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Alaska Division of Elections v. Metcalfe (4/15/2005) sp-5884
Alaska Division of Elections v. Metcalfe (4/15/2005) sp-5884
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, e-mail
corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
STATE OF ALASKA, DIVISION )
OF ELECTIONS, and LAURA ) Supreme Court No. S-11618
GLAISER, Director of the Division )
of Elections, ) Superior Court No.
) 3AN-04-8804 CI
Petitioners, )
) O P I N I O N
v. )
) [No. 5884 - April 15, 2005]
RAY METCALFE, )
)
Respondent. )
)
Appeal from the Superior Court of the State of Alaska, Third
Judicial District, Anchorage, Morgan Christen, Judge.
Appearances: Jan Hart DeYoung, Assistant Attorney General,
Anchorage, and Gregg D. Renkes, Attorney General, Juneau,
for Appellant. Ray Metcalfe, pro se, Anchorage, Appellee.
Before: Bryner, Chief Justice, Matthews, Eastaugh, Fabe, and
Carpeneti, Justices.
CARPENETI, Justice.
I. INTRODUCTION
The superior court granted a preliminary injunction to a third-party political
candidate based upon a claim of unconstitutionality of state ballot access laws. The
injunction compelled the State of Alaska to include, despite the candidate?s
noncompliance with such laws, the candidate?s name and party on the November 2004
general ballot for United States Senator. We heard the state?s petition for review on an
expedited basis in order to provide a ruling before the final ballot printing deadline.
Because there was no clear showing of probable success on the constitutional claim, we
issued an expedited order reversing the superior court and thereby vacating the
preliminary injunction. This opinion explains the rationale behind that order.
II. FACTS AND PROCEEDINGS
A political candidate seeking elected office in Alaska earns placement on a
general ballot in one of two ways: (1) by submitting a nominating petition, or (2) by
winning the primary election of a recognized political party. A nominating petition must
contain signatures of eligible voters equal to one percent of the number of voters in the
previous gubernatorial election, and it qualifies only that candidate for that given
election. In contrast, the winner of the primary election of a recognized political party
automatically earns that party?s spot on the general ballot. A political group becomes a
recognized ?political party? when (1) its nominated candidate receives three percent of
the vote in the prior gubernatorial election, or (2) it obtains party membership equal to
three percent of the number of voters in the previous gubernatorial election.
Ray Metcalfe is the chairman and founder of the Republican Moderate Party
(RMP). In 1998 he obtained the necessary signatures to submit a nominating petition for
his candidacy for governor. In that election, Metcalfe ran on behalf of the RMP though it
was not yet a recognized political party. Metcalfe won over six percent of the vote;
accordingly, the RMP earned official party status until at least the next gubernatorial
election, in 2002.
In the 2000 and 2002 elections, the RMP?s access to the primaries enabled it
to field numerous candidates for the state legislature ? one of whom was elected to the
state senate ? and for governor. In addition to the RMP, the Republican, Democratic,
Alaska Independence, Libertarian, and Green Parties were officially recognized and
fielded candidates in the November 2002 gubernatorial election. The RMP?s candidate in
that race polled only 0.65% of the total votes cast.
As a result of that performance, the state sent Metcalfe a letter on February
12, 2003, indicating that the RMP?s vote result did not meet AS 15.60.010(21)?s three
percent threshold for party recognition by way of earned votes. The letter also noted that
the RMP?s membership of 3,151 registered voters (roughly 1.36% of the votes cast for
governor in the 2002 election) was below the 6,945 voters (three percent of the votes cast
for governor) required to secure recognition based on membership. Accordingly, the
letter revoked the RMP?s status and stated that re-application would be necessary.
Metcalfe re-applied on June 27, 2003. However, by the July 7, 2004 deadline, the RMP?s
membership remained well below the requisite amount, so Metcalfe?s application was not
accepted. Metcalfe had also filed a notice of a nominating petition on May 24, 2004. He
was told to submit the signatures of 2,329 registered voters (one percent of total votes cast
for governor) by August 24 to qualify as a candidate for the general election. Metcalfe
did not submit any signatures to the state.
On July 13, 2004, Metcalfe filed a complaint and request for a preliminary
injunction. The briefing schedule was expedited due to the impending election, and the
superior court heard oral arguments on August 9. On August 13, Judge Christen held that
Metcalfe had demonstrated a ?probability of success on the merits? on his claim that the
statutory requirements for recognition as a political party were unconstitutional. The
superior court issued a preliminary injunction and ordered the state to place Metcalfe?s
name on the general election ballot as the RMP candidate for the U.S. Senate.
