(Slip Opinion) OCTOBER TERM, 2007 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
WASHINGTON STATE GRANGE v. WASHINGTON
STATE REPUBLICAN PARTY ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE NINTH CIRCUIT
No. 06–713. Argued October 1, 2007—Decided March 18, 2008*
After the Ninth Circuit invalidated Washington’s blanket primary sys-
tem on the ground that it was nearly identical to the California sys-
tem struck down in California Democratic Party v. Jones, 530 U. S.
567, state voters passed an initiative (I–872), providing that candi-
dates must be identified on the primary ballot by their self-
designated party preference; that voters may vote for any candidate;
and that the two top votegetters for each office, regardless of party
preference, advance to the general election. Respondent political par-
ties claim that the new law, on its face, violates a party’s associa-
tional rights by usurping its right to nominate its own candidates and
by forcing it to associate with candidates it does not endorse. The
District Court granted respondents summary judgment, enjoining I–
872’s implementation. The Ninth Circuit affirmed.
Held: I–872 is facially constitutional. Pp. 6–16.
(a) Facial challenges, which require a showing that a law is uncon-
stitutional in all of its applications, are disfavored: They often rest on
speculation; they run contrary to the fundamental principle of judi-
cial restraint that courts should neither “ ‘anticipate a question of
constitutional law in advance of the necessity of deciding it’ ” nor
“ ‘formulate a rule of constitutional law broader than is required by
the precise facts to which it is to be applied,’ ” Ashwander v. TVA, 297
U. S. 288, 483; and they threaten to shortcircuit the democratic proc-
ess by preventing laws embodying the will of the people from being
——————
* Together with No. 06–730, Washington et al. v. Washington State
Republican Party et al., also on certiorari to the same court.
2 WASHINGTON STATE GRANGE v. WASHINGTON STATE
REPUBLICAN PARTY
Syllabus
implemented consistent with the Constitution. Pp. 6–8.
(b) If I–872 severely burdens associational rights, it is subject to
strict scrutiny and will be upheld only if it is “narrowly tailored to
serve a compelling state interest,” Clingman v. Beaver, 544 U. S. 581,
586. Contrary to petitioners’ argument, this Court’s presumption in
Jones—that a nonpartisan blanket primary where the top two
votegetters proceed to the general election regardless of party would
be a less restrictive alternative to California’s system because it
would not nominate candidates—is not dispositive here. There, the
Court had no occasion to determine whether a primary system that
indicates each candidate’s party preference on the ballot, in effect,
chooses the parties’ nominees. Respondents’ arguments that I–872
imposes a severe burden are flawed. They claim that the law is un-
constitutional under Jones because it allows primary voters unaffili-
ated with a party to choose the party’s nominee, thus violating the
party’s right to choose its own standard bearer. Unlike California’s
primary, however, the I–872 primary does not, by its terms, choose
the parties’ nominees. The choice of a party representative does not
occur under I–872. The two top primary candidates proceed to the
general election regardless of their party preferences. Whether the
parties nominate their own candidate outside the state-run primary
is irrelevant. Respondents counter that voters will assume that can-
didates on the general election ballot are their preferred nominees;
and that even if voters do not make that assumption, they will at
least assume that the parties associate with, and approve of, the
nominees. However, those claims depend not on any facial require-
ment of I–872, but on the possibility that voters will be confused as to
the meaning of the party-preference designation. This is sheer specu-
lation. Even if voters could possibly misinterpret the designations, I–
872 cannot be struck down in a facial challenge based on the mere
possibility of voter confusion. The State could implement I–872 in a
variety of ways, e.g., through ballot design, that would eliminate any
real threat of confusion. And without the specter of widespread voter
confusion, respondents’ forced association and compelled speech ar-
guments fall flat. Pp. 8–15.
(c) Because I–872 does not severely burden respondents, the State
need not assert a compelling interest. Its interest in providing voters
with relevant information about the candidates on the ballot is easily
sufficient to sustain the provision. P. 15.
460 F. 3d 1108, reversed.
THOMAS, J., delivered the opinion of the Court, in which ROBERTS,
C. J., and STEVENS, SOUTER, GINSBURG, BREYER, and ALITO, JJ., joined.
ROBERTS, C. J., filed a concurring opinion, in which ALITO, J., joined.
SCALIA, J., filed a dissenting opinion, in which KENNEDY, J., joined.
Cite as: 552 U. S. ____ (2008) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
Nos. 06–713 and 06–730
_________________
WASHINGTON STATE GRANGE, PETITIONER
06–713 v.
WASHINGTON STATE REPUBLICAN PARTY, ET AL.
WASHINGTON, ET AL., PETITIONERS
06–730 v.
WASHINGTON STATE REPUBLICAN PARTY, ET AL.
ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
[March 18, 2008]
JUSTICE THOMAS delivered the opinion of the Court.
In 2004, voters in the State of Washington passed an
initiative changing the State’s primary election system.
The People’s Choice Initiative of 2004, or Initiative 872 (I–
872), provides that candidates for office shall be identified
on the ballot by their self-designated “party preference”;
that voters may vote for any candidate; and that the top
two votegetters for each office, regardless of party prefer-
ence, advance to the general election. The Court of Ap-
peals for the Ninth Circuit held I–872 facially invalid as
imposing an unconstitutional burden on state political
parties’ First Amendment rights. Because I–872 does not
on its face impose a severe burden on political parties’
associational rights, and because respondents’ arguments
to the contrary rest on factual assumptions about voter
confusion that can be evaluated only in the context of an
2 WASHINGTON STATE GRANGE v. WASHINGTON STATE
REPUBLICAN PARTY
Opinion of the Court
as-applied challenge, we reverse.
I
For most of the past century, Washington voters se-
lected nominees for state and local offices using a blanket
primary.1 From 1935 until 2003, the State used a blanket
primary that placed candidates from all parties on one
ballot and allowed voters to select a candidate from any
party. See 1935 Wash. Laws, ch. §§1–5, pp. 60–64. Under
this system, the candidate who won a plurality of votes
within each major party became that party’s nominee in
the general election. See 2003 Wash. Laws, §919, p. 775.
California used a nearly identical primary in its own
elections until our decision in California Democratic Party
v. Jones, 530 U. S. 567 (2000). In Jones, four political
parties challenged California’s blanket primary, arguing
that it unconstitutionally burdened their associational
rights by forcing them to associate with voters who did not
share their beliefs. We agreed and struck down the blan-
ket primary as inconsistent with the First Amendment. In
so doing, we emphasized the importance of the nomination
process as “ ‘the crucial juncture at which the appeal to
common principles may be translated into concerted ac-
tion, and hence to political power in the community.’ ” Id.,
at 575 (quoting Tashjian v. Republican Party of Conn., 479
U. S. 208, 216 (1986)). We observed that a party’s right to
exclude is central to its freedom of association, and is
never “more important than in the process of selecting its
nominee.” 530 U. S., at 575. California’s blanket primary,
——————
1 The
term “blanket primary” refers to a system in which “any person,
regardless of party affiliation, may vote for a party’s nominee.” Cali-
fornia Democratic Party v. Jones, 530 U. S. 567, 576, n. 6 (2000). A
blanket primary is distinct from an “open primary,” in which a person
may vote for any party’s nominees, but must choose among that party’s
nominees for all offices, ibid., and the more traditional “closed primary”
in which “only persons who are members of the political party . . . can
vote on its nominee,” id., at 570.
