On consideration of the joint emergency request for rehearing (modification of order), filed on March 29, 1996,
IT IS ORDERED:
1. The request for rehearing is GRANTED.
2. Opinion No. 4330, published on March 20, 1996, is WITHDRAWN.
3. Opinion No. 4338 is issued on this date in its place.
Entered by direction of the Court at Anchorage, Alaska on April 12, 1996.
Before RABINOWITZ, MATTHEWS, COMPTON and EASTAUGH, JJ.
The Alaska Election Code provides for a single "blanket" primary election in which a voter has the right to vote for any candidate, regardless of the party affiliation of the voter or the candidate. AS 15.25.010, et seq. In 1990 the Republican Party of Alaska (RPA) enacted a party rule which provides that only registered Republicans, registered Independents, and registered voters who state no preference of party affiliation may vote "in the Republican primary election...."
II. FACTUAL AND PROCEDURAL BACKGROUND
We have previously published an Order and Memorandum Opinion in this case, O'Callaghan v. Coghill, 888 P.2d 1302 (Alaska 1995), in which the underlying facts and proceedings are stated. We summarize them briefly here.
After adopting the party rule noted above, RPA sued the State in federal court, challenging the constitutionality of the statutory blanket primary system. Zawacki v. State, A92-414 CV (D.Alaska 1992).
United States District Court Judge James Singleton orally announced his tentative decision
Mike O'Callaghan, acting without an attorney, filed suit in state superior court challenging the legality of the 1992 primary on the ground that the stipulated regulations were inconsistent with the election statutes. The superior court granted summary judgment in favor of the State.
O'Callaghan and the State of Alaska submitted supplemental briefs. The State changed its position and now defends the constitutionality of the blanket primary. The court granted RPA's motion to intervene. Alaskan Voters for an Open Primary (AVOP) were also allowed to intervene. The Alaska Federation of Natives filed an amicus curiae brief, and the Alaskan Independence Party filed a submission in lieu of an amicus curiae brief. At this point only RPA argues that the blanket primary is unconstitutional, while the other parties defend the blanket primary's constitutionality.
III. STANDARD OF REVIEW
In Burdick v. Takushi, 504 U.S. 428, 112 S.Ct. 2059, 119 L.Ed.2d 245 (1992), the Supreme Court outlined the approach courts must take in cases in which election laws are challenged as violative of associational and voter rights. The Court noted:
Id. at 433-34, 112 S.Ct. at 2063 (citations omitted).
In evaluating interests underlying state election laws "a particularized showing" is not required. Munro v. Socialist Workers Party, 479 U.S. 189, 195-96, 107 S.Ct. 533, 537-38, 93 L.Ed.2d 499 (1986):
IV. ALASKA'S BLANKET PRIMARY AND VOTER REGISTRATION PATTERNS
A discussion of the constitutionality of state primary elections must begin with an explanation of the three major types of primary election systems. They are the closed primary, the open primary, and the blanket or nonpartisan primary. The defining feature of a closed primary is that only members of a given political party may participate in the party's primary election. Some closed primaries require affiliation with the party for a period of time prior to the primary election, while in others a voter may declare an affiliation at the time of voting in the primary. Tashjian v. Republican Party of Connecticut, 479 U.S. 208, 222 n. 11, 107 S.Ct. 544, 553 n. 11, 93 L.Ed.2d 514 (1986). In an open primary, any voter may vote for candidates for any party's nomination, but the voter may only vote for candidates running for one party's nomination. Id. In a blanket primary, any voter may also vote for candidates for any party's nomination, but the voter may vote for candidates for the nomination of different political parties for various offices. Id. Thus, in Alaska's blanket primary a registered Republican might vote for an Alaskan Independence Party candidate for Governor, a Republican for United
The RPA primary conducted under the stipulation in Zawacki is referred to by RPA as a "partially-closed primary." This seems apt since the primary is not a classic closed primary in that unaffiliated voters are allowed to participate, yet it does not meet the definition of an open primary, since it is not open to all registered voters.
Under the blanket primary system, Alaska's political parties have no formal role in the selection of candidates for the general election.
