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O'Callaghan v. Alaska (4/12/96), 914 P 2d 1250
<![CDATA[
IN THE SUPREME COURT OF THE STATE OF ALASKA
MIKE O'CALLAGHAN, )
) Supreme Court No. S-6249
Appellant, )
) O R D E R
)
and )
)
JED WHITTAKER, ROBERT GIGLER, )
and ALASKAN VOTERS FOR AN )
OPEN PRIMARY, )
)
Appellants/Intervenors, )
)
vs. )
)
STATE OF ALASKA; LIEUTENANT )
GOVERNOR JACK COGHILL, in )
his official capacity as )
Lieutenant Governor, )
)
Appellee. )
)
and )
)
REPUBLICAN PARTY OF ALASKA, )
)
Appellee/Intervenor. )
______________________________)
Superior Court Nos. 3AN-92-08552/3AN-92-11150 Civil
Before: Compton, Chief Justice, Rabinowitz,
Matthews and Eastaugh, Justices. [Fabe, Justice,
not participating.]
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WITHDRAWN.
Supreme Court Order
Re: O'Callaghan v. State of Alaska
File No. S-6249
Page Two
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.
CLERK OF THE SUPREME COURT
__________________________
JAN HANSEN
cc:
Justices
Judge Shortell
Appeals Division
Publishers (OP#4330 3/20/96)
BBS
Michael O'Callaghan
James L. Baldwin
John B. Gaguine
Jed Whittaker
Robert A. Gigler
Stephan H. Williams
Max Gruenberg
Edgar Boyko
Kenneth P. Jacobus
Notice: This opinion is subject to correction before
publication in the Pacific Reporter. Readers are
requested to bring errors to the attention of the Clerk
of the Appellate Courts, 303 K Street, Anchorage,
Alaska 99501, phone (907) 264-0607, fax (907) 276-5808.
THE SUPREME COURT OF THE STATE OF ALASKA
MIKE O'CALLAGHAN, )
) Supreme Court No. S-6249
Appellant, )
)
and ) Superior Court Nos.
) 3AN-92-08552 CI and
JED WHITTAKER, ROBERT GIGLER, ) 3AN-92-11150 CI
and ALASKAN VOTERS FOR AN ) (Consolidated)
OPEN PRIMARY, )
)
Appellants/ ) O P I N I O N
Intervenors, )
)
v. ) [No. 4338 - April 12, 1996]
)
STATE OF ALASKA; LIEUTENANT )
GOVERNOR JACK COGHILL, in )
his official capacity as )
Lieutenant Governor, )
)
Appellee, )
)
and )
)
REPUBLICAN PARTY OF ALASKA, )
)
Appellee/ )
Intervenor. )
______________________________)
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage,
Brian C. Shortell, Judge.
Appearances: Michael O'Callaghan, pro se,
Anchorage. Max F. Gruenberg, Jr., Gruenberg
& Clover, Anchorage, for Alaskan Voters for
an Open Primary. Virginia B. Ragle, James L.
Baldwin, Assistant Attorneys General, Bruce
M. Botelho, Attorney General, Juneau, for
State of Alaska. Kenneth P. Jacobus,
Anchorage, for Republican Party of Alaska.
Stephan H. Williams, Anchorage, for Amicus
Curiae Alaska Federation of Natives. Edgar
Paul Boyko, Edgar Paul Boyko & Associates,
Anchorage, for Amicus Curiae Alaskan
Independence Party.
Before: Rabinowitz, Matthews, Compton and
Eastaugh, Justices. [Moore, Chief Justice,
not participating.]
MATTHEWS, Justice.
RABINOWITZ, Justice, dissenting.
I. INTRODUCTION
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
. . . ."1 The question in this case is whether, in light of this
rule, the blanket primary violates RPA's freedom of association
rights and is thus unconstitutional. We answer this in the
negative.
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 decision2 that under Tashjian v.
Republican Party of Connecticut, 479 U.S. 208 (1986), the blanket
primary infringed on RPA's associational rights.3 Following
Judge Singleton's tentative decision the parties stipulated that
the lieutenant governor would adopt regulations which would
provide for two separate ballots for primary elections.4 A party
rule ballot would contain the names of candidates who filed for
the RPA nomination and would be available to Republican,
nonpartisan, and undeclared voters. A statutory ballot would
contain the names of candidates of all other political parties
and would be available to all voters. A voter could vote only
one ballot. The 1992 and 1994 primary elections were held under
such regulations. See 6 AAC 28.100-150.
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.5 On appeal we
ruled that "a stipulation or consent judgment declaring a law
unconstitutional is not valid"except in cases of clear uncon
stitutionality. O'Callaghan, 888 P.2d at 1303. We concluded
that the standard of clear unconstitutionality had not been met.