Cite as: 552 U. S. ____ (2008) 3
Opinion of the Court
we concluded, severely burdened the parties’ freedom of
association because it forced them to allow nonmembers to
participate in selecting the parties’ nominees. That the
parties retained the right to endorse their preferred can-
didates did not render the burden any less severe, as
“[t]here is simply no substitute for a party’s selecting its
own candidates.” Id., at 581.
Because California’s blanket primary severely burdened
the parties’ associational rights, we subjected it to strict
scrutiny, carefully examining each of the state interests
offered by California in support of its primary system. We
rejected as illegitimate three of the asserted interests:
“producing elected officials who better represent the elec-
torate,” “expanding candidate debate beyond the scope of
partisan concerns,” and ensuring “the right to an effective
vote” by allowing nonmembers of a party to vote in the
majority party’s primary in “ ‘safe’ ” districts. Id., at 582–
584. We concluded that the remaining interests—
promoting fairness, affording voters greater choice, in-
creasing voter participation, and protecting privacy—were
not compelling on the facts of the case. Even if they were,
the partisan California primary was not narrowly tailored
to further those interests because a nonpartisan blanket
primary, in which the top two votegetters advance to the
general election regardless of party affiliation, would
accomplish each of those interests without burdening the
parties’ associational rights. Id., at 585–586. The nonpar-
tisan blanket primary had “all the characteristics of the
partisan blanket primary, save the constitutionally crucial
one: Primary voters [were] not choosing a party’s nomi-
nee.” Ibid.
After our decision in Jones, the Court of Appeals for the
Ninth Circuit struck down Washington’s primary as “ma-
terially indistinguishable from the California scheme.”
Democratic Party of Washington State v. Reed, 343 F. 3d
4 WASHINGTON STATE GRANGE v. WASHINGTON STATE
REPUBLICAN PARTY
Opinion of the Court
1198, 1203 (2003). The Washington State Grange2
promptly proposed I–872 as a replacement.3 It passed
with nearly 60% of the vote and became effective in De-
cember 2004.
Under I–872, all elections for “partisan offices”4 are
conducted in two stages: a primary and a general election.
To participate in the primary, a candidate must file a
“declaration of candidacy” form, on which he declares his
“major or minor party preference, or independent status.”
Wash. Rev. Code §29A.24.030 (Supp. 2005). Each candi-
date and his party preference (or independent status) is in
turn designated on the primary election ballot. A political
party cannot prevent a candidate who is unaffiliated with,
or even repugnant to, the party from designating it as his
party of preference. See Wash. Admin. Code §434–215–
015 (2005). In the primary election, voters may select
“any candidate listed on the ballot, regardless of the party
preference of the candidates or the voter.” §434–262–012.
——————
2 The Washington State Grange is a fraternal, social, and civic or-
ganization chartered by the National Grange in 1889. Although origi-
nally formed to represent the interests of farmers, the organization has
advocated a variety of goals, including women’s suffrage, rural electrifi-
cation, protection of water resources, and universal telephone service.
The State Grange also supported the Washington constitutional
amendment establishing initiatives and referendums and sponsored
the 1934 blanket primary initiative.
3 Respondents make much of the fact that the promoters of I–872
presented it to Washington voters as a way to preserve the primary
system in place from 1935 to 2003. But our task is not to judge I–872
based on its promoters’ assertions about its similarity, or lack thereof,
to the unconstitutional primary; we must evaluate the constitutionality
of I–872 on its own terms. Whether the language of I–872 was pur-
posely drafted to survive a Jones-type constitutional challenge is
irrelevant to whether it has successfully done so.
4 “ ‘Partisan office’ means a public office for which a candidate may
indicate a political party preference on his or her declaration of candi-
dacy and have that preference appear on the primary and general
election ballot in conjunction with his or her name.” Wash. Rev. Code
§29A.04.110 (Supp. 2005).
Cite as: 552 U. S. ____ (2008) 5
Opinion of the Court
The candidates with the highest and second-highest
vote totals advance to the general election, regardless of
their party preferences. Ibid. Thus, the general election
may pit two candidates with the same party preference
against one another.5 Each candidate’s party preference is
listed on the general election ballot, and may not be
changed between the primary and general elections. See
§434–230–040.
Immediately after the State enacted regulations to
implement I–872, the Washington State Republican Party
filed suit against a number of county auditors challenging
the law on its face. The party contended that the new
system violates its associational rights by usurping its
right to nominate its own candidates and by forcing it to
associate with candidates it does not endorse. The Wash-
ington State Democratic Central Committee and Libertar-
ian Party of Washington State joined the suit as plaintiffs.
The Washington State Grange joined as a defendant, and
the State of Washington was substituted for the county
auditors as defendant. The United States District Court
for the Western District of Washington granted the politi-
cal parties’ motions for summary judgment and enjoined
the implementation of I–872. See Washington State Re-
publican Party v. Logan, 377 F. Supp. 2d 907, 932 (2005).
The Court of Appeals affirmed. 460 F. 3d 1108, 1125
(CA9 2006). It held that the I–872 primary severely bur-
dens the political parties’ associational rights because the
party-preference designation on the ballot creates a risk
that primary winners will be perceived as the parties’
nominees and produces an “impression of associatio[n]”
between a candidate and his party of preference even
——————
5 This is not a hypothetical outcome. The Court of Appeals observed
that, had the 1996 gubernatorial primary been conducted under the I–
872 system, two Democratic candidates and no Republican candidate
would have advanced from the primary to the general election. See 460
F. 3d 1108, 1114, n. 8 (CA9 2006).
6 WASHINGTON STATE GRANGE v. WASHINGTON STATE
REPUBLICAN PARTY
Opinion of the Court
when the party does not associate, or wish to be associ-
ated, with the candidate. Id., at 1119. The Court of Ap-
peals noted a “constitutionally significant distinction
between ballots and other vehicles for political expres-
sion,” reasoning that the risk of perceived association is
particularly acute when ballots include party labels be-
cause such labels are typically used to designate candi-
dates’ views on issues of public concern. Id., at 1121. And
it determined that the State’s interests underlying I–872
were not sufficiently compelling to justify the severe bur-
den on the parties’ association. Concluding that the provi-
sions of I–872 providing for the party-preference designa-
tion on the ballot were not severable, the court struck
down I–872 in its entirety.
We granted certiorari, 549 U. S. ___ (2007), to determine
whether I–872, on its face, violates the political parties’
associational rights.
