Notice: This opinion is subject to correction before publication in the P ACIFIC R EPORTER .
Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,
303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email
corrections@akcourts.us.
THE SUPREME COURT OF THE STATE OF ALASKA
STATE OF ALASKA, )
) Supreme Court No. S-16875
Appellant, )
) Superior Court No. 1JU-17-00563 CI
v. )
) OPINION
ALASKA DEMOCRATIC PARTY, )
) No. 7279 – August 24, 2018
Appellee. )
)
Appeal from the Superior Court of the State of Alaska, First
Judicial District, Juneau, Philip M. Pallenberg, Judge.
Appearances: Laura Fox, Assistant Attorney General,
Anchorage, and Jahna Lindemuth, Attorney General, Juneau,
for Appellant. Jon Choate, Choate Law Firm LLC, Juneau,
for Appellee.
Before: Stowers, Chief Justice, Winfree, Maassen, Bolger,
and Carney, Justices.
WINFREE, Justice.
I. INTRODUCTION
The Alaska Democratic Party amended its bylaws to allow registered
independent voters to run as candidates in its primary elections without having to
become Democratic Party members, seeking to expand its field of candidates and thereby
nominate general election candidates more acceptable to Alaska voters. But the Division
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
1
See generally AS 15.25.
2
See AS 15.80.008 (defining recognized political party); AS 15.80.010
(defining political party); AS 15.07.050 (providing for voter registration affiliating with
political party). Alaska also recognizes two types of unaffiliated voters: “nonpartisan”
and “undeclared.” AS 15.07.075. A nonpartisan voter affirmatively registers as
nonpartisan. Id. An undeclared voter registers as undeclared, fails to declare an
affiliation, or declares affiliation with an unrecognized political group or party. Id. We
refer to both types of voters as “independents” or “independent voters.”
3
See AS 15.25.010 (providing for party primary election); AS 15.25.100
(providing that winner of party primary election has name placed on general election
ballot).
-2- 7279
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
4
See AS 15.25.140 (providing for petition); AS 15.25.190 (providing
successful petitioner has name placed on general election ballot); see also AS 15.25.160
(setting signature requirement for statewide office at one percent of number of voters in
state in preceding general election); AS 15.25.170 (setting signature requirement for
district-wide office at one percent of number of voters in district in preceding general
election).
5
See AS 15.25.110 (“If a candidate of a political party nominated at the
primary election dies, withdraws, resigns, becomes disqualified . . . , or is certified as
being incapacitated . . . , the vacancy may be filled by party petition.”).
6
See AS 15.25.105(a) (“If a candidate does not appear on the primary
election ballot or is not successful in advancing to the general election and wishes to be
a candidate in the general election, the candidate may file as a write-in candidate.”).
7
AS 15.80.010(27)(A). If the governorship was not on the ballot, the rule
applies using the office of United States senator. AS 15.80.010(27)(B). If neither
position was on the ballot, the rule applies using the office of United States
representative. AS 15.80.010(27)(C).
-3- 7279
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
8
See AS 15.13.070 (contributions); AS 15.10.120 (election boards);
AS 15.10.170 (poll watchers); AS 15.13.020(b) (Alaska Public Offices Commission);
AS 15.25.100 (general election ballot access); see also State, Div. of Elections v.
Metcalfe, 110 P.3d 976, 981-82 (Alaska 2005) (explaining benefits recognized political
parties receive).
9
See AS 15.25.030(a) (declaration of candidacy); AS 15.25.030(b)
(statement of income sources and business interests); AS 15.25.050 (filing fee).
10
See AS 15.25.030(a).
11
See AS 15.25.042.
12
See AS 15.25.030(a)(6), (9), (10), (11), (14), (16).
13
See AS 15.25.030(a)(16).
14
See State v. Green Party of Alaska (Green Party I), 118 P.3d 1054, 1070
(continued...)
-4- 7279
parties also may choose whether to allow independent voters or other parties’ voters to
participate in their primary elections.15 By default, primary election ballots are designed
to allow independent voters to participate in a political party’s primary election but to
exclude other political parties’ voters from participating in that primary election.16
Alaskans may change their voting registration status at any time.17
B. The Democratic Party’s Challenge
The Democratic Party is a recognized Alaska political party with over
75,000 members. The Democratic Party historically allowed only Democratic Party
members to run as primary election candidates, but it recently became interested in
allowing independents to run as candidates in its primary election. The Democratic Party
first sought judicial approval for this course of action in 2016, but the superior court
dismissed that case as unripe because the Democratic Party’s bylaws did not then allow
independent candidacies.
