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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. State v. Alaska Democratic Party (8/24/2018) sp-7279

State v. Alaska Democratic Party (8/24/2018) sp-7279

         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, email  

                                                                                     

         corrections@akcourts.us.  



                   THE SUPREME COURT OF THE STATE OF ALASKA  



STATE OF ALASKA,                                       )  

                                                       )   Supreme Court No. S-16875  

                           Appellant,                  )  

                                                       )   Superior Court No. 1JU-17-00563 CI  

         v.                                            )  

                                                       )   O P I N I O N  

ALASKA DEMOCRATIC PARTY,                               )  

                                                       )   No. 7279 - August 24, 2018  

                           Appellee.                   )  

                                                       )  



                  Appeal from the Superior Court of the State of Alaska, First  

                                                                   

                  Judicial District, Juneau, Philip M. Pallenberg, Judge.  



                  Appearances:      Laura   Fox,   Assistant   Attorney   General,  

                  Anchorage, and Jahna Lindemuth, Attorney General, Juneau,  

                  for Appellant.  Jon Choate, Choate Law Firm LLC, Juneau,  

                                                                          

                  for Appellee.  



                  Before:  Stowers, Chief Justice, Winfree, Maassen, Bolger,  

                  and Carney, Justices.  



                  WINFREE, Justice.  



I.       INTRODUCTION  



                  The  Alaska  Democratic  Party  amended  its  bylaws  to  allow  registered  



independent  voters  to  run  as  candidates  in  its  primary  elections  without  having  to  

                   



become Democratic Party members, seeking to expand its field of candidates and thereby  

                                                                                                       



nominate general election candidates more acceptable to Alaska voters.  But the Division  

                                                                                                


----------------------- Page 2-----------------------

                                                                                                        

of Elections refused  to  allow  independent voter candidates on  the Democratic Party  



                                                                                                       

primary election ballot, taking the position that Alaska election law - specifically the  



                                                                          

"party affiliation rule" - prevented anyone not registered as a Democrat from being a  



                                                                                     

candidate in the Democratic Party's primary elections.  The Democratic Party sued for  



                                                                                               

declaratory and injunctive relief preventing enforcement of the party affiliation rule, and  



                     

the  superior  court  ruled  in  its  favor.    The  State  appealed.    Because  the  Alaska  



                              

Constitution's free association guarantee protects a political party's choice to open its  



                                                                                                           

primary elections to independent voter candidates, and because in this specific context  



the State has no countervailing need to enforce the party affiliation rule, we affirm the  



superior court's decision.  



II.       FACTS AND PROCEEDINGS  



          A.        Alaska's Election System  



                                          

                    Alaska uses a mandatory primary election or petition process to decide who  

                                                                                                                           1   A  

                                                                            

may  appear  as  a  candidate  for  statewide  office  on  the  general  election  ballot. 



                                                                                        2 

candidate affiliated with a recognized state political party  may appear on the general 

election  ballot  by  winning  a  primary  election  against  other  party  candidates.3                                       A  



          1         See generally AS 15.25.  



          2         See  AS  15.80.008  (defining  recognized  political  party);  AS  15.80.010  



(defining political party); AS 15.07.050 (providing for voter registration affiliating with  

political party).  Alaska also recognizes two types of unaffiliated voters:  "nonpartisan"  

                                                                                

and  "undeclared."    AS  15.07.075.    A  nonpartisan  voter  affirmatively  registers  as  

nonpartisan.    Id.    An  undeclared  voter  registers  as  undeclared,  fails  to  declare  an  

                                    

affiliation, or declares affiliation with an unrecognized political group or party.  Id.  We  

                                                                                                                             

refer to both types of voters as "independents" or "independent voters."  



          3  

                                 

                    See AS 15.25.010 (providing for party primary election); AS 15.25.100  

                                                                                           

(providing that winner of party primary election has name placed on general election  

ballot).  



                                                               -2-                                                         7279
  


----------------------- Page 3-----------------------

                                                           

candidate not representing a political party may appear on the general election ballot by  



                                                                                                                         4  

submitting a petition with a sufficient number of qualified voters' signatures.   Aside  



                                                                                      5 

                                                                       

from provisions for replacing candidates who withdraw,  the only other way a candidate 

may be on the general election ballot is by filing as a write-in candidate.6  



                                            

                     Political party status is measured by each party's support statewide.  "[A]n  



organized group of voters that represents a political program" qualifies as a political  



                                                                                                                  

party if it nominated a candidate for governor who received at least three percent of the  



                        

total votes cast for governor in the preceding general election or if it has registered voters  



                                                                                                                                     7  

                                                                                          

in the state equal to at least three percent of the votes cast for governor in that election. 



                                                                  

Party status has several benefits:  political parties may make and receive larger political  



contributions, nominate members of election boards, appoint poll watchers, obtain seats  



          4          See  AS  15.25.140  (providing  for  petition);  AS  15.25.190  (providing  



successful petitioner has name placed on general election ballot); see also AS 15.25.160  

                                 

(setting signature requirement for statewide office at one percent of number of voters in  

                                                                               

state in preceding general election); AS 15.25.170 (setting signature requirement for  

                                           

district-wide office at one percent of number of voters in district in preceding general  

election).  



          5  

                                                                                                   

                     See  AS 15.25.110 ("If a candidate of a political party nominated at the  

primary election dies, withdraws, resigns, becomes disqualified . . . , or is certified as  

being incapacitated . . . , the vacancy may be filled by party petition.").  



          6          See  AS  15.25.105(a)  ("If  a  candidate  does  not  appear  on  the  primary  



                                                                                                 

election ballot or is not successful in advancing to the general election and wishes to be  

a candidate in the general election, the candidate may file as a write-in candidate.").  



          7  

                                                                                                                

                     AS 15.80.010(27)(A).  If the governorship was not on the ballot, the rule  

                                       

applies  using  the  office  of  United  States  senator.    AS  15.80.010(27)(B).    If  neither  

position  was  on  the  ballot,  the  rule  applies  using  the  office  of  United  States  

representative.  AS 15.80.010(27)(C).  



