O'CALLAGHAN v. State

RABINO WITZ, Justice, dissenting.

I dissent from the court’s conclusion that the blanket primary statute is constitutional. In my view Aaska’s blanket primary statute impermissibly burdens the Republican Party of Aaska’s political rights of association in violation of the First and Fourteenth Amendments to the United States Constitution.1

Initially I think it appropriate to observe that in accordance with controlling federal precedent this court must apply strict scrutiny in determining the constitutionality of Aaska’s blanket primary statute. I rely on Burdick v. Talcushi, 504 U.S. 428, 112 S.Ct. 2059, 119 L.Ed.2d 245 (1992), Eu v. San Francisco County Democratic Central Committee, 489 U.S. 214, 109 S.Ct. 1013, 103 L.Ed.2d 271 (1989), Tashjian v. Republican Party of Connecticut, 479 U.S. 208, 107 S.Ct. 544, 93 L.Ed.2d 514 (1986), and Democratic Party of the United States v. Wisconsin ex rel LaFollette, 450 U.S. 107, 101 S.Ct. 1010, 67 L.Ed.2d 82 (1981), in concluding that the compelling interest standard is controlling in resolving issues of federal constitutionality in the factual context of this case.2

Burdick contains the most relevant text. There, the Supreme Court wrote:

[T]he rigorousness of our inquiry into the propriety of a state election law depends upon the extent to which a challenged regulation burdens First and Fourteenth Amendment rights. Thus, as we have recognized when those rights are subjected to “severe” restrictions, the regulation must be “narrowly drawn to advance a state interest of compelling importance.” But when a state election law provision imposes only “reasonable, nondiscriminatory restrictions” upon the First and Fourteenth Amendment rights of voters, “the State’s important regulatory interests are generally sufficient to justify” the restrictions.

Burdick, 504 U.S. at 434, 112 S.Ct. at 2063-64 (emphasis added) (citation omitted).

The Burdick court applied the latter, lower level of scrutiny, and held the Hawaii election laws to be constitutional. Burdick explains its application of the less strict test by stating:

There is no doubt that the Hawaii election laws, like all election regulations, have an impact on the right to vote, but it can hardly be said that the laws at issue here unconstitutionally limit access to the ballot by party or independent candidates or unreasonably interfere with the right of voters to associate and have candidates of their choice placed on the ballot.

Id. (emphasis added) (citation omitted).

In the case at bar, the blanket primary statute does specifically interfere with the right of the Republican Party of Aaska to have candidates of its choice placed on the primary ballot. That is, the statute prohibits the Republican Party of Aaska from selecting candidates according to its chosen method. The clear implication of Burdick is that Aaska’s blanket primary statute is subject to strict scrutiny.

*1265Equally clear is Eu. There, the Supreme Court struck down California laws that barred the parties from endorsing candidates in primary elections. Justice Marshall, writing for the court, stated, “If the challenged law burdens the rights of political parties and their members, it can survive constitutional scrutiny only if the State shows that it advances a compelling state interest and is narrowly tailored to serve that interest.” Eu, 489 U.S. at 222, 109 S.Ct. at 1019 (citation omitted). He continued:

It is well settled that partisan political organizations enjoy freedom of association protected by the First and Fourteenth Amendments. Freedom of association means not only that an individual voter has the right to associate with the political party of her choice, but also that a political party has a right to “ ‘identify the people who constitute the association,’ ” and to select a “standard bearer who best represents the party’s ideologies and preferences.”

Eu, 489 U.S. at 224, 109 S.Ct. at 1020-21 (emphasis added) (citations omitted).

Thus, according to Eu, the party has the right to select its own nominee, and any attempt to infringe on that right is subject to strict scrutiny.

Tashjian contains similar language. There, Justice Marshall wrote:

The power to regulate the time, place, and manner of elections does not justify, without more, the abridgment of fundamental rights, such as the right to vote, or, as here, the freedom of political association.

Tashjian, 479 U.S. at 217, 107 S.Ct. at 550 (citation omitted). Justice Marshall then applied strict scrutiny to the Connecticut statute, and found it unconstitutional. LaFollette also supports this proposition. There the Supreme Court did not specifically state whether strict scrutiny applied. However, it mentions “compelling interest[s],” which implies that strict scrutiny applied to the ease. LaFollette, 450 U.S. at 124-125, 101 S.Ct. at 1024-25,

To understand why Alaska’s blanket primary statute has the effect of prohibiting the Alaskan Republican Party from nominating candidates of its choice, it is necessary to review the operation of Alaska’s primary election laws. In this regard AS 15.25.010 states:

Candidates for the elective state executive and state and national legislative offices shall be nominated in a primary election by direct vote of the people in the manner .prescribed by this chapter.

