Voting rights | election law

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Here’s a ruling we’ve been waiting for in the Hawaii Democratic Party’s federal court challenge to Hawaii’s “open primary” process. U.S. District Judge J. Michael Seabright yesterday denied the Party’s motions for summary judgment and preliminary injunction, and instead granted the State’s cross-motion, effectively ending the case.

The court held that the open primary system is not facially unconstitutional, concluding that there may be circumstances in which an open primary does not interfere with a political party’s First Amendment rights, and that the Party had not supplied any evidence that its associational rights had been “severely” burdened by the open primary requirement. Althought it dismissed the lawsuit — the Party raised only a facial claim — the court left open the possibility of an as-applied challenge:

The State concedes that a ruling in its favor on the facial challenge in this case would not preclude an “as-applied” challenge…

Continue Reading Fed Ct: Hawaii’s Open Primary Not Facially Unconstitutional

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Here’s the latest on the Hawaii Democratic Party’s federal court challenge to Hawaii’s “open primary” election system, a case we’ve covered earlier.  Both the Party and the defendant State of Hawaii have sought summary judgment, but according to this report (“Judge hints at ruling in Democratic Party’s lawsuit“), it may be too early in the case for either side to win as a matter of law.

The issue at the heart of the case is whether Hawaii’s mandatory open primary system of choosing a party’s standard-bearer to run in the general election is a “severe burden” on the Party’s right to association.  As this story by Ian Lind in Civil Beat (“Is ‘Open Primary’ a ‘Severe Burden’ on Democrats?“) notes:

That question of whether or not the “open primary” is a “severe burden” on the party will likely determine the eventual outcome of the…

Continue Reading Latest On Democrats’ Challenge To Hawaii’s Open Primary

Here’s the latest brief in the Democratic Party’s federal court challenge to Hawaii’s “open primary” system (the Party’s reply brief, which both is its final word supporting its motion for summary judgment, and its response to the State of Hawaii’s counter-motion for summary judgment).

This brief responds to the State’s argument that the mandatory open primary (in which voters can pull a ballot for any party on election day, regardless of the voter’s party affiliation or nonaffiliation) isn’t that much of a burden on the Democrats’ freedom to associate with whom they choose. The Party asserts its associational rights are overly burdened by prohibiting it from insuring that its card-carrying members are the ones who are making the choice for the Party’s general election standard-bearer.

Yes, the brief argues, Hawaii may be overwhelmingly blue, but don’t penalize us for being good at what we do by making…

Continue Reading Hawaii Dem Party In Open Primary Challenge: Hawaii Citizens “Think One Way,” So Don’t Reward Incompetent Parties By Violating Our Associational Rights

Here’s some news: the State of Hawaii thinks that Hawaii has a “vibrant multi-party system.”

Really?

The reality, of course, is not only different, it is much different, as a summary of the situation by Honolulu Civil Beat (“One-Party Dominance“) points out. An overwhelmingly Democratic congressional delegation, a nearly one-party legislature, only one non-Democratic governor since the initial post-statehood Bill Quinn (R), etcetera, etcetera, etcetera.

Here’s more interesting news. To all you “crossover” voters who pulled one party or another’s ballot in Hawaii’s “open primary” election: the State of Hawaii says that by doing so, you are affiliating with that party. Well, at least enough that the primary system is not violating the Party’s right to association with whom it wants, meaning most likely not you.

These are among the gems to be gleaned from the State’s counter-motion for summary judgment and memorandum in opp to the…

Continue Reading State Of Hawaii: Open Primary Is Constitutional Because Pulling A Democratic Ballot Is “An Act Of Affiliation With The Democratic Party”

Late last year, we posted the Complaint in a federal court lawsuit originating on Kauai. In that case, the owner of a property that has been designated for resort development for 35 years asserted that the adoption of a Charter amendment by the County’s voters and a follow-on ordinance adopted by the County Council that together created a new land use classification (“transient accommodation unit”), and severely limit the number of TAU’s was an attempt to restrict the number of visitors and part-time residents.

The Complaint contains three major allegations: (1) the measures are arbitrary and capricious and violate substantive due process as an attempt to limit visitors, (2) they violate the Hawaii Zoning Enabling Act (Haw. Rev. Stat. § 46-4, the state statute delegating zoning authority to the counties in certain areas for all you land use nerds), which prohibits adopting of zoning ordinances by initiative, and…

Continue Reading Hawaii Federal Court: Kauai Charter Amendment Limiting Vacation Rentals Is A Prohibited “Zoning Initiative”

It’s easy to report when you win a case, not so easy when you … don’t (at least not yet).

