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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. O'Callaghan v. State, Director of Elections (8/16/00) sp-5310

O'Callaghan v. State, Director of Elections (8/16/00) sp-5310

     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

MIKE O'CALLAGHAN,             )
                              )    Supreme Court No. S-9768
               Appellant,     )
                              )    Superior Court No.
          v.                  )    3AN-00-8488 CI
                              )
STATE OF ALASKA, DIRECTOR     )    O P I N I O N
OF ELECTIONS JANET KOWALSKI,  )
                              )
               Appellee.      )    [No. 5310 - August 16, 2000]
                              )


          Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Anchorage,
                     Eric T. Sanders, Judge.


          Appearances:  Mike O'Callaghan, pro se,
Anchorage.  James L. Baldwin, Assistant Attorney General, and Bruce
M. Botelho, Attorney General, Juneau, for Appellee.  Max F.
Gruenberg, Jr., Gruenberg, Clover and Holland, Anchorage, for
Amicus Curiae Alaskan Voters for an Open Primary.


          Before: Matthews, Chief Justice, Eastaugh,
          Fabe, Bryner, and Carpeneti, Justices.


          PER CURIAM.


          1.   Mike O'Callaghan appeals the superior court's order
denying his challenge to emergency regulations [Fn. 1] promulgated
by the Alaska Division of Elections that temporarily adopt a
partially closed ballot primary election to replace the blanket
primary election prescribed in AS 15.25.060.
          2.   In O'Callaghan v. Coghill, (O'Callaghan I), we
concluded that the blanket primary election prescribed in
AS 15.25.060 did not clearly deprive political parties of their
right of free association, as guaranteed by the First Amendment of
the United States Constitution. [Fn. 2]  In O'Callaghan v. State,
(O'Callaghan II), after considering supplemental briefing requested
in O'Callaghan I, we found AS 15.25.060 to be constitutional. [Fn.
3]  We therefore invalidated regulations promulgated by the
Division of Elections implementing a partially closed ballot
primary. [Fn. 4]
          3.   On June 26, 2000, the United States Supreme Court
decided in California Democratic Party v. Jones that California's
blanket primary statute violates the First Amendment's guarantee of
associational freedom. [Fn. 5]  
          4.   Having reviewed Jones, we find no constitutionally
significant differences between Alaska's primary election law and
the California law declared unconstitutional in Jones.  Nor do we
find any principled basis for concluding that Alaska's blanket
primary election statute remains constitutional in light of Jones. 
Because the United States Constitution's Supremacy Clause requires
states to adhere to the Supreme Court's constitutional
interpretation in Jones, [Fn. 6] we hold that O'Callaghan II's
ruling that AS 15.25.060 is constitutional is no longer tenable.  
          5.   In O'Callaghan I, we determined that the Division of
Elections, as an executive branch agency, would have authority to
"abrogate a statute which is clearly unconstitutional under a
United States Supreme Court decision dealing with a similar law,
without having to wait for another court decision specifically
declaring the statute unconstitutional." [Fn. 7]  We conclude that
AS 15.25.060 is clearly unconstitutional and that, given Jones, the
division had authority to abrogate the statute.
          6.   By acknowledging in O'Callaghan I and O'Callaghan II
that the validity of the challenged regulations turned on the
unconstitutionality of AS 15.25.060, we implicitly determined that
the division's power to abrogate a clearly unconstitutional statute
triggered its authority to regulate on a temporary basis in an
emergent situation like the situation we face here. [Fn. 8]  The
Supreme Court issued Jones less than two months before the Alaska
primary's scheduled date.  The Alaska Legislature is out of session
and will not reconvene until January 2001.  Given these
circumstances, we conclude that the division has authority to
promulgate emergency regulations to implement a primary election
that complies with the constitutional mandate of Jones.  We find
that the division's power to take the temporary action needed to
ensure a timely and constitutional primary is solidly rooted in the
principle of necessity and in the division's statutory powers of
supervision over elections. [Fn. 9]  Accordingly, we reject
O'Callaghan's contention that the division lacked authority to
adopt curative emergency regulations in response to the decision in
Jones.  
          7.   We also reject O'Callaghan's argument that the
division's emergency regulations prescribe an unlawful form of
ballot, "the same ballot type declared unlawful by this Court" in
O'Callaghan II.  In that case we declared the partially closed
ballot unlawful only because it was inconsistent with AS 15.25.060;
in no other context did we even consider the validity of that form
of ballot.  Because we found AS 15.25.060 to be constitutional, we
simply ruled that the division lacked authority to adopt or
implement any other form of primary ballot -- including the
partially closed ballot. [Fn. 10]  Now that Jones overturns
O'Callaghan II's constitutional ruling, our decision in that case
provides no basis for questioning the division's new emergency
regulations; nor did it ever support the conclusion that a
partially closed ballot primary is inherently an unlawful form of