II
Respondents object to I–872 not in the context of an
actual election, but in a facial challenge. Under United
States v. Salerno, 481 U. S. 739 (1987), a plaintiff can only
succeed in a facial challenge by “establish[ing] that no set
of circumstances exists under which the Act would be
valid,” i.e., that the law is unconstitutional in all of its
applications. Id., at 745. While some Members of the
Court have criticized the Salerno formulation, all agree
that a facial challenge must fail where the statute has a
“ ‘plainly legitimate sweep.’ ” Washington v. Glucksberg,
521 U. S. 702, 739–740, and n. 7 (1997) (STEVENS, J.,
concurring in judgments). Washington’s primary system
survives under either standard, as we explain below.6 In
——————
6 Our
cases recognize a second type of facial challenge in the First
Amendment context under which a law may be overturned as imper-
missibly overbroad because a “substantial number” of its applications
are unconstitutional, “ ‘judged in relation to the statute’s plainly legiti-
Cite as: 552 U. S. ____ (2008) 7
Opinion of the Court
determining whether a law is facially invalid, we must be
careful not to go beyond the statute’s facial requirements
and speculate about “hypothetical” or “imaginary” cases.
See United States v. Raines, 362 U. S. 17, 22 (1960) (“The
delicate power of pronouncing an Act of Congress uncon-
stitutional is not to be exercised with reference to hypo-
thetical cases thus imagined”). The State has had no
opportunity to implement I–872, and its courts have had
no occasion to construe the law in the context of actual
disputes arising from the electoral context, or to accord the
law a limiting construction to avoid constitutional ques-
tions. Cf. Yazoo & Mississippi Valley R. Co. v. Jackson
Vinegar Co., 226 U. S. 217, 220 (1912) (“How the state
court may apply [a statute] to other cases, whether its
general words may be treated as more or less restrained,
and how far parts of it may be sustained if others fail are
matters upon which we need not speculate now”). Exercis-
ing judicial restraint in a facial challenge “frees the Court
not only from unnecessary pronouncement on constitu-
tional issues, but also from premature interpretations of
statutes in areas where their constitutional application
might be cloudy.” Raines, supra, at 22.
Facial challenges are disfavored for several reasons.
Claims of facial invalidity often rest on speculation. As a
consequence, they raise the risk of “premature interpreta-
tion of statutes on the basis of factually barebones re-
cords.” Sabri v. United States, 541 U. S. 600, 609 (2004)
(internal quotation marks and brackets omitted). Facial
challenges also run contrary to the fundamental principle
of judicial restraint that courts should neither “ ‘anticipate
——————
mate sweep.’ ” New York v. Ferber, 458 U. S. 747, 769–771 (1982)
(quoting Broadrick v. Oklahoma, 413 U. S. 601, 615 (1973)). We
generally do not apply the “ ‘strong medicine’ ” of overbreadth analysis
where the parties fail to describe the instances of arguable overbreadth
of the contested law. See New York State Club Assn., Inc. v. City of
New York, 487 U. S. 1, 14 (1988).
8 WASHINGTON STATE GRANGE v. WASHINGTON STATE
REPUBLICAN PARTY
Opinion of the Court
a question of constitutional law in advance of the necessity
of deciding it’ ” nor “ ‘formulate a rule of constitutional law
broader than is required by the precise facts to which it is
to be applied.’ ” Ashwander v. TVA, 297 U. S. 288, 347
(1936) (Brandeis, J., concurring) (quoting Liverpool, New
York & Philadelphia S. S. Co. v. Commissioners of Emi-
gration, 113 U. S. 33, 39 (1885)). Finally, facial challenges
threaten to short circuit the democratic process by pre-
venting laws embodying the will of the people from being
implemented in a manner consistent with the Constitu-
tion. We must keep in mind that “ ‘[a] ruling of unconsti-
tutionality frustrates the intent of the elected representa-
tives of the people.’ ” Ayotte v. Planned Parenthood of
Northern New Eng., 546 U. S. 320, 329 (2006) (quoting
Regan v. Time, Inc., 468 U. S. 641, 652 (1984) (plurality
opinion)). It is with these principles in view that we turn
to the merits of respondents’ facial challenge to I–872.
A
The States possess a “ ‘broad power to prescribe the
“Times, Places and Manner of holding Elections for Sena-
tors and Representatives,” Art. I, §4, cl. 1, which power is
matched by state control over the election process for state
offices.’ ” Clingman v. Beaver, 544 U. S. 581, 586 (2005)
(quoting Tashjian, 479 U. S., at 217); Timmons v. Twin
Cities Area New Party, 520 U. S. 351, 358 (1997) (same).
This power is not absolute, but is “subject to the limitation
that [it] may not be exercised in a way that violates . . .
specific provisions of the Constitution.” Williams v.
Rhodes, 393 U. S. 23, 29 (1968). In particular, the State
has the “ ‘responsibility to observe the limits established
by the First Amendment rights of the State’s citizens,’ ”
including the freedom of political association. Eu v. San
Francisco County Democratic Central Comm., 489 U. S.
214, 222 (1989) (quoting Tashjian, supra, at 217).
Election regulations that impose a severe burden on
Cite as: 552 U. S. ____ (2008) 9
Opinion of the Court
associational rights are subject to strict scrutiny, and we
uphold them only if they are “narrowly tailored to serve a
compelling state interest.” Clingman, supra, at 586; see
also Rhodes, supra, at 31 (“ ‘only a compelling state inter-
est in the regulation of a subject within the State’s consti-
tutional power to regulate can justify limiting First
Amendment freedoms’ ” (quoting NAACP v. Button, 371
U. S. 415, 438 (1963))). If a statute imposes only modest
burdens, however, then “the State’s important regulatory
interests are generally sufficient to justify reasonable,
nondiscriminatory restrictions” on election procedures.
Anderson v. Celebrezze, 460 U. S. 780, 788 (1983). “Ac-
cordingly, we have repeatedly upheld reasonable, politi-
cally neutral regulations that have the effect of channeling
expressive activity at the polls.” Burdick v. Takushi, 504
U. S. 428, 438 (1992).
The parties do not dispute these general principles;
rather, they disagree about whether I–872 severely bur-
dens respondents’ associational rights. That disagreement
begins with Jones. Petitioners argue that the I–872 pri-
mary is indistinguishable from the alternative Jones
suggested would be constitutional. In Jones we noted that
a nonpartisan blanket primary, where the top two vote-
getters proceed to the general election regardless of their
party, was a less restrictive alternative to California’s
system because such a primary does not nominate candi-
dates. 530 U. S., at 585–586 (The nonpartisan blanket
primary “has all the characteristics of the partisan blanket
primary, save the constitutionally crucial one: Primary
voters are not choosing a party’s nominee”). Petitioners
are correct that we assumed that the nonpartisan primary
we described in Jones would be constitutional. But that is
not dispositive here because we had no occasion in Jones
to determine whether a primary system that indicates
each candidate’s party preference on the ballot, in effect,
chooses the parties’ nominees.
10 WASHINGTON STATE GRANGE v. WASHINGTON STATE
REPUBLICAN PARTY
Opinion of the Court
That question is now squarely before us. Respondents
argue that I–872 is unconstitutional under Jones because
it has the same “constitutionally crucial” infirmity that
doomed California’s blanket primary: it allows primary
voters who are unaffiliated with a party to choose the
party’s nominee. Respondents claim that candidates who
progress to the general election under I–872 will become
the de facto nominees of the parties they prefer, thereby
violating the parties’ right to choose their own standard-
bearers, see Timmons, supra, at 359, and altering their
messages. They rely on our statement in Jones reaffirm-
ing “the special place the First Amendment reserves for,
and the special protection it accords, the process by which
a political party ‘select[s] a standard bearer who best
represents the party’s ideologies and preferences.’ ” Jones,
550 U. S., at 575 (quoting Eu, supra, at 224).
The flaw in this argument is that, unlike the California
primary, the I–872 primary does not, by its terms, choose
parties’ nominees. The essence of nomination—the choice
of a party representative—does not occur under I–872.