That’s the result in this stage of the Hawaii reapportionment case, as yesterday, a three-judge U.S. District Court denied the plaintiffs’ motion for summary judgment and entered summary judgment for the state defendants. We represent the plaintiffs by the way. Here’s the court’s Opinion and Order Denying Plaintiffs’ Motion for Summary Judgment and Granting Defendants’ Motion for Summary Judgment.

We won’t comment on the case, but we can repeat what we told the papers:

We always believed that the issues in this case merited resolution by the U.S. Supreme Court. We were hoping that a favorable decision from the Hawaii District Court would save us from taking it further, but alas no. While we have not finished reviewing the Hawaii District Court’s rationale in detail, everything we’ve…

Continue Reading Three-Judge District Court: No Equal Protection Violations In Excluding Military From Reapportionment Population, Or in 44% Deviation

Ian Lind has more on the federal lawsuit by the Hawaii Democratic Party that seeks to invalidate Hawaii’s “open primary” system. Start here at his blog (“Dem lawsuit: Bold strategy or self-inflicted injury?“), then continue to the full story at Honolulu Civil Beat (“Hawaii Monitor: Primary Politics“).

Hawaii adopted the open primary system in the 1978 constitutional convention:

The 1978 Con-Con couldn’t help being colored by the overarching political issues and debates of the day, including concerns over the kinds of government secrecy and manipulation revealed by the Watergate scandal, and Congressional investigations of government spying on citizens, which included Army spying on civilian activists in Hawaii.

The move to protect information about political affiliations was playing out against what at the time was recent political history of a president with an “enemies list” and targeted attacks against his political opponents. Both openness and personal privacy…

Continue Reading More On The Democratic Party’s “Open Primary” Challenge

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A slight detour into our other favorite area of law, election law and voting rights. Yesterday, the Democratic Party of Hawaii (finally, after years of hemming and hawing) pulled the trigger on a federal court lawsuit seeking to invalidate Hawaii’s “open primary” laws (Haw. Const. art II, § 4, Haw. Rev. Stat. ch. 12), asserting they violate the Party’s First Amendment freedom of association.

Here are the Complaint and the Motion for Partial Summary Judgment and Preliminary Injunction, filed yesterday.

Here’s more on the story from the Honolulu Star-Advertiser (subscription may be necessary for full content). Or, try this story from Civil Beat (although it’s just a republishing of the Party’s press release). 

Complaint, Democratic Party of Hawaii v Nago, No. CV13-00301 JMS KSC (D. Haw. 6-17-2013)

Plaintiff’s Motion for Partial Summary Judgment and Preliminary Injunction, Democratic Party of Hawaii v N…


Continue Reading Members Only: Hawaii Democratic Party Seeks Closed Primary

This morning, the Supreme Court released the order with the results of last Friday’s conference, revealing the Court has declined to review Lepak v. City of Irving, No. 12-777 (petition for cert. filed Dec. 21, 2012). We’re covering this issue here because as some of you might recall,  we represent the plaintiffs in a case challenging the 2012 Hawaii Reapportionment Plan, and Lepak raised related issues.

The Equal Protection Clause of the Fourteenth Amendment requires that state and local reapportionment and redistricting be accomplished so that the resulting districts are of roughly equal “population,” but the Supreme Court has never defined exactly what it means by “population.” Is it like Congressional reapportionment which requires that all persons get counted, i.e., the census count? Can some lesser population be counted? This is another way of describing the question of whether Equal Protection guarantees each person’s right to vote…

Continue Reading Voting Equality vs. Representational Equality – Cert Denied In “One Person, One Vote” Case

On Tuesday, February 26, 2013, the Judiciary and Labor Committee of the Hawaii State Senate will be conducting a public hearing and taking testimony on S.B. 286, a measure which amends a state statute to define “permanent resident” as used in state reapportionment and redistricting as “any person counted as a usual resident of the state of Hawaii in the lastpreceding United States census.”

Currently, under the Hawaii Supreme Court’s decision in Solomon v. Abercrombie, 126 Haw. 283, 270 P.3d 1013 (2012), “permanent resident” is defined as “domiciliary,” which means that to be considered a permanent resident of Hawaii, a person must have a physical presence plus have exhibited an “intent to remain.”

As you may well know, we represent the plaintiffs in Kostick v. Nago, No. 12-00184 JMS-LEK-MMM, the case challenging Hawaii’s 2012 Reapportionment Plan for violating the Equal Protection Clause (among other things). That case…

Continue Reading Testimony On Defining “Permanent Residents” For Hawaii Reapportionment As Census Count