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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. State v. The Green Party of Alaska (08/12/2005) sp-5933
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 JANET | ) Supreme Court No. S- 11272 |
| KOWALSKI, | ) |
| ) Superior Court No. | |
| Appellants, | ) 3AN-02-10451 CI |
| ) | |
| v. | ) |
| ) | |
| THE GREEN PARTY OF ALASKA | ) O P I N I O N |
| and the REPUBLICAN MODERATE | ) |
| PARTY, INC., | ) [No. 5933 - August 12, 2005] |
| ) | |
| Appellees. | ) |
| ) | |
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, Mark Rindner, Judge.
Appearances: Sarah J. Felix, Assistant
Attorney General, and Gregg D. Renkes,
Attorney General, Juneau, for Appellants.
Kevin M. Morford, Chugiak, for Appellees.
Jonathan B. Rubini and Suzanne La Pierre,
Anchorage, for Amicus Curiae Alaska Civil
Liberties Union.
Before: Bryner, Chief Justice, Matthews,
Eastaugh, Fabe, and Carpeneti, Justices.
BRYNER, Chief Justice.
I. INTRODUCTION
Alaska election statutes governing primary elections
require each political party to have its own primary ballot on
which only candidates of that political party appear. The Green
Party of Alaska and the Republican Moderate Party challenge those
statutes, arguing that, by making it unlawful for them to present
their candidates together on a combined ballot, the statutes
unconstitutionally burden their associational rights. We hold
that the statutes substantially burden a political partys right
to determine who may participate in its primary and that the
states justification for imposing this burden is insufficient.
We therefore hold that the contested provisions violate the
Alaska Constitution.
II. FACTS AND PROCEEDINGS
Before 2000 Alaska had a blanket primary system. A
blanket primary features a single ballot that lists every
candidate regardless of party affiliation and allows the voter to
choose freely among them.1 In a blanket primary all voters may
vote for any candidate from any political party, and the
candidate of each party who wins the greatest number of votes is
the nominee of that party at the ensuing general election.2 Under
the blanket primary system as it existed in Alaska, 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.3
In California Democratic Party v. Jones, the United
States Supreme Court held that Californias blanket primary
violated political parties associational rights because it
required them to allow non-members to vote in the political
parties primaries even where a political party wished to exclude
non-members.4 Because Californias blanket primary was in all
relevant respects identical to Alaskas, the effect of Jones was
to render Alaskas primary system unconstitutional.
In 2001 the Alaska legislature revised Alaskas election
statutes to comply with Jones.5 The legislature considered a
number of primary systems, including closed and open primaries.
In a closed primary, each political party has its own ballot and
only members of a party may vote that partys ballot.6 In an open
primary, each political party likewise has its own ballot, but
the ballot is not limited to party members: any voter may select
a ballot of any political party. The main difference between a
blanket primary and an open primary is that in a blanket primary,
the voter may vote for candidates for the nomination of different
political parties for various offices,7 whereas in an open
primary any voter may vote for candidates for any political
partys nomination, but the voter may only vote for candidates
running for one political partys nomination.8
The Alaska legislature ultimately decided to allow each
political party to determine for itself whether to have a closed,
an open, or a partially closed primary. Under the new primary
system, codified at AS 15.25.010, .014, and .060, each political
party has its own ballot that contains all of the candidates of
that party for elective state executive and state and national
legislative offices.9 The default provisions of the election
code create a partially closed primary. Under those provisions
only members of a political party and unaffiliated voters may
vote in the partys primary.10 But a political party may opt out
of the default provisions. Alaska Statute 15.25.014 allows a
political party to choose to exclude unaffiliated voters on the
one hand or to open its primary to registered members of other
parties on the other. Under AS 15.25.014, provided that a
political party complies with certain procedural requirements,
the director [of elections] shall permit a
voter registered as affiliated with another
party to vote the partys ballot if the voter
is permitted by the partys bylaws to
participate in the selection of the partys
candidates and may not permit a voter
registered as nonpartisan or undeclared to
vote a partys ballot if the partys bylaws
restrict participation by nonpartisan or
undeclared voters in the partys primary.[11]
Thus, under the new system, a political party can choose to have
a closed primary in which only members of that party may vote
an open primary in which all registered voters may vote or
something in between. Indeed, nothing in the current statutory
scheme prohibits a political party from opening its ballot to
registered members of some parties while excluding members of
other parties.
