Democratic Party of Hawaii v. Scott Nago , 833 F.3d 1119 ( 2016 )


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  •                    FOR PUBLICATION
    UNITED STATES COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    DEMOCRATIC PARTY OF                    No. 13-17545
    HAWAII,
    Plaintiff-Appellant,             D.C. No.
    1:13-cv-00301-JMS-KSC
    v.
    SCOTT T. NAGO, in his                   OPINION
    official capacity as Chief
    Election Officer of the
    State of Hawaii,
    Defendant-Appellee.
    Appeal from the United States District Court
    for the District of Hawaii
    J. Michael Seabright, Chief District Judge, Presiding
    Argued and Submitted May 4, 2016
    Portland, Oregon
    Filed August 15, 2016
    Before: A. Wallace Tashima, Richard C. Tallman,
    and Andrew D. Hurwitz, Circuit Judges.
    Opinion by Judge Tashima
    2          DEMOCRATIC PARTY OF HAWAII V. NAGO
    SUMMARY*
    Civil Rights
    The panel affirmed the district court’s summary judgment
    in favor of Scott Nago, in his official capacity as Chief
    Election Officer of the State of Hawaii, in an action brought
    by the Democratic Party of Hawaii challenging Hawaii’s
    open primary system on the grounds that allowing registered
    voters to participate in any party’s primary without formally
    joining or declaring support for that party, severely burdens
    the Democratic Party’s First Amendment associational rights.
    The panel first noted that the extent to which Hawaii’s
    open primary system burdens the Democratic Party’s
    associational rights is a factual question on which the Party
    bore the burden of proof. The panel held that the Party had
    not developed any evidence to meet this burden. The Party
    provided no evidence showing a clear and present danger that
    adherents of opposing parties determine the Democratic
    Party’s nominees. Nor had the Party shown that Hawaii’s
    open primary system causes Democratic candidates to
    moderate their policy stances. The panel concluded that
    absent evidence that Hawaii’s system affects the Party’s
    ability to select its nominees, the Party’s facial challenge
    failed.
    *
    This summary constitutes no part of the opinion of the court. It has
    been prepared by court staff for the convenience of the reader.
    DEMOCRATIC PARTY OF HAWAII V. NAGO                  3
    COUNSEL
    Thomas Anthony Gill (argued) and David A. Sgan, Gill,
    Zukeran & Sgan, Honolulu, Hawaii, for Plaintiff-Appellant.
    Deirdre Marie-Iha (argued) and Marissa H. I. Luning, Deputy
    Solicitors General; David M. Louie, Attorney General of
    Hawaii; Department of the Attorney General, Honolulu,
    Hawaii; for Defendant-Appellee.
    OPINION
    TASHIMA, Circuit Judge:
    In 2013, the Democratic Party of Hawaii (the
    “Democratic Party” or the “Party”) brought a facial First
    Amendment challenge to Hawaii’s open primary system. The
    Democratic Party seeks to limit the participants in its primary
    elections to its formal members or to voters who are
    otherwise willing publicly to declare their support for the
    Party. According to the Democratic Party, Hawaii’s open
    primary system, which allows registered voters to participate
    in any party’s primary without formally joining or declaring
    support for that party, severely burdens the Party’s
    associational rights.
    The Democratic Party and Scott Nago, Hawaii’s chief
    election officer, brought cross-motions for summary
    judgment, both seeking judgment on the Party’s First
    Amendment claim as a matter of law. The district court
    granted summary judgment to Nago. Democratic Party of
    Haw. v. Nago, 
    982 F. Supp. 2d 1166
     (D. Haw. 2013). The
    Democratic Party appealed.
    4        DEMOCRATIC PARTY OF HAWAII V. NAGO
    We have jurisdiction under 
    28 U.S.C. § 1291
    , and we
    affirm.
    I.
    A. Hawaii’s Open Primary System
    In 1978, the Hawaii Constitution was amended to provide
    that “no person shall be required to declare a party preference
    or nonpartisanship as a condition of voting in any primary or
    special primary election. Secrecy of voting and choice of
    political party affiliation or nonpartisanship shall be
    preserved.” Haw. Const. art. II, § 4. Hawaii had previously
    utilized a closed primary system. The purpose of the
    amendment was to protect voter privacy and to encourage
    voter participation in elections.
    The Hawaii Legislature implemented the open primary by
    statute in 1979. The relevant statutory provisions specify that
    registered voters at primary polling sites “shall be issued the
    primary or special primary ballot for each party and the
    nonpartisan primary or special primary ballot. A voter shall
    be entitled to vote only for candidates of one party or only for
    nonpartisan candidates.” 
    Haw. Rev. Stat. § 12-31
    . Thus,
    voters must commit to one party’s slate prior to voting; they
    may not choose a Republican nominee for one state office
    and a Democratic nominee for a different state office.