Further, we found that the briefing was inadequate to determine
the constitutionality of the blanket primary and ordered
additional briefing. In view of the importance of this case we
invited participation by the political parties of Alaska and
others. Id. at 1305.
O'Callaghan and the State of Alaska submitted supple
mental 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 (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:
It is beyond cavil that "voting is of
the most fundamental significance under our
constitutional structure.". . . It does not
follow, however, that the right to vote in
any manner and the right to associate for
political purposes through the ballot are
absolute. . . . The Constitution provides
that States may prescribe "[t]he Times,
Places and Manner of holding Elections for
Senators and Representatives,"Art. I, ' 4,
cl.1, and the Court therefore has recognized
that States retain the power to regulate
their own elections. . . . Common sense, as
well as constitutional law, compels the
conclusion that government must play an
active role in structuring elections; "as a
practical matter, there must be a substantial
regulation of elections if they are to be
fair and honest and if some sort of order,
rather than chaos, is to accompany the
democratic processes.". . .
Election laws will invariably impose
some burden upon individual voters. Each
provision of a code, "whether it governs the
registration and qualifications of voters,
the selection and eligibility of candidates,
or the voting process itself, inevitably
affects -- at least to some degree -- the
individual's right to vote and his right to
associate with others for political
ends.". . . Consequently, to subject every
voting regulation to strict scrutiny and to
require that the regulation be narrowly
tailored to advance a compelling state
interest, as petitioner suggests, would tie
the hands of States seeking to assure that
elections are operated equitably and
efficiently. . . . Accordingly, the mere
fact that a State's system "creates barriers
. . . tending to limit the field of
candidates from which voters might choose
. . . does not of itself compel close
scrutiny.". . .
Instead, . . . a more flexible standard
applies. A court considering a challenge to
a state election law must weigh "the
character and magnitude of the asserted
injury to the rights protected by the First
and Fourteenth Amendments that the plaintiff
seeks to vindicate" against "the precise
interests put forward by the State as
justifications for the burden imposed by its
rule," taking into consideration "the extent
to which those interests make it necessary to
burden the plaintiff's rights.". . .
Under this standard, the rigorousness of
our inquiry into the propriety of a state
election law depends upon the extent to which
a challenged regulation burdens First and
Fourteenth Amendment rights. Thus, as we
have recognized when those rights are
subjected to "severe" restrictions, the
regulation must be "narrowly drawn to advance
a state interest of compelling
importance.". . . But when a state election
law provision imposes only "reasonable,
nondiscriminatory restrictions" upon the
First and Fourteenth Amendment rights of
voters, "the State's important regulatory
interests are generally sufficient to
justify"the restrictions. . . .
Id. at 433-34 (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 (1986):
To require States to prove actual voter
confusion, ballot overcrowding, or the
presence of frivolous candidacies as a
predicate to the imposition of reasonable
ballot access restrictions would invariably
lead to endless court battles over the
sufficiency of the "evidence"marshalled by a
State to prove the predicate. Such a
requirement would necessitate that a State's
political system sustain some level of damage
before the legislature could take corrective
action. Legislatures, we think, should be
permitted to respond to potential
deficiencies in the electoral process with
foresight rather than reactively, provided
that the response is reasonable and does not
significantly impinge on constitutionally
protected rights.
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 (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 States
House of Representatives, and a Democrat for State Senate. In
1986 the United States Supreme Court identified thirty-seven
states with closed primaries of one sort or another, nine states
with open primaries, and four states, including Alaska, with
blanket primaries, called by the Supreme Court "nonpartisan"
primaries. Id.
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.6,7 Any person may declare him or herself
to be a candidate of a party in the primary election upon meeting
certain prescribed legal requirements. The candidate must be "a
member of the political party." This, by definition, "means a
person who supports the political program of a party." AS
15.60.010(15). The candidate must be registered to vote as a
member of the political party under whose name the candidate
seeks nomination. AS 15.25.030(16). Registration can be
accomplished on the day of the declaration. AS 15.07.040. All
the candidates for a given office are listed on a single ballot
with their party affiliation. Any voter, regardless of party
affiliation, may vote for any candidate. Where there are two or
more candidates seeking nomination under a single party's name,
the candidate who receives the most votes advances to the general
election.8,9
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:
Increasingly, . . . the question of the
blanket primary became a partisan issue.
Democrats tended to oppose it; Republicans to
support it. Democrats believed that it
eroded what little party loyalty and
discipline existed in Alaska, and they
thought the Republicans used it to their
advantage by crossing party lines in the
primary to elect the weakest Democratic
candidate. Republicans supported the blanket
primary in hopes that Republican candidates
would benefit by attracting conservative
Democrats and non-aligned voters.