                                                                 -3-                                                          7279
  


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on the Alaska Public Offices Commission, and, most importantly, gain automatic access  

to the general election ballot for its candidates through primary elections.8  



                                                                              

                    Under  Alaska  Statutes  any  political  party  member  may  run  in  a  party  



                                                                                     

primary by filing a declaration of candidacy, statement of income sources and business  



                                    9  

                                                                                                     

interests, and filing fee.             The declaration of candidacy includes a statement under oath  

that the person meets Alaska's candidate eligibility requirements,10 and eligibility is  



                                                                                     11  

subject  to  verification  by  the  director  of  elections.                               The  candidate  eligibility  



requirements  include  restrictions  on  residency,  citizenship,  voter  qualification,  age,  



                                                                                  12  

                                                                                                        

multiple candidacies, cross-filing, and party affiliation.                            Under this last requirement -  



                                                                    

the party affiliation rule - primary election candidates must be "registered to vote as a  



                                                                                                     13  

member of the political party whose nomination is being sought."                                         A political party  



                                                                                   

may not waive the party affiliation rule, but it may opt to have a single primary election  



                                                                                                                  14  

                                                                                                                       Political  

ballot or a combined primary election ballot with one or more other parties. 



          8         See  AS  15.13.070  (contributions);  AS  15.10.120  (election  boards);  



AS 15.10.170 (poll watchers); AS 15.13.020(b) (Alaska Public Offices Commission);  

AS  15.25.100  (general  election  ballot  access);  see  also  State,  Div.  of  Elections  v.  

                        

Metcalfe , 110 P.3d 976, 981-82 (Alaska 2005) (explaining benefits recognized political  

                                                                                          

parties receive).  



          9         See   AS   15.25.030(a)   (declaration   of   candidacy);   AS   15.25.030(b)  



(statement of income sources and business interests); AS 15.25.050 (filing fee).  



          10        See AS 15.25.030(a).  



          11        See AS 15.25.042.  



          12        See AS 15.25.030(a)(6), (9), (10), (11), (14), (16).  



          13        See AS 15.25.030(a)(16).  



          14  

                                        

                    See State v. Green Party of Alaska (Green Party I), 118 P.3d 1054, 1070  

                                                                                                               (continued...)  



                                                               -4-                                                         7279
  


----------------------- Page 5-----------------------

parties also may choose whether to allow independent voters or other parties' voters to  

                                                 

                                                    

participate in their primary elections.15  By default, primary election ballots are designed  



to allow independent voters to participate in a political party's primary election but to  

exclude other political parties' voters from participating in that primary election.16  



                   Alaskans may change their voting registration status at any time.17  



          B.       The Democratic Party's Challenge  



                   The  Democratic  Party  is  a  recognized  Alaska  political  party  with  over  

                                                      



75,000 members.  The Democratic Party historically allowed only Democratic Party  



                                                                                              

members  to  run  as primary  election  candidates, but it recently  became interested  in  



                                                                                 

allowing independents to run as candidates in its primary election.  The Democratic Party  



first sought judicial approval for this course of action in 2016, but the superior court  



                                                       

dismissed that case as unripe because the Democratic Party's bylaws did not then allow  



independent candidacies.  



                   The Democratic Party later amended its bylaws to allow independent voters  



                                                                           

to participate as candidates in its primary elections. The Democratic Party petitioned the  



Division of Elections to allow these candidacies, but the Division denied the request  



                                                                                                   

because it conflicted with the party affiliation rule.  The Democratic Party then brought  



                                                                     

the current lawsuit, once more challenging the party affiliation rule's constitutionality.  



          14       (...continued)  



(Alaska 2005).  The Democratic Party opted to have a combined ballot with other parties  

after our ruling in Green Party I.  



          15       See AS 15.25.014(b).  



          16       See AS 15.25.010.  



          17       See AS 15.07.040 ("A person who is qualified .  .  . is entitled to register at  



any time . . . .").  



                                                            -5-                                                      7279
  


----------------------- Page 6-----------------------

                           The parties filed cross-motions for summary judgment, and the superior  



                                                                                                                          

court granted the Democratic Party's and denied the State's.  The court concluded that  



                                

the Democratic Party had an associational right under the Alaska Constitution to allow  



                                                                         

independent candidates to run in its primary election and that the party affiliation rule  



severely burdened this right by infringing on the Democratic Party's internal decision- 



making.  The court also concluded that the State's interest in requiring candidates and  



                                 

political parties  to have demonstrable public support was not advanced by the party  



                                                                                                          

affiliation rule, that the fit between the State's interest in preventing voter confusion and  



                                                                  

the party affiliation rule was not close enough to justify the burden on the Democratic  



Party's associational right, and that the State had not demonstrated how its interest in  



political stability was advanced by the party affiliation rule.  



                           The State appealed.  We expedited consideration of the appeal and issued  



                                                                                                         18                                                              19 

a brief order affirming the superior court's judgment.                                                       We now explain our decision.  



             18           State v. Alaska Democratic Party, No. S-16875 (Alaska Supreme Court  



Order, Apr. 4, 2018).  



             19            "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."   Green Party I, 118 P.3d at 1059 (citing                                                         Sonneman v. State, 969 P.2d  

632,  635  (Alaska   1998)).     "Constitutional claims                                                . . . are           questions   of law               and  are  

reviewed de novo.  In conducting de novo review, we will 'adopt the rule of law that is     

most persuasive in light of precedent, reason, and policy.' "   Id.  (footnote omitted) (first  

citing Sonneman, 969 P.2d at 635; then quoting Guin v. Ha, 591 P.2d 1281, 1284 n.6  

(Alaska 1979)).  



                                                                                   -6-                                                                           7279
  


----------------------- Page 7-----------------------

III.      DISCUSSION  



                   The Alaska Constitution grants every person the right to "freely speak,  



                                                                                                                   20  

                                                                                                                       This  

write, and publish on all subjects, being responsible for the abuse of that right." 



                 

inherently guarantees the rights of people, and political parties, to associate together to  



                                        21 

                                            When those associational rights conflict with another law,  

achieve their political goals. 