    Further, “a voter shall be entitled to select and to vote the
    ballot of any one party or nonpartisan, regardless of which
    ballot the voter voted in any preceding primary or special
    primary election.” 
    Id.
     Hawaii voters do not register as
    members of any political party, and the State does not keep
    records regarding which party’s ballot any particular voter
    DEMOCRATIC PARTY OF HAWAII V. NAGO                 5
    chose in a primary election. See 
    id.
     Political parties may not
    opt out of this open primary system. See 
    id.
     §§ 12-1, 12-2.
    B. The Democratic Party’s Challenge to Hawaii’s Open
    Primary System
    In 2006, the Democratic Party amended its constitution,
    as follows:
    The Democratic Party of Hawai4i believes that
    its primary election, a state-imposed
    mandatory nomination procedure, ought to be
    open to participation of only such persons as
    are willing to declare their affiliation with and
    support for the Party, either through public
    registration to vote, or through maintenance of
    membership with the Party. The Party further
    believes that the current Constitution and laws
    of the State of Hawai4i, by maintaining
    secrecy of affiliation, and by compelling the
    Party to admit to its nomination procedures
    those who may have no interest in, or actually
    oppose the interests, values, and platform of
    the Party, do violence to the Party’s
    associational freedoms and the individual
    freedoms of its membership to define their
    own political views, guaranteed under the
    Constitution of the United States.
    As of July 2013, the Democratic Party had approximately
    65,000 formal members. The Party generally does not
    terminate memberships unless the member is expelled for
    cause, resigns, or dies. The Party does not require its
    members to pay dues.
    6          DEMOCRATIC PARTY OF HAWAII V. NAGO
    In June 2013, the Democratic Party commenced this
    action, claiming that Hawaii’s open primary system violates
    the Party’s First Amendment associational rights. The Party
    simultaneously filed a motion for a preliminary injunction
    and a motion for partial summary judgment, asking the
    district court to find Hawaii’s open primary system facially
    unconstitutional. Nago then filed a cross-motion for
    summary judgment, arguing that Hawaii’s open primary
    system is constitutional on its face. The parties agreed that
    there were no genuine issues of fact and that the district court
    should resolve the Democratic Party’s facial constitutional
    challenge as a matter of law.1 The district court denied both
    of the Party’s motions and granted summary judgment to
    Nago. The Democratic Party timely appealed.
    II.
    We review de novo a district court’s decision on cross-
    motions for summary judgment, “decid[ing] whether the
    record, when viewed in the light most favorable to the non-
    moving party, shows that there is no genuine issue of material
    fact and that the moving party is entitled to judgment as a
    matter of law.” Council of Ins. Agents & Brokers v. Molasky-
    Arman, 
    522 F.3d 925
    , 930 (9th Cir. 2008). “We may affirm
    a grant of summary judgment on any ground supported by the
    record, even one not relied upon by the district court.”
    Curley v. City of N. Las Vegas, 
    772 F.3d 629
    , 631 (9th Cir.
    2014).
    1
    The Democratic Party has noted that, if its facial challenge to Hawaii’s
    open primary system fails, it may bring an as-applied challenge.
    DEMOCRATIC PARTY OF HAWAII V. NAGO                              7
    III.
    The Democratic Party argues that we can decide whether
    Hawaii’s open primary system severely burdens its
    associational rights as a matter of law. Thus, the Party
    contends that it need not adduce any evidence to substantiate
    the claimed severity of the burden. We disagree. Under
    Supreme Court and Ninth Circuit precedent, the extent of the
    burden that a primary system imposes on associational rights
    is a factual question on which the plaintiff bears the burden
    of proof. Because the Democratic Party has not presented
    any evidence to meet its burden, its facial challenge fails.2
    A. The Severity of the Burden That a Primary System
    Imposes on Associational Rights Is a Factual Issue on
    Which the Plaintiff Bears the Burden of Proof
    “Election regulations that impose a severe burden on
    associational rights are subject to strict scrutiny . . . .” Wash.
    State Grange v. Wash. State Republican Party, 
    552 U.S. 442
    ,
    451 (2008). Courts uphold such regulations only if they are
    narrowly tailored to serve a compelling state interest. 
    Id.
     “If
    a statute imposes only modest burdens, however, then ‘the
    State’s important regulatory interests are generally sufficient
    to justify reasonable, nondiscriminatory restrictions’ on
    2
    The district court also granted summary judgment to Nago on the
    alternative ground that Hawaii’s open primary system is facially
    constitutional because some political parties might embrace the system as
    consistent with their associational desires. See Democratic Party of Haw.,
    982 F. Supp. 2d at 1180. Because we affirm the grant of summary
    judgment on the ground that the Party has failed to meet its burden of
    proof as to the severity of the burden on its associational rights, we do not
    reach this alternative holding.