The blanket primary was first enacted in Alaska in 1947 following a referendum. Memorandum from Gordon S. Harrison, Director, Legislative Research Agency, Research Request 90.294 (May 23, 1990). The subsequent history of the blanket primary is related by Harrison:
Senator Ziegler is reported to have said:
Id. (footnotes omitted).
V. THE MERITS
A. Relevant Case Law
We turn now to a discussion of the major cases on which the parties rely. Most directly on point from a factual standpoint is Heavey v. Chapman, 93 Wn.2d 700, 611 P.2d 1256 (1980). In Heavey, the Supreme Court of Washington affirmed the constitutional validity of Washington's blanket primary against a challenge by the State Democratic Central Committee on freedom of association
While the Heavey court found the plaintiffs failed to show a substantial burden to their associational rights, it found that there were compelling interests which supported the blanket primary. It identified three: (1) secrecy — "allowing each voter to keep party identification, if any, secret"; (2) greater voter participation — "allowing the broadest possible participation in the primary election"; and (3) maximizing voter choice — "giving each voter a free choice among all candidates in the primary." Id. at 1259.
Subsequent to the Washington Supreme Court's decision in Heavey the United States Supreme Court ruled on one aspect of a state's open presidential preference primary in Democratic Party of the United States v. Wisconsin ex rel. LaFollette, 450 U.S. 107, 101 S.Ct. 1010, 67 L.Ed.2d 82 (1981). Under Wisconsin's election statute non-Democrats, including members of other parties and independents, were allowed to participate in the Democratic Party presidential candidate preference primary. LaFollette, 450 U.S. at 109-10, 101 S.Ct. at 1012-13. Voters did not vote for delegates to the national convention; delegates were chosen at party caucuses. However, Wisconsin law required that the delegates be bound by the results of the open primary. Democratic National Party rules, on the other hand, required that only closed primaries could bind delegates to vote for a particular candidate. The State of Wisconsin sought a declaration that the Wisconsin delegate selection system was constitutional and binding on the Democratic National Party. The Wisconsin Supreme Court held that the state's system was constitutional and binding on the National Party. Wisconsin ex rel. LaFollette v. Democratic Party of United States, 93 Wis.2d 473, 287 N.W.2d 519 (1980), rev'd, 450 U.S. 107, 101 S.Ct. 1010, 67 L.Ed.2d 82 (1981). On appeal, the United States Supreme Court defined the issue not as whether Wisconsin might conduct an open primary, but whether "the State may compel the National Party to seat a delegation chosen in a way that violates the rules of the Party." 450 U.S. at 121, 101 S.Ct. at 1018. The Court answered this question in the negative. It held that a state may not control how a national party selects its national convention delegates. Id. at 126, 101 S.Ct. at 1021. In so holding, however, the Court acknowledged that the Wisconsin open primary might serve the compelling state interest of encouraging greater voter participation:
Id. at 120-21, 101 S.Ct. at 1018 (emphasis added). Similarly, the Court recited without casting doubt on their validity the interests asserted by the State of Wisconsin as compelling:
Id. at 124-26, 101 S.Ct. at 1020-21 (footnotes omitted).
The case most heavily relied upon by the RPA is Tashjian v. Republican Party of Connecticut, 479 U.S. 208, 107 S.Ct. 544, 93 L.Ed.2d 514 (1986). Connecticut had a closed primary. The Republican Party of Connecticut adopted a rule broadening the franchise for Republican Party primaries to include voters who were not registered as members of any other political party. Tashjian, 479 U.S. at 210, 107 S.Ct. at 546. The party sought a declaration that the Connecticut closed primary statute violated the party's freedom of association. Id. The United States District Court issued such a declaration, which was affirmed by the United States Court of Appeals and by the United States Supreme Court. Id. at 211, 107 S.Ct. at 546-47. Thus, the Supreme Court found the closed primary statute unconstitutional. The Supreme Court began its discussion with cautionary language, warning against generalization and prescribing a balancing approach:
Id. at 213-14, 107 S.Ct. at 548.