(Emphasis added.) Therefore, parties must participate in the primary election. A “political party” is defined as

an organized group of voters that represents a political program and that nominated a candidate for governor who received at least three percent of the total votes cast at the preceding general election for governor....

AS 15.60.010(20).

Further, parties have no formal control over who can claim the party mantle in a primary. This is because AS 15.25.030, which governs the declaration of candidates, grants the party no role.3 Specifically, the only formal affiliation which the statute requires between the party and a candidate seeking office under the name of that party is that the candidate “is registered to vote as a member of the political party whose nomination is being sought.” AS 15.25.030(a)(16).

Thus, under Alaska law, a party is compelled to participate in the primary election. Furthermore, a party cannot make its own selection of who will represent it in the primary election.4 Therefore, the primary is the only mechanism available for the party to choose its nominee. And as a result of the *1266blanket primary statute, the party cannot select who will vote for its nominee.5

Taken together, these laws mandate that any organization which wins more than three percent in the prior election for governor loses the right to nominate the candidate of its choice. A law requiring such a result can only be justified when it is narrowly drawn to advance an interest of compelling importance to the state, according to Tashjian, Eu, and Burdick. Indeed, in LaFollette, the Supreme Court approvingly cited Professor Tribe for the following proposition:

Freedom of association would prove an empty guarantee if associations could not limit control over their decisions to those who share the interests and persuasions that underlie the association’s being.

LaFollette, 450 U.S. at 122 n. 22, 101 S.Ct. at 1019 n. 22.

Thus, it is within the province of a party to decide who will nominate its candidates. Other language in the LaFollette opinion makes this point, as well. In footnote 25 of the LaFollette opinion the Court acknowledges that a party’s rules may not necessarily induce party loyalty more effectively than the state’s proposed rule. However, “the stringency, and wisdom, of membership requirements is for the association and its members to decide — not the courts — so long as those requirements are otherwise constitutionally permissible.”

In my view, Tashjian and LaFollette compel the holding that Alaska’s blanket primary statute is unconstitutional. The Supreme Court of the United States held in LaFollette that the State of Wisconsin could not control the delegate selection process of a national party for national conventions. More particularly, the Supreme Court held that Wisconsin could not force the party to accept a state mandated process for selecting candidates. I cannot distill from LaFollette a distinction between the process for selecting delegates and the process for selecting actual candidates. LaFollette states, “It is for the National Party — and not the Wisconsin Legislature or any court — to determine the appropriate standards for participation in the Party’s candidate selection process.” LaFollette, 450 U.S. at 124 n. 27, 101 S.Ct. at 1020 n. 27 (emphasis added). Delegates select candidates, and therefore interference in the delegate selection process is interference in the candidate selection process. The Supreme Court recognized this.6

In Tashjian, the state wanted to keep the candidate selection process closed, while the Party wanted to allow some outsiders to vote. In LaFollette, the state wanted to keep the candidate selection process open, while the Party wanted to close the process to outsiders. It is critical to note that, in each case, the Party’s desires prevailed over the state’s asserted interests in closing or opening the process. I think that these cases cannot be distinguished in any meaningful way from the case at hand, and that they require this court to rule in favor of the Party.

Further, I disagree with the majority’s statement that “there is merit to the State’s and AVOP’s position that the danger of raid*1267ing exists under the partially-closed primary and that the danger is increased only by a matter of degree by a blanket primary.” Under the scheme favored by the Republican Party of Alaska, there is little risk of raiding. I say this for two reasons.

First, rules of the Republican Party of Alaska’s scheme do not permit raiding for the simple reason that they do not permit Democrats to vote. Under the majority’s definition, raiding occurs when “voters in sympathy with one party designate themselves as voters of another party so as to influence or determine the results of the other party’s primary.” This implies a degree of sabotage, where members of one party try to weaken the other party’s position by voting for a weak candidate. The independents and unaffiliated voters who would be allowed to vote under the Republican Party of Alaska’s rules are, by definition, not members of an opposing party, and there is no reason to think that they are in sympathy with another party. They do not seek to strengthen unaffiliated or independent candidates by sabotaging the Republican Party of Alaska’s nominating process.

Second, the majority’s definition of raiding necessarily implies that something is happening to the party that it does not want to happen. Thus, anything that the Republican Party of Alaska wants to happen in its nominating process cannot be characterized as raiding. By virtue of the fact that the Republican Party of Alaska has invited independents and non-affiliated voters to participate in its primary election, actions taken by those voters cannot be considered “raiding.” Indeed, had the Republican Party of Alaska invited Democrats to participate in its primary, actions taken by the Democrats could not be fairly characterized as raiding.

