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Sonneman v. State of Alaska; Division of Elections (12/24/98), 969 P 2d 632
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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) 264-0608, fax (907) 264-0878.
THE SUPREME COURT OF THE STATE OF ALASKA
JOE SONNEMAN, )
) Supreme Court No. S-7851
Appellant, )
) Superior Court No.
v. ) 1JU-96-636 CI
)
STATE OF ALASKA; THE ) O P I N I O N
LIEUTENANT GOVERNOR; AND )
THE DIRECTOR, DIVISION OF )
ELECTIONS, )
)
Appellees. ) [No. 5058 - December 24, 1998]
______________________________)
Appeal from the Superior Court of the State of
Alaska, First Judicial District, Juneau,
Larry Weeks, Judge.
Appearances: Joe Sonneman, pro se, Juneau.
John B. Gaguine, Assistant Attorney General, Bruce M. Botelho,
Attorney General, Juneau, for Appellees.
Before: Matthews, Chief Justice, Compton,
Eastaugh, Fabe, and Bryner, Justices.
MATTHEWS, Chief Justice.
EASTAUGH, Justice, with whom COMPTON, Justice,
joins, dissenting.
I. INTRODUCTION
Joe Sonneman raises several constitutional challenges to
the 1995 amendment to AS 15.15.030(6), which ended the practice of
rotating the order of candidates' names on election ballots, and
replaced it with a random determination of the order of candidates'
names. The superior court granted summary judgment in favor of the
State, holding that even if candidates received some advantage
based on their ballot positions, the random placement of
candidates' names did not violate the challenged provisions of the
United States or Alaska constitutions. We hold that the amendment
does not impermissibly burden the right to vote or violate the
requirement of the Alaska Constitution that elections be based on
the will of the people. We therefore affirm the order of summary
judgment.
II. FACTS AND PROCEEDINGS
Alaska Statute 15.15.030(6) provides the procedure for
placing candidates' names on election ballots. [Fn. 1] Prior to
1995, candidates' names would be rotated as many times as there
were candidates. See AS 15.15.030(6) (repealed 1995). [Fn. 2] An
equal number of ballots would be printed after every change. Seeid. This ensured that each candidate would appear in each ballot
position roughly an equal number of times. See id.
In 1995 the legislature amended AS 15.15.030(6). [Fn. 3]
Ch. 58, sec. 5, SLA 1995. The amendment specifies that the order
of
candidates' names on each ballot in each election district will be
the same; however the order will be randomly determined. See id.
Thus for single-district elections, the same candidate will be
listed first on every ballot. See id.
The amendment was recommended by the Lieutenant
Governor's Election Policy Transition Team. Its report stated that
the amendment would save "between $150,000 and $250,000 per
election cycle." However, the actual cost of ballot rotation in
the 1994 primary and general elections was $64,024. The amendment
was also intended to eliminate the confusion of voters who relied
on single-order sample ballots and were confused when they found a
different rotation of candidates' names on their actual ballots.
The team also concluded that "[r]esearch indicates that the order
of candidates' names on American ballots does not significantly
influence voters."
Sonneman filed a complaint challenging the amended
statute in 1996. He alleged that candidates' ballot positions will
affect how many votes they receive, a phenomenon known as
positional bias. He cited studies which conclude that the
candidate who is listed first will receive an additional five
percent of his or her total votes from voters who simply vote for
the first candidate on the list. He argued that AS 15.15.030(6) is
thus unconstitutional, because one candidate, based on a random
drawing, will receive all the benefits of positional bias. He also
argued that allocating this advantage to a single candidate
violates the constitutional requirement that an election must be
based on the will of the people. He filed an amended complaint
adding an argument that the statute is arbitrary and unreasonable.
Sonneman supplemented his amended complaint to inform the
court that he had filed as a candidate for federal office in the
1996 primary election.
Sonneman moved for a temporary restraining order and
preliminary injunction to require the State to use the former
version of AS 15.15.030(6) to design ballots for the 1996 primary
election. The superior court denied his motion.
Both parties also moved for summary judgment. [Fn. 4]
The superior court granted the State's motion for summary judgment.
It held that, even assuming that positional bias exists, summary
judgment for the State was appropriate because AS 15.15.030(6) did
not violate the challenged provisions of the United States or
Alaska constitutions.
