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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. The Green Party of Alaska v. State (11/17/2006) sp-6077
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
| THE GREEN PARTY OF ALASKA, | ) |
| ) Supreme Court No. S- 11964 | |
| Appellant, | ) |
| ) Superior Court No. | |
| v. | ) 3AN-03-9936 CI |
| ) | |
| STATE OF ALASKA, DIVISION | ) O P I N I O N |
| OF ELECTIONS, and JANET | ) |
| KOWALSKI, Director, | ) No. 6077 - November 17, 2006 |
| ) | |
| Appellees. | ) |
| ) | |
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, John Reese and Craig F. Stowers,
Judges.
Appearances: Kevin M. Morford, Chugiak, for
Appellant. Sarah J. Felix, Assistant
Attorney General, and David W. M rquez,
Attorney General, Juneau, for Appellees.
Jason Brandeis, ACLU of Alaska Foundation,
Anchorage, for Amicus Curiae.
Before: Bryner, Chief Justice, Matthews,
Eastaugh, Fabe, and Carpeneti, Justices.
CARPENETI, Justice.
I. INTRODUCTION
The Green Party of Alaska challenged the
constitutionality of a statute that set out the threshold
requirements for recognition of a group as a political party for
election purposes. Former Alaska Statute 15.60.010(21) required
a group to attain at least three percent of the votes polled in
the last gubernatorial election, or to register the equivalent
number of voters. In 2002 the Green Party failed to garner three
percent of the vote in the governors race but it did poll over
six percent of the vote in two other statewide elections. The
Division of Elections subsequently withdrew recognition of the
Green Party as a political party. The Green Party alleged that,
in so doing, the Division of Elections unconstitutionally
infringed on its freedoms of speech and political association and
its right to equal protection of the laws. The superior court
granted summary judgment to the state. Because the state has a
clear and legitimate interest in regulating ballot access, and
because it did so in a way that did not unfairly burden the
constitutional rights of Green Party voters or candidates, we
affirm.
II. FACTS AND PROCEEDINGS
A. Facts
The Green Party of Alaska is an organized group of
voters which has regularly engaged in political and electoral
activities in Alaska since its inception in 1990. The Green
Party has consistently run statewide candidates in Alaska. In
the 2002 general election, the Green Party ran candidates for
four statewide offices: Governor and Lieutenant Governor, United
States Senator, and United States Representative. In the race
for United States Senator the Green Party garnered 7.24 percent
of the total votes cast in that race (16,608 of 229,548). In the
United States Representative race the Green Party received 6.34
percent of the total votes cast in that race (14,435 of 227,725).
However, in the race for Governor and Lieutenant Governor the
Green Party received only 1.26 percent of the votes cast (2,926
of 231,484).
The Division of Elections concluded that the Green
Party failed to retain recognized political party status because
it did not meet the statutory requirements for recognition.
Alaska Statute 15.60.010(21) the governing statute at the time
defined a political party as:
[A]n organized group of voters that
represents a political program and that
either nominated a candidate for governor who
received at least three percent of the total
votes cast for governor at the preceding
general election or has registered voters in
the state equal to at least three percent of
the total votes cast for governor at the
preceding general election.[1]
It is uncontroverted that the Green Partys gubernatorial
candidate received 2,926 votes, or 1.26 percent, of the total
votes cast for governor in the 2002 general election. It is also
uncontested that by February 2003 there were 4,768 registered
voters in the Green Party of Alaska, representing approximately
two percent of the total votes cast for governor in the 2002
general election. Because the Green Party did not poll three
percent of the total vote in the 2002 election, nor did the Green
Party register three percent of the vote for governor, the
Division of Elections withdrew recognition of the Green Party as
a political party.
