¶ 1 Mike O'Callaghan appeals the superior court's order denying his challenge to emergency regulations
¶ 2 In O'Callaghan v. Coghill, (O'Callaghan I), we concluded that the blanket primary election prescribed in AS 15.25.060 did not clearly deprive political parties of their right of free association, as guaranteed by the First Amendment of the United States Constitution.
¶ 3 On June 26, 2000, the United States Supreme Court decided in California Democratic Party v. Jones that California's blanket primary statute violates the First Amendment's guarantee of associational freedom.
¶ 4 Having reviewed Jones, we find no constitutionally significant differences between Alaska's primary election law and the California law declared unconstitutional in Jones. Nor do we find any principled basis for concluding that Alaska's blanket primary election statute remains constitutional in light of Jones. Because the United States Constitution's Supremacy Clause requires states to adhere to the Supreme Court's constitutional interpretation in Jones,
¶ 5 In O'Callaghan I, we determined that the Division of Elections, as an executive branch agency, would have authority to "abrogate a statute which is clearly unconstitutional under a United States Supreme Court decision dealing with a similar law, without having to wait for another court decision specifically declaring the statute unconstitutional."
¶ 6 By acknowledging in O'Callaghan I and O'Callaghan II that the validity of the challenged regulations turned on the unconstitutionality of AS 15.25.060, we implicitly determined that the division's power to abrogate a clearly unconstitutional statute triggered its authority to regulate on a temporary basis in an emergent situation like the situation we face here.
¶ 7 We also reject O'Callaghan's argument that the division's emergency regulations prescribe an unlawful form of ballot, "the same ballot type declared unlawful by this Court" in O'Callaghan II. In that case we declared the partially closed ballot unlawful only because it was inconsistent with AS 15.25.060; in no other context did we even consider the validity of that form of ballot. Because we found AS 15.25.060 to be constitutional, we simply ruled that the division lacked authority to adopt or implement any other form of primary ballot—including the partially closed ballot.
¶ 8 We are similarly unpersuaded by O'Callaghan's reliance on O'Callaghan II for the proposition that a partially closed ballot primary extinguishes his right to vote for candidates of his choice, regardless of party affiliation. O'Callaghan quotes language from O'Callaghan II supporting this proposition; but the language he quotes simply paraphrased provisions of the Alaska Statutes establishing Alaska's "blanket primary" system
¶ 9 O'Callaghan raises a closer question in contending that the partially closed primary violates the Alaska Constitution's guarantee that "[s]ecrecy of voting shall be preserved."
¶ 10 We reject as meritless O'Callaghan's contention that inclusion of a "statutory ballot" in the partially closed ballot system is impermissible because Jones declared AS 15.25.060—the statute at issue—unconstitutional. Jones holds that the freedom of association guaranteed by the First Amendment prohibits a statutory ballot that, like the ballot prescribed in AS 15.25.060, allows voters who are not party members to vote in a primary election for candidates of a party that does not consent to the non-members voting.
¶ 11 We similarly find no merit in O'Callaghan's claim that the division ignored the "clear mandate" of Jones by adopting a partially closed primary ballot instead of a non-partisan blanket primary ballot.
a. Although Jones does expressly point out that a non-partisan blanket primary would pass constitutional muster, Jones says nothing to suggest that this is the only constitutionally permissible form of primary ballot or that the non-partisan ballot form deserves preference over other constitutionally permissible forms.
b. Publication of Jones on June 26 left the division less than two months to adopt, implement, and carry out a new form of primary election that would not violate the Republican Party's associational rights. A non-partisan blanket ballot of the kind described in Jones would have forced the division to set in motion an unfamiliar process that would have required it to call upon each political party to nominate the party's own slate of candidates for the non-partisan primary ballot.
c. The viability of this non-partisan system presupposes adequate time for its implementation by the division and by political parties alike—time that scarcely existed in this case.
d. Moreover, the non-partisan primary's central assumption that political parties should select their candidates directly conflicts with a fundamental policy long embedded in Alaska's election laws: the notion that party candidates should be nominated by an open, public process—that candidates "be nominated in a primary election by direct vote of the people"
e. In sum, given the time constraints facing the division, the untried and relatively elaborate demands it would face in implementing a non-partisan primary, and the basic incompatibility of that process with Alaska's statutory goal of requiring—to the maximum permissible extent—that political parties nominate their candidates through an open and public electoral process, we find no basis for concluding that the division overstepped its emergency powers by opting for the partially closed primary ballot.