Identifying the nature of the party's interest as one of freedom of association, the Court observed that the Connecticut closed primary statute "places limits upon the group of registered voters whom the Party may invite to participate in the `basic function' of selecting the Party's candidates." Id. at 215-16, 107 S.Ct. at 549 (citing Kusper v. Pontikes, 414 U.S. 51, 58, 94 S.Ct. 303, 308, 38 L.Ed.2d 260 (1973)). For a number of reasons, the Court found these limits were not justified by the reasons offered by the State.
First, the Connecticut closed primary did little to prevent "raiding," since under the statute an Independent could re-register as a Republican and vote in the closed primary as late as the day before the primary election.
Id. Finally, the Court stressed that a basic objective of closed primary statutes was to protect parties from external disruption in order to promote responsiveness by elected officials to political parties. The court found this goal to be insubstantial in light of the party's decision that it did not desire such protection:
Tashjian, 479 U.S. at 224, 107 S.Ct. at 553-54.
B. The Blanket Primary is Not Per Se Unconstitutional
The regulations adopted by Alaska's lieutenant governor following the Zawacki stipulation appear to assume that the blanket primary statutory system is per se unconstitutional when it conflicts with party rules regarding the selection of political party candidates.
Tashjian does not confer per se validity on party rules which conflict with a state's primary election laws. Indeed, it disavows any such scope: "Our holding today does not establish that state regulation of primary voting qualifications may never withstand challenge by a political party or its membership." 479 U.S. at 224 n. 13, 107 S.Ct. at 554 n. 13. While LaFollette seems to uphold a party rule over a statute, it is distinguishable because the Court did not invalidate the state open primary. The Court in LaFollette held that the state could not control the delegate
Daniel L. Lowenstein, Associational Rights of Major Political Parties: A Skeptical Inquiry, 71 Tex.L.Rev. 1741, 1772 (1993).
Furthermore, post-Tashjian decisions have not given carte blanche authority to political parties to rewrite state primary election rules. For example, in Lightfoot v. Eu, 964 F.2d 865 (9th Cir.1992), cert. denied, 507 U.S. 919, 113 S.Ct. 1280, 122 L.Ed.2d 673 (1993), the court was presented with an assertion by the Libertarian Party of California that the party was entitled to nominate candidates in contravention of the primary election system mandated by state law. The court rejected this position because it was outweighed by the purpose of the direct primary requirement which was to reduce party influence in favor of that of voters:
964 F.2d at 872-73. The court also observed that the "assertion that `legislative restrictions on the right of a ballot-qualified political party to adopt its own procedures for self-governance including nomination of candidates constitute a substantial impairment of the rights of the party and its members to freedom of association,'" while finding some support, overstated the breadth of the holdings of the cases on which the assertion was based, including Tashjian and LaFollette. 964 F.2d at 871.
In Green Party of California v. Jones, 31 Cal.App.4th 747, 37 Cal. Rptr.2d. 406 (1995), the Green Party of California had adopted a rule bestowing upon itself the authority to close the primary election for Green Party candidates as to specified offices. This rule conflicted with the California election code which allowed any qualified member of the party to seek the nomination of the party for any open office. The party asserted the closure right in order to avoid functioning as a "spoiler" in close races between major party candidates. 37 Cal. Rptr. at 410. The court found the Green Party's assertion that it would be injured in its associational interests to be plausible, id. at 413, but outweighed by the state's interests "in the uniformity of ballot procedures to prevent voter confusion, to minimize administrative burdens, and to forestall control by party governing bodies." Id. at 415.
C. The State's Interests Justify the Restrictions Imposed on RPA's Rights.
RPA claims the right to designate those voters who may vote for Republican candidates in a primary election. The party rule requiring a partially-closed primary election reflects an effort to implement this right. RPA claims that a partially-closed primary advances — and that a blanket primary harms — its interests in two ways. First, it claims that the partially-closed primary is a means by which RPA is able to "protect itself against raiding." Second, RPA contends that the partially-closed primary results in the election of candidates who are more accountable to party "principles and platform" and permit the party "to increase the amount of control [it] would have over elected officials...."
The State and AVOP counter that the harms which RPA identifies are not substantially greater under a blanket primary than they would be under the RPA's partially-closed primary. They point out that under the latter RPA members constitute less than a third of the total eligible voters and thus considerable potential for raiding exists. Further, they note that a voter may change party registration immediately before voting in the partially-closed primary, which also facilitates raiding.