    8        DEMOCRATIC PARTY OF HAWAII V. NAGO
    election procedures.” Id. at 452 (quoting Anderson v.
    Celebrezze, 
    460 U.S. 780
    , 788 (1983)).
    Under California Democratic Party v. Jones, 
    530 U.S. 567
     (2000), the severity of the burden that a primary system
    imposes on associational rights is a factual, not a legal,
    question. In Jones, the Supreme Court held that California’s
    “blanket primary” system was facially unconstitutional. 
    Id. at 586
    . Under the blanket primary system, every candidate,
    regardless of party affiliation, was listed on every voter’s
    ballot. 
    Id. at 570
    . Voters could thus choose a candidate from
    any party for each office. 
    Id.
     The candidate from each party
    with the most votes then received his or her party’s
    nomination for the general election. 
    Id.
     The Court decided
    that this system severely burdened the associational freedom
    of political parties by not allowing them to exclude non-
    members from choosing the parties’ nominees. 
    Id. at 577
    .
    To reach this ruling, the Court relied on data showing that
    in California, 20% of registered Democrats and 37% of
    registered Republicans planned to vote in the other party’s
    primary in 1998. 
    Id. at 578
    . An expert testified that it was
    “inevitable” under California’s system “that parties will be
    forced in some circumstances to give their official
    designation to a candidate who’s not preferred by a majority
    or even plurality of party members.” 
    Id. at 579
    . According
    to the Court, the evidence showed a “clear and present
    danger” that adherents of an opposing party would determine
    their rival’s nominee. 
    Id. at 578
    .
    The Court reasoned that, as a result of crossover voting,
    candidates seeking nomination would be forced to take policy
    stances different than those of the party faithful. 
    Id.
     at
    579–80. Indeed, one of the defendants’ experts reported that
    DEMOCRATIC PARTY OF HAWAII V. NAGO                              9
    candidates in blanket primary states tend to be more
    ideologically moderate than candidates in states with other
    kinds of primaries. 
    Id. at 580
    . The record also contained
    evidence that “the whole purpose of [the blanket primary
    law] was to favor nominees with ‘moderate’ positions.” 
    Id.
    This second harm to plaintiffs’ associational rights (alteration
    of policy stances) flowed from the first (crossover voting):
    the Court stated that “forced association has the likely
    outcome — indeed, in this case the intended outcome — of
    changing the parties’ message.” 
    Id.
     at 581–82.
    In Arizona Libertarian Party, Inc. v. Bayless, 
    351 F.3d 1277
     (9th Cir. 2003), we clarified that, under Jones, the
    severity of the burden that a primary system imposes on a
    party’s associational rights is a factual issue for the district
    court. In Bayless, the Arizona Libertarian Party brought a
    facial challenge to Arizona’s semiclosed primary system.3 
    Id. at 1280
    . Under this system, voters who were unaffiliated,
    registered as independents, or registered as members of
    parties that were not on the primary ballot were permitted to
    choose a primary in which to vote. 
    Id.
     Voters who were
    registered with a party on the primary ballot were permitted
    to vote only in their party’s primary. 
    Id.
     The primary ballot
    listed candidates for all the offices to be filled in the general
    election, as well as party precinct committeeperson
    candidates, who were elected in the primary. 
    Id.
    3
    Although the Libertarian Party argued that Arizona’s primary system
    was unconstitutional on its face, we directed the district court to limit any
    remedy “to the Arizona Libertarian Party because the Democrats and
    Republicans are not parties to [the] suit, and because the record with
    respect to the impact on their associational rights has not been developed.”
    
    Id.
     at 1281–82.
    10         DEMOCRATIC PARTY OF HAWAII V. NAGO
    Although the parties asked us to decide “whether the
    participation of nonmembers in the selection of candidates is
    constitutional under” Jones, we declined to resolve the
    question as a matter of law. 
    Id. at 1282
    . We “observe[d] that
    the [Supreme] Court in Jones treated the risk that nonparty
    members will skew either primary results or candidates’
    positions as a factual issue, with the plaintiffs having the
    burden of establishing that risk.” 
    Id.
     Because “the resolution
    of the constitutional issue turn[ed] on factual questions not
    decided by the district court,” we “remand[ed] so that the
    district court [could] consider the severity of the burden this
    aspect of the primary system impose[d] on the Libertarian
    Party’s associational rights” and “whether the state ha[d]
    sufficiently justified that burden.” Id.; see also Prete v.
    Bradbury, 
    438 F.3d 949
    , 960 (9th Cir. 2006) (noting that
    “whether certain restrictions create a ‘severe burden’ on . . .