The Democratic Party later amended its bylaws to allow independent voters
to participate as candidates in its primary elections. The Democratic Party petitioned the
Division of Elections to allow these candidacies, but the Division denied the request
because it conflicted with the party affiliation rule. The Democratic Party then brought
the current lawsuit, once more challenging the party affiliation rule’s constitutionality.
14
(...continued)
(Alaska 2005). The Democratic Party opted to have a combined ballot with other parties
after our ruling in Green Party I.
15
See AS 15.25.014(b).
16
See AS 15.25.010.
17
See AS 15.07.040 (“A person who is qualified . . . is entitled to register at
any time . . . .”).
-5- 7279
The parties filed cross-motions for summary judgment, and the superior
court granted the Democratic Party’s and denied the State’s. The court concluded that
the Democratic Party had an associational right under the Alaska Constitution to allow
independent candidates to run in its primary election and that the party affiliation rule
severely burdened this right by infringing on the Democratic Party’s internal decision-
making. The court also concluded that the State’s interest in requiring candidates and
political parties to have demonstrable public support was not advanced by the party
affiliation rule, that the fit between the State’s interest in preventing voter confusion and
the party affiliation rule was not close enough to justify the burden on the Democratic
Party’s associational right, and that the State had not demonstrated how its interest in
political stability was advanced by the party affiliation rule.
The State appealed. We expedited consideration of the appeal and issued
a brief order affirming the superior court’s judgment.18 We now explain our decision.19
18
State v. Alaska Democratic Party, No. S-16875 (Alaska Supreme Court
Order, Apr. 4, 2018).
19
“This court reviews a grant of summary judgment de novo and will affirm
if, when the facts are viewed in the light most favorable to the non-moving party, there
are no genuine issues of material fact and the moving party is entitled to judgment as a
matter of law.” Green Party I, 118 P.3d at 1059 (citing Sonneman v. State, 969 P.2d
632, 635 (Alaska 1998)). “Constitutional claims . . . are questions of law and are
reviewed de novo. In conducting de novo review, we will ‘adopt the rule of law that is
most persuasive in light of precedent, reason, and policy.’ ” Id. (footnote omitted) (first
citing Sonneman, 969 P.2d at 635; then quoting Guin v. Ha, 591 P.2d 1281, 1284 n.6
(Alaska 1979)).
-6- 7279
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
plaintiff’s rights.” This is a flexible test: as the burden on
constitutionally protected rights becomes more severe, the
government interest must be more compelling and the fit
20
Alaska Const. art. I, § 5.
21
See Green Party I, 118 P.3d at 1064-65; Vogler v. Miller (Vogler I), 651
P.2d 1, 3 (Alaska 1982).
22
“[O]ur duty to uphold the Alaska Constitution is paramount; it takes
precedence over the politics of the day and our own personal preferences.” Planned
Parenthood of the Great Nw. v. State, 375 P.3d 1122, 1133 (Alaska 2016) (citing Alaska
Const. art. XII, § 5 (requiring public officers to swear to “support and defend . . . the
Constitution of the State of Alaska”)); Malone v. Meekins, 650 P.2d 351, 356 (Alaska
1982) (“[T]he judicial branch . . . has the constitutionally mandated duty to ensure
compliance with the provisions of the Alaska Constitution . . . .”).
-7- 7279
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
23
Green Party I, 118 P.3d at 1061 (footnotes omitted) (quoting O’Callaghan
v. State, 914 P.2d 1250, 1254 (Alaska 1996)).
24
See id.
25
See Democratic Party of U.S. v. Wis. ex rel. La Follette, 450 U.S. 107, 126
(1981).
-8- 7279
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
26
See Tashjian v. Republican Party of Conn., 479 U.S. 208, 225 (1986).
27
See Eu v. S.F. Cty. Democratic Cent. Comm., 489 U.S. 214, 229 (1989).
28
See Cal. Democratic Party v. Jones, 530 U.S. 567, 586 (2000).