Although political parties have great leeway under the
current system and may open their ballots to a broad spectrum of
voters, each political party is nonetheless required to have its
own ballot on which only its candidates may appear.12 As a
result, a voter must choose one ballot out of all those
potentially available and may therefore participate in only one
political partys primary.
A voter may vote only one primary election
ballot. A voter may vote a political party
ballot only if the voter is registered as
affiliated with that party, is allowed to
participate in the party primary under the
partys bylaws, or is registered as
nonpartisan or undeclared rather than as
affiliated with a particular political party
and the partys bylaws do not restrict
participation by nonpartisan or undeclared
voters in the partys primary.[13]
Unlike the blanket system, under the current primary system a
voter cannot participate in different political parties primaries
for different political offices. Whereas under the old system a
voter could vote for a Green Party candidate for governor and a
Republican Moderate candidate for senator, the current system
does not allow a voter to split a primary ticket.
For the August 2002 primary election the Green Party
and the Republican Moderate Party wished to share a ballot on
which both political parties candidates would appear. The state
refused to allow the combined ballot and the Green and Republican
Moderate parties instead ran their candidates on separate
ballSupreme Court has therefore applied a flexible standard to
Shortly after the 2002 election both the Green and
Republican Moderate parties filed suit against the state,
challenging the requirement that each political party have a
separate ballot. They argued that the states refusal to permit
them to have a joint ballot one on which candidates for both
political parties were listed and that was open to members of
both political parties violated their First and Fourteenth
Amendment rights under the United States Constitution.15 After
oral argument, the superior court found that the contested
provisions were unconstitutional and granted summary judgment to
the Green and Republican Moderate parties.
The state appeals.
III. DISCUSSION
A. Standard of Review
This court reviews a grant of summary judgment de novo
and will affirm if, when the facts are viewed in the light most
favorable to the non-moving party, there are no genuine issues of
material fact and the moving party is entitled to judgment as a
matter of law.16 Constitutional claims, like those presented in
this case, are questions of law and are reviewed de novo.17 In
conducting de novo review, we will adopt the rule of law that is
most persuasive in light of precedent, reason, and policy.18
B. The Prohibition on Combined Ballots Unconstitutionally
Burdens the Green and Republican Moderate Parties
Associational Rights.
The political parties argue that Alaskas new primary
system violates rights protected by both the United States and
the Alaska constitutions. Our analysis of whether election laws
violate the United States Constitution is controlled by United
States Supreme Court precedent. In OCallaghan II and Sonneman v.
State, we reviewed the Supreme Courts recent approach to
assessing the constitutionality of election laws.19 We noted that
although the Court has repeatedly stressed the importance of
protecting the right to participate in the political process, it
has also recognized that in order to ensure that elections are
orderly and fair, government must play an active role in
structuring elections.20 Since [e]lection laws will invariably
impose some burden upon individual voters,21 states must be
granted some leeway.22 To subject all laws governing elections to
strict scrutiny would tie the hands of States seeking to assure
that elections are operated equitably and efficiently.23
To protect states ability to regulate elections, the
Supreme Court has therefore applied a flexible standard to
election laws that impinge on rights protected by the United
States Constitution. Under this standard, a court
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.[24]
This test allows a court to determine whether an election law
violates the United States Constitution.