Despite the overall partisan flavor that the
issue was to acquire (with Republicans for
and Democrats against the blanket primary),
opposition existed on the part of some
Republicans, and support existed on the part
of some Democrats. In general, party
stalwarts and those who believe in the
importance of strong parties in the political
process, opposed and continue to oppose the
blanket primary. Those who are not firmly
aligned with a political party, and who
believe that the voter should have maximum
independence in balloting matters, support
the blanket primary. Party loyalty has not
been strong in Alaska, and legislators from
both parties have responded to widespread
public support for the blanket primary.
In the first session of the first state
legislature in 1959, when Democrats firmly
controlled both houses and the governor's
office, the blanket primary was replaced by
the single ballot open primary. Adoption of
the comprehensive election code in 1960
incorporated this change.
Republicans led the opposition to the single
ballot open primary, although many Democrats
also sought a return to the blanket primary.
Several bills were introduced to restore the
blanket primary, but they languished in
Democratic-controlled committees. In 1966,
during the second session of the Fourth
Legislature, a blanket primary bill passed
the House and almost passed the Senate.
Senate debate on the measure was reported in
the Anchorage Daily Times. Democrats Jim
Nolan of Wrangell, Robert Blodgett of Teller,
and Robert Ziegler of Ketchikan spoke in
favor the bill. Senator Blodgett is quoted
saying:
The Democratic party is a hollow
shell. The Republican party is a
hollow shell. How many people
actually are active workers in the
two parties? Darned few. I
support the bill.
Senator Ziegler is reported to have said:
The measure is vitally important to
the people of this state. In
Ketchikan, probably nine of every
ten voters want to vote for the
man, not the party.
Despite this bipartisan show of support, the
bill failed to pass the Senate.
The general election of 1966 broke the
Democratic monopoly on legislative power
which had existed since the 1950s:
Republican majorities were elected to both
Houses and Republican Walter Hickel was
elected governor. The blanket primary was
thereupon restored during the first session
of the Fifth Legislature. The bill to
restore the blanket primary was introduced at
the request of Governor Hickel, but it
attracted considerable bipartisan support.
Among the 35 yeas in the House, nine were
cast by Democrats; of the five nays, four
were cast by Democrats. In the Senate the
bill received 18 yeas, four of which were
cast by Democrats. Both nays in the Senate
were cast by Democrats.
The blanket primary seems to suit Alaska,
where party ties and party organizations are
weak. However, some Democratic and
Republican party loyalists, who lament the
decline of political parties, prefer a more
conventional (open or closed) primary that
restricts voters to casting ballots for one
party's candidates.
Id. (footnotes omitted).
In 199410 there were 340,464 registered voters in
Alaska. Of these more than 182,000 voters were registered as
nonpartisan or undeclared. By contrast, there were 78,212
registered Republicans, 59,782 registered Democrats, 12,936
registered Alaskan Independence Party members, 2,558 Green Party
members, and 4,595 "other"party members. Thus approximately
fifty-four percent of all registered voters in Alaska were
nonpartisan or undeclared, whereas approximately twenty-three
percent were registered Republicans and approximately eighteen
percent were registered Democrats.
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, 611 P.2d 1256 (Wash. 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 grounds. The Washington court considered two recent
United States Supreme Court cases, Rosario v. Rockefeller, 410
U.S. 752 (1973) and Nader v. Schaffer, 417 F. Supp. 837 (D.
Conn.), aff'd, 429 U.S. 989 (1976). In both of those cases the
United States Supreme Court upheld statutes establishing closed
primary elections against challenges brought by excluded voters.
The Heavey court pointed out that these cases did not "establish
any mandatory duty that a state must have closed primaries nor do
they forbid a blanket primary." 611 P.2d at 1259 (emphasis
omitted). The court quoted language from Nader which implies
that primary systems which permit members of other parties to
vote in a party's primary are constitutional: "'[Other states]
have provision for primaries which allow participation by indepen
dents and members of other parties. There is no suggestion that
such a clause makes the election laws unconstitutional. . . .'"
Id. at 1258 (quoting Nader, 417 F. Supp. at 849-50).
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 (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.
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. Democratic
Party of United States v. Wisconsin ex rel. LaFollette, 287
N.W.2d 519 (Wis. 1980), rev'd, 450 U.S. 107 (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. 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. In so holding, however, the
Court acknowledged that the Wisconsin open primary might serve
the compelling state interest of encouraging greater voter
participation:
The Wisconsin Supreme Court considered
the question before it to be the constitution
ality of the "open"feature of the state
primary election law, as such. Concluding
that the open primary serves compelling state
interest by encouraging voter participation,
the court held the state open primary
constitutionally valid. Upon this issue, the
Wisconsin Supreme Court may well be correct.