29
See, e.g., Timmons v. Twin Cities Area New Party, 5 20 U.S. 351, 359
(1997) (“[T]he New Party, and not someone else, has the right to select the New Party’s
‘standard bearer.’ ”); Storer v. Brown, 415 U .S. 724, 736-37 (1974) (upholding
disaffiliation law because of important state interests, not failure to assert a right); S.D.
Libertarian Party v. Gant, 60 F. Supp. 3d 1043, 1050 (D.S.D. 2014) (holding affiliation
requirement “only minimally burdens [the political party’s] associational rights”
(emphasis added)).
-9- 7279
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 “reaffirm[ing] the reasoning behind Tashjian,”
and we highlighted Jones’s language emphasizing the importance of selecting a
30
Tashjian, 479 U.S. at 215 (emphases added).
31
Green Party I, 118 P.3d 1054, 1057 (Alaska 2005).
32
Id.
33
Id. at 1061.
34
Id. at 1063 (quoting Tashjian, 479 U.S. at 215 n.6). In Tashjian the
Connecticut Republican Party sought to allow independent voters to participate as voters
in its primary election (an “open” primary). 479 U.S. at 212-13. The Court held that a
state statute prohibiting open primaries unconstitutionally burdened the Connecticut
Republican Party’s associational rights. Id. at 225.
-10- 7279
nominee.35 In Green Party I we explicitly rejected the State’s argument that Tashjian did
not support the existence of a right because it limited its holding to independent voters;
we instead embraced the “overarching principle[s]” of Jones and Tashjian, recognizing
“[t]he right to determine who may participate in selecting [a party’s] candidates — and,
if the political party so desires, to seek the input and participation of a broad spectrum
of voters — is of central importance to the right of political association.”36 We noted that
“where a party invites a voter to participate in its primary and the voter seeks to do so,
we should begin with the premise that there are significant associational interests at
stake.”37
By analogy to Green Party I, the Democratic Party’s associational right to
choose its general election nominees does not depend on party registration: “[W]here
a party invites a [candidate] to participate in its primary and the [candidate] seeks to do
so, we should begin with the premise that there are significant associational interests at
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.
35
Green Party I, 118 P.3d at 1064. In Jones the California Democratic Party
sought to prevent voters of other political parties from participating in its primary
election (a “closed” primary). 530 U.S. 567, 571 (2000). The Supreme Court held that
a state statute mandating a blanket primary in which voters of one political party could
vote in another political party’s primary election unconstitutionally burdened the
California Democratic Party’s associational rights. Id. at 586.
36
Green Party I, 118 P.3d at 1064.
37
Id. at 1064 n.72 (quoting Clingman v. Beaver, 544 U.S. 581, 602 (2005)
(O’Connor, J., concurring)).
38
See id. (quoting Clingman, 544 U.S. at 602 (O’Connor, J., concurring)).
-11- 7279
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
39
Id. at 1061 (quoting O’Callaghan v. State, 914 P.2d 1250, 1254 (Alaska
1996)).
40
See O’Callaghan, 914 P.2d at 1254; see also Timmons v. Twin Cities Area
New Party, 520 U.S. 351, 358 (1997).
41
See, e.g., Clingman, 544 U.S. at 590-91 (plurality opinion) (prohibiting
other parties’ voters from voting in Libertarian primary not severe burden); id. at 604
(O’Connor, J., concurring) (prohibiting other parties’ voters from voting in Libertarian
primary is modest burden); Timmons, 520 U.S. at 363-64 (holding anti-fusion law —
preventing parties from nominating candidate already nominated by another party — not
severe burden); Libertarian Party of Mich. v. Johnson, 714 F.3d 929, 932 (6th Cir. 2013)
(affirming lower court’s conclusion that sore loser statute — preventing parties from
nominating candidate who ran and lost in another primary election — not severe
burden); S.C. Green Party v. S.C. State Election Comm’n, 612 F.3d 752, 757 (4th Cir.
2010) (holding sore loser statute not severe burden); S.D. Libertarian Party v. Gant, 60
F. Supp. 3d 1043, 1050 (D.S.D. 2014) (holding party affiliation rule not severe burden).
-12- 7279
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
42
544 U.S. at 591 (plurality opinion); see also id. at 604 (O’Connor, J.,
concurring) (“The semiclosed primary law, standing alone, does not impose a significant
obstacle to participation in the [party]’s primary . . . .”).