Although we need not adopt the same test when
determining whether a law violates the Alaska Constitution,25 we
think that this test, to the extent that it involves a careful
balancing of the importance and necessity of the election law
against the infringement of constitutionally protected rights,
fits well with our own constitutional jurisprudence. We have
often indicated that determining whether a state law violates the
Alaska Constitution requires a nuanced balancing of the asserted
rights against the interests claimed by the state. We have
generally eschewed applying rigid formulas when analyzing the
constitutionality of Alaska laws. For example, in our equal
protection jurisprudence we have adopted a sliding-scale
approach; under this approach, we place[] a progressively greater
or lesser burden on the state, depending on the importance of the
individual right affected by the disputed classification.26
Similarly, when determining whether a challenged statute violates
the right to privacy protected by the Alaska Constitution, we
have held that the rights to privacy and liberty are neither
absolute nor comprehensive . . . their limits depend on a balance
of interests.27 And we have indicated that when determining
whether a statute violates the Alaska Constitutions right to free
speech, there must be . . . a balancing of conflicting rights and
interests.28 Because the Supreme Courts test requires a similar
balancing, we employ it here for evaluating whether the
challenged election law violates the Alaska Constitution.29
By using the Supreme Courts approach to determining the
constitutionality of election laws, however, we do not mean to
suggest that an election law that falls within the bounds of the
United States Constitution is necessarily constitutional under
the Alaska Constitution. To be sure, the United States
Constitution as interpreted by the Supreme Court sets national
minimal constitutional standards30 with which Alaska election laws
must comply. But we have often held that Alaskas constitution is
more protective of rights and liberties than is the United States
Constitution.31 In Vogler v. Miller, for instance, we found that
the free speech guarantee of article I, section 5 of the Alaska
Constitution32 under which we decide challenges to election laws
is more protective of the right to participate in the political
process than its federal counterpart, the First Amendment to the
United States Constitution.33 We therefore stress that the results
we derive under the Alaska Constitution need not correspond with
those the Supreme Court might reach under the federal
constitution.
Our approach involves four steps. When an election law
is challenged the court must first determine whether the claimant
has in fact asserted a constitutionally protected right. If so
we must then assess the character and magnitude of the asserted
injury to the rights.34 Next we weigh the precise interests put
forward by the State as justifications for the burden imposed by
its rule.35 Finally, we judge the fit between the challenged
legislation and the states interests in order to determine the
extent to which those interests make it necessary to burden the
plaintiffs rights.36 This is a flexible test: as the burden on
constitutionally protected rights becomes more severe, the
government interest must be more compelling and the fit between
the challenged legislation and the states interest must be
closer.
1. The parties have a right under the United States
and Alaska constitutions to determine who may
participate in choosing their candidates.
The political parties argue that the prohibition on
combined ballots severely restricts the right to access the
ballot, voting rights, and the political parties rights to
associate with voters and with each other. The state argues that
this is not a ballot access case, that voters have no fundamental
right to vote in a primary election for all candidates,
regardless of party affiliation, that states may restrict voters
to participating in only one political partys primary, and that
political parties do not have any right to associate with each
other by way of the ballot. We conclude that political parties
have a constitutionally protected associational interest in
opening their ballots to voters who would otherwise vote in the
primaries of their own political parties.37
Before we explain the reasoning underlying our
conclusion, we wish to emphasize that this case does not address
whether the legislature can prohibit so-called fusion candidates.
In Timmons v. Twin Cities Area New Party,38 the Supreme Court
addressed the constitutionality of a Minnesota statute that
preclude[d] one partys candidate from appearing on the [general
election] ballot, as that partys candidate, if already nominated
by another party.39 The statute prohibited a candidate from being
listed twice once for each political party on the general
election ballot. The New Party challenged the statute, arguing
that the political party had a right to associate with the
candidate of its choice, even if that candidate was already the
nominee of another political party.40 The Court characterized
Minnesotas ban on fusion candidacies as an eligibility
requirement: under Minnesota law, a candidate was only eligible
to appear as one political partys candidate if not already the
candidate of another political party.41 The Court held that the
ban on so-called fusion candidacies did not severely burden that
partys associational rights42 and upheld the statute.
The state contends that Timmons is similar to the
present case because in both cases a political party sought to
associate with another political party through the election
ballot. The state argues that because the Court upheld
Minnesotas restriction on party-party association, we should
uphold Alaskas prohibition of joint ballots.