As a result of this change in the Green Partys status,
Green Party candidates would not be allowed to appear on the 2004
primary election ballot unless they first gathered sufficient
signatures on a petition, pursuant to AS 15.25.140-.200. In
addition, the Green Partys ability to collect and distribute
campaign contributions would be impaired because contributions to
political groups are more strictly limited than contributions to
political parties.2
The Green Party acknowledges that it did not satisfy
the statutory requirements for recognition as a political party.
However, it challenges the statute as unconstitutional, claiming
that the state, by limiting the qualifying contest to the
governors race while ignoring other statewide races, violated the
Green Partys rights to equal protection, free speech, free
political association, and ballot access. While the Green Party
concedes that the state has a legitimate interest in ensuring
that a political group be able to demonstrate a significant
modicum of support before enjoying the benefits of political
party status,3 it argues that a group that garners at least three
percent of the total vote for any statewide office has met that
requirement.
B. Proceedings
The Green Party sought a declaratory judgment that the
Division of Elections violated the Partys constitutional rights
by depriving it of its status as a political party. In 2003
Superior Court Judge John Reese granted the Green Party a
preliminary injunction enjoining the state from withdrawing
recognition of the Partys political party status. Taking a
balancing of hardships approach, Judge Reese found that
withdrawing political party status would irreparably harm the
Green Party because it would be precluded from participating in
the 2004 primary election, and because its fund-raising ability
would be significantly limited. Judge Reese also concluded that
the states interest in avoiding an overcrowded and confusing
ballot would not be harmed by the preliminary injunction because
the Green Party had appeared on ballots over the past decade, and
it had obtained over six percent of the votes in the most recent
statewide elections for federal office. Finally, Judge Reese
found that the Green Party raised a serious and substantial
question as to the constitutionality of AS 15.60.010(21).
In June 2004 the state requested that the preliminary
injunction be dissolved because the legislature had amended AS
15.60.010(21) and enacted a new definition of political party.4
Judge Reese denied the states request, and the preliminary
injunction remained in force. As a result of the preliminary
injunction, Green Party candidates were able to participate in
the August 2004 primary election. These candidates also appeared
on the general election ballot in November 2004. The Green
Partys candidates for United States Senator and United States
Representative polled 0.99 percent and 3.81 percent respectively
in the 2004 general election. (There was no gubernatorial
election that year.)
In August 2004 the Green Party moved for summary
judgment in the form of a declaratory judgment against the state,5
claiming that the state had violated the fundamental
constitutional rights of the Green Party of Alaska, and violated
its right to equal protection of the laws by withdrawing
recognition of its status as a political party. The motion for
summary judgment was presented to Superior Court Judge Craig F.
Stowers.
At around the same time, another Anchorage superior
court issued a preliminary injunction in a similar case, ordering
the state to place Ray Metcalfes name on the ballot as a
Republican Moderate Party candidate for United States Senate in
the November 2004 election. In that case, Metcalfe challenged
the requirement that a political group receive at least three
percent of the vote to achieve political party status. In State,
Division of Elections v. Metcalfe6 we reversed that order and
vacated the preliminary injunction, holding:
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.[7]
The Green Partys summary judgment motion had been held
in abeyance until we published the Metcalfe decision. Judge
Stowers noted that he ha[d] been awaiting that opinion in the
event the Supreme Courts decision might be pertinent to the Green
Party case. Ultimately, Judge Stowers found Metcalfe not only
pertinent, but dispositive. As he explained, Judge Reese, like
the superior court in Metcalfe, had used a balancing of hardships
approach rather than requiring the plaintiff to demonstrate a
clear showing of probable success on the merits.
Judge Stowers concluded that the Green Party, like
Metcalfe, had failed to demonstrate probable success on the
merits. Judge Stowers also held that, while there are less
restrictive alternatives to the statutes reliance on the
gubernatorial race as the benchmark, this court cannot say that
the legislatures use of the gubernatorial election as the
benchmark for the three percent threshold . . . was unreasonable.