43
See Vogler I, 651 P.2d 1, 3 (Alaska 1982).
44
118 P.3d at 1065.
45
Id.
46
Id.
-13- 7279
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 DemonstrateA Compelling Interest Justifying
The Burden On The Democratic Party.
Because the party affiliation rule substantially burdens the Democratic
Party’s associational rights, the State must justify the burden with sufficiently important
state interests.49 When weighing whether sufficiently important interests justify a burden
47
See id.
48
We note further that none of the State’s proffered cases presented the
factual scenario we address here — a political party intentionally amending its bylaws
to allow independent voters to run as candidates. In Clingman the party sought to
affiliate with voters of different parties. 544 U.S. 581, 585 (2005). In Timmons, South
Carolina Green Party, and Johnson, the political parties sought to nominate candidates
who ran in a different party’s primary. See Timmons v. Twin Cities Area New Party, 520
U.S. 351, 354 (1997); S.C. Green Party v. S.C. State Election Comm’n, 612 F.3d 752,
755 (4th Cir. 2010); Libertarian Party of Mich. v. Johnson, 714 F.3d 929, 930-31 (6th
Cir. 2013). In Storer and Van Susteren v. Jones, the parties were not involved in the
challenge. See Storer v. Brown, 415 U.S. 724, 726-27 (1974); Van Susteren v. Jones,
331 F.3d 1024, 1025 (9th Cir. 2003). And in Gant the nominee was a member of a
different political party, not an independent. See S.D. Libertarian Party v. Gant, 60 F.
Supp. 3d 1043, 1044 (D.S.D. 2014). The issue before us would seem to be a matter of
first impression under federal law.
49
We have described this analysis as two steps: whether the right is
(continued...)
-14- 7279
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
49
(...continued)
sufficiently important and whether it is narrowly tailored. But in this case the
Democratic Party concedes, and we agree, that each of the State’s asserted interests are
compelling, so we analyze these steps together.
50
Green Party I, 118 P.3d at 1065.
51
Id. at 1066 (footnote omitted) (quoting Vogler v. Miller (Vogler II), 660
P.2d 1192, 1196 (Alaska 1983) (Rabinowitz, J., concurring)).
52
Id. (omissions, emphasis and second alteration in original) (quoting Cal.
Democratic Party v. Jones, 530 U.S 567, 584 (2000)).
53
See State, Div. of Elections v. Metcalfe, 110 P.3d 976, 980-81 (Alaska
2005).
54
See id. at 981.
-15- 7279
Whether the challenged law is “in the mainstream of the practices of other states” is
relevant, but not outcome determinative, in assessing reasonableness.55
The State claims compelling, narrowly tailored interests in ensuring
sufficient public support for political parties and candidates, preventing voter confusion,
and promoting political stability. We address each asserted interest in turn.
1. The party affiliation rule does not advance the State’s interest
in ensuring public support for the Democratic Party.
The State’s first asserted interest is in ensuring public support for
recognized political parties.56 The State argues that it makes sense to confer benefits to
recognized political parties only if they have significant public support. And because
public support for a political party is measured by the strength of the candidates it
nominates,57 the State claims it can ensure that a political party has public support only
if the party and candidate are linked through the party affiliation rule. We are
55
See id. (upholding three percent eligibility threshold “[i]n light of the
deference we accord to the legislature on such issues, and because the three percent
figure remains in the mainstream of the practices of other states” (emphasis added));
Green Party of Alaska v. State (Green Party II), 147 P.3d 728, 736 (Alaska 2006) (“[W]e
concur with the superior court that Alaska’s requirements are ‘within the mid-range’ of
other states, and that the legislature acted reasonably in using this standard to determine
party eligibility.” (emphasis added)); see also Vogler II, 660 P.2d at 1196 (Rabinowitz,
J., concurring) (“I do not join in the court’s intimation that the [S]tate could meet its
burden of justifying [its law] merely by citing the existence of arithmetically similar
statutes in the other jurisdictions. Other states are different geographically from Alaska,
have different voter populations, are governed by their own unique constitutional
guarantees and have statutory patterns of election laws that may vary substantially from
that in Alaska.”).
56
See supra p. 3.
57
See supra note 7 and accompanying text.
-16- 7279
unconvinced. The flaw in the State’s argument is that the “link” between candidate and
political party does not depend on party registration status.