Id. at 120-21 (emphasis added). Similarly, the Court recited
without casting doubt on their validity the interests asserted by
the State of Wisconsin as compelling:
The State asserts a compelling interest in
preserving the overall integrity of the
electoral process, providing secrecy of the
ballot, increasing voter participation in
primaries, and preventing harassment of
voters. But all those interests go to the
conduct of the Presidential preference
primary -- not to the imposition of voting
requirements upon those who, in a separate
process, are eventually selected as
delegates. . . .
The State has a substantial interest in
the manner in which its elections are
conducted, and the National Party has a
substantial interest in the manner in which
the delegates to its National Convention are
selected.
Id. at 124-26 (footnotes omitted).
The case most heavily relied upon by the RPA is
Tashjian v. Republican Party of Connecticut, 479 U.S. 208 (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. 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.
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:
We begin from the recognition that
"[c]onstitutional challenges to specific
provisions of a State's election laws . . .
cannot be resolved by any 'litmus-paper test'
that will separate valid from invalid
restrictions." Anderson v. Celebrezze, 460
U.S. 780, 789 (1983) (quoting Storer v.
Brown, 415 U.S. 724, 730 (1974)). "Instead,
a court . . . must first consider the
character and magnitude of the asserted
injury to the rights protected by the First
and Fourteenth Amendments that the plaintiff
seeks to vindicate. It then must identify
and evaluate the precise interests put
forward by the State as justifications for
the burden imposed by its rule. In passing
judgment, the Court must not only determine
the legitimacy and strength of each of those
interests, it also must consider the extent
to which those interests make it necessary to
burden the plaintiff's rights." 460 U.S. at
789.
Id. at 213-14.
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 (citing Kusper v. Pontikes, 414 U.S. 51, 58 (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.11 Id. at 219.
Second, the closed primary was said to avoid voter confusion
since the legislature could determine that "'it would be
difficult for the general public to understand what a candidate
stood for who was nominated in part by an unknown amorphous body
outside the party, while nevertheless using the party name.'"
Id. (quoting Brief for Appellant 59). This rationale was found
to be inconsistent with the facts since any candidate in the
Republican primary had to have received at least twenty percent
of the vote at a prior party convention. Id. at 220-21.
Further, the alleged interest in informed voter decisions, while
found to be legitimate, was secondary to the benefit to the party
of a broader electorate:
Given the numerical strength of independent
voters in the State, one of the questions
most likely to occur to Connecticut
Republicans in selecting candidates for
public office is how can the Party most
effectively appeal to the independent voter?
By inviting independents to assist in the
choice at the polls between primary
candidates selected at the Party convention,
the Party rule is intended to produce the
candidate and platform most likely to achieve
that goal. The state statute is said to
decrease voter confusion, yet it deprives the
Party and its members of the opportunity to
inform themselves as to the level of support
for the Party's candidates among a critical
group of electors.
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:
The statute in Storer [v. Brown, 415
U.S. 724, 736 (1974)] was designed to protect
the parties and the party system against the
disorganizing effect of independent candi
dacies launched by unsuccessful putative
party nominees. This protection, like that
accorded to parties threatened by raiding in
Rosario v. Rockefeller . . . is undertaken to
prevent the disruption of the political
parties from without and not, as in this
case, to prevent the parties from taking
internal steps affecting their own process
for the selection of candidates. The forms
of regulation upheld in Storer and Rosario
imposed certain burdens upon the protected
First and Fourteenth Amendment interests of
some individuals, both voters and potential
candidates, in order to protect the interests
of others. In the present case, the state
statute is defended on the ground that it
protects the integrity of the Party against
the Party itself.
Tashjian, 479 U.S. at 224.
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.12 Although some commentators have
taken a like position,13 it is not supported by the case law.
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. 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 selection process
of a national party for national conventions. As one commentator
has stated:
One alternative and quite legitimate
interpretation bases . . . LaFollette on
principles of federalism and extraterritorial
ity. On this reading, the reason for permit
ting the decisions of the national convention
to prevail over state laws is that otherwise
inconsistent state requirements could make it
difficult for the national party to function
or act coherently.
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 (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:
The State justifies the direct primary
requirement as a Progressive Era reform
designed "to take political nominations out
of the smoke-filled rooms of party bosses and
give them to the voters." The direct primary
was one of several measures conceived of by
the Progressives to destroy what they viewed
as "the corrupt alliance"between wealthy
special interests and the political machine.