The law never refers to the candidates as nominees of any
party, nor does it treat them as such. To the contrary, the
election regulations specifically provide that the primary
“does not serve to determine the nominees of a political
party but serves to winnow the number of candidates to a
final list of two for the general election.” Wash. Admin.
Code §434–262–012. The top two candidates from the
primary election proceed to the general election regardless
of their party preferences. Whether parties nominate
their own candidates outside the state-run primary is
simply irrelevant. In fact, parties may now nominate
candidates by whatever mechanism they choose because
I–872 repealed Washington’s prior regulations governing
party nominations.7
——————
7 It is true that parties may no longer indicate their nominees on the
Cite as: 552 U. S. ____ (2008) 11
Opinion of the Court
Respondents counter that, even if the I–872 primary
does not actually choose parties’ nominees, it nevertheless
burdens their associational rights because voters will
assume that candidates on the general election ballot are
the nominees of their preferred parties. This brings us to
the heart of respondents’ case—and to the fatal flaw in
their argument. At bottom, respondents’ objection to I–
872 is that voters will be confused by candidates’ party-
preference designations. Respondents’ arguments are
largely variations on this theme. Thus, they argue that
even if voters do not assume that candidates on the gen-
eral election ballot are the nominees of their parties, they
will at least assume that the parties associate with, and
approve of, them. This, they say, compels them to associ-
ate with candidates they do not endorse, alters the mes-
sages they wish to convey, and forces them to engage in
counterspeech to disassociate themselves from the candi-
dates and their positions on the issues.
We reject each of these contentions for the same reason:
They all depend, not on any facial requirement of I–872,
but on the possibility that voters will be confused as to the
meaning of the party-preference designation. But respon-
dents’ assertion that voters will misinterpret the party-
preference designation is sheer speculation. It “depends
upon the belief that voters can be ‘misled’ by party labels.
But ‘[o]ur cases reflect a greater faith in the ability of
individual voters to inform themselves about campaign
——————
ballot, but that is unexceptionable: The First Amendment does not give
political parties a right to have their nominees designated as such on
the ballot. See Timmons v. Twin Cities Area New Party, 520 U. S. 351,
362–363 (1997) (“We are unpersuaded, however, by the party’s conten-
tion that it has a right to use the ballot itself to send a particularized
message, to its candidate and to the voters, about the nature of its
support for the candidate”). Parties do not gain such a right simply
because the State affords candidates the opportunity to indicate their
party preference on the ballot. “Ballots serve primarily to elect candi-
dates, not as forums for political expression.” Id., at 363.
12 WASHINGTON STATE GRANGE v. WASHINGTON STATE
REPUBLICAN PARTY
Opinion of the Court
issues.’ ” Tashjian, 479 U. S., at 220 (quoting Anderson,
460 U. S., at 797). There is simply no basis to presume
that a well-informed electorate will interpret a candidate’s
party-preference designation to mean that the candidate is
the party’s chosen nominee or representative or that the
party associates with or approves of the candidate. See
New York State Club Assn., Inc. v. City of New York, 487
U. S. 1, 13–14 (1988) (rejecting a facial challenge to a law
regulating club membership and noting that “[w]e could
hardly hold otherwise on the record before us, which con-
tains no specific evidence on the characteristics of any club
covered by the [l]aw”). This strikes us as especially true
here, given that it was the voters of Washington them-
selves, rather than their elected representatives, who
enacted I–872.
Of course, it is possible that voters will misinterpret the
candidates’ party-preference designations as reflecting
endorsement by the parties. But these cases involve a
facial challenge, and we cannot strike down I–872 on its
face based on the mere possibility of voter confusion. See
Yazoo, 226 U. S., at 219 (“[T]his court must deal with the
case in hand and not with imaginary ones”); Pullman Co.
v. Knott, 235 U. S. 23, 26 (1914) (A statute “is not to be
upset upon hypothetical and unreal possibilities, if it
would be good upon the facts as they are”). Because re-
spondents brought their suit as a facial challenge, we have
no evidentiary record against which to assess their asser-
tions that voters will be confused. See Timmons, 520
U. S., at 375–376 (STEVENS, J., dissenting) (rejecting
judgments based on “imaginative theoretical sources of
voter confusion” and “entirely hypothetical” outcomes).
Indeed, because I–872 has never been implemented, we do
not even have ballots indicating how party preference will
be displayed. It stands to reason that whether voters will
be confused by the party-preference designations will
depend in significant part on the form of the ballot. The
Cite as: 552 U. S. ____ (2008) 13
Opinion of the Court
Court of Appeals assumed that the ballot would not place
abbreviations like “ ‘D’ ” and “ ‘R,’ ” or “ ‘Dem.’ ” and “ ‘Rep.’ ”
after the names of candidates, but would instead “clearly
state that a particular candidate ‘prefers’ a particular
party.” 460 F. 3d, at 1121, n. 20. It thought that even
such a clear statement did too little to eliminate the risk of
voter confusion.
But we see no reason to stop there. As long as we are
speculating about the form of the ballot—and we can do no
more than speculate in this facial challenge—we must, in
fairness to the voters of the State of Washington who
enacted I–872 and in deference to the executive and judi-
cial officials who are charged with implementing it, ask
whether the ballot could conceivably be printed in such a
way as to eliminate the possibility of widespread voter
confusion and with it the perceived threat to the First
Amendment. See Ayotte, 546 U. S., at 329 (noting that
courts should not nullify more of a state law than neces-
sary so as to avoid frustrating the intent of the people and
their duly elected representatives); Ward v. Rock Against
Racism, 491 U. S. 781, 795–796 (1989) (“ ‘[I]n evaluating a
facial challenge to a state law, a federal court must . . .
consider any limiting construction that a state court or
enforcement agency has proffered.’ ” (quoting Hoffman
Estates v. Flipside, Hoffman Estates, Inc., 455 U. S. 489,
494, n. 5 (1982))).
It is not difficult to conceive of such a ballot. For exam-
ple, petitioners propose that the actual I–872 ballot could
include prominent disclaimers explaining that party pref-
erence reflects only the self-designation of the candidate
and not an official endorsement by the party. They also
suggest that the ballots might note preference in the form
of a candidate statement that emphasizes the candidate’s
personal determination rather than the party’s acceptance
of the candidate, such as “my party preference is the Re-
publican Party.” Additionally, the State could decide to
14 WASHINGTON STATE GRANGE v. WASHINGTON STATE
REPUBLICAN PARTY
Opinion of the Court
educate the public about the new primary ballots through
advertising or explanatory materials mailed to voters
along with their ballots.8 We are satisfied that there are a
variety of ways in which the State could implement I–872
that would eliminate any real threat of voter confusion.
And without the specter of widespread voter confusion,
respondents’ arguments about forced association9 and
compelled speech10 fall flat.