The State claims that the party affiliation rule is necessary because “[w]hen
a Democrat wins the Democratic primary, is listed on the general election ballot as a
Democrat, and wins over voters as a Democrat, those votes reasonably — albeit roughly
— approximate public support for the Democratic Party.” But as the Democratic Party
points out, inquiry into voter motivations is inherently speculative: “[T]he State cannot
reasonably discern whether a vote for an individual candidate is motivated by support
for the [Democratic] Party, support for the [Democratic] Party’s policy platform, support
for the candidate, in opposition to another candidate that the voter does not want to see
elected, or some combination of the above.” Because the State does not know the
reasons underlying a vote in an open primary election, and even more so in a combined-
ballot primary election, the claim that the party affiliation rule allows it to use candidate
support as a proxy for party support is illusory. Rather, as the Democratic Party argues,
“support for the candidate is imputed to the party because the party has associated with
the candidate as its nominee.” A candidate need not be a registered party member for
this imputation to occur.
The State counters that, at least to some degree, registration with a political
party means the candidate “identifies with the party and advocates its views” and that
voters logically assume this to be true. But the State cannot show this to be true or even
likely. As the United States Supreme Court has noted, “the act of formal enrollment or
public affiliation with [a] [p]arty is merely one element in the continuum of participation
in [p]arty affairs, and need not be in any sense the most important.”58 Given the ease of
58
Tashjian v. Republican Party of Conn., 479 U.S. 208, 215 (1986).
-17- 7279
registration and the lack of party vetting to run as a registered candidate in Alaska,59 a
candidate who does not support a party’s principles or platform could run in a primary
as a registered party candidate just as easily as a registered independent candidate. A
registered independent candidate could be even more involved with the party and support
more of the political party’s principles and elements of its platform than a registered
party candidate. The party affiliation rule does not “concretely” advance the State’s
interest.60
2. The party affiliation rule is not narrowly tailored to ensuring
that candidates have sufficient public support.
The State’s next asserted interest is in ensuring that candidates demonstrate
public support before the State places their names on the general election ballot. The
State argues that the party affiliation rule is “integral” to ensuring that candidates
demonstrate a “significant modicum of support” because the State’s recognition of an
official political party allows it to impute party support to the candidate as a proxy for
candidate support. The State argues that it “cannot infer support for the candidate” if the
primary winner disavows the political party by refusing to register with it.
We do not find the party affiliation rule a reasonable method of ensuring
candidate support. As a threshold matter, the State’s interest in ensuring a “modicum of
support” is not an important interest in and of itself. As we have explained, the interest
in ensuring public support for candidates is grounded in “an interest ‘in avoiding
59
See AS 15.25.030(16) (requiring declaration candidate is “registered to vote
as a member of the political party whose nomination is being sought”); AS 15.07.050(c)
(permitting supply of voter registration application indicating political party or group to
voter affiliated with said political party or group); AS 15.07.070(c) (directing voter
registration applications completed 30 days before election to be placed on official
registration list).
60
See Green Party I, 118 P.3d 1054, 1066 (Alaska 2005).
-18- 7279
confusion, deception, and even frustration of the democratic process at the general
election’ ” through frivolous or fraudulent candidates.61 The State’s asserted interest in
ensuring a modicum of support thus is valid only so far as the party affiliation rule
advances the underlying interests in avoiding confusion, deception, and frustration of the
democratic process at general elections.
Properly grounded in these interests, the party affiliation rule is not
narrowly tailored to the State’s asserted interest. The party affiliation rule is simply
unnecessary in most cases; there generally is no need to impute political party support
in a contested primary election because candidate support is demonstrated by the voters’
selection of the candidate as the political party’s nominee. The State’s interest comes
into play only in an uncontested or low-turnout primary election, in preventing a rogue
candidate from slipping onto the general election ballot as a political party candidate.
But even if this edge-case scenario occurred with sufficient regularity to warrant concern,
the State has taken no action to prevent it; under the current statutory scheme, an
unaffiliated voter could just as easily register as a party member and win as a rogue
candidate in an uncontested or low-turnout election.62 The State’s assertion that the party
affiliation rule is necessary to stop this deception does not withstand reasonable scrutiny.
3. The party affiliation rule is not narrowly tailored to prevent
voter confusion.
