F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

D E M O C R

A T I C P A R

T Y O F H A W A I I , Plaintiff-Appellant

,

v.

S C O T T T. N A G O , 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-J MS-KSC

OPI NI ON

A ppeal from the United States District Court for the District of Hawaii J . Michael Seabrig ht, Chief District J udg e, Presiding

Arg ued and Submitted May 4, 2016 Portland, Oreg on

F iled Aug ust 15, 2016

B e fore: A. W allace Tashima, Richard C. Tallman, and Andrew D. Hurwitz

, Circuit J udg es.

Opinion by

J u dg e TashimaD E M O C R A T I C P A R

T Y O F H A

W A I I V

. N A G O 2

SUMMARY *

Civil Rights

The panel affirmed the district c ourt’s summary judg ment in favor of Scott Nag o, in his o f f i c i a l capacity as Chief Election Officer of the State of Hawaii, in an action broug ht by the Democratic Party of Hawaii chal l e n ging Hawaii’s
open p rimary sy stem on the g rounds that allowing reg istered
voters to participate in any party ’ s primary without formally joining or declaring support for that party , seve r ely burdens the Democratic Party ’s F i rst Amendment associational rig hts.

The p anel first noted that the ex tent to which Hawaii’s

o p en primary sy stem burdens the Democratic Party ’s associational rig hts is a f actual q uestion on w hich the Party b o r e t h e burden of proof. The p anel held that the Party h a d
not developed any evidence to meet this burden

. T he Party provided n o evidence showing a clear a nd present dang er that adherents of o p p o s ing parties determine the Democratic P ar t y ’s nominees. Nor had the Party shown that Hawaii’ s open primary sy stem causes Demo c r a tic candidates to moder a t e their policy stances. The panel concluded that absent e v i dence that Hawaii’s sy stem affects the Party ’s ability to select i t s n o m inees, the Party ’s facial challeng e failed.

* T h is su m m ary co n stitu

tes n o part o f th e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.D E M O C R A T I C P A R

T Y O F H A

W A I I V

. N A G O 3

COUNSEL

Thomas Anthony G i l l ( arg ued) and David A. Sg an, Gill, Z u keran & Sg an, Honolulu, Hawaii, for Plaintiff-Appellant.

Deirdre Marie-I

ha (arg ued) and Marissa H. I

. L uning

, Deputy Solicitors General; David M. L ouie, A ttorney General o f Hawaii; Department of the A ttorney General, Honolulu, Hawaii; for Defendant-Appellee.

OP INION

TASHI MA, Circuit J udg e:

I n 2 013, the Democratic Party of H awaii (the “Democratic Party ” or the “Party ” ) broug h t a facial F irst Amendment challeng e to Hawaii’s open primary sy stem. The Democratic Party seeks to limit the participants in its primary elections to its formal membe r s or to voters who a re otherwise willing publicly to declare their s u p p ort for the P ar t y

. According to the D emocratic Party
, Hawaii’s o p e n primary sy stem, which allows reg istered voters to p articipate in any party ’s primary withou t formally joining or d eclaring support for that party , severely burdens the Party ’s associational rig hts.

The Democratic Party and Scott Nag o, Hawaii’s chief electio n officer, broug h t cross-motions for summary judg ment, both seeking judg ment on t h e P arty ’s F irst A mendment claim as a matter of law. The district cour t g ranted summary judg ment to Nag o

. De m o cratic Party of Haw. v. N

a g o , 9 8 2 F

. Supp. 2d 1166 (D. Haw. 2013). The Democratic Party

appealed.D E M O C R A T I C P A R

T Y O F H A

W A I I V

. N A G O 4

W e h ave jurisdiction u nder 28 U.S.C. § 1291, and we affirm.

I.

A. Haw aii’s Open P rim a ry System

I n 1978, the Hawaii Constitution was amended to provide that “no person shall b e required to declare a party preference

or nonpartisanship as a condition o f voting in a ny primary o r special primary election. Secrecy of voting an d c h o i c e o f politic al party affiliation or nonpartisanship shall be preserved.” Haw. Const. a rt. I I , § 4. Hawaii had previously utiliz ed a c l o s ed primary sy stem. The purpose o f the amendment was to p rote c t v oter privacy and to encourag e voter participation in elections.