The state filed a petition for review. Before the ballot printing deadline, we
heard oral arguments and issued an order on September 14, reversing the superior court?s
order and vacating the preliminary injunction, noting that this opinion would follow.
III. STANDARD OF REVIEW
We review an order granting a preliminary injunction under the abuse of
discretion standard.
IV. DISCUSSION
Metcalfe Failed To Demonstrate Probable Success on the Merits of His
Constitutional Claim.
The showing required to obtain a preliminary injunction depends on the
nature of the threatened injury. If the plaintiff faces the danger of ?irreparable harm? and
if the opposing party is adequately protected, then we apply a ?balance of hardships?
approach in which the plaintiff ?must raise ?serious? and substantial questions going to the
merits of the case; that is, the issues raised cannot be ?frivolous or obviously without
merit.? ? If, however, the plaintiff?s threatened harm is less than irreparable or if the
opposing party cannot be adequately protected, then we demand of the plaintiff the
heightened standard of a ?clear showing of probable success on the merits.?
We apply the latter test in this instance. Even assuming that Metcalfe faced
?irreparable injury,? we see simply no way for the state?s interests to be adequately
protected. We have said that such protection exists where ?the injury that will result from
the injunction can be indemnified by a bond or where it is relatively slight in comparison
to the injury which the person seeking the injunction will suffer if the injunction is not
granted.? Here, a preliminary injunction will prevent the state from administering an
election pursuant to its own election laws. As discussed below, these laws exist to further
a legitimate state goal ? to require a political group to first demonstrate some political
support before compelling the state to recognize it as a political party and bestow upon it
the benefits concomitant with recognition. This interest cannot be guaranteed by a bond,
nor is it slight when compared with Metcalfe?s interests; issuance of this injunction is a
zero-sum event, where one party will invariably see unmitigated harm to its interests.
Accordingly, we require Metcalfe to demonstrate a clear showing of probable success on
the merits.
Metcalfe claims that the three percent requirement set by AS 15.60.010(21)
for recognition as a political party is an unconstitutional infringement on ballot access,
violating the free speech and equal protection provisions of the Alaska Constitution.
We have recognized that restrictions on ballot access interfere with the
rights of candidates and voters. At least two fundamental rights are implicated ? the
right to vote and the right to associate freely in pursuit of political beliefs. We have
noted the importance of competition in the political marketplace, and that ?[n]ew parties
struggling for their place must have the time and opportunity to organize in order to meet
reasonable requirements for ballot position, just as the old parties have done in the
past.?
In light of these considerations, we review ballot access restrictions with
strict scrutiny. First, we require the state to show a compelling interest in order to
justify infringements of these rights. Second, we inquire into whether less restrictive
alternatives would have adequately protected the asserted governmental interests. In the
context of ballot access cases, strict scrutiny leaves more room for a finding of
constitutionality. As the Ninth Circuit stated, ?unlike other areas in which strict scrutiny
has been employed, its invocation in election law cases has not preordained their
outcome. In fact, the [Supreme] Court has repeatedly stressed that there is no ?litmus-
paper test? for evaluating constitutional challenges to ballot-access restrictions.? We
also note that a duly-enacted statute is entitled to a presumption of constitutionality.
Thus, the language of heightened scrutiny guides our analysis; it does not sound a death
knell for the state.
The seminal Alaska ballot access opinions are the Vogler cases. Those
cases were in response to a similar constitutional challenge by a third-party gubernatorial
candidate against then-effective ballot access laws. In Vogler I, we struck down as
unconstitutional a statute that required nominating petitions to contain signatures totaling
at least three percent of the total votes cast in the previous election. This figure seemed
especially burdensome in light of the fact that the state had until recently required only
one thousand signatures; this statutory change reflected nearly a five-fold increase on the
old requirement. We suggested that a figure of one percent ? roughly equivalent to the
old requirement ? was less burdensome, and held the three percent figure
unconstitutional under the test above. The legislature subsequently placed the
requirement for nominating petitions at one percent.
Vogler II presented essentially the same constitutional challenge brought by
Metcalfe. That challenge was based on the former version of AS 15.60.010(21), which
required obtaining ten percent of the votes cast in order to be recognized. Though this
court split in its rationale, we unanimously held this figure to be unconstitutional. We
first noted the interests at stake in denying some political groups official recognition:
diminished political capital by not being able to participate in the primary election and
limited ability to raise funds under the campaign finance laws. We then noted the
countervailing state interest in regulating ballot access: to require ?some preliminary
showing of a significant modicum of support before printing the name of a political
organization?s candidate on the ballot.? This is an interest ?in avoiding confusion,
deception, and even frustration of the democratic process at the general election.? We
found this interest sufficiently important under the constitutional test. The plurality
nevertheless struck down the law, noting that a ?great majority of states? place polling
requirements for parties at ?5% or less? and that the state offered no explanation why
Alaska?s requirement should be substantially more burdensome. The legislature
subsequently placed the requirement at its present level of three percent.