In our view there is merit to the State's and AVOP's position that the danger of raiding exists under the partially-closed primary and that the danger is potentially increased only by a matter of degree by a blanket primary. Still, it seems plausible that registered voters in other parties might be more apt than independent or nonpartisan voters to vote against an opposing party candidate in a primary for tactical reasons. Further, the partially-closed primary deters raiding in one way that the blanket primary does not. A partisan voter who switches party allegiances just before the election in order to cast a raiding vote must give up the right to vote for candidates of his or her choice in races in which he has no desire to raid.
The Supreme Court, writing in Tashjian in 1986, quoted from a study which concluded that "the existence of `raiding' has never been conclusively proven by survey research." 479 U.S. at 219 n. 9, 107 S.Ct. at 551 n. 9. We have been referred to no studies contradicting this conclusion. However, we believe that at least on a small scale and in some races some opposition party voters will vote for a candidate whom they have no intention of supporting in the general election.
With respect to the second harm, loss of elected officials' accountability to party principles and party control, the State and AVOP's arguments that this loss is only slightly greater with the expanded franchise of the blanket primary seem correct.
Among the reasons offered by the State in support of the blanket primary are that it encourages voter turnout, maximizes voters'
The benefits inherent in a blanket primary of greater voter participation and voter free choice among all candidates were recognized by the Washington Supreme Court as compelling in Heavey, 611 P.2d at 1259. Voter free choice is better accomplished in a blanket primary than in an open primary:
The goal of greater voter participation is one shared by blanket and open primaries. See LaFollette, 450 U.S. at 120-24, 101 S.Ct. at 1018-20.
The objective of ensuring that officers elected are representative of a broad cross-section of the electorate, rather than accountable to the narrower interests which may control a party organization, is in essence the reason for the shift, begun at the turn of the century and now generally prevalent, from nomination by party convention to nomination by direct primary. See Lightfoot, 964 F.2d at 872; Note, Setting Voter Qualifications For State Primary Elections, 55 U.Cin.L.Rev. 799-800 (1986-87). In Alaska, where a majority of voters are not affiliated with any party, a closed or partially-closed primary system can plausibly be viewed as bestowing on a minority of the electorate a disproportionately powerful role in the selection of public officeholders. If political parties and politically affiliated voters are to have more power in the election process, that is power taken from unaffiliated voters.
Taken individually and collectively these justifications seem to us to be legitimate and
It is interesting that the "harm" claimed by RPA of loss of responsiveness of elected officials to party principles and party discipline is much the same as the "benefit" claimed by the State of nominating candidates whose appeal is to a broad cross-section of the electorate. This illustrates that this case reflects in part conflicting visions of democracy. On one side are what one commentator calls "party renewal advocates" whose view is that government works best when elected officials are accountable to party principles and party discipline.
Obviously, both visions have strengths and weaknesses, and it is not the function of any court to resolve them. The important point for our purpose is that the Alaska Legislature has taken a position. In so doing it has exercised a power which only it can exercise, and its choice is both reasonable and nondiscriminatory.
O'Callaghan seeks a declaration that the 1992 and 1994 primary elections were conducted illegally; prospective relief that requires future primaries to be conducted in accordance with the Alaska Statutes; and a damage remedy under which the State would pay each voter $50 for each of the illegal elections in which the voter participated.
O'Callaghan is entitled to a judgment declaring the 1992 and 1994 primaries to have been illegally conducted. The remedy goes no further than this. New elections will not be ordered. The acts of officials who were nominated in those primaries will not be invalidated. O'Callaghan is also entitled to prospective mandatory relief requiring that the 1996 primary be conducted in accordance with the Alaska Statutes.
We hold that Alaska's blanket primary statute is constitutional. A state's election statute does not violate the first amendment associational rights of a political party solely by virtue of the fact that the statute conflicts with party rules pertaining to the primary. The blanket primary is nondiscriminatory. While the blanket primary may create some degree of interference with RPA's associational rights, this interference is minor and is justified by the State's interests.