Sonneman appeals from the superior court's order of
summary judgment.
III. STANDARD OF REVIEW
This court reviews an award of summary judgment de novo.
See Mathis v. Sauser, 942 P.2d 1117, 1120 (Alaska 1997). We will
only affirm if, viewing the facts in the light most favorable to
the non-moving party, "the evidence in the record fails to disclose
a genuine issue of material fact and the moving party is entitled
to judgment as a matter of law." Id. (quoting Dayhoff v. Temsco
Helicopters, Inc., 772 P.2d 1085, 1086 (Alaska 1989)). However,
the existence of a disputed factual issue will only preclude
summary judgment if it is a material issue. See Whaley v. State,
438 P.2d 718, 720 (Alaska 1968). A factual issue will not be
considered material if, even assuming the factual situation to be
as the non-moving party contends, he or she would still not have a
factual basis for a claim for relief against the moving party. Seeid. Therefore, we will affirm the order of summary judgment in
this case only if, assuming that positional bias exists, the State
is nonetheless entitled to judgment as a matter of law. See id.
We review constitutional issues de novo. See ARCO
Alaska, Inc. v. State, 824 P.2d 708, 710 (Alaska 1992). We will
"adopt the rule of law that is most persuasive in light of
precedent, reason, and policy." Guin v. Ha, 591 P.2d 1281, 1284
n.6 (Alaska 1979).
IV. DISCUSSION
A. Sonneman Has Citizen-Taxpayer Standing to Challenge the
Constitutionality of AS 15.15.030(6)
The State argues that Sonneman lacks standing to raise
his constitutional challenges. Sonneman counters that he has both
interest-injury and citizen-taxpayer standing. Since we agree that
Sonneman has citizen-taxpayer standing, we do not reach the
question of whether he also has interest-injury standing.
"Standing in our state courts is not a constitutional
doctrine; rather, it is a rule of judicial self-restraint based on
the principle that courts should not resolve abstract questions or
issue advisory opinions." Trustees for Alaska v. State, 736 P.2d
324, 327 (Alaska 1987) (citing Moore v. State, 553 P.2d 8, 23 n.25
(Alaska 1976)). Standing is interpreted broadly in Alaska, and we
favor "increased accessibility"to our courts. Id.
To establish citizen-taxpayer standing, a plaintiff must
meet two requirements: (1) the case "must be one of public
significance"; and (2) the plaintiff must be an "appropriate"party
to bring the case. Baxley v. State, 958 P.2d 422, 428 (Alaska
1998) (quoting Trustees for Alaska, 736 P.2d at 329-30). These
requirements "ensure that the plaintiff will serve as a true and
strong adversary, even if the conduct in question did not directly
affect the plaintiff." Id. A plaintiff raising constitutional
issues is likely to meet the first requirement. See id. To meet
the second requirement, the plaintiff must not be a "sham
plaintiff"with no true adversity of interest and must be capable
of competently advocating the position; however, a plaintiff may
still be denied standing if "there is a plaintiff more directly
affected by the challenged conduct in question who has or is likely
to bring suit." Id. (quoting Trustees for Alaska, 736 P.2d at 329-
30).
Here, Sonneman is alleging several constitutional
violations affecting not only his right to vote, but also the
integrity and fairness of public elections. These are
constitutional issues of public significance. Further, Sonneman
has preserved his core constitutional arguments on appeal, and the
parties are truly adverse. In addition, there is no evidence that
anyone who is more directly affected is likely to challenge this
statute. We thus hold that Sonneman has citizen-taxpayer standing
to challenge the amendment to AS 15.15.030(6). [Fn. 5]
B. Alaska Statute 15.15.030(6) Does Not Violate the First
and Fourteenth Amendments to the United States Constitution or
Article I, Section 5 of the Alaska Constitution
Sonneman argues that the amendment to AS 15.15.030(6)
places a heavy burden on the fundamental right to vote, which is
not justified by the State's interests in saving money or
preventing voter confusion. He argues that this provision
impermissibly burdens the right to vote and also violates federal
and state equal protection provisions.