We view this analysis ? comparing Alaska?s ballot-access requirements
with the requirements of other states ? as one reasonable way to determine whether less
restrictive alternatives exist. As the state here has shown a compelling interest in
requiring potential political parties to demonstrate a ?significant modicum of support,? as
it did in the Vogler cases, we turn to the question of whether less restrictive alternatives to
the current three percent barrier exist.
We begin by noting the difficulty of this analysis when the statute
establishes a numerical line, because it is always theoretically possible to say that a
requirement of ?one less? (even one less voter) is ?less restrictive.? But line-drawing
always involves close cases at the margins, and we cannot quantify with mathematical
precision where the constitutional line is to be found. We are guided by O?Callaghan v.
State, which accorded deference to the legislature in making election decisions. There,
we noted that the state need not put forth ?a particularized showing? in defending the
interests underlying its election laws:
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.[ ]
Thus, we paraphrase our inquiry: Did the legislature act reasonably in determining that
three percent of the voters in the previous election is the lowest appropriate standard to
determine that a group has a ?significant modicum of support??
In light of the deference we accord to the legislature on such issues, and
because the three percent figure remains in the mainstream of the practices of other
states, Metcalfe has failed to demonstrate that he is entitled to a preliminary injunction
based on a ?clear probability of success on the merits.? Nor can we discern any valid
legal ground in the superior court?s opinion leading to the conclusion that the legislature
acted unreasonably in enacting a three percent polling requirement.
The superior court, relying on Metcalfe?s arguments, put forth two grounds
to suggest that the legislature?s requirement was unreasonable. The first focuses on the
relationship between the ?three percent? polling or membership requirement for political
parties and the ?one percent? signature requirement for individual candidates? nominating
petitions. We implicitly found this latter requirement to be constitutional in Vogler I.
The superior court viewed these differing levels of needed support as an unexplained
?discrepancy.? In other words, if one percent was sufficient to protect the state?s interests
vis-a-vis individual candidates, then one percent should also be sufficient to protect the
state?s interests vis-a-vis political parties. Although the state justified the difference by
showing that the designation ?political party? carries additional ramifications beyond one-
time access to a general ballot, the superior court dismissed this showing as ?insufficient.?
We cannot agree.
We find sufficient differences between the purposes and the effects of the
two procedures to warrant differing showings of support. Implicit in the two Vogler
opinions is the conclusion that these processes are not equivalent and that each is
governed by its own inquiry ? after all, we separated the inquiries into two opinions and
indicated no concern that the law demanded a higher showing of support for a political
party than for an individual candidate. Today we make this conclusion explicit. A
nominating petition results in the placement of one candidate on one general ballot. In
contrast, the recognition of a political party has lasting implications ? that party, among
other things, obtains increased powers under the campaign-finance laws, gains access to
primary elections, and earns automatic placement on general election ballots (permitting
it to freely field slates of candidates for several years). It seems entirely reasonable, in
light of these benefits, for the state to demand more from a political party than an
individual candidate. Its interests in requiring a ?substantial modicum? of support are
incrementally more threatened by a new recognized party than by a new individual
candidate. We therefore conclude that this difference between the requirements for ballot
access for individuals and parties is not a valid ground upon which to find that the
legislature acted unreasonably in demanding three percent from parties.
The superior court?s second reason for finding the legislature?s three percent
requirement unreasonable was based on fairness. The court found it unfair that an
?affiliated? candidate, whose party must meet the three percent threshold, faces a greater
burden than an ?unaffiliated? candidate, who need only submit a nominating petition that
meets the one percent requirement. But the three percent requirement does not apply to
an ?affiliated? candidate ? it applies to his or her would-be political party. If the party
fails to qualify, the option of filing a nominating petition continues to be available, just as
it is for an ?unaffiliated? candidate. Thus, we cannot agree that ?affiliated? candidates are
disadvantaged when compared with ?unaffiliated? candidates.
Because Metcalfe failed to show that the legislature acted unreasonably in
setting a three percent requirement for political party status, he failed to establish a clear
probability of success on the merits of his claim. Thus, he was not entitled to a
preliminary injunction.
V. CONCLUSION
For these reasons, we REVERSED the order of the superior court and
VACATED the issuance of the preliminary injunction.
See AS 15.25.140-.200.
See AS 15.25.010-.130.
AS 15.25.160.
AS 15.25.100.
Former AS 15.60.010(21). This statute was amended by ch. 50, ? 9, SLA
2004, and the change took effect on November 3, 2004. As this case involves the
November 2, 2004 election, the prior version of the statute applies.