The State next argues that the party affiliation rule helps prevent voter
confusion arising from independent candidates running under a political party’s banner.
61
See State, Div. of Elections v. Metcalfe, 110 P.3d 976, 980 (Alaska 2005)
(quoting Vogler II, 660 P.2d 1192, 1195 (Alaska 1983)); see also Jenness v. Fortson,
403 U.S. 431, 442 (1971).
62
See AS 15.07.040 (“A person who is qualified . . . is entitled to register at
any time throughout the year . . . .”).
-19- 7279
The State first explains that the primary election ballot, which can include multiple
parties,63 is designed to include only each candidate’s name and political party
designation. The State thus concludes that voters will find it impossible to tell which
primary election an independent is running in on a combined primary ballot. The State
next explains that the general ballot, mandated by statute, lists each candidate by name
and associated political party.64 The State thus concludes that the general election ballot
will either present independent candidates without indicating that a party nominated
them, a deceptive bait-and-switch, or present candidates as both independent and
political party nominees, which will be “linguistically confusing, deceptive, or both.”
We are not persuaded by either argument.
On the primary election ballot, the State could simply print next to each
candidate’s name the political party whose primary election the candidate is running in.
On the general election ballot, the State could simply print the nominating party’s name
next to the candidate’s name. The State appears to concede that the primary election
ballot can be redesigned, but it is unsatisfied with the resulting general election ballot.
The State argues that the possible descriptors for a candidate’s party affiliation — such
as “nonpartisan,” “undeclared,” “non-affiliated,” or “independent” — are by definition
inaccurate, and that whichever word is chosen will cause voter confusion or deception.
But we believe the State’s concerns underestimate the Division of Elections and Alaska
voters’ common sense.
63
See Green Party I, 118 P.3d at 1070 (holding that parties have right to
combine ballots with each other).
64
See AS 15.15.030(5) (“The names of the candidates and their party
designations shall be placed in separate sections on the state general election ballot under
the office designation to which they were nominated. The party affiliation, if any, shall
be designated after the name of the candidate.”).
-20- 7279
In Green Party I we expressed confidence in Alaska voters, reasoning that
“given that Alaska’s blanket primary system caused little apparent voter confusion,
[there is] no basis for predicting that Alaska voters might be incapable of understanding
combined ballots.”65 This case is no different. We are confident the Division of
Elections will be able to design a ballot that voters can understand. And if the State
remains convinced that the ballot design itself will be confusing, it has several other
options to adequately inform the public. The ballot could include prominent disclaimers
explaining that a candidate’s party affiliation denotes only the candidate’s voter
registration and nothing more.66 The candidate’s party affiliation as distinct from
nominating party could be explained in the candidate’s statement in the general election
pamphlet.67 The political party could also promote or distance its platform, tenets, and
philosophy from a candidate’s through a paid advertisement in the pamphlet.68 And the
State could choose to educate the public about new ballots through advertising or
explanatory materials, such as the general election pamphlet.69 The State provides no
basis for predicting that Alaska voters will be unable to understand a Democratic Party
nominee who nonetheless is, for voter registration purposes, an independent voter. The
65
118 P.3d at 1068.
66
See AS 15.15.030 (“The director shall prepare all official ballots to facilitate
fairness, simplicity, and clarity in the voting procedure, to reflect most accurately the
intent of the voter, and to expedite the administration of elections.”).
67
See AS 15.58.030 (directing parameters of candidate’s statement).
68
See AS 15.58.040 (permitting political party to generally promote its
candidates).
69
See AS 15.58.020(a)(9) (designating information to be provided in general
election pamphlet, including “additional information on voting procedures that the
lieutenant governor considers necessary”).
-21- 7279
State’s bare assertion of an abstract interest in deterring voter confusion and deception
is therefore insufficient to support the party affiliation rule’s substantial burden.70
4. The party affiliation rule either does not advance or is not
narrowly tailored to promoting political stability interests.
The State’s final interest is in “the stability of its political system.” The
State argues the party affiliation rule promotes political stability by “protecting the
integrity of the State’s two routes to the general election ballot, preserving party labels
as meaningful sources of information for voters, and maintaining political parties as
viable and coherent entities.” We conclude that the party affiliation rule either does not
advance these interests or is not narrowly tailored to advancing them.
