said.


Jennifer Goto-Sabas, Inouye's chief of staff in Honolulu, described the situation as in a "definite state of limbo." The party's official position is for the chairman to file suit, and Gill is awaiting word on when to proceed. But Inouye and other elected leaders want the party to hold back. "We've let our position be known," she said.

Privately, some Democrats said they did not want the infighting to surface because it could be exploited by Republicans. Gov. Linda Lingle, who won a landslide re-election victory last year, has done well with independents and moderate Democrats by downplaying her Republican label.

Willes Lee, the state's GOP chairman, said Republicans would not support a closed primary.

"We're looking for more people to get involved in the process, not looking to keep people out," he said. "I can see that as detrimental to the process, period. In my view, in America in general, more people are considering themselves independent that is, with a small 'i.' And I don't think either party should be exclusive."

Reach Derrick DePledge at ddepledge@honoluluadvertiser.com.

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