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State v. Alaska Democratic Party

Supreme Court of Alaska

August 24, 2018


          Appeal from the Superior Court No. 1JU-17-00563 CI of the State of Alaska, First Judicial District, Juneau, Philip M. Pallenberg, Judge.

          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.


         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 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.


         A. Alaska's Election System

         Alaska uses a mandatory primary election or petition process to decide who may appear as a candidate for statewide office on the general election ballot.[1] A candidate affiliated with a recognized state political party[2] may appear on the general election ballot by winning a primary election against other party candidates.[3] A candidate not representing a political party may appear on the general election ballot by submitting a petition with a sufficient number of qualified voters' signatures.[4] Aside from provisions for replacing candidates who withdraw, [5] 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 in the state equal to at least three percent of the votes cast for governor in that election.[7]Party status has several benefits: political parties may make and receive larger political contributions, nominate members of election boards, appoint poll watchers, obtain seats 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 interests, and filing fee.[9] The declaration of candidacy includes a statement under oath that the person meets Alaska's candidate eligibility requirements, [10] and eligibility is subject to verification by the director of elections.[11] The candidate eligibility requirements include restrictions on residency, citizenship, voter qualification, age, multiple candidacies, cross-filing, and party affiliation.[12] Under this last requirement - the party affiliation rule - primary election candidates must be "registered to vote as a member of the political party whose nomination is being sought."[13] A political party may not waive the party affiliation rule, but it may opt to have a single primary election ballot or a combined primary election ballot with one or more other parties.[14] Political 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.

         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 decisionmaking. 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 a brief order affirming the superior court's judgment.[18] We now explain our decision.[19]


         The Alaska Constitution grants every person the right to "freely speak, write, and publish on all subjects, being responsible for the abuse of that right."[20] This inherently guarantees the rights of people, and political parties, to associate together to achieve their political goals.[21] When those associational rights conflict with another law, 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 plaintiffs 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 between the challenged legislation and the [S]tate's interest must be closer.23 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 asserted a constitutionally protected right."[24] 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 Court has struck down laws requiring binding open presidential preference primaries, [25] laws requiring closed primaries, [26] laws preventing a party from endorsing primary candidates, [27] and laws requiring a blanket primary.[28] Even in cases that sustained challenged laws, the existence of this right has not been questioned.[29] There can be no 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 organize with like-minded citizens in support of common political goals.30

         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 political party appear."[31] The two parties sought to present their respective candidates on a combined ballot and asserted the statute unconstitutionally burdened their associational rights.[32] We agreed, concluding 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."[33] In reaching this 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 between associational interests of members and nonmembers.' "[34] We also interpreted California Democratic Party v. Jones as "reaffirming] the reasoning behind Tashjian, " and we highlighted Jones's language emphasizing the importance of selecting a nominee.[35] In Green Party 1we 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 stake."[38] 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.

         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 election nominees.[39] The extent of the burden determines how closely we will scrutinize 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 rule present only a modest burden.[41] Perhaps most relevant to this case, in Clingman v. 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 members of other parties, the [party] need only persuade voters to make the minimal effort necessary to switch parties."[42] 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 interests than is the federal constitution.[43] In Green Party I we specifically rejected the 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 rights."[44] 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 party."[45] 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 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 case.[47] 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 Demonstrate A 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 state interests.[49] When weighing whether sufficiently important interests justify a burden 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 how the challenged legislation advances those interests."[51] 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 not overly restrictive of the protected rights.[53] Because election decisions necessarily 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] 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 ...

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