1. Appropriate constitutional analysis
The first issue is whether Sonneman's challenge is more
appropriately analyzed under the equal protection provisions of the
United States and Alaska constitutions or under the right to vote
provisions of the First and Fourteenth Amendments of the United
States Constitution and article I, section 5 of the Alaska
Constitution. In Anderson v. Celebrezze, 460 U.S. 780, 786 n.7
(1983), the United States Supreme Court recognized that the impact
of candidate eligibility requirements on candidates and on voters
should be analyzed directly under the First and Fourteenth
Amendments of the United States Constitution instead of engaging in
a separate equal protection analysis. See also Norman v. Reed, 502
U.S. 279, 288 n.8 (1992) (same); Canaan v. Abdelnour, 710 P.2d 268,
273-74 (Cal. 1985) (analyzing challenge to a ballot write-in
prohibition under the First and Fourteenth Amendments instead of
under equal protection, because statute infringed directly on
fundamental voting rights and did not create a suspect
classification). The Court recently stated that "election code
provisions governing the voting process itself,"or the "mechanics
of the electoral process"should be analyzed to determine whether
they impermissibly burden the right to vote. McIntyre v. Ohio
Elections Comm'n, 514 U.S. 334, 344, 345 (1995) (emphasis added).
Alaska Statute 15.15.030(6) allocates candidate positions
on ballots. As such, it governs the mechanics of the electoral
process itself and directly impacts voting rights under the federal
and state constitutions. The statute does not, however, create any
identifiable and fixed classes of candidates or voters; instead, it
allocates any positional benefit randomly. Although several cases
dealing with ballot positioning have utilized an equal protection
analysis, these cases involved statutes that placed incumbents or
one political party first, resulting in a fixed classification.
See, e.g., Gould v. Grubb, 536 P.2d 1337, 1345-46 (Cal. 1975)
(holding that incumbent-first and alphabetical listing violated
equal protection principles); Culliton v. Board of Election
Comm'rs, 419 F. Supp. 126, 129 (N.D. Ill. 1976) (holding that
Republican-first provision violated equal protection clause), aff'd
& remanded sub nom. on other grounds by, Sangmeister v. Woodard,
565 F.2d 460 (7th Cir. 1977).
Since AS 15.15.030(6) allocates positions in a random
manner, allowing each candidate an equal opportunity to obtain the
benefits of positional bias, equal protection concerns are not
implicated. We therefore analyze this statute as a direct burden
on the right to vote instead of as an equal protection violation.
[Fn. 6]
2. Appropriate level of scrutiny
The second issue is what level of scrutiny we should
apply to review this statute. Sonneman argues that we should
review this statute using the strictest scrutiny, because it
burdens the fundamental right to vote.
Although voting is unquestionably a fundamental right,
not every burden on the right to vote is subject to strict
scrutiny. See O'Callaghan v. State, 914 P.2d 1250, 1253-54 (Alaska
1996) (citing Burdick v. Takushi, 504 U.S. 428, 433-34 (1992)).
States clearly have the power to enact "substantial regulation of
elections"pursuant to Article I, section 4, clause 1 of the United
States Constitution to prescribe "[t]he Times, Places and Manner of
holding Elections for Senators and Representatives[.]" Id. at 1253
(quoting Burdick, 504 U.S. at 433). The United States Supreme
Court has recognized that because election laws will inevitably
burden the right to vote, "to subject every voting regulation to
strict scrutiny and to require that the regulation be narrowly
tailored to advance a compelling state interest . . . would tie the
hands of States seeking to assure that elections are operated
equitably and efficiently[.]" Id. at 1254 (quoting Burdick, 504
U.S. at 433).
Instead of automatically applying strict scrutiny, courts
apply the following standard in reviewing election code provisions
that burden the right to vote:
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. (quoting Burdick, 504 U.S. at 434) (internal citations and
ellipses omitted).
We must first determine, therefore, the extent to which
this statute burdens the right to vote -- whether it is a "severe"
restriction or a "reasonable, nondiscriminatory restriction." Id.
Although AS 15.15.030(6) does not deny candidates access to
ballots, it limits access to the benefits of positional bias. In
a single-district election, it will operate to give one candidate
all of the votes received due to positional bias, thereby giving
that candidate an advantage over all other candidates. Thus, this
statute does burden the right to vote of supporters of
disadvantaged candidates. See Vogler v. Miller, 660 P.2d 1192,
1193 (Alaska 1983) ("[R]estrictions on ballot access implicate the
fundamental rights of potential candidates and voters alike. . . .