The Professor Tribe quote referred to above illustrates this point. Again, he stated:

Freedom of association would prove an empty guarantee if associations could not limit control over their decisions to those who share the interests and persuasions that underlie the association’s being.

(Emphasis added.) Thus, associations are guaranteed the right to control who makes their decisions. If they invite non-members to participate, that is their right. And such participation therefore is not “raiding.” It should be noted that the quote does not state only that the association should be able to limit control over their decisions to members, but speaks in more general terms of shared interests and persuasions — the precise group the Republican Party of Alaska hopes to attract and include in the primary.

As the Supreme Court of the United States emphasized in Tashjian:

The nature of the appellees’ First Amendment interest is evident. “It is beyond debate that freedom to engage in association for the advancement of beliefs and ideas is an inseparable aspect of the ‘liberty’ assured by the Due Process Clause of the Fourteenth Amendment, which embraces freedom of speech.” The freedom of association protected by the First and Fourteenth Amendments includes partisan political organization.

Tashjian, 479 U.S. at 214, 107 S.Ct. at 548 (citations omitted).

In my opinion the State of Alaska has failed to demonstrate compelling state interests which outweigh the harms to the Republican Party of Alaska’s constitutionally protected associational rights.7 The State’s objectives of encouraging voter turnout, insuring that elected officials are representative of the people to be governed, and accommodating the need for a broad cross-section of support from voters, cannot trump the Republican Party of Alaska’s constitutionally protected associational interests in determining its own candidates, protecting itself against raiding, and insuring that its candidates are accountable to the Republican Party of Alaska’s principles and philosophy.

I therefore conclude that since the State has failed to demonstrate compelling reasons *1268for limiting the associational rights of the Republican Party of Alaska, the blanket primary statute is unconstitutional under the First and Fourteenth Amendments to the United States Constitution.8

. Freedom of association has been described by the Supreme Court of the United States as among the preferred rights deemed by implication from the First Amendment’s guarantees of speech, press, petition and assembly. NAACP v. Claiborne Hardware Co., 458 U.S. 886, 102 S.Ct. 3409, 73 L.Ed.2d 1215 (1982); Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976). See also L. Tribe, American Constitutional Law 101 (2d ed. 1988).

. In reviewing the superior court's interpretation of a constitutional provision, this court applies its independent judgment. Arco Alaska, Inc. v. State, 824 P.2d 708, 710 (Alaska 1992).

. Parties can nominate the candidate of their choice in exceptional circumstances, such as death of the winner of the primary. AS 15.25.110.

. If, for example, only those candidates who received a certain percentage of votes at a party convention or caucus could run in the primary under the party’s name, then the party would be assured that the nominees have received at least some affirmative approval from the party. As it stands, the party has no control over which candidates use its name.

. The same rules do not apply to non-party "political groups” which run candidates in the primary. AS 15.60.010(19) defines a "political group" as "a group of organized voters which represents a political program and which does not qualify as a political party." Political groups are free to choose their candidates in any way they see fit. If the group then obtains the proper number of signatures on a petition, AS. 15.25.140, .160-. 170, the candidate is placed on the primary election ballot. AS 15.25.190. Therefore, a political group can nominate its own candidate, since it is not bound by AS 15.25.030(a). Since the group will presumably run a petition drive for only one candidate per office, that candidate will be that group's nominee in the general election. Thus, by having the right to choose who will bear its name in the primary election, a group can place a candidate in the general election without having to tally the opinions of unwanted voters.

I do not address whether a political party is allowed to dissolve itself and reconstitute itself as a political group in order to choose nominees of its own choice.

. It is true that the Supreme Court recognized that the state had certain interests in providing for an open primary, so long as the political party was not forced to abide by the results. See LaFollette, 450 U.S. at 126, 101 S.Ct. at 1021 ("But if Wisconsin does open its primary, it cannot require that the Wisconsin delegates to the National Party Convention vote there in accordance with the primary results, if to do so would violate Party rules.”).

. The Republican Party of Alaska need not defend the efficiency or wisdom of its rules, so long as they are otherwise constitutional. LaFollette, 450 U.S. at 123 n. 25, 101 S.Ct. at 1020 n. 25; cf. Smith v. Allwright, 321 U.S. 649, 64 S.Ct. 757, 88 L.Ed. 987 (1944) (barring "white primary” as unconstitutional).

. Amicus Alaska Federation of Natives points out in its brief that if the current scheme is found unconstitutional, the remedy is not to force the State to run a primary for the Republican Party of Alaska under the Republican Party of Alaska’s rules, but instead it is to allow the Republican Party of Alaska to opt out and run its own selection process — caucus, convention, or privately funded statewide primary — so long as the process chosen by the Republican Party of Alaska does not violate constitutional limitations.