Finally, Judge Stowers found that Alaskas approach was within the
mainstream of other states. In sum, Judge Stowers concluded
that:
[b]ecause the Green Party has failed to show
that the legislature acted unreasonably in
selecting the office of governor as the
touchstone for gauging that necessary and
sufficient minimum modicum of public support
for defining a political party under former
AS 15.60.010(21), it failed to establish a
clear probability of success on the merits,
and it also failed to prove that former AS
15.60.010(21) is unconstitutional.
Consequently, the Green Partys motion for summary judgment was
denied, and the states cross-motion was granted.
The Green Party now appeals. Both parties agree that
there are no genuine issues of material fact, and that we can
decide the dispute as a matter of law.
III. STANDARD OF REVIEW
We review a grant of summary judgment de novo and will
affirm if, when the facts are viewed in the light most favorable
to the party that lost below, there are no genuine issues of
material fact and the party that won below is entitled to
judgment as a matter of law.8
Constitutional claims are questions of law, and
consequently are reviewed de novo.9 In conducting a de novo
review, we adopt the rule of law that is most persuasive in light
of precedent, reason, and policy.10
IV. DISCUSSION
A. The Legal Claims in this Suit Have Not Been Rendered
Moot.
As a preliminary matter, the Green Party argues that
its claims have not been rendered moot, despite the fact that the
legislature has since amended the challenged statutory
provisions. The state does not contest the justiciability of
this case, indicating in a footnote that, while the issues raised
may arguably be moot, the Division of Elections does not oppose
the courts consideration and resolution of the claim now.
Mootness functions as a doctrine of judicial restraint;
we generally refrain from deciding questions where events have
rendered the legal issue moot.11 A case is moot if it has lost
its character as a present, live controversy.12 As we stated in
Kodiak Seafood Processors Association v. State, Mootness is
particularly important in a case seeking a declaratory judgment.13
We must be particularly careful to ensure that the controversy is
definite and concrete, touching the legal relations of parties
having adverse legal interests. 14
The doctrine of mootness is inapplicable in the present
case. Although the legislature adopted a new definition of
political party in its amendments to AS 15.60.010(21), the state
acknowledges that the governors office will again be the
touchstone office for the elections in 2007 and 2008. Thus, the
legal controversy presented remains alive despite the change in
definition.
B. The Superior Court Did Not Err in Concluding that
Former AS 15.60.010(21) Was Constitutional.
The Green Party argues that former AS 15.60.010(21)
unconstitutionally infringed upon the rights of Green Party
voters and candidates.
We have acknowledged that ballot access restrictions
interfere with the right to vote and the right to associate
freely in the pursuit of political beliefs.15 A political group
that has been denied party status suffers diminished political
capital by not being able to participate in the primary election
and limited ability to raise funds under campaign finance laws.16
As a result, we review ballot access restrictions with strict
scrutiny.17
Yet strict scrutiny in this context does not
automatically void statutory restrictions on ballot access.18 In
State v. Green Party of Alaska19 we adopted the United States
Supreme Courts approach to ballot access cases, in which the
Court has stressed the importance of protecting the right to
participate in the political process, [while] also recogniz[ing]
that in order to ensure that elections are orderly and fair,
government must play an active role in structuring elections.20
To determine whether ballot access restrictions
unconstitutionally burden the rights of candidates and voters, we
conduct a careful balancing of the importance and necessity of
the election law against the infringement of constitutionally
protected rights,21 applying a four-step balancing approach:
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. Next we weigh the
precise interests put forward by the state as
justifications for the burden imposed by its
rule. 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.[22]
The analysis is intended to be flexible: [A]s 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 interests must be
closer.23 To determine whether AS 15.60.010(21)
unconstitutionally burdened the Green Partys fundamental rights,
we now address each prong of the balancing test.
1. The Green Party has asserted a constitutionally
protected right.