election.  
          8.   We are similarly unpersuaded by O'Callaghan's
reliance on O'Callaghan II for the proposition that a partially
closed ballot primary extinguishes his right to vote for candidates
of his choice, regardless of party affiliation.  O'Callaghan quotes
language from O'Callaghan II supporting this proposition; but the
language he quotes simply paraphrased provisions of the Alaska
Statutes establishing Alaska's "blanket primary" system [Fn. 11] --
a system that Jones has now declared unconstitutional.  As the
state correctly notes, the United States Supreme Court, in Jones,
expressly considered and rejected the notion of a fundamental right
to vote in a primary election for all candidates, regardless of
party affiliation. [Fn. 12] 
          9.   O'Callaghan raises a closer question in contending
that the partially closed primary violates the Alaska
Constitution's guarantee that "[s]ecrecy of voting shall be
preserved." [Fn. 13]  By requiring voters who opt for the
Republican ballot to disclose their party affiliation as a
condition of receiving their ballots, the partially closed ballot
system implicates legitimate privacy concerns.  But party
affiliation has traditionally been a matter of public record. [Fn.
14]  While the partially closed ballot system requires voters to
disclose their ballot preference in addition to their party
affiliation, case law in other jurisdictions addressing the secrecy
issue firmly establishes that, in the context of primary elections
-- elections whose central purpose is to select parties' nominees
[Fn. 15] -- this marginally greater demand for disclosure falls
well outside the Constitution's core concern for preserving the
secrecy of voting, as opposed to the secrecy of party preference.
[Fn. 16]  On balance, then, we conclude that, as long as the
division takes necessary steps to prevent individual voters' ballot
preferences from becoming a matter of public record, [Fn. 17] the
partially closed ballot does not impermissibly infringe the
Constitution's voting secrecy clause. 
          10.  We reject as meritless O'Callaghan's contention that
inclusion of a "statutory ballot" in the partially closed ballot
system is impermissible because Jones declared AS 15.25.060 -- the
statute at issue -- unconstitutional.  Jones holds that the freedom
of association guaranteed by the First Amendment prohibits a
statutory ballot that, like the ballot prescribed in AS 15.25.060,
allows voters who are not party members to vote in a primary
election for candidates of a party that does not consent to the
non-members voting. [Fn. 18]  But this constitutional prohibition
dissipates when, as here, an emergency regulation prescribes a
reformed "statutory ballot" that omits all candidates of the non-
consenting party.  Since the "statutory ballot" at issue here
refers to the ballot that the division has reformed to comply with
Jones's mandate, we find nothing impermissible in the division's
specification that the partially closed ballot system include a
"statutory ballot."  
          11.  We similarly find no merit in O'Callaghan's claim
that the division ignored the "clear mandate" of Jones by adopting
a partially closed primary ballot instead of a non-partisan blanket
primary ballot.  
               a.   Although Jones does expressly point out that a
non-partisan blanket primary would pass constitutional muster,
Jones says nothing to suggest that this is the only
constitutionally permissible form of primary ballot or that the
non-partisan ballot form deserves preference over other
constitutionally permissible forms. [Fn. 19]  
               b.   Publication of Jones on June 26 left the
division less than two months to adopt, implement, and carry out a
new form of primary election that would not violate the Republican
Party's associational rights.  A non-partisan blanket ballot of the
kind described in Jones would have forced the division to set in
motion an unfamiliar process that would have required it to call
upon each political party to nominate the party's own slate of
candidates for the non-partisan primary ballot. [Fn. 20]  
               c.   The viability of this non-partisan system
presupposes adequate time for its implementation by the division
and by political parties alike -- time that scarcely existed in
this case. [Fn. 21]
               d.   Moreover, the non-partisan primary's central
assumption that political parties should select their candidates
directly conflicts with a fundamental policy long embedded in
Alaska's election laws: the notion that party candidates should be
nominated by an open, public process -- that candidates "be
nominated in a primary election by direct vote of the people" [Fn.
22] and that "the candidate receiving the highest number of votes
for an office by a political party" appear on the general election
ballot. [Fn. 23]  
               e.   In sum, given the time constraints facing the
division, the untried and relatively elaborate demands it would
face in implementing a non-partisan primary, and the basic
incompatibility of that process with Alaska's statutory goal of
requiring -- to the maximum permissible extent -- that political
parties nominate their candidates through an open and public
electoral process, we find no basis for concluding that the
division overstepped its emergency powers by opting for the
partially closed primary ballot. 
          12.  For the foregoing reasons, we AFFIRM the superior
court's decision denying O'Callaghan's request for injunctive and
declaratory relief. 