    First Amendment rights” is a “constitutional question[] of
    fact”). Thus, under Jones and Bayless, the extent of the
    burden that Hawaii’s open primary system imposes on the
    Democratic Party’s associational rights is a factual question
    on which the Party bears the burden of proof.4
    4
    Our decision in Democratic Party of Washington State v. Reed,
    
    343 F.3d 1198
     (9th Cir. 2003), is not to the contrary. In Reed, the Court
    struck down Washington’s blanket primary as unconstitutional on its face
    under Jones. 
    Id. at 1201
    . The Court noted that it was “not at all clear that
    the plaintiffs had any ‘burden of proof’” to show the challenged statute
    severely burdened their First Amendment rights. 
    Id. at 1203
    . Reed,
    however, was a challenge to a blanket primary system that was, on its
    face, “materially indistinguishable” from the system held unconstitutional
    in Jones. See 
    id.
     In other words, there was no need to analyze the extent
    of the burden imposed by Washington’s blanket primary system because
    the Supreme Court had ruled that an identical system in California was
    facially unconstitutional. Because a different kind of primary system is
    at issue in this case, Reed does not apply.
    DEMOCRATIC PARTY OF HAWAII V. NAGO                    11
    B. The Democratic Party Has Failed to Adduce Evidence
    Showing the Extent of the Burden on Its Associational
    Rights
    The Democratic Party’s facial challenge fails because the
    Party has not developed evidence showing that Hawaii’s open
    primary system severely burdens its associational rights.
    Indeed, the Party argues that such evidence is unnecessary.
    The Party has submitted only an excerpt from its constitution,
    which states that the Party prefers to limit its primary to
    voters who “are willing to declare their affiliation with and
    support for the Party, either through public registration to
    vote, or through maintenance of membership in the Party.”
    Additionally, the Party claims that it has approximately
    65,000 registered members, while a quarter of a million
    people participate in Democratic primaries in Hawaii. The
    Party thus wants us to infer that the approximately 185,000
    people voting in its primaries who have not formally
    registered with the Party are participating in crossover voting.
    The Democratic Party’s preference for limiting primary
    participants to registered Party members, coupled with the
    fact that more people vote in Democratic primaries than are
    formally registered with the Party, is not sufficient to show
    that Hawaii’s open primary system severely burdens the
    Party’s associational rights. Under the blanket primary
    system struck down in Jones, when California citizens
    registered to vote, they listed their political affiliation. Jones,
    
    530 U.S. at 570
    . As a result, the Court was able to ascertain
    that a significant portion of voters who publicly identified
    with a particular political party were voting in a different
    party’s primary. See 
    id. at 578
    . Hawaii, on the other hand,
    does not provide for partisan registration. Thus, the 185,000
    people voting in Hawaii’s Democratic primaries who are not
    12        DEMOCRATIC PARTY OF HAWAII V. NAGO
    formal Party members may nevertheless personally identify
    as Democrats.
    Moreover, Hawaii’s open primary, unlike a blanket
    primary, forces a voter to choose one party’s primary ballot
    and thereby forego her opportunity to participate in a
    different party’s primary. In a state without partisan
    registration, choosing to vote in only one party’s primary may
    constitute a valid form of party affiliation. Cf. Clingman v.
    Beaver, 
    544 U.S. 581
    , 590 (2005) (plurality opinion) (“In
    general, ‘anyone can “join” a political party merely by asking
    for the appropriate ballot at the appropriate time or (at most)
    by registering within a state-defined reasonable period of
    time before an election.’” (quoting Jones, 
    530 U.S. at 596
    (Stevens, J., dissenting))).
    Thus, unlike in Jones, the Democratic Party has provided
    no evidence showing a “clear and present danger” that
    adherents of opposing parties determine the Democratic
    Party’s nominees.5 See 
    530 U.S. at 579
    . As explained above,
    the lone statistic the Party cites is ambiguous at best.
    Likewise, the Party has not shown that Hawaii’s open
    primary system causes Democratic candidates to moderate
    their policy stances. See 
    id.
     at 579–80. Absent evidence that
    Hawaii’s system affects the Party’s ability to select its
    nominees, the Party’s facial challenge fails.
    5
    Because the Democratic Party has not attempted to proffer evidence
    showing the extent to which Hawaii’s open primary system burdens its
    associational rights, we do not analyze whether the primary system is
    narrowly tailored to compelling or important state interests.
    DEMOCRATIC PARTY OF HAWAII V. NAGO               13
    IV.
    We hold that the extent to which Hawaii’s open primary
    system burdens the Democratic Party’s associational rights is
    a factual question on which the Party bears the burden of
    proof. Because the Party has not developed any evidence to
    meet this burden, its facial challenge fails. The district
    court’s grant of summary judgment to Nago is
    AFFIRMED.