                                               

like the Alaska election code, it is our duty to decide whether the Constitution has been  

violated.22  



                                                              

                   Our constitutional inquiry is governed by State v. Green Party of Alaska  



(Green Party I):  



                                                           

                   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 [S]tate's interests in order to determine "the extent to  

                                                                                               

                   which  those  interests  make  it  necessary  to  burden  the  

                   plaintiff's rights."  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  



          20       Alaska Const. art. I,  5.  



          21       See Green Party I, 118 P.3d at 1064-65;  Vogler v. Miller ( Vogler I), 651  



P.2d 1, 3 (Alaska 1982).  



          22       "[O]ur  duty  to  uphold  the  Alaska  Constitution  is  paramount;  it  takes  



precedence over the politics of the day and our own personal preferences."  Planned  

Parenthood of the Great Nw. v. State , 375 P.3d 1122, 1133 (Alaska 2016) (citing Alaska  

                                                                                                          

Const. art. XII,  5 (requiring public officers to swear to "support and defend . . . the  

                                                                                                         

Constitution of the State of Alaska")); Malone v. Meekins , 650 P.2d 351, 356 (Alaska  

                                      

1982)  ("[T]he  judicial  branch  .  .  .  has  the  constitutionally  mandated  duty  to  ensure  

                                                                                                                

compliance with the provisions of the Alaska Constitution . . . .").  



                                                             -7-                                                      7279
  


----------------------- Page 8-----------------------

                    between the challenged legislation and the [S]tate's interest  

                                           [23] 

                    must be closer.  



                                                              

Under this framework we conclude that the Democratic Party has an associational right  



                                 

to choose its general election nominees, that this right is substantially burdened by the  



                                                                                                 

party affiliation rule, and that the State's asserted interests do not have a sufficiently  



                                 

close fit to justify the burden.  For these reasons - and based on the unique facts of this  



case, specifically the Democratic Party's bylaws allowing independent voters, in addition  



                                                                             

to  Democratic  Party  voters,  to  be  candidates  in  primary  elections  -  we  affirm  the  



superior court's decision to enjoin the party affiliation rule as unconstitutional.  



                                                                                            

          A.	       The Democratic Party Has An Associational Right To Choose General  

                    Election Nominees That Can Include Allowing Independent Voters To  

                    Run As Candidates In Its Primary Elections.  



                    The first step in our analysis is to decide whether the Party "has in fact  



                                                                 24  

asserted a constitutionally protected right."                        We conclude that the Party has asserted a  



constitutionally protected right - the right to choose its general election nominees.   



                    We begin our analysis with the uncontroversial premise that political parties  



                                                                                

have  a  constitutional  right  to  choose  their  general  election  nominees.    This  right  is  



                                                                        

reflected  throughout  United  States  Supreme  Court  decisions  interpreting  the  First  



Amendment, which we consider in our interpretation of the Alaska Constitution; the  



                                                                                                                                 25  

                                                                                                  

Court has struck down laws requiring binding open presidential preference primaries, 



          23        Green Party I, 118 P.3d at 1061 (footnotes omitted) (quoting                               O'Callaghan  



v. State, 914 P.2d 1250, 1254 (Alaska 1996)).  



          24        See id.  



          25  

                                                       

                    See Democratic Party of U.S. v. Wis. ex rel. La Follette, 450 U.S. 107, 126  

(1981).  



                                                               -8-	                                                        7279
  


----------------------- Page 9-----------------------

                                               26  

                       

laws  requiring  closed  primaries,                laws  preventing  a  party  from  endorsing  primary  



                27                                                         28 

candidates,         and  laws  requiring  a  blanket  primary.                    Even  in  cases  that  sustained  



                                                                                                29  

                                                                                                    There can be no  

challenged laws, the existence of this right has not been questioned. 



doubt that, at least broadly speaking, the Democratic Party has the right to choose its  



general election nominees.  



                                                                                                  

                   The more difficult question is whether this general right to choose election  



                                                                                        

nominees can include allowing independents to be candidates in the Democratic Party's  



primary elections.  We conclude that it can.  



                   The United States Supreme Court suggested that such a right existed in  



Tashjian v. Republican Party of Connecticut, when it observed:  



                            Were the State to restrict by statute financial support  

                                                       

                   of the Party's candidates to Party members, or to provide that  

                                                          

                   only Party members might be selected as the Party's chosen  

                   nominees  for  public  office,  such  a  prohibition  of  potential  

                   association with nonmembers would clearly infringe upon the  

                                      

                   rights of the Party's members under the First Amendment to  



          26       See Tashjian v. Republican Party of Conn., 479 U.S. 208, 225 (1986).  



          27       See Eu v. S.F. Cty. Democratic Cent. Comm., 489 U.S. 214, 229 (1989).  



          28       See Cal. Democratic Party v. Jones, 530 U.S. 567, 586 (2000).  



          29       See,  e.g.,  Timmons  v.  Twin  Cities  Area  New  Party,   520   U.S.  351,  359  



(1997) ("[T]he New Party,  and not someone else, has the right to select the New Party's  

'standard  bearer.'  ");  Storer  v.  Brown ,   415  U.S.  724,  736-37  (1974)  (upholding  

disaffiliation  law  because  of important state  interests, not failure  to  assert a right); S.D.  

Libertarian Party v. Gant , 60 F. Supp. 3d 1043, 1050 (D.S.D. 2014) (holding affiliation  

requirement  "only  minimally  burdens  [the  political  party's]  associational  rights"  

                                             

(emphasis added)).  



                                                           -9-                                                     7279
  


----------------------- Page 10-----------------------

                    organize  with  like-minded  citizens  in  support  of  common  

                                          [30] 

                    political goals.  



Though dicta, this language plainly contemplated that the First Amendment might protect  



the Democratic Party's asserted right to associate with independent candidates.  



                    Our previous case law likewise suggests this result.  In Green Party I the  



                                                                              

Green Party of Alaska and the Republican Moderate Party challenged a statute requiring  



                                                                                                      

"each political party to have its own primary ballot on which only candidates of that  



                                  31  

                                                                          

political party appear."              The two parties sought to present their respective candidates  



                                                                                                         

on  a  combined  ballot  and  asserted  the  statute  unconstitutionally  burdened  their  



                               32  

associational   rights.                We   agreed,         concluding          that   "political       parties      have     a  



                                                                                                 

constitutionally protected associational interest in opening their ballots to voters who  



                                                                                                     33  

                                                                                                         In reaching this  

would otherwise vote in the primaries of their own political parties." 