The Green Party asserts that AS 15.60.010(21) violates
its constitutionally protected rights to equal protection,
freedom of political association, freedom of speech, and the
fundamental right to vote.24
We have recognized that ballot access restrictions
impinge on the fundamental rights of potential candidates and on
the rights of voters: laws restricting ballot access place
burdens on two different, although overlapping, kinds of rights
the right of individuals to associate for the advancement of
political beliefs, and the right of qualified voters, regardless
of their political persuasion, to cast their votes effectively. 25
Thus, the Green Party has asserted injury to its constitutionally
protected rights.
2. The Green Party has overstated the magnitude of
its injury.
The Green Party argues that the states actions have
resulted in a total deprivation of important constitutional
rights. The Party contends that the state, by stripping it of
its status as a political party, has precluded it from placing
candidates on the primary ballot.
The Green Party overstates its argument. Although its
ability to place candidates on the ballot is impeded by the
statutes limiting requirements, it has not been totally deprived
of the opportunity. Besides obtaining at least three percent of
the vote in the previous gubernatorial election26 the method
challenged by the Green Party a political organization has two
other options. It may register voters equivalent to at least
three percent of the vote in the previous gubernatorial election.27
Alternatively, a political organization may nominate a candidate
by petition.28 It appears that the Green Party did not take
advantage of either of the latter two options. Thus, while it
makes a valid argument that its rights have been impeded, it
overstates the magnitude of the injury.
3. The state has offered compelling interests to
justify the burden imposed by the statute.
In analyzing the states ability to regulate elections,
we balanc[e] . . . the importance and necessity of the election
law against the infringement of constitutionally protected
rights.29 The state bears the burden of proving that it has a
compelling interest to justify infringing on the rights of free
speech, political association, and equal protection.30
The Green Party maintains that the states sole
justification for the statute in question is to avoid cluttered
ballots by excluding those political groups that have not
demonstrated a significant modicum of support among voters.
While acknowledging that this is a legitimate goal, the Green
Party contends that the goal is not advanced by the challenged
statute.
We previously found that the state had a compelling
interest in requiring potential political parties to demonstrate
a significant modicum of support. 31 We held then, as we hold
today, that the states interest in requiring a significant
modicum of support is compelling because it helps the state
avoid[] confusion, deception, and even frustration of the
democratic process at the general election.32 Accordingly, the
states interest here in drawing a line in order to establish a
standard for the modicum of support required for official party
status is compelling. This interest therefore justifies the
burden that the statute imposes.
4. The statute was sufficiently narrowly tailored to
the states interests to justify burdening the
rights of the Green Party.
The Green Party concedes that the state has a
legitimate interest in regulating ballot access, but it argues
that the statute, by excluding groups that have demonstrated a
significant modicum of support in races other than the governors
race, was not sufficiently tailored. It suggests that the state
could have adopted the less restrictive alternative of granting
ballot access to each political group that polls at least three
percent of the vote in any statewide race. The superior court
relied on Metcalfe to hold that, while the legislature did not
choose the least restrictive alternative, it chose a reasonable
alternative: While there are certainly less restrictive
alternatives to former AS 15.60.010(21)s benchmark of tying the
three percent minimum threshold to the gubernatorial election, in
accordance with the Metcalfe opinions deference to the
legislature in making election decisions [] this court cannot say
that the legislatures use of the gubernatorial election . . . was
unreasonable. We agree.
We began our analysis in Metcalfe by noting the
difficulties we faced in determining the constitutionality of a
numerical line drawn by the legislature, since line-drawing
always involves close cases at the margins, and we cannot
quantify with mathematical precision where the constitutional
line is to be found.33 Because such questions involve
considerable balancing by policy-makers, we concluded that
deference to the legislature was appropriate. As we explained,
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.34
The Green Party now contends, as it did before the
superior court, that legislative deference is less appropriate
here because the Green Party is not challenging a numerical
cutoff but rather the choice of a particular statewide race to
measure that cutoff. But the courts task is not to quantify the
level of deference owed to a legislative decision; it is to
determine whether the legislature has sufficiently narrowly
tailored the statutory scheme to protect both the Green Partys
constitutional rights and the states compelling interests. We
agree with the superior court that, in choosing the race for the
office of governor as the touchstone contest, the legislature met
its constitutional obligations.