But Timmons does not speak to the present electoral
scheme. Broadly put, the statute in Timmons limited a political
partys right to associate by means of the general election ballot
with another political partys candidate. More specifically, the
statute in Timmons imposed an eligibility requirement upon
candidates: a candidate was only eligible to be placed on the
general election ballot as one political partys candidate if not
already on the ballot as the candidate of another political
party. By contrast, the statutes challenged here do not impose
eligibility requirements upon candidates. Indeed, the goal of
the Green and Republican Moderate parties is not to associate
with the other political partys candidates, but rather to
associate with a broader spectrum of voters. Further, unlike
the statute in Timmons, which governed the general election and
only affected a political partys actions after it had chosen its
candidate, the statutes challenged here directly limit who may
participate in choosing a political partys candidates. In other
words, Timmons does not help us resolve the present case because
the central question in this case whether and to what extent a
state may restrict who may vote in a political partys primary
was simply not at issue in Timmons.
We now turn our attention to the Green and Republican
Moderate parties argument that under the United States and the
Alaska constitutions the political parties have a right to
associate with as broad a spectrum of voters as possible. The
Supreme Court has repeatedly affirmed that partisan political
organizations enjoy freedom of association protected by the First
and Fourteenth Amendments.43 The Court has held that national
political parties have the right to require that only registered
political party members participate in choosing delegates to the
national conventions.44 National political parties also may
require that only political party members participate in deciding
how delegates to the national convention may vote.45 The Court
has held that state laws prohibiting political parties from
endorsing candidates in primary elections unconstitutionally
burden political parties associational rights.46 And it has held
that states may not regulate a political partys decisions about
the identity of, and the process for electing, the political
partys official governing body, unless it can show that such
regulation is necessary to ensure an election that is orderly and
fair.47 Finally, and most importantly for the present case, the
Court has affirmed political parties right to determine who will
participate in the basic function of selecting the Partys
candidates.48
In Tashjian v. Republican Party of Connecticut, the
Court considered the constitutionality of a Connecticut election
law that restricted participation in primary elections to
political party members.49 The Republican Party challenged this
restriction, arguing that it had a right to allow independent
voters to participate in its primary.50
The Court held that the Connecticut law was
unconstitutional.51 The Court distinguished the situation in
Tashjian from earlier cases where it had rejected claims by non-
members of a party seeking to vote in that partys primary despite
the partys opposition.52 In those cases, the Court upheld state
laws that sought to prevent the disruption of political parties
from without53 because the nonmembers desire to participate in the
partys affairs is overborne by the countervailing and legitimate
right of the party to determine its own membership
qualifications.54 In Tashjian, in contrast, there was no conflict
between the associational interests of members and nonmembers.55
Rather, the political party itself wished to invite independent
voters to participate in its primary election. The Court held
that though this desire might seem unwise or irrational,
a state, or a court, may not constitutionally
substitute its own judgment for that of the
Party. The Partys determination of the
boundaries of its own association . . . is
protected by the Constitution.[56]
The Court held that the political partys effort to
broaden the base of public participation in and support for its
activities, was conduct undeniably central to the exercise of the
right of association.57 In the Courts view, the challenged
statute limit[ed] the Partys associational opportunities at the
crucial juncture at which the appeal to common principles may be
translated into concerted action, and hence to political power in
the community.58 Moreover the statute was not narrowly tailored to
achieve the states claimed goals of ensuring the administrability
of the primary system, preventing raiding, avoiding voter
confusion, and protecting the responsibility of party government.59
Accordingly, the Court struck the statute as unconstitutional.60
In California Democratic Party v. Jones61 the Court
confronted the opposite situation. Before Jones, the California
primary system provided that [a]ll persons entitled to vote,
including those not affiliated with any political party shall
have the right to vote . . . for any candidate regardless of the
candidates political affiliation.62 The California system thus
forced political parties to open their primaries to non-members.63
Several political parties challenged the blanket primary, arguing
that they had a right to exclude non-members from participating
in their primaries.64
The Court reaffirmed the reasoning behind Tashjian,
stressing the special place the First Amendment reserves for, and
the special protection it accords, the process by which a
political party select[s] a standard bearer who best represents
the partys ideologies and preferences. 65 The Court held that the
First Amendment not only protects a political partys right to
reach out to independent voters; it also protects a political
partys right to limit participation in the political partys
primary to registered members of that political party.