[T]he rights thus implicated are the right to vote and the right to
associate freely in pursuit of political beliefs . . . ."); see
also Anderson v. Celebrezze, 460 U.S. 780, 786-87 (1983)
(emphasizing that laws which affect candidates will always have a
correlative effect on voters).
We have stated that "in ballot access cases, the state
must show a compelling interest in order to justify infringements
of these rights." Vogler v. Miller, 651 P.2d 1, 3 (Alaska 1982)
(emphasis added). Strict scrutiny review is necessary in ballot
access cases because the burden placed on the right to vote is
severe when the right to vote is denied or limited to certain
candidates or parties. See id. (reviewing ballot access
restrictions using strict scrutiny); cf. Dunn v. Blumstein, 405
U.S. 330, 342 (1972) (reviewing one-year residency requirement for
voting using strict scrutiny under equal protection analysis).
The statute in question, however, does not restrict
access to the ballot or deny any voters the right to vote for
candidates of their choice. See AS 15.15.030(6). Instead, it
merely allocates the benefit of positional bias, which places a
lesser burden on the right to vote. See id. In addition, the
statute is nondiscriminatory, because it gives each candidate an
equal opportunity to receive the benefit of positional bias; the
benefit is not allocated in favor of any definable group such as
incumbents or a specific political party. Further, the burden
imposed on voters by this statute is not greater than the burden
imposed in several cases which applied a lower level of scrutiny.
See, e.g., Burdick, 504 U.S. at 434-40 (requiring only legitimate
state interest to uphold state's prohibition on write-in voting
because it imposed only reasonable burdens on right to vote);
Libertarian Party of Colo. v. Buckley, 938 F. Supp. 687, 693 (D.
Colo. 1996) (requiring only legitimate interests to uphold ballot
positioning statute which divided major and minor parties into two
groups and determined placement within the groups by random drawing
because it imposed only "minimal"burden on right to vote);
O'Callaghan, 914 P.2d at 1263 (requiring only showing of legitimate
state interests to uphold blanket primary requirement against First
Amendment challenge).
Sonneman argues that the State is required to use the
fairest method of allocating the benefit of positional bias, which
he asserts is rotating candidate names. Sonneman is correct in
asserting that ballot rotation would be fairer, because it would
place each candidate on an equal number of ballots in each
position, thus equalizing the effects of positional bias. The
question, therefore, is whether the legislature is required to use
the fairest method, or whether a reasonable, nondiscriminatory
method is sufficient.
The cases which have reviewed ballot positioning statutes
conflict. Some require only that each candidate must have an equal
opportunity to obtain the positional votes, holding that placement
by drawing or other neutral means is constitutionally permissible.
See, e.g., Clough v. Guzzi, 416 F. Supp. 1057, 1068 (D. Mass. 1976)
(holding that whether different statutory scheme is warranted to
achieve "absolute fairness"is properly a legislative consider-
ation); Mann v. Powell, 333 F. Supp. 1261, 1267 (N.D. Ill. 1969)
(holding that allocation of positional bias must be made "by lot or
other nondiscriminatory means"); Gould v. Grubb, 536 P.2d 1337,
1347 (Cal. 1975) (noting that "rotational method is [not] the only
constitutionally permissible ballot procedure"); Ulland v. Growe,
262 N.W.2d 412, 418 (Minn. 1978) ("The method selected by the
legislature to assist partisan voters in locating their candidates
on the ballot cannot be overturned by this court merely because we
think a rotation system would be marginally more fair."); Holtzman
v. Power, 313 N.Y.S.2d 904, 909 (N.Y. Sup. 1970) (ordering that
ballot positions be determined by lot), aff'd 311 N.Y.S.2d 824
(N.Y. App. Div. 1970), aff'd 261 N.E.2d 666 (N.Y. 1970). According
to these cases, random determination of ballot positions would be
constitutional.
On the other hand, some jurisdictions have held that the
positional bias must be distributed as equally as possible. See,
e.g., McLain v. Meier, 637 F.2d 1159, 1169 (8th Cir. 1980)
(emphasizing that positional advantage must be eliminated "as much
as is possible"); Elliot v. Secretary of State, 294 N.W. 171, 173
(Mich. 1940) (ordering legislature to implement rotational system).