The state selected a narrowly tailored approach that
burdens voters and candidates only slightly, while protecting the
states interest in avoiding voter confusion, ballot overcrowding,
and the presence of frivolous candidates.35 Because the
gubernatorial term (unlike federal statewide offices) is limited,
there will be non-incumbents running at regular intervals.36
Consequently, the governors race is the only statewide election
in which a competitive race may be predicted with some
confidence. Given the more reliably competitive nature of the
race, it was not unreasonable for the legislature to conclude
that the governors race offers a better gauge for popular support
of a political party.
Furthermore, in Metcalfe we recognized that the state
could satisfy its burden of determining whether less restrictive
alternatives exist by showing that its actions remain in the
mainstream of the practices of other states.37 In that case we
determined that Alaskas three percent requirement was well within
the mainstream of other states.38 Relying on this finding, in
conjunction with the deference accorded the legislature on ballot
access issues, we decided that there was no valid legal ground
. . . leading to the conclusion that the legislature acted
unreasonably in enacting a three percent requirement.39
Eight states, including Alaska under former AS
15.60.010(21), rely on a percentage of the total number of votes
cast for governor to determine political party status.40 Twelve
other states use a percentage of the total number of votes for
either governor or presidential electors.41 Based on these
statistics we concur with the superior court that Alaskas
requirements are within the mid-range of other states, and that
the legislature acted reasonably in using this standard to
determine party eligibility.
V. CONCLUSION
The state has a compelling interest in regulating
ballot access, and the statute in question is sufficiently
narrowly tailored to achieve that goal without violating the
constitutional rights of Green Party voters and candidates. We
therefore AFFIRM the superior courts decision granting summary
judgment to the state.
_______________________________
1 AS 15.60.010(21), defining political party, was amended
by ch. 50, 9, SLA 2004 and now appears as AS 15.60.010(23). The
new statute defines a political party as:
An organized group of voters that represents
a political program and
(A) that nominated a candidate for governor
who received at least three percent of the
total votes cast for governor at the
preceding election or has registered voters
in the state equal in number to at least
three percent of the total votes cast for
governor at the preceding general election;
(B) if the office of governor was not on the
ballot at the preceding general election but
the office of United States senator was on
that ballot, that nominated a candidate for
United States senator who received at least
three percent of the total votes cast for
United States senator at that general
election or has registered voters in the
state equal in number to at least three
percent of the total votes cast for United
States senator at that general election; or
(C) if neither the office of governor nor the
office of United States senator was on the
ballot at the preceding general election,
that nominated a candidate for United States
representative who received at least three
percent of the total votes cast for United
States representative at that general
election or has registered voters in the
state equal in number to at least three
percent of the total votes cast for United
States representative at that general
election.
We note that in this case we address only the constitutionality
of former AS 15.60.010(21). We make no comment regarding the
current statute.
2 A group that is not a political party may contribute
not more than $2,000 per year to a candidate for any office. AS
15.13.070(c)(1). In contrast, a political party may contribute
$100,000 per year to a candidate for governor or lieutenant
governor, $15,000 per year to a candidate for state senate, and
$10,000 per year for a candidate to the state house of
representatives. AS 15.13.070(d)(1)-(3).
3 See State, Div. of Elections v. Metcalfe, 110 P.3d 976,
980 (Alaska 2005).
4 See note 1, supra.
5 The Green Party expressly noted that, because the
future status of the party was uncertain, it did not seek an
award of a permanent injunction, but rather only wanted a
declaratory judgment regarding the legal effect of the past
conduct of the state.
6 110 P.3d 976 (Alaska 2005).
