On June 17, the Hawaii Democratic Party filed a lawsuit in federal court, seeking to close its primary to all except registered Democrats. Hawaii at this time does not ask voters to choose a party when they register to vote. This is the first time any state Democratic Party has ever filed a lawsuit to close an open primary. In the past, the Republican Parties of Virginia, Idaho, and South Carolina filed such lawsuits.

The Virginia Republican Party lawsuit had some success, and the Idaho Republican Party completely won its case. The South Carolina Republican Party lawsuit is still pending.

UPDATE: here is the party’s press release. Here is the Republican Party’s press release.

Ariel Chesler has this article on Huffington Post. From his own personal experience, he knows that many New Yorkers don’t realize that candidates can’t get on ballots unless voters are willing to sign petitions for them. Especially telling is one voter, who, when asked to sign, said, “Let the candidates get themselves on the ballot!”

The problem is surely much worse in states such as Alabama, Georgia, and North Carolina. In those states, candidates seeking a place on a primary ballot don’t need petitions. Also those states don’t have the statewide initiative process. So voters are even less aware of the importance of petitioning, because the only groups that petition are minor parties and independent candidates.

On June 17, the U.S. Supreme Court issued an opinion in Arizona v Inter Tribal Council of Arizona, 12-71. The most important consequence of this decision is that the Elections Clause in Article One of the U.S. Constitution has been strengthened. The “Elections Clause” only relates to Congressional elections. It says, “Section 4. The Times, Places, and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.”

Justice Scalia, writing for the 7-2 majority, said that while it is true that in most disputes between federal and state authority, there must be a careful balancing of federal power to allow as much state power as possible, this is not true for the Elections Clause. Page eleven of his decision says, “There is good reason for treating Election Clause legislation differently. The assumption that Congress is reluctant to pre-empt does not hold when Congress acts under that constitutional provision, which empowers Congress to ‘make or alter’ state election regulations…the federalism concerns underlying the presumption in the Supremacy Clause context are somewhat weaker here. Unlike the States’ ‘historic police powers’, the States’ role in regulating congressional elections – while weighty and worthy of respect – has always existed subject to the express qualification that it ‘terminates according to federal law.'”

This finding will be useful in any current and future lawsuits over discriminatory ballot access laws involving congressional elections. The U.S. Supreme Court already ruled in Cook v Gralike, 531 U.S. 510 (2001), that the Elections Clause was intended by the founding fathers to prevent the states from “favoring or disfavoring a class of candidates.” Cook v Gralike struck down Missouri election laws that required printing disparaging ballot labels on the ballot for candidates who did not favor a U.S. Constitutional amendment for term limits. The Arizona decision will help to win the current California lawsuit, Chamness v Bowen, challenging unequal ballot access labels for candidates for Congress. The Arizona decision helps because it gives new force and precedential power to Cook v Gralike, a decision that has often been overlooked even though it was unanimous.

Six justices agreed with Scalia that the Elections Clause has extra power, relative to most federal laws that seem to deprive states of some power relative to the federal government. Justice Anthony Kennedy disagreed with that point, yet he still voted for the outcome.

As to the actual dispute itself in the Arizona case, the issue was whether Arizona can require additional information from voters who use the federal voter registration postcard form, concerning proof of citizenship. The congressional law on voter registration, which created a federal voter registration form, does not ask for proof of citizenship other than a signature over penalty of perjury. Arizona wanted to reject the federal forms if the registrant did not answer extra questions and provide proof of citizenship. Ostensibly, Arizona lost the June 17 opinion; the decision says the state must accept the federal forms as they are. But the decision also says that Arizona has a legal right to request the federal government to give it permission to add extra questions. The decision implies that if Arizona asks the federal government to add the extra questions, the federal government must give it that permission, so if Arizona is stubborn about this issue, the state may win the relief it sought eventually anyway. This outcome is possible because the federal 1993 voter registration law itself gives states permission to ask the federal government to alter the form.

The reason that Arizona has a strong likelihood of forcing the federal government to allow it to add the extra questions, if it requests that, is a separate section of the U.S. Constitution, Article One, Section Two, says state control voter qualifications for their own state legislatures and those voter qualifications for Congress must match the qualifications for state legislative elections. If Arizona pursues this, it would have to persuade the federal Election Administration Commission that it needs the extra questions to enforce its right to prevent non-citizens from voting.