We find that the cases which require only equal
opportunity to obtain the benefits of positional bias are more
persuasive. We have emphasized that it is not our function to
question which of two possible solutions is the wisest as long as
the legislature's choice is "both reasonable and nondiscrimina-
tory." O'Callaghan, 914 P.2d at 1263. [Fn. 7]
Here, the legislature specifically considered the effects
of positional bias and concluded that rotational ballots were not
necessary. Since the statute only imposes a minimal, reasonable,
and nondiscriminatory burden on the right to vote, we decline to
impose strict scrutiny review, and will uphold the statute if the
State has important regulatory interests. See id.
3. Important regulatory interests
The State's first interest is in reducing costs in
printing the ballots. Sonneman argues that the State's interest in
saving money was "a negligible and insignificant .00005 of the
State's $5,000,000,000 budget during that time." The economic
benefit from ending the rotation system was estimated at $64,024
per election cycle. Instead of comparing these savings with the
general budget, however, the more relevant comparison lies with the
ballot budget, which was $469,026.75 for the 1994 year. The cost
savings from eliminating rotational ballots would thus be
approximately 13.7% of the ballot budget.
The State also advanced an interest in preventing voter
confusion. Election officials affied that rotational ballots
confused voters, because the actual ballots might differ from the
sample ballots distributed. Cf. Tsongas v. Secretary of
Commonwealth, 291 N.E.2d 149, 156 (Mass. 1972) (stating in dicta
that rotational ballots may "reduce[] the utility of the sample
ballots . . . and even confuse the voter"). Sonneman asserts that
the State's interest in preventing voter confusion is not
legitimate, because the Division of Elections could have alleviated
any confusion by explaining to voters that the actual ballots might
differ from the sample ballots.
We conclude that both of the State's interests are
legitimate and important. Economy in government is an important
objective and $64,000 is not a de minimis savings. Reducing voter
confusion is also an important objective. Since the actual ballots
will be identical to the sample ballots, the amendment may help
prevent such confusion. These combined interests suffice, in our
view, to justify the minimal burden on the right to vote imposed by
the statute. We thus hold that AS 15.15.030(6) does not
impermissibly burden the right to vote. [Fn. 8]
C. Alaska Statute 15.15.030(6) Does Not Violate Article I,
Section 2 of the Alaska Constitution, which Requires that
Government Be Based on the Will of the People, or Article II,
Section 3 and Article III, Section 3 of the Alaska Constitution,
which Require that Legislators and the Governor Be Elected [Fn. 9]
Sonneman argues that allocating all of the positional
advantage by a random drawing is not an election, and is therefore
inconsistent with the requirement that a candidate be elected
dependent only upon the will of the people. He argues that
allocating all of the positional bias to one candidate could
determine the outcome of an election in Alaska because our
political parties are relatively weak and because elections are
often determined by a small number of votes. [Fn. 10] The State
argues that allocating all the positionally biased votes to one
candidate does not affect the will of the people, because each
voter may freely cast a vote for the candidate of his or her
choice. Thus, even if a candidate is elected because of positional
advantage, an election based on the will of the people has still
occurred.
Sonneman's argument that determining ballot position by
lot makes elections depend on random choice instead of an
expression of the people's will has some support. See Gould v.
Grubb, 536 P.2d 1337, 1343 (Cal. 1975) (stating that in close
elections, positional bias may be the determining factor which
"undermines the fundamental democratic electoral tenet of majority
rule"); see also Walsh v. Boyle, 166 N.Y.S. 681, 687 (N.Y. App.
Div. 1917) (Shearn, J., dissenting) (giving "sharp criticism of the
method of determining the order of printing the names by lot as one
calculated to make the election . . . a sort of lottery, and . . .
illegal").
We find, however, that the allocation of ballot positions
does not mean that the election is not based on the will of the
people. Sonneman's argument could affect nearly any regulation, no
matter how well justified, for all rules have the potential to tip
the balance in a close election contest. Instead, the concept of
the people's will encompasses all who vote, those who are careless
and uninformed as well as those who are more thoughtful and
knowledgeable. In rejecting a similar election challenge, the
Massachusetts Supreme Court stated:
The voters were not misled. Failure to rotate
the names did not lessen the opportunity of any voter to cast a
vote for the candidate of his choice . . . . Even though we assume
that the first ballot position of the incumbents deprived the
plaintiffs of an equal chance to benefit from the indifference of
careless voters who had no personal choice but marked the first
name, that speculative benefit does not override the rights of
informed and intelligent voters to have their votes counted as they
were cast.