7 Id. at 981.
8 Sonneman v. State, 969 P.2d 632, 635 (Alaska 1998).
9 Id. at 636.
10 Guin v. Ha, 591 P.2d 1281, 1284 n.6 (Alaska 1979).
11 See, e.g., Kodiak Seafood Processors Assn v. State, 900
P.2d 1191, 1195 (Alaska 1995).
12 Id.
13 Id.
14 Id. (quoting Jefferson v. Asplund, 458 P.2d 995, 999
(Alaska 1969)).
15 State, Div. of Elections v. Metcalfe, 110 P.3d 976, 979
(Alaska 2005).
16 Id. at 980.
17 Id. at 979.
18 See id. at 980, holding that [i]n the context of ballot
access cases, strict scrutiny leaves more room for a finding of
constitutionality.
19 118 P.3d 1054 (Alaska 2005).
20 Id. at 1059.
21 Id. at 1060.
22 Id. at 1061 (citations and quotation marks omitted).
23 Id.
24 In Sonneman v. State, 969 P.2d 632, 636-37 (Alaska
1998), we determined that the impact of eligibility restrictions
on candidates and voters should be analyzed directly 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, rather than through a separate equal
protection analysis. Accordingly, we address the Green Partys
equal protection claim only insofar as it addresses a deprivation
of the right to vote.
25 Vogler v. Miller, 651 P.2d 1, 3 (Alaska 1982) (Vogler
I) (quoting Williams v. Rhodes, 393 U.S. 23, 30 (1968)).
26 Former AS 15.60.010(21).
27 Id. To obtain recognized political party status, the
Green Party would have needed to register 6,945 voters; as of
September 2003, it had registered only 4,740 voters.
28 AS 15.25.140-.200. Petitions for statewide office must
be signed by at least one percent of the number of voters who
cast ballots in the preceding general election. AS 15.25.160.
29 Green Party, 118 P.3d at 1060.
30 Vogler I, 651 P.2d at 3.
31 State, Div. of Elections v. Metcalfe, 110 P.3d 976, 980
(Alaska 2005).
32 Id. ([The state asserts] 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. (quoting
Vogler v. Miller, 660 P.2d 1192, 1195 (Alaska 1983))).
33 Metcalfe, 110 P.3d at 981.
34 Id. (quoting OCallaghan v. State, 914 P.2d 1250, 1254
(Alaska 1996)).
35 See OCallaghan, 914 P.2d at 1254.
36 No person who has been elected governor for two full
successive terms shall be again eligible to hold that office
until one full term has intervened. Alaska Const. art. III, 5.
37 Metcalfe, 110 P.3d at 981.
38 Id.
39 Id.
40 See 10 Ill. Comp. Stat. Ann. 5/10-2 (West 2006); Kan.
Stat. Ann. 25-202(b) (1993); Mont. Code Ann. 13-10-601 (2005);
Neb. Rev. Stat. 32-716(1) (2005); N.Y. Elec. Law 1-104(3)
(McKinney 1998); S.D. Codified Laws 12-1-3(10) (2006); W. Va.
Code 3-1-8 (West 2006).
41 See Ariz. Rev. Stat. Ann. 16-804 (2005); Ark. Code
Ann. 7-1-101(17)(A) (West 2006); Colo. Rev. Stat. Ann. 1-1-
104(22) (West 2006); Ga. Code Ann. 21-2-2(25) (West 2006); Iowa
Code Ann. 43.2 (West 1999, Supp. 2006); Me. Rev. Stat. Ann. tit.
21-A, 301 (2006); N.M. Stat. Ann. 1-1-9 (West 2006); N.C. Gen.
Stat. Ann. 163-96(a) (1) (West 2006); N.D. Cent. Code 16.1-11-
30 (2005);
Ohio Rev. Code Ann. 3517.01(A)(1) (West 2006); Okla. Stat. tit.
26, 1-109 (1997, Supp. 2006); R.I. Gen. Laws 17-1-2(9) (2005).
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