Our conclusion that these implementations of I–872
would be consistent with the First Amendment is fatal to
respondents’ facial challenge. See Schall v. Martin, 467
——————
8 Washington counties have broad authority to conduct elections en-
tirely by mail ballot rather than at in-person polling places. See Wash.
Rev. Code §29A.48.010. As a result, over 90% of Washington voters
now vote by mail. See Tr. of Oral Arg. 11.
9 Respondents rely on Hurley v. Irish-American Gay, Lesbian and
Bisexual Group of Boston, Inc., 515 U. S. 557 (1995) (holding that a
State may not require a parade to include a group if the parade’s
organizer disagrees with the group’s message), and Boy Scouts of
America v. Dale, 530 U. S. 640 (2000) (holding that the Boy Scouts’
freedom of expressive association was violated by a state law requiring
the organization to admit a homosexual scoutmaster). In those cases,
actual association threatened to distort the groups’ intended messages.
We are aware of no case in which the mere impression of association
was held to place a severe burden on a group’s First Amendment rights,
but we need not decide that question here.
10 Relying on Pacific Gas & Elec. Co. v. Public Util. Comm’n of Cal.,
475 U. S. 1 (1986) (holding that a state agency may not require a utility
company to include a third-party newsletter in its billing envelope),
respondents argue that the threat of voter confusion will force them to
speak to clarify their positions. Because I–872 does not actually force
the parties to speak, however, Pacific Gas & Elec. is inapposite. I–872
does not require the parties to reproduce another’s speech against their
will; nor does it co-opt the parties’ own conduits for speech. Rather, it
simply provides a place on the ballot for candidates to designate their
party preferences. Facilitation of speech to which a political party may
choose to respond does not amount to forcing the political party to
speak. Cf. Rumsfeld v. Forum for Academic and Institutional Rights,
Inc., 547 U. S. 47, 64–65 (2006).
Cite as: 552 U. S. ____ (2008) 15
Opinion of the Court
U. S. 253, 264 (1984) (a facial challenge fails where “at
least some” constitutional applications exist). Each of
their arguments rests on factual assumptions about voter
confusion, and each fails for the same reason: In the ab-
sence of evidence, we cannot assume that Washington’s
voters will be misled. See Jones, 530 U. S., at 600
(STEVENS, J., dissenting) (“[A]n empirically debatable
assumption . . . is too thin a reed to support a credible
First Amendment distinction” between permissible and
impermissible burdens on association). That factual
determination must await an as-applied challenge. On its
face, I–872 does not impose any severe burden on respon-
dents’ associational rights.
B
Because we have concluded that I–872 does not severely
burden respondents, the State need not assert a compel-
ling interest. See Clingman, 544 U. S., at 593 (“When a
state electoral provision places no heavy burden on asso-
ciational rights, ‘a State’s important regulatory interests
will usually be enough to justify reasonable, nondiscrimi-
natory restrictions’ ” (quoting Timmons, 520 U. S., at
358)). The State’s asserted interest in providing voters
with relevant information about the candidates on the
ballot is easily sufficient to sustain I–872. See Anderson,
460 U. S., at 796 (“There can be no question about the
legitimacy of the State’s interest in fostering informed and
educated expressions of the popular will in a general
election”).11
——————
11 Respondent Libertarian Party of Washington argues that I–872 is
unconstitutional because of its implications for ballot access, trademark
protection of party names, and campaign finance. We do not consider
the ballot access and trademark arguments as they were not addressed
below and are not encompassed by the question on which we granted
certiorari: “Does Washington’s primary election system . . . violate the
associational rights of political parties because candidates are permit-
ted to identify their political party preference on the ballot?” Pet. for
16 WASHINGTON STATE GRANGE v. WASHINGTON STATE
REPUBLICAN PARTY
Opinion of the Court
III
Respondents ask this Court to invalidate a popularly
enacted election process that has never been carried out.
Immediately after implementing regulations were en-
acted, respondents obtained a permanent injunction
against the enforcement of I–872. The First Amendment
does not require this extraordinary and precipitous nullifi-
cation of the will of the people. Because I–872 does not on
its face provide for the nomination of candidates or compel
political parties to associate with or endorse candidates,
and because there is no basis in this facial challenge for
presuming that candidates’ party-preference designations
will confuse voters, I–872 does not on its face severely
burden respondents’ associational rights. We accordingly
hold that I–872 is facially constitutional. The judgment of
the Court of Appeals is reversed.
It is so ordered.
——————
cert. in No. 06–730, p. i. The campaign finance issue also was not
addressed below and is more suitable for consideration on remand.
Cite as: 552 U. S. ____ (2008) 1
ROBERTS, C. J., concurring
SUPREME COURT OF THE UNITED STATES
_________________
Nos. 06–713 and 06–730
_________________
WASHINGTON STATE GRANGE, PETITIONER
06–713 v.
WASHINGTON STATE REPUBLICAN PARTY, ET AL.
WASHINGTON, ET AL., PETITIONERS
06–730 v.
WASHINGTON STATE REPUBLICAN PARTY, ET AL.
ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
[March 18, 2008]
CHIEF JUSTICE ROBERTS, with whom JUSTICE ALITO
joins, concurring.
I share JUSTICE SCALIA’s concern that permitting a
candidate to identify his political party preference on an
official election ballot—regardless of whether the candi-
date is endorsed by the party or is even a member—may
effectively force parties to accept candidates they do not
want, amounting to forced association in violation of the
First Amendment.
I do think, however, that whether voters perceive the
candidate and the party to be associated is relevant to the
constitutional inquiry. Our other forced-association cases
indicate as much. In Boy Scouts of America v. Dale, 530
U. S. 640, 653 (2000), we said that Dale’s presence in the
Boy Scouts would “force the organization to send a mes-
sage . . . [to] the world” that the Scouts approved of homo-
sexuality. In other words, accepting Dale would lead
outsiders to believe the Scouts endorsed homosexual
conduct. Largely for that reason, we held that the First
2 WASHINGTON STATE GRANGE v. WASHINGTON STATE
REPUBLICAN PARTY
ROBERTS, C. J., concurring
Amendment entitled the Scouts to exclude Dale. Id., at
659. Similarly, in Hurley v. Irish-American Gay, Lesbian
and Bisexual Group of Boston, Inc., 515 U. S. 557 (1995),
we allowed the organizers of Boston’s St. Patrick’s Day
Parade to exclude a pro-gay rights float because the float’s
presence in the parade might create the impression that
the organizers agreed with the float-sponsors’ message.
See id., at 575–577.
Voter perceptions matter, and if voters do not actually
believe the parties and the candidates are tied together, it
is hard to see how the parties’ associational rights are
adversely implicated. See Rumsfeld v. Forum for Aca-
demic and Institutional Rights, Inc., 547 U. S. 47, 65
(2006) (rejecting law schools’ First Amendment objection
to military recruiters on campus because no reasonable
person would believe the “law schools agree[d] with any
speech by recruiters”). After all, individuals frequently
claim to favor this or that political party; these prefer-
ences, without more, do not create an unconstitutional
forced association.
What makes these cases different, as JUSTICE SCALIA
explains, is the place where the candidates express their
party preferences: on the ballot. See post, at 4 (dissenting
opinion) (noting “the special role that a state-printed
ballot plays in elections”). And what makes the ballot
“special” is precisely the effect it has on voter impressions.
