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.
OPINION
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 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 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]
III.
DISCUSSION
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 ...