On May 4, the Ninth Circuit heard Democratic Party of Hawaii v Nago, 13-17545. The issue is whether the Democratic Party has a constitutional right to avoid having its nominees chosen in an open primary. Hawaii voter registration forms do not ask the applicant to choose a party, and on primary day, any voter can request any party’s primary ballot.

The three judges were A. Wallace Tashima and Richard Tallman (Clinton appointees) and Andrew Hurwitz (an Obama appointee). The U.S. District Court had ruled against the Democratic Party, because the party had not presented evidence that persons hostile to the Democratic Party are actually voting in Hawaii Democratic primaries.

The party argued that open primaries are unconstitutional, as applied to parties that don’t desire them. The party argued it would be almost impossible to produce evidence, because Hawaii’s open primary has been in existence since 1998, and the voter’s choice of which party ballot to use is secret. The party argued that if one reads California Democratic Party v Jones, the 2000 U.S. Supreme Court decision that invalidated California’s blanket primary, it should be clear that evidence is not needed.

There are two Ninth Circuit prior decisions on whether evidence is needed when the constitutionality of open or blanket primaries is challenged, and they seem to contradict each other. In September 2003 the Ninth Circuit invalidated Washington state’s blanket primary, in Democratic Party of Washington State v Reed. In that case, the Ninth Circuit said no evidence was needed. But in December 2003, another panel of the Ninth Circuit ruled that the Libertarian Party’s lawsuit against the Arizona open primary did need evidence, and sent the case back to the U.S. District Court (the party eventually won the case in 2007). That case was Arizona Libertarian Party v Bayless.

Judge Tashima speculated that if the Democratic Party won the case, the effect would be to shift the Democratic Party of Hawaii to the left.