See Cook v. Gralike, 531 U. S. 510, 532 (2001) (Rehnquist,
C. J., concurring in judgment) (“[T]he ballot . . . is the last
thing the voter sees before he makes his choice”); Ander-
son v. Martin, 375 U. S. 399, 402 (1964) (“[D]irecting the
citizen’s attention to the single consideration of race . . .
may decisively influence the citizen to cast his ballot along
racial lines”).
But because respondents brought this challenge before
the State of Washington had printed ballots for use under
the new primary regime, we have no idea what those
Cite as: 552 U. S. ____ (2008) 3
ROBERTS, C. J., concurring
ballots will look like. Petitioners themselves emphasize
that the content of the ballots in the pertinent respect is
yet to be determined. See Reply Brief for Washington
State Grange 2–4, 7–13.
If the ballot is designed in such a manner that no rea-
sonable voter would believe that the candidates listed
there are nominees or members of, or otherwise associated
with, the parties the candidates claimed to “prefer,” the
I–872 primary system would likely pass constitutional
muster. I cannot say on the present record that it would
be impossible for the State to design such a ballot. Assum-
ing the ballot is so designed, voters would not regard the
listed candidates as “party” candidates, any more than
someone saying “I like Campbell’s soup” would be under-
stood to be associated with Campbell’s. Voters would
understand that the candidate does not speak on the
party’s behalf or with the party’s approval. On the other
hand, if the ballot merely lists the candidates’ preferred
parties next to the candidates’ names, or otherwise fails
clearly to convey that the parties and the candidates are
not necessarily associated, the I–872 system would not
survive a First Amendment challenge.
JUSTICE SCALIA complains that “[i]t is hard to know how
to respond” to such mistaken views, post, at 6 (dissenting
opinion), but he soldiers on nonetheless. He would hold
that a party is burdened by a candidate’s statement of
preference even if no reasonable voter believes from the
ballot that the party and the candidate are associated. I
take his point to be that a particular candidate’s “en-
dorsement” of a party might alter the party’s message, and
this violates the party’s freedom of association. See post,
at 7 (dissenting opinion).
But there is no general right to stop an individual from
saying, “I prefer this party,” even if the party would rather
he not. Normally, the party protects its message in such a
case through responsive speech of its own. What makes
4 WASHINGTON STATE GRANGE v. WASHINGTON STATE
REPUBLICAN PARTY
ROBERTS, C. J., concurring
this case different of course is that the State controls the
content of the ballot, which we have never considered a
public forum. See Timmons v. Twin Cities Area New
Party, 520 U. S. 351, 363 (1997) (ballots are not “forums
for political expression”). Neither the candidate nor the
party dictates the message conveyed by the ballot. In such
a case, it is important to know what the ballot actually
says—both about the candidate and about the party’s
association with the candidate. It is possible that no
reasonable voter in Washington State will regard the
listed candidates as members of, or otherwise associated
with, the political parties the candidates claim to prefer.
Nothing in my analysis requires the parties to produce
studies regarding voter perceptions on this score, but I
would wait to see what the ballot says before deciding
whether it is unconstitutional.
Still, I agree with JUSTICE SCALIA that the history of the
challenged law suggests the State is not particularly
interested in devising ballots that meet these constitu-
tional requirements. See post, at 7–8 (dissenting opinion).
But this record simply does not allow us to say with cer-
tainty that the election system created by I–872 is uncon-
stitutional. Accordingly, I agree with the Court that
respondents’ present challenge to the law must fail, and I
join the Court’s opinion.
Cite as: 552 U. S. ____ (2008) 1
SCALIA, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
Nos. 06–713 and 06–730
_________________
WASHINGTON STATE GRANGE, PETITIONER
06–713 v.
WASHINGTON STATE REPUBLICAN PARTY, ET AL.
WASHINGTON, ET AL., PETITIONERS
06–730 v.
WASHINGTON STATE REPUBLICAN PARTY, ET AL.
ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
[March 18, 2008]
JUSTICE SCALIA, with whom JUSTICE KENNEDY joins,
dissenting.
The electorate’s perception of a political party’s beliefs is
colored by its perception of those who support the party;
and a party’s defining act is the selection of a candidate
and advocacy of that candidate’s election by conferring
upon him the party’s endorsement. When the state-
printed ballot for the general election causes a party to be
associated with candidates who may not fully (if at all)
represent its views, it undermines both these vital aspects
of political association. The views of the self-identified
party supporter color perception of the party’s message,
and that self-identification on the ballot, with no space for
party repudiation or party identification of its own candi-
date, impairs the party’s advocacy of its standard bearer.
Because Washington has not demonstrated that this
severe burden upon parties’ associational rights is nar-
rowly tailored to serve a compelling interest—indeed,
because it seems to me Washington’s only plausible inter-
2 WASHINGTON STATE GRANGE v. WASHINGTON STATE
REPUBLICAN PARTY
SCALIA, J., dissenting
est is precisely to reduce the effectiveness of political
parties—I would find the law unconstitutional.
I
I begin with the principles on which the Court and I
agree. States may not use election regulations to undercut
political parties’ freedoms of speech or association. See
U. S. Term Limits, Inc. v. Thornton, 514 U. S. 779, 833–
834 (1995). Thus, when a State regulates political parties
as a part of its election process, we consider “the ‘character
and magnitude’ ” of the burden imposed on the party’s
associational rights and “the extent to which the State’s
concerns make the burden necessary.” Timmons v. Twin
Cities Area New Party, 520 U. S. 351, 358 (1997). Regula-
tions imposing severe burdens must be narrowly tailored
to advance a compelling state interest. Ibid.
Among the First Amendment rights that political par-
ties possess is the right to associate with the persons
whom they choose and to refrain from associating with
persons whom they reject. Democratic Party of United
States v. Wisconsin ex rel. La Follette, 450 U. S. 107, 122
(1981). Also included is the freedom to choose and pro-
mote the “ ‘standard bearer who best represents the
party’s ideologies and preferences.’ ” Eu v. San Francisco
County Democratic Central Comm., 489 U. S. 214, 224
(1989).
When an expressive organization is compelled to associ-
ate with a person whose views the group does not accept,
the organization’s message is undermined; the organiza-
tion is understood to embrace, or at the very least tolerate,
the views of the persons linked with them. We therefore
held, for example, that a State severely burdened the right
of expressive association when it required the Boy Scouts
to accept an openly gay scoutmaster. The scoutmaster’s
presence “would, at the very least, force the organization
to send a message, both to the youth members and the
Cite as: 552 U. S. ____ (2008) 3
SCALIA, J., dissenting
world, that the Boy Scouts accepts homosexual conduct as
a legitimate form of behavior.” Boy Scouts of America v.
Dale, 530 U. S. 640, 653 (2000).
A political party’s expressive mission is not simply, or
even primarily, to persuade voters of the party’s views.