First, the party affiliation rule does not advance the integrity of the two
routes to the ballot. In Green Party I we held that the combined-ballot ban was not
justified solely because the State had an interest in “nominating ‘party candidates
through a primary election rather than through direct party selection of candidates.’ ”71
We reasoned that this interest, while “clearly legitimate,” was “not concretely at issue”
70
See Green Party I, 118 P.3d at 1068. The State argues in passing that we
should identify at least one ballot that could survive a pre-election challenge and not be
unduly confusing. But designing ballots is committed to the Division of Elections, not
to us. See AS 15.15.030(1). And to the extent the State is concerned it will not be able
to complete pre-election litigation of the ballot design before November elections, this
concern is unfounded. See Pebble Ltd. P’ship ex rel. Pebble Mines Corp. v. Lake &
Peninsula Borough, 262 P.3d 598, 601 n.19 (Winfree, J., dissenting) (“It is not
uncommon for us to consider a case on an expedited basis and issue a summary
dispositional order with an opinion to follow . . . .” (citing Miller v. Treadwell, 245 P.3d
867, 867, 874 (Alaska 2010) (ordering expedited briefing, holding oral argument, and
issuing opinion within 12 days of superior court’s contested election case decision);
Keller v. French, 205 P.3d 299, 299, 301-02 (Alaska 2009) (ordering expedited briefing,
holding oral argument, and issuing dispositive order within one week of appeal in high-
profile political dispute, with full opinion following later))).
71
118 P.3d at 1066.
-22- 7279
because a challenge to “the way the primary election is conducted” does not implicate
the State’s interest in holding primaries.72 The same reasoning applies here. The State
clearly has a legitimate interest in having primary elections for candidates associated
with a political party and petitions for candidates not representing a political party. But,
as explained above, an independent candidate associates with the Democratic Party
simply by running in its primary. The two nomination methods’ integrity is not under
threat because the primary route to the general election ballot remains solely for
candidates associated with a political party. In the State’s words, there still remain “two
distinct routes to the general election ballot — one for party candidates and one for non-
party candidates.”
Second, the party affiliation rule is not a reasonable way of maintaining
political party labels’ informational value for voters. The State asserts that an
independent candidate chosen by independent voters cannot represent the Democratic
Party message when the candidate runs under the Democratic Party’s label. This is true
to a point: “To the extent that party labels provide a shorthand designation of the views
of party candidates on matters of public concern, the identification of candidates with
particular parties plays a role in the process by which voters inform themselves for the
exercise of the franchise.” 73 But it is also somewhat beside the point. At the political
party level, the State’s desire to “protect[] the integrity of the Party against the Party
itself” is not a legitimate motivation.74 The State cannot force the Democratic Party to
favor certain viewpoints for the sake of the State’s political system. And at the general
election level, political parties may already choose to nominate their candidates by
72
Id.
73
Tashjian v. Republican Party of Conn., 479 U.S. 208, 220 (1986).
74
See id. at 224.
-23- 7279
seeking the input of voters who are independent, or even from other parties.75 We cannot
say that requiring a candidate to adopt a political party label will do anything to make
candidates more representative of the views the State believes that political party
represents. The party affiliation rule is not a reasonable way of preserving the
informational value of party labels.
Finally, the State has not met its burden of showing that the party affiliation
rule is a reasonable and necessary way of preserving the viability of political parties.
The State asserts that the party affiliation rule is necessary for executive branch
candidates to represent the majority of the people and for legislative branch candidates
to organize themselves into “coherent groups.” The State asserts that losing the party
affiliation rule will “erode the functioning of a democracy and undermine voters’ faith
in it.” But the State does not explain why this outcome is likely to occur beyond the bare
assertion that it will, and “it is not sufficient for the [S]tate to assert theoretical
possibilities, albeit undesirable ones, to justify incursions upon free speech rights
protected by the Alaska Constitution.”76 Absent further explanation, we see no basis for
concluding that the party affiliation rule is what ensures the long-term stability of
Alaska’s political system. This interest cannot justify the substantial burden on the
Democratic Party’s associational rights.
V. CONCLUSION
For these reasons, we AFFIRM the superior court’s judgment.
75
See supra p. 4.
76
See Green Party I, 118 P.3d at 1066 (quoting Vogler II, 660 P.2d 1192,
1196 (Alaska 1983) (Rabinowitz, J., concurring)).
-24- 7279