                                                                                                  

conclusion, we favorably noted that in Tashjian "the political party itself wished to invite  



                                                                                                          

independent voters to participate in its primary election" and thus "there was 'no conflict  



                                                                                               34  

between associational interests of members and nonmembers.' "                                      We also interpreted  



                                                                                        

California Democratic Party v. Jones as "reaffirm[ing] the reasoning behind Tashjian,"  



                                                                                  

and  we  highlighted  Jones 's  language  emphasizing  the  importance  of  selecting  a  



          30        Tashjian, 479 U.S. at 215 (emphases added).   



          31        Green Party I, 118 P.3d 1054, 1057 (Alaska 2005).  



          32        Id .  



          33        Id. at 1061.  



          34        Id.   at   1063  (quoting  Tashjian,  479  U.S.  at  215  n.6).    In  Tashjian  the  



Connecticut Republican Party sought to allow  independent  voters to participate as voters  

in its primary election  (an  "open" p              rimary).  479  U.S. at 212-13.  The Court held that a  

state statute prohibiting open primaries unconstitutionally burdened the Connecticut  

Republican Party's associational rights.  Id. at 225.  



                                                             -10-                                                        7279
  


----------------------- Page 11-----------------------

              35  

nominee.          In Green Party I we explicitly rejected the State's argument that Tashjian did  

                                           



not support the existence of a right because it limited its holding to independent voters;  

                                                      



we instead embraced the "overarching principle[s]" of Jones and Tashjian, recognizing  

                                                           



"[t]he right to determine who may participate in selecting [a party's] 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."36  We noted that  

                                                                                                               



"where a party invites a voter to participate in its primary and the voter seeks to do so,  

                                              



we should begin with the premise that there are significant associational interests at  

stake."37  



                    By analogy to Green Party I, the Democratic Party's associational right to  

                                                                                                    



choose its general election nominees does not depend on party registration:  "[W]here  

                                                                                        



a party invites a [candidate] to participate in its primary and the [candidate] seeks to do  

                                                                



so, we should begin with the premise that there are significant associational interests at  

                                                                



          38  

stake."        We therefore conclude that the Democratic Party has an associational right to  

                                                                                                    



choose its general election nominees and that the right can include allowing independents  



to run in its primary elections.  



          35        Green Party I, 118 P.3d at 1064.  In Jones the California Democratic Party  



sought  to  prevent  voters  of  other  political  parties  from  participating  in  its  primary  

election (a "closed" primary).  530 U.S. 567, 571 (2000).  The Supreme Court held that  

                                                                                                                      

a state statute mandating a blanket primary in which voters of one political party could  

vote  in  another  political  party's  primary  election  unconstitutionally  burdened  the  

California Democratic Party's associational rights.  Id. at 586.  



          36        Green Party I, 118 P.3d at 1064.  



          37        Id. at 1064 n.72 (quoting  Clingman v. Beaver, 544 U.S. 581, 602 (2005)  



(O'Connor, J., concurring)).  



          38        See id. (quoting Clingman, 544 U.S. at 602 (O'Connor, J., concurring)).  



                                                              -11-                                                        7279
  


----------------------- Page 12-----------------------

         B.        The Burden On The Democratic Party's Rights Is Substantial.  



                   The next step in our analysis is evaluating the "character and magnitude of  

                                                               



the asserted injury to the" Democratic Party's associational right to choose its general  

                          39  The extent of the burden determines how closely we will scrutinize  

election nominees.                                



the State's justifications for the law:  substantial burdens require compelling interests  

                                                                                   



narrowly tailored to minimally infringe on the right; modest or minimal burdens require  



only that the law is reasonable, non-discriminatory, and advances "important regulatory  

interests."40  



                   We  conclude  that  the  party  affiliation  rule  substantially  burdens  the  

                          



Democratic Party's right to choose its general election nominees.  We recognize there  



                                                                                                    

are federal cases holding that candidate eligibility restrictions like the party affiliation  



                                                41  

                                                    Perhaps most relevant to this case, in Clingman v.  

rule present only a modest burden. 



Beaver a plurality of the United States Supreme Court reasoned that a party registration  

                                                                             



requirement does not severely burden parties' associational rights because "[t]o attract  

                                                                                     



         39        Id.  at 1061 (quoting O'Callaghan v. State, 914 P.2d 1250, 1254 (Alaska  



1996)).  



         40        See O'Callaghan, 914 P.2d at 1254; see also Timmons v. Twin Cities Area   



New Party , 520 U.S. 351, 358 (1997).  



         41        See, e.g.,  Clingman, 544 U.S. at 590-91 (plurality opinion) (prohibiting  



other parties' voters from voting in Libertarian primary not severe burden); id. at 604  

(O'Connor, J., concurring) (prohibiting other parties' voters from voting in Libertarian  

                                                         

primary is modest burden);  Timmons, 520 U.S. at 363-64 (holding anti-fusion law -  

preventing parties from nominating candidate already nominated by another party - not  

                                                                 

severe burden); Libertarian Party of Mich. v. Johnson , 714 F.3d 929, 932 (6th Cir. 2013)  

(affirming lower court's conclusion that sore loser statute - preventing parties from  

nominating  candidate  who  ran  and  lost  in  another  primary  election  -  not  severe  

burden); S.C. Green Party v. S.C. State Election Comm'n, 612 F.3d 752, 757 (4th Cir.  

2010) (holding sore loser statute not severe burden); S.D. Libertarian Party v. Gant, 60  

F. Supp. 3d 1043, 1050 (D.S.D. 2014) (holding party affiliation rule not severe burden).  

                                                                                                     



                                                          -12-                                                    7279
  


----------------------- Page 13-----------------------

members of other parties, the [party] need only persuade voters to make the minimal  



                                                    42  

                                                                                  

effort necessary to switch parties."                     The State urges this same reasoning to us, arguing  



the  Democratic  Party  "can  nominate  via  its  party  primary  any  candidate  that  it  can  



                          

convince to run as a party  candidate - i.e., to register with the party." (Emphasis in  



original.)  



                                                       

                    But the constitutional burden cannot be resolved by following these cases  



because the Alaska Constitution is more protective of political parties' associational  



                                                            43  

               

                                                                 In Green Party I we specifically rejected the  

interests than is the federal constitution. 