A blanket primary statute may harm the RPA in terms of creating a greater chance of raiding than under a partially-closed primary, though its real effect has not been shown and may not be as extreme as the party argues. Further, there is only a slightly greater loss of accountability of candidates to party principles under the blanket primary as compared to the partially-closed primary. The harm is not great and is justified by the State's interests.
The State's interests in encouraging voter turnout, maximizing voters' choice among candidates, and ensuring that elected officials have relatively broad based constituencies are served by the blanket primary statute. These interests are important and are legitimate objectives for a state to seek to achieve when structuring election procedures.
RABINOWITZ, Justice, dissenting.
I dissent from the court's conclusion that the blanket primary statute is constitutional. In my view Alaska's blanket primary statute impermissibly burdens the Republican Party of Alaska's political rights of association in violation of the First and Fourteenth Amendments to the United States Constitution.
Initially I think it appropriate to observe that in accordance with controlling federal precedent this court must apply strict scrutiny in determining the constitutionality of Alaska's blanket primary statute. I rely on Burdick v. Takushi, 504 U.S. 428, 112 S.Ct. 2059, 119 L.Ed.2d 245 (1992), Eu v. San Francisco County Democratic Central Committee, 489 U.S. 214, 109 S.Ct. 1013, 103 L.Ed.2d 271 (1989), Tashjian v. Republican Party of Connecticut, 479 U.S. 208, 107 S.Ct. 544, 93 L.Ed.2d 514 (1986), and Democratic Party of the United States v. Wisconsin ex rel LaFollette, 450 U.S. 107, 101 S.Ct. 1010, 67 L.Ed.2d 82 (1981), in concluding that the compelling interest standard is controlling in resolving issues of federal constitutionality in the factual context of this case.
Burdick contains the most relevant text. There, the Supreme Court wrote:
Burdick, 504 U.S. at 434, 112 S.Ct. at 2063-64 (emphasis added) (citation omitted).
The Burdick court applied the latter, lower level of scrutiny, and held the Hawaii election laws to be constitutional. Burdick explains its application of the less strict test by stating:
Id. (emphasis added) (citation omitted).
In the case at bar, the blanket primary statute does specifically interfere with the right of the Republican Party of Alaska to have candidates of its choice placed on the primary ballot. That is, the statute prohibits the Republican Party of Alaska from selecting candidates according to its chosen method. The clear implication of Burdick is that Alaska's blanket primary statute is subject to strict scrutiny.
Eu, 489 U.S. at 224, 109 S.Ct. at 1020-21 (emphasis added) (citations omitted).
Thus, according to Eu, the party has the right to select its own nominee, and any attempt to infringe on that right is subject to strict scrutiny.
Tashjian contains similar language. There, Justice Marshall wrote:
Tashjian, 479 U.S. at 217, 107 S.Ct. at 550 (citation omitted). Justice Marshall then applied strict scrutiny to the Connecticut statute, and found it unconstitutional. LaFollette also supports this proposition. There the Supreme Court did not specifically state whether strict scrutiny applied. However, it mentions "compelling interest[s]," which implies that strict scrutiny applied to the case. LaFollette, 450 U.S. at 124-125, 101 S.Ct. at 1024-25.
To understand why Alaska's blanket primary statute has the effect of prohibiting the Alaskan Republican Party from nominating candidates of its choice, it is necessary to review the operation of Alaska's primary election laws. In this regard AS 15.25.010 states:
(Emphasis added.) Therefore, parties must participate in the primary election. A "political party" is defined as
Further, parties have no formal control over who can claim the party mantle in a primary. This is because AS 15.25.030, which governs the declaration of candidates, grants the party no role.
Thus, under Alaska law, a party is compelled to participate in the primary election. Furthermore, a party cannot make its own selection of who will represent it in the primary election.
Taken together, these laws mandate that any organization which wins more than three percent in the prior election for governor loses the right to nominate the candidate of its choice. A law requiring such a result can only be justified when it is narrowly drawn to advance an interest of compelling importance to the state, according to Tashjian, Eu, and Burdick. Indeed, in LaFollette, the Supreme Court approvingly cited Professor Tribe for the following proposition:
LaFollette, 450 U.S. at 122 n. 22, 101 S.Ct. at 1019 n. 22.