Richard Hofstadter, The Age of Reform 257
(Vintage Books 1955). The Progressives
believed democracy should be something
greater than competition between political
parties. Id. at 263. They viewed the direct
primary as a vital weapon in their battle to
"make government accessible to the superior
disinterestedness and honesty of the average
citizen. Then, with the power of the bosses
broken or crippled, it would be possible to
check the incursions of the interests upon
the welfare of the people and realize a
cleaner, more efficient government." Id. at
257. We can imagine no government interest
more compelling. Though honest people may
debate the success of the direct primary in
producing the kind of government the
Progressives envisioned, it is a means
sufficiently tailored to its ends to satisfy
the Constitution. Indeed, if the goal of
California's Progressive reformers was to
deliver power over the political process from
the hands of party bosses and special
interests into those of the people, no
measure short of the direct primary would be
adequate. We therefore hold that the State's
interest in enhancing the democratic
character of the election process overrides
whatever interest the Party has in designing
its own rules for nominating candidates.
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, 37 Cal. Rptr.
2d. 406 (Cal. App. 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 . . . ."14
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.15 The
State and AVOP also argue that the loss of candidate
accountability to party principles and party direction is not
substantially greater under the blanket primary than under the
partially-closed primary, given that fewer than a third of the
potential voters in the partially-closed primary are RPA members.16
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. 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.17 Thus we believe that raiding is a legitimate
concern, even though its effects may be exaggerated. Further,
while raiding is readily possible under either the partially-
closed primary or the blanket primary, more raiding is apt to
occur in the latter system.
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' freedom of choice among candidates, and tends
to ensure that the "officers elected are representative of the
people to be governed"in that it "forces the major political
parties to have a broad cross-section of support from the
voters."18 These three benefits are seen by the State to have
special importance in view of the fact that most voters in Alaska
are nonpartisan or undeclared.
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 Acompelling@
in Heavey, 611 P.2d at 1259. Voter free choice is better
accomplished in a blanket primary than in an open primary:
[T]he state interest in allowing voters to
support the candidates of their choice in a
primary can be achieved only by the blanket
primary which allows complete voter freedom
in alternating votes between parties, since
an open primary, on the other hand, restricts
a voter to candidates of only one party.
Id.
The goal of greater voter participation is one shared
by blanket and open primaries. See LaFollette, 450 U.S. at 120-
24.
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 important.
Collectively they outweigh the harms to RPA's associational
interests claimed in this case.
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.19 On the
other are those who agree with the turn-of-the-century
Progressives who had a "vision of a democracy purged of
corruption by placing widely dispersed power in the hands of
common men and women."20
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 non-
discriminatory.
VI. REMEDY
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.21 The damage
remedy which he requests is not supported by any recognized
principle of law and will not be afforded.
VII. CONCLUSION
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 nondiscrimi
natory. 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.
We reverse the decision of the superior court granting
summary judgment upholding the regulations under which the 1992
primary election was conducted. Having previously rejected the
arguments that the challenged regulations should be upheld
because of the federal court stipulation or because the blanket
primary statute is clearly unconstitutional, we conclude that the
blanket primary statute is constitutional and thus the
regulations under which the 1992 and 1994 elections were
conducted are invalid. A declaratory judgment is entered
accordingly. The 1996 primary shall be conducted under the
Alaska Statutes. O'Callaghan's damage claim is denied.
REVERSED.
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.22
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 (1992), Eu v. San Francisco County Democratic
Central Committee, 489 U.S. 214 (1989), Tashjian v. Republican
Party of Connecticut, 479 U.S. 208 (1986), and Democratic Party
of the United States v. Wisconsin, ex rel LaFollette, 450 U.S.
107 (1981), in concluding that the compelling interest standard
is controlling in resolving issues of federal constitutionality
in the factual context of this case.23
Burdick contains the most relevant text. There, the
Supreme Court wrote:
[T]he rigorousness of our inquiry into the
propriety of a state election law depends
upon the extent to which a challenged
regulation burdens First and Fourteenth
Amendment rights. Thus, as we have
recognized when those rights are subjected to
"severe"restrictions, the regulation must be
"narrowly drawn to advance a state interest
of compelling importance." But when a state
election law provision imposes only
"reasonable, nondiscriminatory restrictions"
upon the First and Fourteenth Amendment
rights of voters, "the State's important
regulatory interests are generally sufficient
to justify"the restrictions.
Burdick, 504 U.S. at 434 (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:
There is no doubt that the Hawaii election
laws, like all election regulations, have an
impact on the right to vote, but it can
hardly be said that the laws at issue here
unconstitutionally limit access to the ballot
by party or independent candidates or
unreasonably interfere with the right of
voters to associate and have candidates of
their choice placed on the ballot.
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.
