Tony Gill

The attorney for the Democratic Party of Hawaii is seeking to overturn Hawaii's open primary election
By Mark Coleman


Tony Gill is a second-generation labor attorney and former Democratic Party of Hawaii official who believes that only people who publicly support a particular political party should be able to pick its candidates.
That's not what happens with open primaries such as we have in Hawaii, he said earlier this week, so he's been part of a legal effort on behalf of the Democratic Party of Hawaii to challenge that.
The effort suffered a setback in November when U.S. District Judge Michael J. Seabright denied that open primaries place a "severe burden" on the party's right of free association. Seabright said some parties might want open primaries, and no evidence was presented to show that they have led to crossover or independent voters influencing the Democratic Party of Hawaii's message.
Gill now is appealing that ruling to the 9th U.S. Circuit Court of Appeals, relying in part on a 2000 U.S. Supreme Court decision that declared California's blanket primary to be a violation of the First Amendment's right of free association. The blanket primary, he said, is almost identical to the open primary, in that both allow voters to pick candidates from parties they might not even support.
Gill, 63, is a graduate of Roosevelt High School. He earned a bachelor's degree in political science from the University of California at Berkeley and a law degree from Yale Law School. He is a partner in Gill, Zukeran & Sgan, whose clients include the University of Hawaii Professional Assembly and the Hawaii Nurses Association. In the Democratic Party, Gill has held many positions, including three terms as Oahu County Committee chairman — a position he stepped away from last year to help pursue the party's lawsuit.
He is one of six children of the former Hawaii congressman Tom Gill, who also was state lieutenant governor in the late 1960s. His brothers include Gary, a deputy director at the state Department of Health, and Eric, financial secretary-treasurer of Unite Here! Local 5.
Gill has two adult sons, one studying medicine, the other political science. He lives in Downtown Honolulu, very near his firm's offices.
"My vertical commute is farther than my horizontal commute," he said. "I'm a big fan of not driving."
QUESTION: What is the status of your lawsuit right now?
ANSWER: It's on appeal to the 9th Circuit.
Q: What gives you the confidence that the appeal might work for you?
A: It's not about confidence or lack of confidence. It's about whether there's an argument that needs to be fine-tuned or not. Judge Seabright did a workman-like job on the opinion, but the way he decided it leaves us looking for a little bit more clarity on certain points.
Q: He didn't just say, "No, this is not an infringement on the right of free association"?
A: He's saying that we have to show in our particular facts that it is for us. ... Now, that is something that we disagree with. We think that it's unconstitutional on its face.
Q: Is he suggesting that the Democratic Party of Hawaii is like a public accommodation or something?
A: Well it's interesting that you picked that analogy because although he's not suggesting that, that is the underlying basis for the open primary.
In other words, if you were to say ... let's just pick the Sierra Club, a labor union, the Rotary Club or anything else, and we'll just say you're not a member of any of those organizations, and you walk up and bang on the door and you say, "You know what? I want to vote for your next slate of officers because I'm really upset with the way you guys have been acting." And they go, "Who are you?" And you go, "I'm Coleman." They look on their list and don't see any Coleman. "Well, but pardon me, why are you here?" "Well, I'm an aggrieved citizen and I think that I have a right to impose my views on your organization." Now, we would see that as complete nonsense, because the organizations are going to say, "We're a membership organization and you're not a member; where do you get off?"
Well, in the case of the Democratic Party, we say we would like to nominate our candidates with our membership whom we know and trust, and, you know, because we're inclusive, we're happy to also take the vote of anyone who will publicly say they will support our party.
Now let's take Coleman over here who's not willing to publicly say that he supports the Democrats. Why should that person have the same right to nominate our candidates as the hardest-working, longest-suffering, most-donating member? And yet, that's the law.
Q: Is freedom of association the only argument you have going for you?
A: Well, I think it happens to be a nice one. It's the basis of it. You spring out from there into a lot of technical things that really are of concern only to lawyers and how they process cases, and this is one of the problems, for example, I have with Judge Seabright's decision, that I think he used an incorrect test. ... What he's saying is that he can find or plausibly imagine a party that wouldn't object to the existing open primary, and therefore he's not going to strike this thing down, just looking at the law. ... He's going to require the presentation of facts in our particular circumstance. But ... contrary to popular belief, the Democratic Party is not rolling in dough, and if we have to come in and make an individualized proof, if we have to bring in social scientists and survey people and statisticians to prove that the Democratic Party's political tendencies have been altered to X percent to a certain level of scientific confidence based on certain data, which doesn't exist, by the way, ... now we're into a potentially time-consuming, very expensive project. ...
So what I'm saying is, as we try this case, I would prefer it to be tried on the text.
Q: The text of the First Amendment?
A: Yeah, I want to compare the constitutional text with the text of our local law, and I want to be able to say, ideally, that there's no material difference between the blanket primary that was struck down and the open primary that has been tentatively sustained by the District Court.
Q: Do you recall how this came about in Hawaii?
A: Yes. The system that we have now is functionally identical to the system that obtained from about 1900 to about 1968. In other words, it was the instrument of the plantation oligarchy.