                                                                                                                    

Clingman reasoning  that the ability  to  register with  a party  lessened  the burden  on  



associational rights, instead concluding that requiring voters to "fully affiliate themselves  



                                                             

with a single political party or to forgo completely the opportunity to participate in that  



                                                                                                      

party's primary . . . place[d] a substantial restriction on the political party's associational  



           44  

                           

rights."        As we explained:  "The choice that the [S]tate 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  



           45  

                                                                                                              

party."          This  choice  changed  "not  just  .  .  .  which  candidates  the  political  party  

ultimately nominates, but also . . . the ideological cast of the nominated candidates."46  



This  change  in  ideological  cast  is  exactly  what  the  Democratic  Party  now  seeks  by  



          42        544  U.S.  at  591  (plurality  opinion); see  also  id.  at  604  (O'Connor,  J.,  



concurring) ("The semiclosed primary law,  standing alone,  does  not impose a significant  

obstacle to participation in the [party]'s primary . . . .").  



          43        See Vogler I, 651 P.2d 1, 3 (Alaska 1982).  



          44         118 P.3d at 1065.  



          45        Id.  



          46        Id.  



                                                               -13-                                                         7279
  


----------------------- Page 14-----------------------

                                                                                                

opening its primary to independent candidates.  To the extent the combined-ballot ban  



in Green Party I substantially burdened the political parties' asserted rights in that case,  



                                                                                                      

so too does the party affiliation rule burden the Democratic Party's asserted rights in this  



        47  

                                                                    

case.       To conclude otherwise would be to reject the very interest that the Democratic  



                                                                                                   

Party  seeks  to  recognize;  the  Democratic  Party  does  not  just  want  primary  election  



                                                                              

candidates who happen to be independent voters, it wants candidates because they are  



                                                                                                    

independent voters.  Even if federal law does not recognize this burden as substantial,  

it does not change the magnitude of the burden under the Alaska Constitution.48  



          C.	        The State Has Failed To DemonstrateA Compelling Interest Justifying  

                     The Burden On The Democratic Party.  



                     Because  the  party  affiliation  rule  substantially  burdens  the  Democratic  



Party's associational rights, the State must justify the burden with sufficiently important  



                     49  

                                                   

state interests.         When weighing whether sufficiently important interests justify a burden  



          47	       See id.  



          48        We  note  further  that  none  of  the  State's  proffered  cases  presented  the  



factual scenario we address here - a political party intentionally amending its bylaws  

                                                                         

to  allow  independent  voters  to  run  as  candidates.    In  Clingman  the  party  sought  to  

               

affiliate with voters of different parties.  544 U.S. 581, 585 (2005).  In Timmons, South  

                                                               

Carolina Green Party, and Johnson , the political parties sought to nominate candidates  

                

who ran in a different party's primary.  See Timmons v. Twin Cities Area New Party, 520  

                                                                                             

U.S. 351, 354 (1997); S.C. Green Party v. S.C. State Election Comm'n, 612 F.3d 752,  

                                                                          

755 (4th Cir. 2010); Libertarian Party of Mich. v. Johnson , 714 F.3d 929, 930-31 (6th  

                                                                           

Cir. 2013).  In Storer and  Van Susteren v. Jones, the parties were not involved in the  

challenge.  See Storer v. Brown, 415 U.S. 724, 726-27 (1974);  Van Susteren v. Jones,  

                                                                                                          

331 F.3d 1024, 1025 (9th Cir. 2003).  And in  Gant the nominee was a member of a  

different political party, not an independent.  See S.D. Libertarian Party v. Gant, 60 F.  

                                                                             

Supp. 3d 1043, 1044 (D.S.D. 2014).  The issue before us would seem to be a matter of  

                                                                  

first impression under federal law.  



          49  

                                                                                                     

                    We  have  described  this  analysis  as  two  steps:                            whether  the  right  is  

                                                                                                                (continued...)  



                                                               -14-	                                                         7279
  


----------------------- Page 15-----------------------

                           

on  associational  rights,  we  evaluate  "whether  the  challenged  legislation  actually  

advances those interests without unnecessarily restricting the political parties' right[s]."50  



                                       

" '[I]t is not sufficient for the [S]tate to assert theoretical possibilities, albeit undesirable  



                                                                         

ones, to justify incursions upon free speech rights protected by the Alaska Constitution.'  



Instead, the [S]tate must explain why the interests it claims are concretely at issue and  



                                                                                        51  

                                                                                                         

how  the  challenged  legislation  advances  those  interests."                               When  reviewing  "the  



                                                                                                                 

adequacy of the [S]tate's explanation, a court must ask not 'in the abstract . . . whether  



                                                                                

fairness, privacy, etc., are highly significant values[ ] but rather . . . whether the aspect  

of fairness, privacy, etc., addressed by the law at issue is highly significant.' "52  



                              

                    If the challenged law advances the relevant aspect of a compelling state  



                                                                

interest, we must weigh the fit between the law and that interest to ensure that the law is  



                                                                  53  

                                                                      Because election decisions necessarily  

not overly restrictive of the protected rights. 



                                                                           

involve judgment on matters of policy ill-suited to judicial second-guessing, we usually  

defer to the legislature's election decisions by reviewing the fit for reasonableness.54  



          49        (...continued)  



sufficiently  important  and  whether  it  is  narrowly  tailored.                             But  in  this  case  the  

                                                                                                       

Democratic Party concedes, and we agree, that each of the State's asserted interests are  

                                                                      

compelling, so we analyze these steps together.  



          50        Green Party I, 118 P.3d at 1065.  



          51        Id. at 1066 (footnote omitted) (quoting  Vogler v. Miller ( Vogler II), 660  



P.2d 1192, 1196 (Alaska 1983) (Rabinowitz, J., concurring)).  



          52        Id. (omissions, emphasis and second alteration in original) (quoting  Cal.  



Democratic Party v. Jones , 530 U.S 567, 584 (2000)).  



          53        See State, Div. of Elections v. Metcalfe, 110 P.3d 976, 980-81 (Alaska  



2005).  