Equally clear is Eu. There, the Supreme Court struck
down California laws that barred the parties from endorsing
candidates in primary elections. Justice Marshall, writing for
the court, stated, "If the challenged law burdens the rights of
political parties and their members, it can survive
constitutional scrutiny only if the State shows that it advances
a compelling state interest and is narrowly tailored to serve
that interest." Eu, 489 U.S. at 222 (citation omitted). He
continued:
It is well settled that partisan political
organizations enjoy freedom of association
protected by the First and Fourteenth
Amendments. Freedom of association means not
only that an individual voter has the right
to associate with the political party of her
choice, but also that a political party has a
right to "3identify the people who constitute
the association,3"and to select a "standard
bearer who best represents the party's
ideologies and preferences."
Eu, 489 U.S. at 224 (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:
The power to regulate the time, place, and
manner of elections does not justify, without
more, the abridgment of fundamental rights,
such as the right to vote, or, as here, the
freedom of political association.
Tashjian, 479 U.S. at 217 (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.
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:
Candidates for the elective state executive
and state and national legislative offices
shall be nominated in a primary election by
direct vote of the people in the manner
prescribed by this chapter.
(Emphasis added.) Therefore, parties must participate in the
primary election. A "political party"is defined as
an organized group of voters that represents
a political program and that nominated a
candidate for governor who received at least
three percent of the total votes cast at the
preceding general election for governor
. . . .
AS 15.60.010(20).
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.24 Specifically, the only formal affiliation
which the statute requires between the party and a candidate
seeking office under the name of that party is that the candidate
"is registered to vote as a member of the political party whose
nomination is being sought." AS 15.25.030(a)(16).
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.25 Therefore, the primary is the only mechanism
available for the party to choose its nominee. And as a result
of the blanket primary statute, the party cannot select who will
vote for its nominee.26
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:
Freedom of association would prove an empty
guarantee if associations could not limit
control over their decisions to those who
share the interests and persuasions that
underlie the association's being.
LaFollette, 450 U.S. at 122 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 (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.27
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 exists under the partially-closed primary and
that the danger is increased only by a matter of degree by a
blanket primary." Under the scheme favored by the Republican
Party of Alaska, there is little risk of raiding. I say this for
two reasons.
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:
Freedom of association would prove an empty
guarantee if associations could not limit
control over their decisions to those who
share the interests and persuasions that
underlie the association's being.
(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:
The nature of the appellees' First Amendment
interest is evident. "It is beyond debate
that freedom to engage in association for the
advancement of beliefs and ideas is an
inseparable aspect of the 3liberty3 assured
by the Due Process Clause of the Fourteenth
Amendment, which embraces freedom of
speech." The freedom of association
protected by the First and Fourteenth
Amendments includes partisan political
organization.
Tashjian, 479 U.S. at 214 (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.28 The State's objectives of encouraging
voter turnout, insuring that elected officials are representative
of the people to be governed, and accommodating the need for a
broad cross-section of support from voters, cannot trump the
Republican Party of Alaska's constitutionally protected
associational interests in determining its own candidates,
protecting itself against raiding, and insuring that its
candidates are accountable to the Republican Party of Alaska's
principles and philosophy.
I therefore conclude that since the State has failed to
demonstrate compelling reasons for limiting the associational
rights of the Republican Party of Alaska, the blanket primary
statute is unconstitutional under the First and Fourteenth
Amendments to the United States Constitution.29
_______________________________
1 Republican Party Rule XIV ' 1.
2 Judge Singleton explained his practice of announcing
tentative decisions as follows:
The important thing about a tentative
decision is to alert you to the conclusions
that I have reached legally and factually
after reviewing your materials and the
factual materials you have submitted in
support of the memorandum. . . . So, again
by announcing tentative decisions I am not
suggesting that my mind is fixed in stone or
that I am absolutely invulnerable to
persuasion but only to suggest to you any
factual or legal errors I may be laboring
under so that in the course of your argument
you can correct them.
3 The court found that "federal law under the U. S.
Constitution substantially restricts the state's power to . . .
burden the exercise of the party's administrative rights . . .
[including] the right to structure the manner in which their
political candidates will be selected and to determine who
participates in that selection procedure." However, Judge
Singleton declined to issue a preliminary injunction, indicating
that while the State could be compelled to eliminate all RPA
candidates from the blanket primary, it could not be compelled to
implement and pay for a primary designed by RPA.
4 The United States District Court entered an order
approving the stipulation.
5 The State argued that "the challenged regulations are
valid because they 'were properly adopted in accordance with a
stipulation sanctioned by the United States District Court.'"
O'Callaghan, 888 P.2d at 1303.