Thus, it is within the province of a party to decide who will nominate its candidates. Other language in the LaFollette opinion makes this point, as well. In footnote 25 of the LaFollette opinion the Court acknowledges that a party's rules may not necessarily induce party loyalty more effectively than the state's proposed rule. However, "the stringency, and wisdom, of membership requirements is for the association and its members to decide — not the courts — so long as those requirements are otherwise constitutionally permissible."
In my view, Tashjian and LaFollette compel the holding that Alaska's blanket primary statute is unconstitutional. The Supreme Court of the United States held in LaFollette that the State of Wisconsin could not control the delegate selection process of a national party for national conventions. More particularly, the Supreme Court held that Wisconsin could not force the party to accept a state mandated process for selecting candidates. I cannot distill from LaFollette a distinction between the process for selecting delegates and the process for selecting actual candidates. LaFollette states, "It is for the National Party — and not the Wisconsin Legislature or any court — to determine the appropriate standards for participation in the Party's candidate selection process." LaFollette, 450 U.S. at 124 n. 27, 101 S.Ct. at 1020 n. 27 (emphasis added). Delegates select candidates, and therefore interference in the delegate selection process is interference in the candidate selection process. The Supreme Court recognized this.
In Tashjian, the state wanted to keep the candidate selection process closed, while the Party wanted to allow some outsiders to vote. In LaFollette, the state wanted to keep the candidate selection process open, while the Party wanted to close the process to outsiders. It is critical to note that, in each case, the Party's desires prevailed over the state's asserted interests in closing or opening the process. I think that these cases cannot be distinguished in any meaningful way from the case at hand, and that they require this court to rule in favor of the Party.
Further, I disagree with the majority's statement that "there is merit to the State's and AVOP's position that the danger of raiding
First, rules of the Republican Party of Alaska's scheme do not permit raiding for the simple reason that they do not permit Democrats to vote. Under the majority's definition, raiding occurs when "voters in sympathy with one party designate themselves as voters of another party so as to influence or determine the results of the other party's primary." This implies a degree of sabotage, where members of one party try to weaken the other party's position by voting for a weak candidate. The independents and unaffiliated voters who would be allowed to vote under the Republican Party of Alaska's rules are, by definition, not members of an opposing party, and there is no reason to think that they are in sympathy with another party. They do not seek to strengthen unaffiliated or independent candidates by sabotaging the Republican Party of Alaska's nominating process.
Second, the majority's definition of raiding necessarily implies that something is happening to the party that it does not want to happen. Thus, anything that the Republican Party of Alaska wants to happen in its nominating process cannot be characterized as raiding. By virtue of the fact that the Republican Party of Alaska has invited independents and non-affiliated voters to participate in its primary election, actions taken by those voters cannot be considered "raiding." Indeed, had the Republican Party of Alaska invited Democrats to participate in its primary, actions taken by the Democrats could not be fairly characterized as raiding.
The Professor Tribe quote referred to above illustrates this point. Again, he stated:
(Emphasis added.) Thus, associations are guaranteed the right to control who makes their decisions. If they invite non-members to participate, that is their right. And such participation therefore is not "raiding." It should be noted that the quote does not state only that the association should be able to limit control over their decisions to members, but speaks in more general terms of shared interests and persuasions — the precise group the Republican Party of Alaska hopes to attract and include in the primary.
As the Supreme Court of the United States emphasized in Tashjian:
Tashjian, 479 U.S. at 214, 107 S.Ct. at 548 (citations omitted).
In my opinion the State of Alaska has failed to demonstrate compelling state interests which outweigh the harms to the Republican Party of Alaska's constitutionally protected associational rights.
I therefore conclude that since the State has failed to demonstrate compelling reasons
1992 Legislative Resolve No. 67 (SCR 30). This resolution was passed unanimously in the Senate, and by a vote of 35 to 5 in the House. 1992 Senate Journal 2143; 1992 House Journal 3169-70.
I do not address whether a political party is allowed to dissolve itself and reconstitute itself as a political group in order to choose nominees of its own choice.