In 1962, when the Democrats first took over the House, the Senate and governorship all at the same time — this was under Jack Burns, it was the first total sweep after the so-called Democratic revolution of 1954 — the first article of business was to correct that problem. So in 1962, a law was passed that prospectively set up a new system. ... That went into effect from '68 to '78. And what that said was you come into the polling booth, you pick a ballot — it could be a Republican ballot, a Democrat ballot, Libertarian, whoever's registered as a party — and you get your box checked for that. And that's the ballot you're going to take next time, unless you re-register.
Now, there was no requirement that you be a member of the Democratic Party or a member of the Republican Party, but you had to publicly register yourself as being interested in that party. What did that do? Well, one of the things it did was it prevented people from just walking into the polling booth next time and on a whim deciding that they were one or the other. ...
So what happened in 1978 was that there was a Constitutional Convention — always a prescription for major mischief — and it narrowly passed out a recommendation to go to the open primary. This is the aftermath of Watergate. Everybody's concerned about Big Brother knowing who you are. But basically the goal was to, frankly, gut the party system.
Q: Why?
A: Because there are many people in the world who think political parties are an interruption to their business. Or they think that political parties lead to people with ideological perspectives running for office. Well, the Democratic Party happens to think that having people running from an ideological perspective is a good thing.
Q: So this is a struggle for some sort of ideological consistency?
A: A little focus perhaps. That would enable us to do the following things: To make sure that our brand stands for something. So that when you pick a D, you get a D. The second thing we want to be able to do is give membership some meaning. Because if right now (a party opponent) has the same rights to nominate the candidates as I do, where does that come out?
Q: What was the impetus for this lawsuit?
A: This dates back 2000, 2003-04 ... When the (California Democratic Party v.) Jones case came out in California, knocking out the blanket primary there on the grounds that it was a complete intrusion of the state into people's associational rights, a lot of folks in the Democratic Party here looked left and right and said, well, maybe this is a springboard for us to restore what we think is correct.
Q: Do you think that the open primary has been a factor in the decline of voter participation in this state?
A: I think that it is a factor, and that's ironic because it was (billed) originally as a solution for declining voter participation. You may know that in the early days, prior to statehood and early after statehood, Hawaii used to turn out 80 and 90 percent. ...
The first take on this is that the primary election system I don't think dramatically drives voter turnout, per se. What drives voter turnout is vigorous parties and good races. Many people are kind of along for the ride. They need their friends and neighbors to say, "Wait, this is important, you come with me."
Q: Since Hawaii politics is all pretty much dominated by Democrats, does it sometimes come down to a primary vote between one Democrat who has a position on an issue versus a candidate within that same party that has a different position?
A: Well, Democrats are not shy of discussion. ... The mission of the party in the '50s was conceptually simple and socially very difficult. Socially very difficult because the generations of people leading up to the so-called "revolution of '54" and afterwards took a lot of serious beating for it, you know? Getting shot, and getting starved out and getting fired, and, you know, it was a rough time to overturn a plantation oligarchy. But the conceptual part of it was relatively simple, and that was to imitate liberal society elsewhere. ...
What do we have to do now? The first mission is largely discharged. It requires maintenance, but Hawaii is a lot better off socially than it was at that time. Our new problem is not conceptually simple. It has no obvious correct solutions. What do you do about the problem of global warming when you're an island community? What do you do about disruptions to food supply and energy supply? What do you do about problems of the global economy driving us up and down and whipping us around so that we create an overclass and an underclass?
There are not obvious solutions to these, and what the Democratic Party needs to be is the group within which the discussion of how to deal with this takes place and takes political form, and in order to do that, we don't need a lot of input from the people who hate the party.
Q: If parties can have their own primaries, their own way of selecting the candidates to run in the general, ... would you be willing to cut the state out of that and have it just (fund and monitor) the general elections?
A: (Long pause) I think that having a completely secret, publicly funded general election is an absolute requirement, and nobody in this discussion is talking at all about messing with the general.
Q: But is there a need for the Office of Elections to be involved in the primaries?
A: Those are details of implementation. The Office of Elections is underfunded, undermanned, stuck in a crazy world with very difficult things to administer and on top of that they sometimes drop the ball, too. It's a complex picture. We cannot expect them, by the way, to do anything about curing the turnout.
Q: Are there other states that have open primaries like we do?
A: Yeah, there are. ... In some eastern states there's a thing like the open primary that we have here, but, if the party doesn't like it, they have the option of running their own convention. That would solve the constitutional problem in Hawaii.
Q: What about proposing an amendment to the Constitution of Hawaii? Are you having trouble getting somebody to sponsor that?
A: Let's put it this way: There's a remarkable correlation between people who are elected and people who think that the current system is wise. (They) have learned how to use the current system. I do not say that they're all like that. Many Democrats, particularly those who remember the problems of grassroots organizing in the first place, completely understand the party's position, and there are others who do not.
Q: What's the timeline on all this?
A: Well, ... nothing here is going to affect the coming election. There's simply not enough time. So we are happy to go carefully and encourage everybody to think this through, with the idea that by 2016 there could potentially be an impact — but maybe not.