State v. Kluti Kaah Native Vill. of Copper Ctr., 831 P.2d 1270, 1272 n.4
(Alaska 1992).
Id. at 1273 (citations omitted).
Id. at 1272 (quoting A.J. Indus., Inc. v. Alaska Pub. Serv. Comm?n, 470 P.2d
537, 540 (Alaska 1970), modified in other respects, 483 P.2d 198 (Alaska 1971)).
Because we find that the state?s interests cannot be adequately protected, we
need not determine the nature of the harm plaintiff stands to suffer.
State v. United Cook Inlet Drift Ass?n, 815 P.2d 378, 378-79 (Alaska 1991).
The superior court erroneously concluded that the state?s interests could be
adequately protected merely because the dispute could be resolved before the general
election ballots were to be printed. This conclusion ignores the state?s interest in the
consistent administration of elections according to a considered statutory scheme. Thus,
the superior court wrongly noted that the plaintiff need only prevail under the ?balancing
of hardships? test. It went on, however, to hold that Metcalfe would also prevail under
the ?probable success? test. Because we find no legal basis for this conclusion, as
explained below, we reverse.
Metcalfe also argues that the recent amendment to these ballot access
requirements, see ch. 50, ? 9, SLA 2004 (effective date Nov. 3, 2004), is unconstitutional.
Because this amendment was not effective at the time of this suit ? and would not be
effective until after the November election ? Metcalfe was not affected by its provisions,
and we decline to pass on its constitutionality.
Freedom of speech is protected by Article I, section 5 of the Alaska
Constitution, which is at least as broad as the First Amendment to the United States
Constitution. Mickens v. City of Kodiak, 640 P.2d 818, 820 (Alaska 1982). Equal
protection is guaranteed by Article I, section 1 of the Alaska Constitution, which we have
interpreted in some instances as broader than its federal counterpart. See State v.
Anthony, 810 P.2d 155, 157 (Alaska 1991); State v. Erickson, 574 P.2d 1, 11-12 (Alaska
1978). Presumably because the United States Supreme Court has upheld more restrictive
statutes under federal law, Jenness v. Fortson, 403 U.S. 431 (1971), Metcalfe only argues
infringements of rights protected by the Alaska Constitution.
Vogler v. Miller, 651 P.2d 1, 3 (Alaska 1982) (Vogler I).
Id.
Id. (quoting Williams v. Rhodes, 393 U.S. 23, 32 (1968)).
See generally Sonneman v. State, 969 P.2d 632, 638 (Alaska 1998); see also
Vogler I, 651 P.2d at 4.
Vogler v. Miller, 660 P.2d 1192, 1193 (Alaska 1983) (Vogler II).
Id. at 1194.
Lightfoot v. Eu, 964 F.2d 865, 869 (9th Cir. 1992) (citations omitted).
State, Dep?t of Revenue v. Andrade, 23 P.3d 58, 71 (Alaska 2001).
Vogler I, 651 P.2d at 6.
Id. at 2, 5.
Id. at 5-6.
See AS 15.25.160, as amended by ch. 85, ? 26, SLA 1986.
Vogler II, 660 P.2d at 1193.
Id. at 1196.
Id. at 1194-95, 1196-97 (Rabinowitz, J., concurring).
Id. at 1195 (quoting Jenness v. Fortson, 403 U.S. 431, 442 (1971)).
Id.
Id.; see also Vogler I, 651 P.2d at 4.
Vogler II, 660 P.2d at 1195-96.
See former AS 15.60.010(21) as amended by ch. 85, ? 44, SLA 1986.
914 P.2d 1250 (Alaska 1996).
Id. at 1254 (quoting Munro v. Socialist Workers Party, 479 U.S. 189, 195-96
(1986)).
Metcalfe concedes that at least twenty-two other states presently place a
polling requirement at three percent or higher. Moreover, we are aware of no case from
another jurisdiction holding a polling requirement for political party recognition equal to
or less than three percent unconstitutional.
651 P.2d at 5.
See AS 15.13.070.
See AS 15.25.010-.130.
See AS 15.25.100.
The superior court also noted that the legislature defined ?political party?
more expansively in campaign finance laws than in ballot access laws. See former AS
15.13.070. Whatever support this discrepancy might lend to Metcalfe?s argument, we
ignore it because the analysis is outmoded ? prior to this action, the legislature
eliminated this discrepancy by amending the campaign-finance laws to incorporate the
ballot-access definition. See ch. 108, ?? 18, 19, SLA 2003 (effective Sept. 14, 2003).
Thus, the RMP did not qualify as a political party under any standard in Alaska.
-16- 5884
