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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

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,


OF ELECTIONS, and JANET ) Supreme Court No. S- 11272
) Superior Court No.
Appellants, ) 3AN-02-10451 CI
v. )
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.

          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.
          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.
     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
          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
          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
          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
The  Court  therefore held that Californias blanket  primary  was
          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
          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.