Tsongas, 291 N.E.2d at 152-53; see also Bees v. Gilronan, 116
N.E.2d 317, 321 (Ohio Law Abs. 1953) (noting that wherever a
candidate's name appeared on the ballot, each voter could indicate
his or her free choice); New Alliance Party v. New York State Bd.
of Elections, 861 F. Supp. 282, 295 (S.D.N.Y. 1994) ("[A]ccess to
a preferred position on the ballot so that one has an equal chance
of attracting the windfall vote is not a constitutional
concern. . . . The Constitution does not protect a plaintiff from
the inadequacies or the irrationality of the voting public.").
Regardless of where a candidate's name appears on the ballot, the
people use free will in voting and the winner is elected based on
their will only. [Fn. 11]
V. CONCLUSION
Sonneman has citizen-taxpayer standing to challenge the
constitutionality of AS 15.15.030(6). Assuming that positional
bias exists, the statute does not impermissibly burden the right to
vote because it is a reasonable and nondiscriminatory restriction
which is designed to promote the State's important interests in
government economy and prevention of voter confusion. We further
hold that the statute does not violate the "will of the people"or
"election"clauses of the Alaska Constitution. We thus AFFIRM the
superior court's grant of summary judgment to the State.
EASTAUGH, Justice, with whom COMPTON, Justice, joins,
dissenting.
Given this court's underlying assumption that positional
bias exists, I must dissent from its conclusion that, as a matter
of law, AS 15.15.030(6) does not impermissibly burden the right to
vote. Op. at 17. I cannot agree that the modest financial
interest the State identifies is important enough to justify the
burden the statute may impose.
For purposes of reviewing the superior court's grant of
summary judgment to the State, this court forthrightly assumes that
positional bias can affect at least five percent of the votes cast.
Op. at 15 n.7. This assumption, or at least an assumption that
some positional bias exists, is mandated by the procedural posture
of this case. Because the State submitted no admissible evidence
supporting a finding that positional bias does not exist or cannot
be measured, our starting point is Sonneman's complaint. It
alleged that positional bias benefits whichever candidate is at the
top of the ballot. It asserted that studies confirmed the
existence of positional advantage, affecting as much as six to
seven percent of the candidates' votes.
Despite the absence of admissible evidence rebutting the
complaint's allegations of positional bias, the court concludes
that the State is entitled to judgment as a matter of law; it
necessarily reasons that Sonneman has raised no genuine fact that
is material. Op. at 5-6, 20. In my view, the materiality of the
factual dispute turns on whether the statute imposes an
impermissible burden on the right to vote. If a five percent shift
constitutes an impermissible burden, then the existence -- and
extent -- of positional bias is a fact dispute that is necessarily
material.
Positional bias could impose a serious burden on the
right to vote. Many elections in this state have been decided by
margins smaller than five percent. Our opinions reflect some of
those contests. See, e.g., Cissna v. Stout, 931 P.2d 363, 364
(Alaska 1996) (affirming in election recount decided by one vote).
Assuming the facts alleged by the complaint, positional bias alone
could alter the outcome of all single-district races decided by
margins of less than six percent.
The potentially significant effects of positional bias
cannot be justified by the weak regulatory interests identified by
the court. Op. at 15-17. On appeal, the State articulates only
one interest: cost reduction. According to the court, the State
saved an estimated $64,024 per election cycle by eliminating
rotation in single-district races. Op. at 16. To me, the burden
positional bias potentially imposes far outweighs savings of this
magnitude.
The State also argued in the superior court that rotation
would confuse voters by creating discrepancies between sample
ballots and actual ballots. This court relies on that argument,
even though the State has chosen not to assert it on appeal. Op.
at 16-17. It seems unlikely that this is of significant continuing
concern, given that sample ballots also reflect statewide races,
for which rotation is still practiced. If confusion were of real
concern, a clear disclaimer on sample ballots would cure it.