          54        See id. at 981.  



                                                             -15-                                                       7279
  


----------------------- Page 16-----------------------

                                                       

Whether the challenged law is "in the mainstream of the practices of other states" is  

relevant, but not outcome determinative, in assessing reasonableness.55  



                    The  State  claims  compelling,  narrowly  tailored  interests  in  ensuring  



                                                                   

sufficient public support for political parties and candidates, preventing voter confusion,  



and promoting political stability.  We address each asserted interest in turn.  



                                       

                    1.	       The party affiliation rule does not advance the State's interest  

                              in ensuring public support for the Democratic Party.  



                    The  State's  first  asserted  interest  is  in  ensuring  public  support  for  



                                          56  

                                                      

recognized political parties.                 The State argues that it makes sense to confer benefits to  



recognized political parties only if they have significant public support.  And because  



            

public  support  for  a  political  party  is  measured  by  the  strength  of  the  candidates  it  



                 57 

                                                                 

nominates,          the State claims it can ensure that a political party has public support only  



                                                                                                             

if  the  party  and  candidate  are  linked  through  the  party  affiliation  rule.    We  are  



          55        See  id.  (upholding  three  percent  eligibility   threshold  "[i]n  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" (emphasis added));  

Green Party of Alaska v. State (Green Party II), 147 P.3d 728, 736 (Alaska 2006) ("[W]e  

                                                                                      

concur with the superior court that Alaska's requirements are 'within the mid-range' of  

                                                                                         

other states, and that the legislature acted reasonably in using this standard to determine  

                                                       

party eligibility." (emphasis added)); see also Vogler II, 660 P.2d at 1196 (Rabinowitz,  

                                                                                                    

J., concurring) ("I do not join in the court's intimation that the [S]tate could meet its  

                                                                                      

burden of justifying [its law] merely by citing the existence of arithmetically similar  

                                                                

statutes in the other jurisdictions.  Other states are different geographically from Alaska,  

                                                   

have  different  voter  populations,  are  governed  by  their  own  unique  constitutional  

guarantees and have statutory patterns of election laws that may vary substantially from  

                                                                                    

that in Alaska.").  



          56        See supra p. 3.  



          57        See supra note 7 and accompanying text.  



                                                              -16-	                                                        7279
  


----------------------- Page 17-----------------------

unconvinced.  The flaw in the State's argument is that the "link" between candidate and     



political party does not depend on party registration status.   



                                                        

                     The State claims that the party affiliation rule is necessary because "[w]hen  



a Democrat wins the Democratic primary, is listed on the general election ballot as a  



                                                                                                                

Democrat, and wins over voters as a Democrat, those votes reasonably - albeit roughly  



- approximate public support for the Democratic Party."  But as the Democratic Party  



                                                                      

points out, inquiry into voter motivations is inherently speculative:  "[T]he State cannot  



reasonably discern whether a vote for an individual candidate is motivated by support  



                                                                                         

for the [Democratic] Party, support for the [Democratic] Party's policy platform, support  



                                                                                                           

for the candidate, in opposition to another candidate that the voter does not want to see  



elected,  or  some  combination  of  the  above."    Because  the  State  does  not  know  the  



reasons underlying a vote in an open primary election, and even more so in a combined- 



                                             

ballot primary election, the claim that the party affiliation rule allows it to use candidate  



                                                                                         

support as a proxy for party support is illusory.  Rather, as the Democratic Party argues,  



                                                                                                   

"support for the candidate is imputed to the party because the party has associated with  



the candidate as its nominee."  A candidate need not be a registered party member for  



this imputation to occur.  



                     The State counters that, at least to some degree, registration with a political  



                                                                                                                              

party means the candidate "identifies with the party and advocates its views" and that  



                                                                      

voters logically assume this to be true.  But the State cannot show this to be true or even  



                        

likely.  As the United States Supreme Court has noted, "the act of formal enrollment or  



public affiliation with [a] [p]arty is merely one element in the continuum of participation  



                                                                                                          58  

                                                                                                               Given the ease of  

in [p]arty affairs, and need not be in any sense the most important." 



           58        Tashjian v. Republican Party of Conn., 479 U.S. 208, 215 (1986).  



                                                                  -17-                                                                7279  


----------------------- Page 18-----------------------

registration and the lack of party vetting to run as a registered candidate in Alaska,59  a  

                                                                         



candidate who does not support a party's principles or platform could run in a primary  

                                                



as a registered party candidate just as easily as a registered independent candidate.  A  



registered independent candidate could be even more involved with the party and support  



more of the political party's principles and elements of its platform than a registered  



party candidate.  The party affiliation rule does not "concretely" advance the State's  

interest.60  



                   2.	       The party affiliation rule is not narrowly tailored to ensuring  

                             that candidates have sufficient public support.  



                   The State's next asserted interest is in ensuring that candidates demonstrate  

                                                                                      



public support before the State places their names on the general election ballot.  The  

                       



State  argues  that  the  party  affiliation  rule  is  "integral"  to  ensuring  that  candidates  



demonstrate a "significant modicum of support" because the State's recognition of an  



official political party allows it to impute party support to the candidate as a proxy for  



                                                                                 

candidate support.  The State argues that it "cannot infer support for the candidate" if the  



primary winner disavows the political party by refusing to register with it.  



                   We do not find the party affiliation rule a reasonable method of ensuring  



                                                                  

candidate support.  As a threshold matter, the State's interest in ensuring a "modicum of  



                                                                             

support" is not an important interest in and of itself.  As we have explained, the interest  



                                          

in  ensuring  public  support  for  candidates  is  grounded  in  "an  interest  'in  avoiding  



          59       See AS 15.25.030(16) (requiring declaration candidate is "registered to vote  



as a member of the political party whose nomination is being sought"); AS 15.07.050(c)  

(permitting supply of voter registration application indicating political party or group to  

voter affiliated with said political party or group); AS 15.07.070(c) (directing  voter  

                                                                                                      

registration  applications  completed  30  days  before  election  to  be  placed  on  official  

registration list).  



          60       See Green Party I, 118 P.3d 1054, 1066 (Alaska 2005).  



                                                           -18-	                                                     7279
  


----------------------- Page 19-----------------------

confusion,  deception,  and  even  frustration  of  the  democratic  process  at  the  general  

                                                                                                            



                                                                                61  

election' " through frivolous or fraudulent candidates.                             The State's asserted interest in  

                                                



ensuring  a  modicum of support thus is valid only so far as the party affiliation rule  

                  



advances the underlying interests in avoiding confusion, deception, and frustration of the  

                                                  



democratic process at general elections.  