6 There are two exceptions to this. When an incumbent
dies or is disqualified before the primary election, or a nominee
dies, withdraws, or is disqualified before the general election,
ballot vacancies may be filled by party petition. AS 15.25.056,
AS 15.25.110.
7 That the Alaska Statutes do not entrust candidate
selection to political parties is consistent with the scant
attention given political parties in the Alaska Constitution.
They are mentioned only twice, both in a limiting context. Art.
IV, ' 14 (justices and judges may not hold office in a political
party); art. XII, ' 4 (no person who belongs to any party which
advocates the overthrow by force or violence of the government is
qualified to hold any public office).
8 Political parties have automatic access to the blanket
primary ballot. A political party is defined as "an organized
group of voters that represents a political program and that
nominated a candidate for governor who received at least three
percent of the total votes cast at the preceding general election
for governor . . . ." AS 15.60.010(20). In 1992, Alaska had
four political parties, RPA, the Democratic Party of Alaska, the
Alaskan Independence Party, and the Green Party. The smaller
parties sometimes play an important role in Alaska politics. For
example, in 1992 the incumbent governor was the nominee of the
Alaskan Independence Party.
9 Candidates may gain access to the general election
ballot by becoming the nominee of a party in the blanket primary
or, in 1992, by petition. AS 15.25.140-.200 (1992). Effective
in 1995, candidates of a political "group"-- an organization
which represents a political program and which does not qualify
as a party, AS 15.60.010(19) -- may gain access to the blanket
primary ballot by petition. AS 15.25.190 (1995).
10 We quote 1994 figures because they are the figures used
by the parties in their briefs. The 1992 figures do not differ
significantly in the relative distribution of registered voters.
11 The Court defined raiding as the practice "'whereby
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.'"479 U.S. at 219 (quoting Rosario v.
Rockefeller, 410 U.S. 752, 760 (1973)).
12 6 AAC 28.100 provides in relevant part: "The purpose
of this chapter is to provide a means to implement political
party rules that violate AS 15.25.060 (the blanket primary
statute), but that must be implemented in accordance with a
political party's constitutional associational rights."
Similarly, 6 AAC 28.150 provides in relevant part: "The director
of elections will implement political party rules regarding
selection of political party candidates adopted after 10/23/93
that must be implemented in accordance with a political party's
constitutional associational rights . . . ."
13 See, e.g., David Lubecky, Setting Voter Qualifications
for State Primary Elections: Reassertion of the Right of State
Political Parties to Self-Determination, 55 U. Cin. L. Rev. 799,
830 (1987) ("When a state political party decides to nominate its
candidates for public office in an open or closed primary
election contrary to a state law, the fundamental constitutional
right of political association mandates that the party's choice
of primary form prevail."); Arthur M. Weisburd, Candidate-Making
and the Constitution: Constitutional Restraints on and
Protections of Party Nominating Methods, 57 S. Cal. L. Rev. 213,
281 (1983-84) ("To summarize, statutes compelling parties to
choose candidates in primary elections appear to be
unconstitutional. The cases make clear that a political
association has a first amendment right to determine for itself
how it will conduct its affairs. Statutes requiring primaries
clearly deny that right.").
14 These mirror two of the interests advanced by the State
of Connecticut in its effort to defend the closed primary in
Tashjian, 479 U.S. at 219-21.
15 AVOP points to language in Tashjian in which the Court
observed that a Connecticut statute which permitted re-registra
tion on the day before the primary election facilitated raiding.
479 U.S. at 219.
16 RPA suggests that this case should be remanded for fact
finding unless this court rules in RPA's favor. We do not
believe that fact finding is necessary or appropriate in this
case. The issues are issues of law; the interests advanced in
support of and in opposition to the blanket primary are not
especially amenable to courtroom proof and such proof is not, in
any case, required. Munro v. Socialist Workers' Party, 479 U.S.
189, 195-96 (1986).
17 Of course, some voters will cast primary votes outside
their party because they support the candidate for whom they are
voting and intend to vote for that candidate in the general
election.