Parties seek principally to promote the election of candi-
dates who will implement those views. See, e.g., Tashjian
v. Republican Party of Conn., 479 U. S. 208, 216 (1986);
Storer v. Brown, 415 U. S. 724, 745 (1974); M. Hershey &
P. Beck, Party Politics in America 13 (10th ed. 2003).
That is achieved in large part by marking candidates with
the party’s seal of approval. Parties devote substantial
resources to making their names trusted symbols of cer-
tain approaches to governance. See, e.g., App. 239 (Decla-
ration of Democratic Committee Chair Paul J. Berendt); J.
Aldrich, Why Parties? 48–49 (1995). They then encourage
voters to cast their votes for the candidates that carry the
party name. Parties’ efforts to support candidates by
marking them with the party trademark, so to speak, have
been successful enough to make the party name, in the
words of one commentator, “the most important resource
that the party possesses.” Cain, Party Autonomy and
Two-Party Electoral Competition, 149 U. Pa. L. Rev. 793,
804 (2001). And all evidence suggests party labels are
indeed a central consideration for most voters. See, e.g.,
id., at 804, n. 34; Rahn, The Role of Partisan Stereotypes
in Information Processing About Political Candidates, 37
Am. J. Pol. Sci. 472 (1993); Klein & Baum, Ballot Informa-
tion and Voting Decisions in Judicial Elections, 54 Pol.
Research Q. 709 (2001).
II
A
The State of Washington need not like, and need not
favor, political parties. It is entirely free to decline run-
ning primaries for the selection of party nominees and to
4 WASHINGTON STATE GRANGE v. WASHINGTON STATE
REPUBLICAN PARTY
SCALIA, J., dissenting
hold nonpartisan general elections in which party labels
have no place on the ballot. See California Democratic
Party v. Jones, 530 U. S. 567, 585–586 (2000). Parties
would then be left to their own devices in both selecting
and publicizing their candidates. But Washington has
done more than merely decline to make its electoral ma-
chinery available for party building. Recognizing that
parties draw support for their candidates by giving them
the party imprimatur, Washington seeks to reduce the
effectiveness of that endorsement by allowing any candi-
date to use the ballot for drawing upon the goodwill that a
party has developed, while preventing the party from
using the ballot to reject the claimed association or to
identify the genuine candidate of its choice. This does not
merely place the ballot off limits for party building; it
makes the ballot an instrument by which party building is
impeded, permitting unrebutted associations that the
party itself does not approve.
These cases cannot be decided without taking account of
the special role that a state-printed ballot plays in elec-
tions. The ballot comes into play “at the most crucial
stage in the electoral process—the instant before the vote
is cast.” Anderson v. Martin, 375 U. S. 399, 402 (1964). It
is the only document that all voters are guaranteed to
see, and it is “the last thing the voter sees before he makes
his choice,” Cook v. Gralike, 531 U. S. 510, 532 (2001)
(Rehnquist, C. J., concurring in judgment). Thus, we have
held that a State cannot elevate a particular issue to
prominence by making it the only issue for which the
ballot sets forth the candidates’ positions. Id., at 525–526
(opinion of the Court). And we held unconstitutional
California’s election system, which listed as the party’s
candidate on the general election ballot the candidate
selected in a state-run “blanket primary” in which all
citizens could determine who would be the party’s nomi-
nee. Jones, 530 U. S., at 586. It was not enough to sus-
Cite as: 552 U. S. ____ (2008) 5
SCALIA, J., dissenting
tain the law that the party remained free to select its
preferred candidate through another process, and could
denounce or campaign against the candidate carrying the
party’s name on the general election ballot. Forced asso-
ciation with the party on the general election ballot was
fatal. Id., at 575–577.
The Court makes much of the fact that the party names
shown on the Washington ballot may be billed as mere
statements of candidate “preference.” See ante, at 11–14.
To be sure, the party is not itself forced to display favor for
someone it does not wish to associate with, as the Boy
Scouts were arguably forced to do by employing the homo-
sexual scoutmaster in Dale, and as the political parties
were arguably forced to do by lending their ballot-
endorsement as party nominee in Jones. But thrusting an
unwelcome, self-proclaimed association upon the party on
the election ballot itself is amply destructive of the party’s
associational rights. An individual’s endorsement of a
party shapes the voter’s view of what the party stands for,
no less than the party’s endorsement of an individual
shapes the voter’s view of what the individual stands for.
That is why party nominees are often asked (and regularly
agree) to repudiate the support of persons regarded as
racial extremists. On Washington’s ballot, such repudia-
tion is impossible. And because the ballot is the only
document voters are guaranteed to see, and the last thing
they see before casting their vote, there is “no means
of replying” that “would be equally effective with the
voter.” Cook, supra, at 532 (Rehnquist, C. J., concurring
in judgment).
Not only is the party’s message distorted, but its good-
will is hijacked. There can be no dispute that candidate
acquisition of party labels on Washington’s ballot—even if
billed as self-identification—is a means of garnering the
support of those who trust and agree with the party. The
“I prefer the D’s” and “I prefer the R’s” will not be on the
6 WASHINGTON STATE GRANGE v. WASHINGTON STATE
REPUBLICAN PARTY
SCALIA, J., dissenting
ballot for esthetic reasons; they are designed to link can-
didates to unwilling parties (or at least parties who are
unable to express their revulsion) and to encourage voters
to cast their ballots based in part on the trust they place in
the party’s name and the party’s philosophy. These harms
will be present no matter how Washington’s law is imple-
mented. There is therefore “no set of circumstances”
under which Washington’s law would not severely burden
political parties, see United States v. Salerno, 481 U. S.
739, 745 (1987), and no good reason to wait until Wash-
ington has undermined its political parties to declare that
it is forbidden to do so.
B
THE CHIEF JUSTICE would wait to see if the law is im-
plemented in a manner that no more harms political
parties than allowing a person to state that he “ ‘like[s]
Campbell’s soup’ ” would harm the Campbell Soup Com-
pany. See ante, at 3 (concurring opinion). It is hard to
know how to respond. First and most fundamentally,
there is simply no comparison between statements of
“preference” for an expressive association and statements
of “preference” for soup. The robust First Amendment
freedom to associate belongs only to groups “engage[d] in
‘expressive association,’ ” Dale, 530 U. S., at 648. The
Campbell Soup Company does not exist to promote
a message, and “there is only minimal constitutional
protection of the freedom of commercial association,”
Roberts v. United States Jaycees, 468 U. S. 609, 634 (1984)
(O’Connor, J., concurring in part and concurring in
judgment).
Second, I assuredly do not share THE CHIEF JUSTICE’s
view that the First Amendment will be satisfied so long as
the ballot “is designed in such a manner that no reason-
able voter would believe that the candidates listed there
are nominees or members of, or otherwise associated with,
Cite as: 552 U. S. ____ (2008) 7
SCALIA, J., dissenting
the parties the candidates claimed to ‘prefer.’ ” Ante, at 3.
To begin with, it seems to me quite impossible for the
ballot to satisfy a reasonable voter that the candidate is
not “associated with” the party for which he has expressed
a preference. He has associated himself with the party by
his very expression of a preference—and that indeed is the
whole purpose of allowing the preference to be expressed.
If all THE CHIEF JUSTICE means by “associated with” is
that the candidate “does not speak on the party’s behalf or
with the party’s approval,” ibid., none of my analysis in
this opinion relies upon that misperception, nor upon the
misperception that the candidate is a member or the
nominee of the party. Avoiding those misperceptions is far
from enough. Is it enough to say on the ballot that a
notorious and despised racist who says that the party is
his choice does not speak with the party’s approval?
