                   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.