The Hawaii L eg islature implemented the open primary b y statute in 1979. The relevant statutory provisions specify that
reg istered voters at primary polling sites “shall be issued the primary or special primary ballot for each pa r t y a nd the nonpartisan primary

or special primary b allot. A voter shall be entitled to vote only for candidates of one party or only for nonpartisan candidates.” Haw. Rev. Stat. § 1 2

- 3 1

. Thus, voters must commit to one party ’s slate prior to voting ; they
may n ot c hoose a Republican nominee for one state office and a Democratic nominee for a different state o f f i c e

. F urther, “a v oter shall b e entitled to select and to vote the ballot of an y one party o r nonpartisan, reg a rdless of which ballot the voter voted in an y p r e c eding primary o r special primary election.” I

d. Hawaii voters do not reg i s t er a s members o f any political p arty , a n d the State d oes n o t keep records reg arding which party ’s ballot any particular voterD E M O C R A T I C P A R

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. N A G O 5

chose in a primary election. S ee id. Political p a

rties may not opt out of this open primary sy stem. See id. §§ 12-1, 12-2.

B. The Dem ocratic P arty’s Challenge to Haw aii’ s Open P rim ary System

I n 2006, the Democratic Party amended its constitution, as follows:

The Democratic Party o f H awai 4 i believes that i t s p r i m a r y e l e c t i o n , a s t a t e

- i m p o s e d mandatory nomination procedure, oug ht to be
open to participa t i o n of only such persons a s

are willing to declare their a f filiation with a

nd
sup p ort for the Party
, either throug h public
reg istration to vote, or throug h maintenance o f membership w ith the Party

. T he Party f urther believes that the current Constitution and laws

o f the State of Hawai 4 i, by maintainin g secrecy of a f

fi l iation, and by compelling the Party to admit to its nomination p r o cedures those who may h ave no interest in, or actually
oppose the interests, values, and platform o f the Party
, do viol e n ce to the Party ’s associational f

reedoms and the individual freedoms of its membersh ip to define their

own p olitical views, g uaranteed under t he Constitution of the United States.

As of J uly 2 013, the Democratic Party had a p p r o x imately 65,000 formal members. The Party g ener a l ly does not terminate memberships unless the member is e x pelled f o r cause, r esig ns, or dies. T h e P arty does not require its members to pay

dues.D E M O C R A T I C P A R

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W A I I V

. N A G O 6

I n J une 2013, the Democratic Party commen ced this action, claiming that Hawaii’s open primary sy stem violates the Party ’s F irst Amendment associational rig hts. The Party

s imultaneously f

iled a motion f

or a preliminary injunc t i o n and a motion for partial summary j u d gment, asking the district court to find Hawaii’s open primary sy stem facially

u nconstitutional. N ag o then filed a c ross-motion fo r summary judg ment, arg uing that H awaii’s open p r i mary sy stem is constitutional on i t s face. The parties ag reed that there were no g enuine issues of fact a n d that the district court should r esolve the Democratic Party ’s facial constitutional challeng e as a matter of law. 1 The district court denied both of th e P ar ty ’s motions and g ranted summary judg ment to Nag o. The Democratic Party timely appealed.

II.

W e r eview de novo a district court’s d e cision o n crossm o t i o ns for summary judg ment, “decid[ ing ] whether the record, when v iewed in the lig ht most f a vorable to the nonmoving party , shows that there is no g enuine issue of material fact and that the moving party is e n t itled to judg ment as a matter of law.” Council of Ins. Agents & Brokers v. MolaskyArman , 522 F .3d 925, 930 (9th Cir. 2008). “W e may affirm

a g rant of summary judg ment on any g round supported by the

reco r d

, even one not relied upon by the district court.” Curley v. City of N

. Las Vegas
, 772 F .3d 629, 6 31 (9th Cir. 2014).

1 T h e Dem o cratic P arty h as n o t ed th at, if its f acial ch allen g e to Haw aii’ s

o p en p rim ary sy stem f ails, it m ay

b rin g an as- ap p lied ch allen g e.D E M O C R A T I C P A R

T Y O F H A

W A I I V

. N A G O 7

III.

