On March 24, the Hawaii Democratic Party filed its opening brief in the Ninth Circuit in Democratic Party of Hawaii v Nago, 13-17545. The issue is whether the Democratic Party should be permitted to limit voting in its primary to individuals who sign up as supporters of the party. Currently, all primary voters decide in the secrecy of the voting booth which party’s primary ballot to use.
The party vigorously contests the finding of the U.S. District Court, which was that an open primary law is not subject to a facial attack, because theoretically, there might be some political party in Hawaii that wants to keep an open primary for itself. The Democratic Party’s brief lists many cases in which the U.S. Supreme Court entertained a facial challenge in a First Amendment case, even though there were individuals or groups in the same category as the plaintiffs who liked the status quo.