                    Properly  grounded  in  these  interests,  the  party  affiliation  rule  is  not  



                                

narrowly tailored to the State's asserted interest.  The party affiliation rule is simply  



unnecessary in most cases; there generally is no need to impute political party support  



                                                                                                              

in a contested primary election because candidate support is demonstrated by the voters'  



selection of the candidate as the political party's nominee.  The State's interest comes  



                                                                                                  

into play only in an uncontested or low-turnout primary election, in preventing a rogue  



                                                               

candidate from slipping onto the general election ballot as a political party candidate.  



But even if this edge-case scenario occurred with sufficient regularity to warrant concern,  



the  State  has  taken  no  action  to  prevent  it;  under  the  current  statutory  scheme,  an  



                                            

unaffiliated voter could just as easily register as a party member and win as a rogue  

                                                                           62  The State's assertion that the party  

candidate in an uncontested or low-turnout election.                            



affiliation rule is necessary to stop this deception does not withstand reasonable scrutiny.  



                    3.	       The party affiliation rule is not narrowly tailored to prevent  

                                                                                  

                              voter confusion.  



                    The State next argues that the party affiliation rule helps prevent voter  

                                                                                            



confusion arising from independent candidates running under a political party's banner.  



          61         See State, Div. of Elections v. Metcalfe, 110 P.3d 976, 980 (Alaska 2005)  



(quoting  Vogler II, 660 P.2d 1192, 1195 (Alaska 1983)); see also Jenness v. Fortson ,  

                                                                                                    

403 U.S. 431, 442 (1971).  



          62        See AS 15.07.040 ("A person who is qualified . . . is entitled to register at  

                                                                                              

any time throughout the year . . . .").  



                                                             -19-	                                                       7279
  


----------------------- Page 20-----------------------

The  State  first  explains  that  the  primary  election  ballot,  which  can  include  multiple  



           63  

                                                                                                              

parties,        is  designed  to  include  only  each  candidate's  name  and  political  party  



                                                              

designation.  The State thus concludes that voters will find it impossible to tell which  



                                                                                                            

primary election an independent is running in on a combined primary ballot.  The State  



                                                                                                 

next explains that the general ballot, mandated by statute, lists each candidate by name  



                                             64  

                                                                                                    

and associated political party.                  The State thus concludes that the general election ballot  



will either present independent candidates without indicating that a party nominated  



                                                                                                           

them,  a  deceptive  bait-and-switch,  or  present  candidates  as  both  independent  and  



                                                          

political party nominees, which will be "linguistically confusing, deceptive, or both."  



We are not persuaded by either argument.  



                     On the primary election ballot, the State could simply print next to each  



                                                                   

candidate's name the political party whose primary election the candidate is running in.  



On the general election ballot, the State could simply print the nominating party's name  



next to the candidate's name.  The State appears to concede that the primary election  



ballot can be redesigned, but it is unsatisfied with the resulting general election ballot.  



                                                                                                                          

The State argues that the possible descriptors for a candidate's party affiliation - such  



                                                                                                             

as "nonpartisan," "undeclared," "non-affiliated," or "independent" - are by definition  



                                                             

inaccurate, and that whichever word is chosen will cause voter confusion or deception.  



                                                                                                                     

But we believe the State's concerns underestimate the Division of Elections and Alaska  



voters' common sense.   



          63        See Green Party I, 118 P.3d at 1070 (holding that parties have right to   



combine ballots with each other).  



          64        See  AS  15.15.030(5)  ("The  names  of  the  candidates  and  their  party  

                                                                   

designations shall be placed in separate sections on the state general election ballot under  

                             

the office designation to which they were nominated.  The party affiliation, if any, shall  

                                                                                                   

be designated after the name of the candidate.").  



                                                               -20-                                                          7279
  


----------------------- Page 21-----------------------

                   In Green Party I we expressed confidence in Alaska voters, reasoning that  



                  

"given  that Alaska's  blanket  primary  system  caused  little  apparent  voter  confusion,  



                                                    

[there is] no basis for predicting that Alaska voters might be incapable of understanding  

                           65   This  case  is  no  different.    We  are  confident  the  Division  of  

combined  ballots."      



Elections will be able to design a ballot that voters can understand.  And if the State  

                          



remains convinced that the ballot design itself will be confusing, it has several other  



                                                                        

options to adequately inform the public.  The ballot could include prominent disclaimers  



explaining  that  a  candidate's  party  affiliation  denotes  only  the  candidate's  voter  



                                            66  

registration  and  nothing  more.                  The  candidate's  party  affiliation  as  distinct  from  



nominating party could be explained in the candidate's statement in the general election  



              67  

                  The political party could also promote or distance its platform, tenets, and  

pamphlet.                                                                                                  

                                                                                                           68   And the  

philosophy from a candidate's through a paid advertisement in the pamphlet.  

                                                                                                                



State  could  choose  to  educate  the  public  about  new  ballots  through  advertising  or  



                                                                                      69  

explanatory materials, such as the general election pamphlet.                             The State provides no  



basis for predicting that Alaska voters will be unable to understand a Democratic Party  



nominee who nonetheless is, for voter registration purposes, an independent voter.  The  

                                          



         65        118 P.3d at 1068.  



         66        See AS 15.15.030 ("The director shall prepare all official ballots to facilitate  



fairness, simplicity, and clarity in the voting procedure, to reflect most accurately the  

intent of the voter, and to expedite the administration of elections.").  



         67        See AS 15.58.030 (directing parameters of candidate's statement).  



         68        See  AS  15.58.040  (permitting  political  party  to  generally  promote  its  



candidates).  



         69        See AS 15.58.020(a)(9) (designating information to be provided in general  



election  pamphlet,  including  "additional  information  on  voting  procedures  that  the  

lieutenant governor considers necessary").  



                                                          -21-                                                    7279
  


----------------------- Page 22-----------------------

                                                                                                           

 State's bare assertion of an abstract interest in deterring voter confusion and deception  

is therefore insufficient to support the party affiliation rule's substantial burden.70  



                       4.	        The  party  affiliation  rule  either  does  not  advance  or  is  not  

                                  narrowly tailored to promoting political stability interests.  