The Democratic Party a

rg ues that we can decide whether Hawaii’s open primary sy stem severely burde n s its associational rig hts as a m a t t e r of law. Thus, the Party contends that it need not adduce any evidence to substantiate the claimed severity of t h e burden. W e disag ree. Under Supreme Court and Ninth Circuit precedent, the ex tent of the burden that a primary sy stem imposes on associational rig hts is a factual question o n which the plaintiff bears the b u rden of proof. B ecause the Democra tic Party has not presented
any evidence to meet its burden, its facial challeng e fails. 2

A. The Severity o f the Burd e n That a P rim a ry System Im poses on Associational Rights Is a F actual Issue on Which the P laintif

f Bears the Burden of

P roof

“Election reg ulations that impose a severe burden on associational rig hts are subject to strict scrutiny

. . . .” W ash. State Grange v. W

ash. S tate Republican Party
, 552 U.S. 442, 451 ( 2008). Courts uphold such reg ul a tions only if they a re narrowly tailored to serve a compelling state interest. Id. “I f

a statute imposes only modest burdens, how e v er, then ‘the State’s important reg u latory interests are g enerally sufficient
to justify reasonable, nondiscriminatory res trictions’ on

2 T h e d i strict co u rt also g ran ted su m m ary j u d g m en t to Nag o o n t h e altern ativ e g ro u

n d th at Haw aii ’s o p en p rim ary sy stem is f acially

co n stitu tio n al b ecau se so m e p o litical p arties m ig h t em b race th e s y stem as

co n sisten t w ith th eir asso ciatio n al desires. S ee Demo cra tic Pa rty o

f Ha w

. , 9 8 2 F. Su

p p

. 2 d at 1 1 80

. B ecau se w e af f irm th e g ran t o f s u m m a r y j u d g m en t o n th e g ro u n d th at th e P arty h as f ailed to m eet its b u r d en of
p ro o f as to t

h e sev erity o f th e b u rd en o n its asso ciatio n al rig h ts, w e d o n o t reach th is altern ativ e h old in g

.D E M O C R A T I C P A R

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. N A G O 8

election p rocedures.” Id. at 452 ( quoting Anderson v

. Celebrezze , 460 U.S. 780, 788 (1983)).

Un d e r California Democratic Party v. Jones
, 530 U.S. 567 ( 2000), the severity of the burden that a primary sy stem imposes on associational rig hts is a factual, not a leg a l, question. I n Jones
, the Supreme Court h eld that California’s “blanket p rimary ” sy stem was facially unco n s t i tutional. Id.
at 586. Unde r t h e blanket primary sy stem, every c andidate,
reg ardless of party affiliation, wa s listed on every voter’s ballot. Id. at 570. V oters could thus choose a candidate from
any party for each office. Id. The candidate from e ach party

w i t h the most votes then r eceived his or her part y ’s nomination f

o r the g e neral election. Id. The Court decided that this sy stem severely burdened the associational f reedom of political parties by not a llowin g t h e m to ex clude nonmembers from choosing

the parties’ nominees. Id. at 577.

To reach this ruling

, the Court relied on data showing that in California, 20% of reg istered Democrats a nd 37% o f
reg istered Republicans p lanned to vo t e i n the other party ’s primary in 1 998. I

d. at 5 78. An ex p e r t t e s t ified that it was “inevitable” under Californ i a ’ s sy stem “that parties will be forced in some circumstances to g ive t h e i r official desig nation to a candidate who’s not preferred by a majority

or even plur ality of party members.” Id. at 579. A ccording
to the Court, the evidence showed a “clear and pr e s ent dang er” that adherents of an opposing party would determine their rival’s nominee. Id. at 578.

The Court reasoned that, as a r esult of crossover voting

, candidates seeking nomination would b e forced to take p olicy
stances different than those of the party faithful. Id. at 579–80. I ndeed, one of the defendants’ ex perts reported thatD E M O C R A T I C P A R

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. N A G O 9

candidates in blanket p rimary states tend to be more ideolog ically moderate than candid a t es in states with other kinds of primaries. Id. at 580. The record also contained evidence that “the whole purpose of [ the blanket p r i m a r y law] was to f

a vor nominee s w i t h ‘ moderate’ positions.” Id. This second harm to plaintiffs’ associational rig hts (alteration of policy stances) flowed from the first (crossover voting ): the Co u r t stated that “forced association has the likely
outcome

— i n d e e d

, in this case the intended outcome — o f chang ing the parties’ messag e.” Id. at 581–82.