18 The State's justifications are largely reflected in a
resolution passed by the Alaska State Legislature in 1992:
WHEREAS Alaskans have a proud tradition
of freedom and independence and reflect that
tradition in the manner in which they
exercise their franchise; and
WHEREAS in excess of 55 percent of all
registered voters in Alaska have chosen not
to affiliate with an organized political
party; and
WHEREAS this tradition is reflected in
the open primary system that has been used
since 1968 and is open to all voters,
allowing maximum participation and freedom of
choice in the electoral process; and
WHEREAS there has been a national
decline in voter registration and
participation in the electoral process,
particularly among young people who are less
likely to identify with political parties;
and
WHEREAS forcing voters to vote an
exclusively partisan ballot that eliminates
the current wide range of choices may
discourage them from voting; and
WHEREAS Alaska's primary elections
already have significantly lower voter
turnout than general elections even under an
open unrestricted system of voting and this
level will likely be even further reduced by
a closed primary; and
WHEREAS the State of Alaska and its
agencies have a consistent record of
encouraging voter registration and
participation in elections; and
WHEREAS among the stated goals of
closing primaries are strengthening parties
and providing greater party discipline, both
of which run counter to Alaska voting
traditions; and
WHEREAS in the current open election
process Alaskans have the option of voting
for the person they prefer for each separate
office, while a closed primary will limit
voters' opportunity to vote for the
candidates of their choice; and
WHEREAS there will be a significant
added cost to the state to print ballots for
each separate party primary;
BE IT RESOLVED that the Alaska State
Legislature opposes a change to Alaska's open
primary election system and affirms support
for maintaining our open primary; and be it
FURTHER RESOLVED that the Alaska State
Legislature encourages the governing bodies
of the political parties to reconsider their
decisions to hold separate closed primaries
that force limitations and restrictions on
Alaska voters.
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.
19 Lowenstein, supra, at 1769-70, 1790-91.
20 Id. at 1791.
21 The remedy in this case is similar to that afforded in
Coghill v. Boucher, 511 P.2d 1297, 1304 (Alaska 1973). In
Coghill we concluded that certain ballot counting regulations
were invalid. We remanded with directions for entry of a
declaration that the regulations were invalid and an order
prohibiting the lieutenant governor from conducting future
elections under the invalid regulations. We particularly noted:
"In fashioning appropriate relief for appellants, however, we are
not obliged to invalidate the . . . election in which ballots
were tallied in accordance with [the invalid regulations]." Id.
In the present case the appellant does not expressly seek to set
aside an election. We therefore state no view as to whether or
under what circumstances such relief might be available.
22 Freedom of association has been described by the
Supreme Court of the United States as among the preferred rights
deemed by implication from the First Amendment's guarantees of
speech, press, petition and assembly. NAACP v. Claiborne
Hardware Co., 458 U.S. 886 (1982); Buckley v. Valeo, 424 U.S. 1
(1976). See also L. Tribe, American Constitutional Law 101 (2d
ed. 1988).
23 In reviewing the superior court's interpretation of a
constitutional provision, this court applies its independent
judgment. Arco Alaska Inc. v. State, 824 P.2d 708, 710 (Alaska
1992).
24 Parties can nominate the candidate of their choice in
exceptional circumstances, such as death of the winner of the
primary. AS 15.25.110.
25 If, for example, only those candidates who received a
certain percentage of votes at a party convention or caucus could
run in the primary under the party's name, then the party would
be assured that the nominees have received at least some
affirmative approval from the party. As it stands, the party has
no control over which candidates use its name.
26 The same rules do not apply to non-party "political
groups" which run candidates in the primary. AS 15.60.010(19)
defines a "political group"as "a group of organized voters which
represents a political program and which does not qualify as a
political party." Political groups are free to choose their
candidates in any way they see fit. If the group then obtains
the proper number of signatures on a petition, AS 15.25.140, .160
- .170, the candidate is placed on the primary election ballot.
AS 15.25.190. Therefore, a political group can nominate its own
candidate, since it is not bound by AS 15.25.030(a). Since the
group will presumably run a petition drive for only one candidate
per office, that candidate will be that group's nominee in the
general election. Thus, by having the right to choose who will
bear its name in the primary election, a group can place a
candidate in the general election without having to tally the
opinions of unwanted voters.
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.
27 It is true that the Supreme Court recognized that the
state had certain interests in providing for an open primary, so
long as the political party was not forced to abide by the
results. See LaFollette, 450 U.S. at 126 ("But if Wisconsin does
open its primary, it cannot require that the Wisconsin delegates
to the National Party Convention vote there in accordance with
the primary results, if to do so would violate Party rules.").
28 The Republican Party of Alaska need not defend the
efficiency or wisdom of its rules, so long as they are otherwise
constitutional. LaFollette, 450 U.S. at 123 n.25; cf. Smith v.
Allwright, 321 U.S. 649 (1944) (barring "white primary" as
unconstitutional).
29 Amicus Alaska Federation of Natives points out in its
brief that if the current scheme is found unconstitutional, the
remedy is not to force the State to run a primary for the
Republican Party of Alaska under the Republican Party of Alaska's
rules, but instead it is to allow the Republican Party of Alaska
to opt out and run its own selection process -- caucus,
convention, or privately funded statewide primary -- so long as
the process chosen by the Republican Party of Alaska does not
violate constitutional limitations.
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