The interests the court identifies are minor in
comparison with the burden we must assume the statute imposes on
the right to vote. I would therefore remand for determination of
whether positional bias exists, and the extent of its effect. Only
then can a court decide whether the legislature's choice
unreasonably burdened the right to vote.
FOOTNOTES
Footnote 1:
On its face, this statute applies only to general election
ballots. See AS 15.15.030(6). However, AS 15.25.060 makes it
applicable to primary election ballots as well.
Footnote 2:
Former AS 15.15.030(6) provided:
The general election ballot shall be
designed with the position of names of the candidates changed in
each section as many times as there are candidates in the section
in which there are the most names. As nearly as possible, an equal
number of ballots shall be printed after each change. In making
the changes of position, the name of the candidate at the head of
each section shall be taken and placed at the bottom of the section
and the column moved up so that the name that before was second is
first after the change. After the ballots are printed, they shall
be placed in separate stacks, one stack for each change of
position. The ballots shall then be gathered by taking one from
each stack, the intention being that every other ballot in the
accumulated stack of ballots shall have the names of the candidates
in a different position.
Footnote 3:
AS 15.15.030(6) now provides:
The general election ballot shall be
designed with the position of names of the candidates set out in
the same order in each section on each ballot used in an election
district. However, the order of placement of the names of the
candidates for each office shall be randomly determined by the
director for ballots printed for use in each election district.
Footnote 4:
Although he lost the primary election, Sonneman did not seek
to overturn the results of the completed election.
Footnote 5:
We have affirmed citizen-taxpayer standing in several similar
cases. See, e.g., Trustees for Alaska, 736 P.2d at 327-30 (holding
that citizen had standing to maintain action challenging state land
leasing system); Carpenter v. Hammond, 667 P.2d 1204, 1208, 1210
(Alaska 1983) (holding that citizen had standing to challenge
reapportionment of a House District in which she did not reside or
vote).
Footnote 6:
The regulation implementing AS 15.15.030(6), 6 AAC 25.300,
does not allocate the benefit of positional bias completely
randomly. The regulation provides for placement by a random
drawing of the letters of the alphabet, but then allocates
positions of candidates with last names beginning with the same
letter alphabetically. Thus, "Miller"will always appear before
"Munson,"and "Smith, John"will always appear before "Smith,
Walter." See 6 AAC 25.300(b), (d), (e). Alphabetical listing of
candidates whose last names start with the same letter is not
required by the statute and may conflict with its requirement of
"random"determination of ballot positions. However, we do not
rule on the issues which might be presented by the regulation
because Sonneman challenged only the random methodology of the
statute.
Footnote 7:
Sonneman alleged that positional bias could affect 5-7% of the
votes cast. He also alleged that this could change the outcome of
Alaska elections, because Alaska elections are often decided by
margins less than 5%. Even accepting both of these allegations as
true, we find that the burden this statute places on the right to
vote is reasonable. We do not, however, reach the question of
whether the effects of positional bias could necessitate a stricter
review if it affected a greater percentage of the votes.
Footnote 8:
This holding also answers Sonneman's argument that the statute
violates substantive due process, which requires that legislation
be at least based on "some rational policy." Keyes v. Humana Hosp.
Alaska, Inc., 750 P.2d 343, 351-52 (Alaska 1988).
Footnote 9:
Article I, section 2 of the Alaska Constitution provides: "All
political power is inherent in the people. All government
originates with the people [and] is founded upon their will only
. . . ." Article II, section 3 and article III, section 3 require
that legislators and the governor be elected at a general election.
Footnote 10:
Several factors, including party identification, are believed
to diminish the effect of positional bias. See, e.g., In re
Election of Nov. 6, 1990, 569 N.E.2d 447, 456 (Ohio 1991)
(recognizing that other factors affect how much influence ballot
rotation has, including: "party identification on the ballot,
position of the race toward the top of the ballot, significant pre-
election publicity, and the American practice of noncompulsory
voting").
Footnote 11:
Because our decision assumes that positional bias is a
verifiable phenomenon and that the likelihood of its occurrence
under the ballot system adopted in AS 15.15.030(6) could be proved,
we need not address Sonneman's claim that entry of summary judgment
for the State was improper because he had raised a genuine issue of
fact concerning the existence of positional bias.
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