Surely not. His unrebutted association of that party with
his views distorts the image of the party nonetheless. And
the fact that the candidate who expresses a “preference”
for one or another party is shown not to be the nominee of
that party does not deprive him of the boost from the
party’s reputation which the party wishes to confer only
on its nominee. THE CHIEF JUSTICE claims that “the
content of the ballots in the pertinent respect is yet to be
determined,” ibid. I disagree. We know all we need to
know about the form of ballot. When pressed, Washing-
ton’s Attorney General assured us at oral argument that
the ballot will not say whether the party for whom the
candidate expresses a preference claims or disavows him.
(Of course it will not, for that would enable the party
expression that it is the very object of this legislation to
impair.)
And finally, while THE CHIEF JUSTICE earlier expresses
his awareness that the special character of the ballot is
what makes these cases different, ante, at 2, his Camp-
bell’s Soup example seems to forget that. If we must
8 WASHINGTON STATE GRANGE v. WASHINGTON STATE
REPUBLICAN PARTY
SCALIA, J., dissenting
speak in terms of soup, Washington’s law is like a law that
encourages Oscar the Grouch (Sesame Street’s famed bad-
taste resident of a garbage can) to state a “preference” for
Campbell’s at every point of sale, while barring the soup
company from disavowing his endorsement, or indeed
using its name at all, in those same crucial locations.
Reserving the most critical communications forum for
statements of “preference” by a potentially distasteful
speaker alters public perceptions of the entity that is
“preferred”; and when this privileged connection under-
mines not a company’s ability to identify and promote
soup but an expressive association’s ability to identify
and promote its message and its standard bearer, the
State treads on the constitutionally protected freedom of
association.
The majority opinion and THE CHIEF JUSTICE’s concur-
rence also endorse a wait-and-see approach on the grounds
that it is not yet evident how the law will affect voter
perception of the political parties. But contrary to the
Court’s suggestion, it is not incumbent on the political
parties to adduce “evidence,” ante, at 15, that forced asso-
ciation affects their ability to advocate for their candidates
and their causes. We have never put expressive groups to
this perhaps-impossible task. Rather, we accept their own
assessments of the matter. The very cases on which THE
CHIEF JUSTICE relies for a wait-and-see approach, ante, at
1–2, establish as much. In Dale, for example, we did not
require the Boy Scouts to prove that forced acceptance of
the openly homosexual scoutmaster would distort their
message. See 530 U. S., at 653 (citing La Follette, 450
U. S., at 123–124). Nor in Hurley v. Irish-American Gay,
Lesbian and Bisexual Group of Boston, Inc., 515 U. S. 557
(1995), did we require the organizers of the St. Patrick’s
Day Parade to demonstrate that including a gay contin-
gent in the parade would distort their message. See id., at
577. Nor in Jones, 530 U. S. 567, did we require the politi-
Cite as: 552 U. S. ____ (2008) 9
SCALIA, J., dissenting
cal parties to demonstrate either that voters would incor-
rectly perceive the “nominee” labels on the ballot to be the
products of party elections or that the labels would change
voter perceptions of the party. It does not take a study to
establish that when statements of party connection are
the sole information listed next to candidate names on the
ballot, those statements will affect voters’ perceptions of
what the candidate stands for, what the party stands for,
and whom they should elect.
III
Since I conclude that Washington’s law imposes a severe
burden on political parties’ associational rights, I would
uphold the law only if it were “narrowly tailored” to ad-
vance “a compelling state interest.” Timmons, 520 U. S.,
at 358. Neither the Court’s opinion nor the State’s sub-
mission claims that Washington’s law passes such scru-
tiny. The State argues only that it “has a rational basis”
for “providing voters with a modicum of relevant informa-
tion about the candidates,” Brief for Petitioners in No. 06–
730, pp. 48–49. This is the only interest the Court’s opin-
ion identifies as well. Ante, at 15.
But “rational basis” is the least demanding of our tests;
it is the same test that allows individuals to be taxed at
different rates because they are in different businesses.
See Allied Stores of Ohio, Inc. v. Bowers, 358 U. S. 522,
526–527 (1959). It falls far, far short of establishing the
compelling state interest that the First Amendment re-
quires. And to tell the truth, here even the existence of a
rational basis is questionable. Allowing candidates to
identify themselves with particular parties on the ballot
displays the State’s view that adherence to party philoso-
phy is “an important—perhaps paramount—consideration
in the citizen’s choice.” Anderson, 375 U. S., at 402. If
that is so, however, it seems to me irrational not to allow
the party to disclaim that self-association, or to identify its
10 WASHINGTON STATE GRANGE v. WASHINGTON STATE
REPUBLICAN PARTY
SCALIA, J., dissenting
own endorsed candidate.
It is no mystery what is going on here. There is no state
interest behind this law except the Washington Legisla-
ture’s dislike for bright-colors partisanship, and its desire
to blunt the ability of political parties with noncentrist
views to endorse and advocate their own candidates. That
was the purpose of the Washington system that this en-
actment was adopted to replace—a system indistinguish-
able from the one we invalidated in Jones, which required
parties to allow nonmembers to join in the selection of the
candidates shown as their nominees on the election ballot.
(The system was held unconstitutional in Democratic
Party of Washington State v. Reed, 343 F. 3d 1198 (CA9
2003).) And it is the obvious purpose of Washington legis-
lation enacted after this law, which requires political
parties to repeat a candidate’s self-declared party “prefer-
ence” in electioneering communications concerning the
candidate—even if the purpose of the communication
is to criticize the candidate and to disavow any con-
nection between him and the party. Wash. Rev. Code
§42.17.510(1) (2006); see also Wash. Admin. Code §390–
18–020 (2007).
Even if I were to assume, however, that Washington has
a legitimate interest in telling voters on the ballot (above
all other things) that a candidate says he favors a particu-
lar political party; and even if I were further to assume
(per impossibile) that that interest was a compelling one;
Washington would still have to “narrowly tailor” its law to
protect that interest with minimal intrusion upon the
parties’ associational rights. There has been no attempt to
do that here. Washington could, for example, have per-
mitted parties to disclaim on the general-election ballot
the asserted association or to designate on the ballot their
true nominees. The course the State has chosen makes
sense only as an effort to use its monopoly power over the
ballot to undermine the expressive activities of the politi-
Cite as: 552 U. S. ____ (2008) 11
SCALIA, J., dissenting
cal parties.
* * *
The right to associate for the election of candidates is
fundamental to the operation of our political system, and
state action impairing that association bears a heavy
burden of justification. Washington’s electoral system
permits individuals to appropriate the parties’ trade-
marks, so to speak, at the most crucial stage of election,
thereby distorting the parties’ messages and impairing
their endorsement of candidates. The State’s justification
for this (to convey a “modicum of relevant information”) is
not only weak but undeserving of credence. We have here
a system which, like the one it replaced, does not merely
refuse to assist, but positively impairs, the legitimate role
of political parties. I dissent from the Court’s conclusion
that the Constitution permits this sabotage.