Beaver v. Clingman

F I L E D
United States Court of Appeals
Tenth Circuit

APR 6 2004
PUBLISH

UNITED STATES COURT OF APPEALS PATRICK FISHER
Clerk
TENTH CIRCUIT

ANDREA L. BEAVER; FLOYD
TURNER; MINELLE L. BATSON;
MARY Y. BURNETT; MICHAEL L.
SEYMOUR; TERRY L. BEAVER;
ROBERT T. MURPHY; SHARON
LYNN ATHERTON; ROGER
BLOXHAM; STEVE GALPIN;
RICHARD P. PRAWDZIENSKI;
MICHAEL A. CLEM; WHITNEY L.
BOUTIN, JR.; CHRISTOPHER S.
POWELL; CHARLES A. BURRIS;
and the LIBERTARIAN PARTY OF
OKLAHOMA a/k/a/ Libertarian
Political Organization,
No. 03-6058
Plaintiffs - Appellants,
v.

MICHAEL CLINGMAN, Secretary of
the Oklahoma State Election Board;
GLO HENLEY, Chairman of the
Oklahoma State Election Board;
KENNETH MONROE, Vice Chairman
of the Oklahoma State Election Board;
THOMAS E. PRINCE, Member of the
Oklahoma State Election Board; and
the OKLAHOMA STATE ELECTION
BOARD,

Defendants - Appellees.
 Appeal from the United States District Court
for the Western District of Oklahoma
(D.C. No. CIV-00-1071-F)

James C. Linger, Tulsa, Oklahoma for Plaintiffs-Appellants.

Wellon B. Poe, Assistant Attorney General, Oklahoma City, Oklahoma for
Defendants-Appellees.

Before KELLY , LUCERO , and O’BRIEN , Circuit Judges.

LUCERO , Circuit Judge.

This case presents issues at the intersection of two Supreme Court cases

concerning the associational rights of political parties in the context of primary

elections. Oklahoma’s election statutes currently provide for a semi-closed

primary system, in which a party may invite only its own party members and

registered voters designated as Independents to vote in its primary. Along with

registered voters of the Republican and Democratic parties, the Libertarian Party

of Oklahoma (the “LPO”) filed a § 1983 action, alleging that the Oklahoma

election statutes regulating primaries violate their rights to freedom of political

association and free speech by preventing the LPO from inviting members of

other parties to vote in its primary elections.

The district court found the Oklahoma statutes to be constitutional.

Because we conclude that the election laws impermissibly violate the LPO’s

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associational rights, we exercise jurisdiction pursuant to 28 U.S.C. § 1291 and

REVERSE.

I

Several types of primary systems exist in the United States. 1 Oklahoma’s

statute regarding primaries provides that:

A. No registered voter shall be permitted to vote in any Primary
Election or Runoff Primary Election of any political party except the
political party of which his registration form shows him to be a
member, except as otherwise provided by this section.
B.
1. A recognized political party may permit registered voters
designated as Independents . . . to vote in a Primary Election
or Runoff Primary Election of the party.

Okla. Stat. tit. 26, § 1-104. By the statute’s terms, a political party in Oklahoma

may allow Independents to vote in its primary and runoff elections, but a party

may not invite voters registered with other parties to vote in its primary.

Having exercised its statutory option to allow Independents to vote in its

1
In a “closed primary,” there is a separate primary ballot for each party,
and no cross-over voting is allowed. In other words, a registered Republican can
vote only in the Republican primary. A “semi-closed primary,” which resembles
the closed primary, permits a party to invite independents to vote in the party’s
primary if it so chooses. In an “open primary” system, all voters, regardless of
party affiliation, are able to choose the primary in which they vote. Finally, a
“blanket primary” system allows each voter to choose in which primary he or she
will vote for each separate office. A “party-option open primary,” which is at
issue in this case, is a variation of the “open primary.” In a party-option open
primary, a party may choose either to open its primary to registered independents
or voters from other parties or to restrict its primary to only voters of its own
party.

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primaries, the LPO would also like to invite all registered Oklahoma voters,

regardless of their political affiliations, to participate. The LPO has decided that

such an action would help it reach out to Libertarian-oriented voters of other

political affiliations, thereby producing a more viable Libertarian candidate.

The LPO initially asked the Secretary of the Oklahoma State Election

Board for permission to invite all registered voters to participate in its primaries

for the 2000 election cycle, and the Secretary denied the request. After

announcing the same intention for the 2004 election cycle and being denied again,

the LPO filed suit in federal district court. It claimed that the First Amendment’s

guarantee of free association gave it the right to invite all registered voters,

regardless of political affiliation, to vote in its primaries; it sought a permanent

injunction to enjoin the Oklahoma State Election Board from enforcing the state

election statutes. If granted such an injunction, the LPO suggested that Oklahoma

would become a party-option open primary state, allowing each party the option

of opening its primary to registered voters of other parties.