I n A riz o n a L ibertarian Party, Inc. v. Bayless

, 351 F .3d 1277 (9th Cir. 2 003), we clarifi e d t h a t , under Jones
, the severity of the burden that a pri mary sy stem imposes on a party ’s ass o c i a t ional rig hts is a factual issue for the district
court. I n B ayless

, the Ariz ona L ibertarian Party b r o u gh t a facial challeng e to A riz ona’s semiclosed primary sy stem. 3 Id.
at 1280. Under this sy stem, v oters who were unaffiliated,
reg istered as independents, or reg istered a s members o f parties that were not on the primary ballot were permitted to choose a primary in which to vote. Id. Vote r s w h o we re reg istered with a party on the p r imary ballot were p ermitted to vote only in their party ’s primary

. I d. The primary

ballot listed candidates for all the offices to be filled in the g eneral election, as well as party precinct committeeperson candidates, who were elected in the primary

. I d

.

3 A lth o u g h

th e L ib ertarian P arty

arg u ed th at A rizo n a’ s p rim ary sy stem

w as u n co n stitu

t io n al o n its f

ace, w e d irected th e d istrict co u rt to lim i t an y

rem ed y “ to t

h e A rizo n a L ib ertarian P arty b ecau se t h e Dem o crats an d Rep u b l ican s are n o t p arties to [th e] su i t, an d becau se th e rec o r d w i th
resp ect to th e im

p act o n th eir asso ciatio n al rig h ts h as n o t b een d ev elo p ed .” Id

. at 1 2 8 1

– 8 2

.D E M O C R A T I C P A R

T Y O F H A

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. N A G O 10

Althoug h the parties a sked us to decide “whether the participation of nonmembers in the selection of candidates is constitutional un d e r ” Jones
, we d eclined to resolve the question as a matter o f law. I d. at 1 282. W e “observe[ d] that the [ Supreme] Court in J o n e s t r eated the risk that nonparty members w ill skew either primary r e s u lts or candidates’ positions as a factual issue, with the plaintif fs having the burden of establishing that risk.” Id. B ecause “the resolution of the constitutional issue turn[ e d ] on factual questions not decided by the d istrict court,” we “ remand[ ed] s o t hat the district c ourt [ could] consider the severity of the burden this aspect of the primary sy stem impose[ d] on the L ibertarian Party ’s associational r ig hts” a n d “whether th e s t a te ha[ d] sufficiently j u stified that burden.” Id. ; see also Prete v

. Bradbury

, 4 38 F .3d 949, 960 ( 9th Cir. 2006) (noting that “whether certain restrictions create a ‘seve r e b u r den’ on

. . . F irst Amendment r ig hts” is a “constitutio n a l question[ ] o f fact”). Thus, under Jones a n d Bayles s , the ex tent o f the burden that Hawaii’s open p rimary sy stem i mposes o n the Democratic Party ’s associational rig hts is a fa c tual question on which the Party

bears the burden of proof. 4

4 Ou r d ecisio n in Demo cra tic Pa rty o f W a s h i n g t o n S ta te v. Reed

, 3 4 3 F.3 d 1 1 98 (9 th C ir. 2 0 0 3 ), is n o t to th e co n trary

. In Reed

, th e Co u rt stru ck d o w

n W ash in g to n ’ s b lan k et p rim ary as u n co n stitu tio n al on i ts f

ace

u n d er Jo n es

. Id

. at 1 2 0 1

. T h e Co u rt n oted th at it w as “ n o t at all clear th at t h e p lain tif

f s h ad an y ‘ bu rd en o f p ro o f ’ ” to sh o w th e ch allen g ed statu t e

sev erely b u rd en ed th eir First A m en d m en t rig h ts. Id

. at 12 0 3. R e e d

, h o w ev er, w as a ch allen g e t o a b l a n k et prim ary sy stem th at w as, o n its f ace, “ m aterially in d istin g u i sh ab le” f ro m t h e sy stem h eld u n co n stitu tio n al in Jo n es

. See id

. In o t h er w o rd s , th ere w as n o n eed to an aly ze t h e ex ten t

o f th e b u rd en im

p o sed b y W ash i n g to n ’ s b lan k et p rim ary sy stem b ecau s e th e Su p rem e Co u rt h ad ru led th at an i d en tical sy stem in C alif o r n i a w a s f acially u n co n stitu

tio n al. B ecau se a d i f

f eren t k in d o f p rim ary sy stem is at issu e in th is case, Reed d o es n o t ap p ly

