FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

DEMOCRATIC PARTY OF

HAWAII,

Plaintiff-Appellant,

v.

SCOTT T. NAGO, in his

official capacity as Chief

Election Officer of the

State of Hawaii,

Defendant-Appellee.

No. 13-17545

D.C. No.

1:13-cv-00301-JMS-KSC

OPINION

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 primarysystem. 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 throughmaintenance 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 crossmotions for summary judgment, “decid[ing] whether the

record, when viewed in the light most favorable to the nonmoving 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. MolaskyArman, 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 nonmembers 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.3Id.

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

Partyhas 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 primarymay

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.5See 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.