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

Hawaii amended its constitution (1978) and statutes to require that voters need not declare party affiliation and may choose any one party's primary ballot on election day; the State does not keep partisan registration records.
The Democratic Party of Hawaii (≈65,000 formal members as of 2013) sued, alleging Hawaii's open primary forces nonmembers to participate in its nominations and thus severely burdens its First Amendment associational rights.
The Party sought a facial judgment that only formal party members (or those publicly declaring support) may participate in the Party's primary; the State defended the constitutionality of the open system.
The parties filed cross-motions for summary judgment and agreed there were no genuine factual disputes; the district court granted summary judgment to the State.
On appeal, the Ninth Circuit reviewed de novo and framed the central question as whether the Party had produced evidence that the open primary severely burdens its associational rights.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the severity of burden from Hawaii's open primary can be decided as a matter of law	Jones controls and facial relief is warranted; no further evidence needed to show severe burden	Severity is a factual question; plaintiff bears burden to prove severe burden	Severity is a factual issue and plaintiff bears the burden of proof; plaintiff failed to carry it
Whether Hawaii's open primary creates a "clear and present danger" of crossover voters determining nominees	The large gap between Party members and primary voters implies crossover and burden	Without partisan registration, nonmember primary voters may still identify as Democrats; Party offered no direct evidence of harmful crossover	No clear-and-present-danger evidence; Party's statistics are ambiguous and insufficient
Whether the open primary forces candidates to moderate positions (alter party message)	Open primary causes candidates to adopt moderate stances due to crossover	Party did not present evidence showing candidate moderation in Hawaii tied to the system	No evidence presented that Hawaii's system changes candidates' positions; Party failed to prove this harm
Whether the Party's facial challenge succeeds absent as-applied evidence	Facial challenge adequate; system inherently burdens associational rights	Facial challenge fails without factual showing; Party may bring as-applied challenge later	Facial challenge fails; lack of factual support requires dismissal of facial claim

California Democratic Party v. Jones, 530 U.S. 567 (2000) (blanket primary struck down; used voting data to find severe burden from crossover voting)
Washington State Grange v. Washington State Republican Party, 552 U.S. 442 (2008) (distinguishes severe versus modest burdens on associational rights; strict scrutiny for severe burdens)
Anderson v. Celebrezze, 460 U.S. 780 (1983) (balancing test for election regulations; state interests vs. burden on rights)
Arizona Libertarian Party v. Bayless, 351 F.3d 1277 (9th Cir. 2003) (under Jones, severity of burden is a factual issue for district court; remanded for factual development)
Prete v. Bradbury, 438 F.3d 949 (9th Cir. 2006) (noting "severe burden" is a factual constitutional question)
Clingman v. Beaver, 544 U.S. 581 (2005) (recognizes that, in some states, requesting a primary ballot can reasonably signify party affiliation)
Democratic Party of Washington State v. Reed, 343 F.3d 1198 (9th Cir. 2003) (struck down blanket primary where record matched Jones; distinguished because Reed involved a materially identical system)