                            FOOTNOTES


Footnote 1:

     6 Alaska Administrative Code (AAC) 28.101-.900.


Footnote 2:

     See 888 P.2d 1302, 1305-06 (Alaska 1995).


Footnote 3:

     See 914 P.2d 1250, 1263 (Alaska 1996).


Footnote 4:

     See id. at 1264.


Footnote 5:

     See 120 S. Ct. 2402, 2414 (2000).


Footnote 6:

     See U.S. Const. art. VI.


Footnote 7:

     888 P.2d at 1304.


Footnote 8:

     See O'Callaghan II, 914 P.2d at 1264; O'Callaghan I, 888 P.2d
at 1305.


Footnote 9:

     See AS 15.15.010 (giving the director of elections authority
over the conduct of state elections); AS 15.25.090 (extending this
authority to primary elections); and AS 44.62.250 (authorizing
adoption of emergency regulations).


Footnote 10:

     See O'Callaghan II, 914 P.2d at 1263-64.


Footnote 11:

     See O'Callaghan II, 914 P.2d at 1252.


Footnote 12:

     See Jones, 120 S. Ct. at 2407 n.5, 2413.


Footnote 13:

     Alaska Const. art. V, sec. 3.


Footnote 14:

     See AS 15.07.127 (requiring director to compile list of
registered voters that includes party affiliation, and to provide
this list to "[a]ny person").


Footnote 15:

     See AS 15.25.010 ("Candidates for the elective state executive
and state and national legislative offices shall be nominated in a
primary election by direct vote of the people . . . .") (emphasis
added); AS 15.25.100 ("The director shall place the name of the
candidate receiving the highest number of votes for an office by a
political party on the general election ballot.") (emphasis added).


Footnote 16:

     See, e.g., Lett v. Dennis, 129 So. 33, 34-35 (Ala. 1930)
("[I]t is the secrecy of the ballot which the [Alabama statute]
protects and not secrecy as to the political party with which the
voters intend to act."); Katz v. Fitzgerald, 93 P. 112, 113 (Cal.
1907) ("[I]t is the secrecy of the ballot which [the California
constitution] protects, and not secrecy as to the political party
with which the voter desires to act."); State v. Beggs, 271 P. 400,
402 (Kan. 1928) ("The secrecy required [by the Kansas constitution]
is as to his vote for candidates, not as to political leaning or
party affiliation."); Ferency v. Secretary of State, 476 N.W.2d
417, 424-25 (Mich. App. 1991), rev'd on other grounds, 486 N.W.2d
664 (Mich. 1992) (ballot secrecy requirement of Michigan
constitution not violated by requiring voters to declare publicly
their party affiliation in order to vote in primary).


Footnote 17:

     O'Callaghan has not contended or shown that ballot preference
would become a matter of public record under the challenged
emergency regulations.  


Footnote 18:

     See Jones, 120 S. Ct. at 2409-10.


Footnote 19:

     See id. at 2414.


Footnote 20:

     See id.


Footnote 21:

     O'Callaghan filed suit on July 5, 2000, the superior court
issued its ruling on July 12, we heard oral argument on July 25
following expedited briefing, and issued a preliminary order
affirming on July 25.


Footnote 22:

     AS 15.25.010.


Footnote 23:

     AS 15.25.100.