.D E M O C R A T I C P A R

T Y O F H A

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. N A G O 11

B. The Dem ocratic P arty Has F ailed to Adduce Evidence Show ing the Extent of the Burden on Its Associational Rights

The Democratic Party ’s facial challeng e fails b e cause the Party h as not developed evidence showing that H awaii’s open primary sy stem severely bu r d e ns its associational rig hts. I ndeed, the Part y a rgues that such evidence is unnecessary

. The Party has submitted only an ex cerpt from its constitution, which stat e s that the Party prefers to limit its primary to voters who “ are willing to declare their affiliat i o n with a nd support f or the Party
, e i t h er throug h public reg istration to vote, or throug h maintenance of m e m bership in the Party

. ” Additionally

, the Party cl aims that it has approx imately 65,000 reg istered memb ers, while a quarter of a million people participate in Democratic primaries i n H awaii. The Party thus wants us to infer that the approx imat e l y 185,000
p e o ple voting in its primaries who have n o t formally
reg istered with the Party are participating in crossover voting

.

The Dem o c r a tic Party ’s preference for limiting primary participants to reg istered Party mem b e r s, coupled with the fact that more people vote in D emocratic primaries than a re formally reg istered w ith the Party
, is not sufficient to show that Hawaii’s open primary sy stem s e v e r ely burdens the Part y ’ s associational rig h ts. Under the blanket primary
sy stem struck down i n Jones
, when California citiz ens reg istered to vote, they listed their political affiliation. Jones
, 530 U.S. at 570. As a r esult, the Court was able to ascertain that a sig nificant portion of voters who publicly id entified with a particular p olitical party were voting i n a different party ’s primary

. See id

. a t 578. Hawaii, on the other h and, does not provide for partisan reg istration. Thus, the 185,000 people voting in Hawaii’s Democratic primaries who a re notD E M O C R A T I C P A R

T Y O F H A

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. N A G O 12

formal Party members m ay n evertheless personally identify as Democrats.

Moreover, Hawaii’s o pen primary

, unlike a b l a n ket
p rimary

, f

orces a voter to choose one party ’s primary bal l o t and thereb y f

oreg o her opportunity to participate in a different p arty ’s primary

. I n a stat e without partisan
reg istration, choosing to v ote in o nly one party ’s primary may constitute a v alid form of pa r t y affiliation. Cf. Clingman v

. Beaver
, 5 4 4 U.S. 581, 590 (20 0 5 ) (plurality opinion) ( “I n g eneral, ‘any one can “join” a political p arty merely by asking for the appropriate ballot at the appropriate time or (at most) by r eg istering within a state-defined reasona b l e period o f time before an election.’” (quoting Jones
, 5 30 U.S. a t 596 (Stevens, J ., dissenting ))).

Thus, u nlike in Jones
, the D emocratic Party has provided

no evidence showing a “clear and present dange r ” t h at adherents of opposing parties determine the Dem o c r atic Party ’s nominees. 5 See 530 U.S. at 579. As ex plained above, the lone statistic the Party cites is ambig uo u s at b est. L ikewise, the Party has not shown that Hawai i ’ s o p en primary sy stem causes D emocratic candidates to moderate their policy stances. See id. at 5 79–80. Absent evidence that Hawaii’s sy stem affects the Party ’s ability t o s elect its nominees, the Party ’s facial challeng e fails.

5 B ecau se th e Dem o cratic P arty h as n o t attem p ted to p ro f

f er ev id en ce

s ho w in g th e ex ten t to w

h ich H aw aii’ s o p en prim ary sy stem b u rd en s i t s

asso ciatio n al rig h t s , w e d o n o t an aly ze w h eth er th e p rim ary sy stem is

n arro w ly tailo red to co m

p ellin g o r im

p o rtan t state in terests.D E M O C R A T I C P A R

T Y O F H A

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. N A G O 13

IV.

W e hold that the ex tent to which H awaii’s o p en primary
sy stem burdens the Democratic Party ’s a ssociational rig hts is

a factual question on which the Party bears the burden o f proof. B ecause the Party has not developed any e vidence to
meet this burden, its facial challeng e fails. The district court’s g rant of summary judg ment to Nag o is

AF F IRMED.