In no area is the political associations
right to exclude more important than in the
process of selecting its nominee. That
process often determines the partys positions
on the most significant public policy issues
of the day, and even when those positions are
predetermined it is the nominee who becomes
the partys ambassador to the general
electorate in winning it over to the partys
views.[66]
The Court therefore held that Californias blanket primary was
unconstitutional.67
The Green and Republican Moderate parties argue that
Tashjian and Jones compel the conclusion that they have a right
to open their ballots to registered members of the other
political party who intend to vote in their own political partys
primary. The state responds that Tashjian supports no such
right; it relies on the Courts marginal notation in Tashjian that
[a] party seeking, for example, to open its
primary to all voters, including members of
other parties, would raise a different
combination of considerations. Under such
circumstances, the effect of one partys
broadening of participation would threaten
other parties with . . . disorganization
effects.[68]
It is true that the Court in Tashjian limited its
holding to independent voters. But the cited passage does not
go to the existence of a political partys right to determine who
will participate in selecting its candidates; rather, the Court
there speculates that a states interest in restricting the
exercise of a political partys right might be of sufficient
weight to justify burdening that right.
The overarching principle uniting Tashjian and Jones is
that the First Amendment protects the rights of voters to band
together as parties to pursue political ends.69 This freedom, the
Court has affirmed, necessarily presupposes the freedom to
identify the people who constitute the association.70 This right
is perhaps nowhere more important than during a primary election:
it is at the primary election that political parties select the
candidates who will speak for them to the broader public and, if
successful, will lead their political party in advancing its
interests. In addition, as the Court recognized in Tashjian, a
political party may desire to open its primary ballot to a wider
spectrum of voters in order to allow the political party and its
members to inform themselves as to the level of support for the
Partys candidates among a critical group of electors.71
The right to determine who may participate in selecting
its candidates and, if the political party so desires, to seek
the input and participation of a broad spectrum of voters is of
central importance to the right of political association. We
think that the Green and Republican Moderate parties First
Amendment rights under the United States Constitution include a
right to share a ballot and thereby to seek the participation of
members of the other political party who, if forced to choose,
would vote in their own political partys primary. But even if
this conclusion might overestimate the reach of the Federal
Constitution,72 we hold that the Alaska Constitution protects a
political partys right to determine for itself who will
participate in crystallizing the political partys political
positions into acceptable candidates. As Justice Rabinowitz
commented in his dissent in OCallaghan II, [i]t is within the
province of a party to decide who will nominate its candidates.73
2. The prohibition on combined ballots places a
substantial burden on the Green and Republican
Moderate parties associational rights.
Having concluded that the political parties
associational rights are at stake, we must determine the extent
to which the Alaska primary system burdens those rights. By
limiting voters to a single primary ballot on which the
candidates of only one political party may appear, the
prohibition on combined ballots creates a de facto election-day
registration requirement. Voters must choose to fully affiliate
themselves with a single political party or to forgo completely
the opportunity to participate in that political partys primary.
This places a substantial restriction on the political partys
associational rights. The choice that the state forces a voter
to make means that a political party cannot appeal to voters who
are unwilling to limit their primary choices to the relatively
narrow ideological agenda advanced by any single political party.
Neither the Green Party nor the Republican Moderate Party here
wished to have its candidates selected only by voters who are
willing to choose that particular political party to the
exclusion of others. Rather, the political parties sought to
have their candidates elected by a broader spectrum of voters
one which includes voters who might otherwise be unwilling to
sign on to the entirety of the political partys agenda or slate
of candidates but who would have wanted to support some of the
political partys candidates. The states restriction on the
spectrum of voters allowed to select a political partys
candidates will have a significant effect, not just upon which
candidates the political party ultimately nominates, but also on
the ideological cast of the nominated candidates. Alaskas
election code prevents the political parties themselves from
determining who will be allowed to participate in select[ing] a
standard bearer who best represents [their] ideologies and
preferences.74 The code therefore substantially restricts the
parties associational rights.
3. The interests the state relies upon to justify the
restrictions on the Green and Republican Moderate
parties associational rights are either too
abstract to support the restrictions or are not
narrowly tailored to achieve those interests.
We must next determine whether the state has identified