                       The State's final interest is in "the stability of its political system."  The  



 State  argues  the  party  affiliation  rule  promotes  political  stability  by  "protecting  the  



                                                                                                                                 

integrity of the State's two routes to the general election ballot, preserving party labels  



as meaningful sources of information for voters, and maintaining political parties as  



                                                                                         

viable and coherent entities."  We conclude that the party affiliation rule either does not  



advance these interests or is not narrowly tailored to advancing them.  



                                         

                       First, the party affiliation rule does not advance the integrity of the two  



                                                                                                                                       

routes to the ballot.  In  Green Party I we held that the combined-ballot ban was not  



                                                                                                                      

justified  solely  because  the  State  had  an  interest  in  "nominating  'party  candidates  



                                                                                                                                                 71  

                                                

through a primary election rather than through direct party selection of candidates.' " 



                                                                                                                   

We reasoned that this interest, while "clearly legitimate," was "not concretely at issue"  



            70         See Green Party I              , 118 P.3d at 1068.  The State argues in passing that we   



 should identify at least one ballot that could survive a pre-election challenge and not be           

unduly confusing.   But designing ballots is committed to the Division of Elections, not       

to us.  See AS 15.15.030(1).  And to the extent the State is concerned it will not be able             

to complete pre-election litigation of the ballot design before November elections, this  

concern is unfounded.  See Pebble Ltd. P'ship ex rel. Pebble Mines Corp. v. Lake &  

                                                                                        

Peninsula  Borough ,  262  P.3d  598,  601  n.19  (Winfree,  J.,  dissenting)  ("It  is  not  

                                                                                    

uncommon  for  us  to  consider  a  case  on  an  expedited  basis  and  issue  a  summary  

                                                                           

dispositional order with an opinion to follow . . . ." (citing Miller v. Treadwell , 245 P.3d  

                                  

 867, 867, 874 (Alaska 2010) (ordering expedited briefing, holding oral argument, and  

issuing opinion within 12 days of superior court's  contested election case decision);  

Keller v. French , 205 P.3d 299, 299, 301-02 (Alaska 2009) (ordering expedited briefing,  

                                                               

holding oral argument, and issuing dispositive order within one week of appeal in high- 

                                                                                

profile political dispute, with full opinion following later))).  



            71         118 P.3d at 1066.  



                                                                       -22-	                                                               7279
  


----------------------- Page 23-----------------------

because a challenge to "the way the primary election is conducted"  does not implicate   



                                                               72  

                                                                   The same reasoning applies here.  The State  

the State's interest in holding primaries.                                                                      



clearly has a legitimate interest in having primary elections for candidates associated  



                                                                                                           

with a political party and petitions for candidates not representing a political party.  But,  



     

as  explained  above,  an  independent  candidate  associates  with  the  Democratic  Party  



                                                       

simply by running in its primary.  The two nomination methods' integrity is not under  



threat  because  the  primary  route  to  the  general  election  ballot  remains  solely  for  



                                           

candidates associated with a political party.  In the State's words, there still remain "two  



distinct routes to the general election ballot - one for party candidates and one for non- 



party candidates."  



                                                   

                     Second, the party affiliation rule is not a reasonable way of maintaining  



                                                                                             

political  party  labels'  informational  value  for  voters.                                The  State  asserts  that  an  



                     

independent candidate chosen by independent voters cannot represent the Democratic  



                                                                         

Party message when the candidate runs under the Democratic Party's label.  This is true  



                                         

to a point:  "To the extent that party labels provide a shorthand designation of the views  



of party candidates on matters of public concern, the identification of candidates with  



                                                         

particular parties plays a role in the process by which voters inform themselves for the  



                                          73  

exercise of the franchise."                   But it is also somewhat beside the point.  At the political  



party level, the State's desire to "protect[] the integrity of the Party against the Party  



                                                          74  

                                                              The State cannot force the Democratic Party to  

itself" is not a legitimate motivation. 



favor certain viewpoints for the sake of the State's political system.  And at the general  



                                                           

election  level,  political  parties  may  already  choose  to  nominate  their  candidates  by  



           72        Id.  



           73        Tashjian v. Republican Party of Conn., 479 U.S. 208, 220 (1986).  



           74        See id. at 224.  



                                                                 -23-                                                           7279
  


----------------------- Page 24-----------------------

seeking the input of voters who are independent, or even from other parties.                                   75  We cannot  



say that requiring a candidate to adopt a political party label will do anything to make  



                                                                               

candidates  more  representative  of  the  views  the  State  believes  that  political  party  



represents.    The  party  affiliation  rule  is  not  a  reasonable  way  of  preserving  the  



informational value of party labels.  



                                                                     

                    Finally, the State has not met its burden of showing that the party affiliation  



rule is a reasonable and necessary way of preserving the viability of political parties.  



The  State  asserts  that  the  party  affiliation  rule  is  necessary  for  executive  branch  



                                                                                   

candidates to represent the majority of the people and for legislative branch candidates  



                                                                                          

to organize themselves into "coherent groups."  The State asserts that losing the party  



                        

affiliation rule will "erode the functioning of a democracy and undermine voters' faith  



                                                               

in it."  But the State does not explain why this outcome is likely to occur beyond the bare  



assertion  that  it  will,  and  "it  is  not  sufficient  for  the  [S]tate  to  assert  theoretical  



possibilities,  albeit  undesirable  ones,  to  justify  incursions  upon  free  speech  rights  



                                                         76 

                                                              Absent further explanation, we see no basis for  

protected by the Alaska Constitution." 



                                                                               

concluding  that  the  party  affiliation  rule  is  what  ensures  the  long-term  stability  of  



                                            

Alaska's political system.   This interest cannot justify the substantial burden on the  



Democratic Party's associational rights.  



V.        CONCLUSION  



                    For these reasons, we AFFIRM the superior court's judgment.  



          75        See supra p. 4.  



          76        See Green Party I, 118 P.3d at 1066 (quoting  Vogler II, 660 P.2d 1192,  



1196 (Alaska 1983) (Rabinowitz, J., concurring)).  



                                                              -24-                                                         7279
  

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