Finding that the LPO had standing to bring the suit, the district court

proceeded to weigh the character and magnitude of the burden imposed on the

LPO’s rights protected by the First and Fourteenth Amendments against the

interests set forth as justifications by the state. It concluded that the burden of

the statute on the LPO was not a severe one and accordingly analyzed whether

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any of Oklahoma’s proffered interests were sufficiently important to justify the

burden. Though it found unavailing Oklahoma’s interests in avoiding voter

confusion, administrative difficulties, “swamping,” and “raiding,” 2 the district

court concluded that the state’s interest in “preserving the political parties as

viable and identifiable interest groups, insuring that the results of a primary

election . . . accurately reflect the voting of the party members” (R. at 68–69) was

sufficiently important for the state to prevail.

II

We review the district court’s findings of fact for clear error. Fed. R. Civ.

P. 52(a). “A finding is ‘clearly erroneous’ when although there is evidence to

support it, the reviewing court on the entire evidence is left with the definite and

firm conviction that a mistake has been committed.” Anderson v. City of

Bessemer City, 470 U.S. 564, 573 (1985) (citation omitted). Our review of

questions of law, on the other hand, is de novo. See Elder v. Holloway, 510 U.S.

510, 516 (1994). “[T]he difference between a de novo review of a record and a

review under the clearly erroneous standard is significant,” Ocelot Oil Corp. v.

2
Swamping is defined as the control of a minor party’s candidate selection
by voters affiliated with other parties; it was described by the Supreme Court in
California Democratic Party v. Jones, 530 U.S. 567, 578 (2000). Raiding is
similarly defined and gives non-members of a minor party the ability to overtake
the minor party as a flag of convenience, thus affecting the ideology of the ticket
representatives of the party. Id.

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Sparrow Indus., 847 F.2d 1458, 1464 (10th Cir. 1988); in de novo review, “no

form of appellate deference is acceptable,” Salve Regina Coll. v. Russell, 499

U.S. 225, 238 (1991).

A

Because Oklahoma statutes currently recognize the LPO as a political

organization rather than a political party, we must first determine whether the

LPO has standing to bring a suit to enjoin laws that restrict political parties. In

Oklahoma, party status depends on statutory requirements; specifically, a group

may attain party status during even-numbered years by getting a petition signed by

five percent of the number of people who voted in the last general election. Okla.

Stat. tit. 26, § 1-108. Having regularly completed these requirements in even-

numbered years, the LPO has consistently and cyclically achieved party status. In

order to maintain party status until the following election cycle, however, the

party must achieve ten percent of the total votes cast for certain offices. Okla.

Stat. tit. 26, § 1-109. If a party fails to achieve the required ten percent, it loses

its status as a party and becomes a “political organization” until it is able to

regain party status through the mechanisms described in § 1-108. Because the

LPO has never achieved the required ten percent, it consistently has lost its party

status in years following elections. Therefore, over the last two decades, the LPO

has managed to temporarily attain party status in the few months surrounding the

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elections but has not maintained it during the off years.

Our Article III standing jurisprudence requires that an actual controversy

exist at all stages of litigation, and that the parties to the litigation all have a

personal stake in its outcome. Because the LPO’s status was that of a political

organization rather than a political party when it brought the instant suit, there

exists some doubt as to the LPO’s standing to challenge a law that regulates

political parties. As to the injury requirement, the LPO must demonstrate that the

Oklahoma primary election statutes injure or threaten to injure the LPO. See

Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). The district court

found that “[t]he LPO is an active organization with political plans for the 2004

election cycle.” (R. at 23.) In addition, the LPO has been on the Oklahoma ballot

in every presidential election from 1980 to 2000 and had primary elections in

1980, 1996, and 2000.

Moreover, we allow claims when plaintiffs contest “wrongs capable of

repetition yet evading review.” See Rosario v. Rockefeller, 410 U.S. 752, 756 n.5

(1973); see also Southern Pac. Terminal Co. v. ICC, 219 U.S. 498, 514–515

(1911). One area in which the Supreme Court has applied this exception

frequently is election law. In Moore v. Ogilvie, 394 U.S. 814, 816 (1969), for

example, the Court allowed plaintiffs to challenge a state law that required a

certain number of signatures to place an independent candidate’s name on the

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ballot. There, the Court concluded that the case was not moot because plaintiffs

might be expected to seek similar access to the ballot in the future, and thus the

wrong was capable of repetition yet evading review.

Similarly, in Norman v. Reed, 502 U.S. 279 (1992), the Court allowed a

plaintiff to challenge a ballot-access law. Explaining why it allowed the

challenge despite the fact that the elections had already taken place, the Court

stated that “[t]here would be every reason to expect the same parties to generate a

similar, future controversy subject to identical time constraints if we should fail

to resolve the constitutional issues that arose in 1990.” Id.; see also First

National Bank of Boston v. Bellotti, 435 U.S. 765, 774 (1978) (allowing plaintiffs

to challenge a law prohibiting corporations from spending money in elections

because the issue would likely arise in future elections).

The injury of which the LPO complains is similarly capable of repetition

yet evading review. Both of the necessary elements are present. With respect to

the injury’s tendency to evade review, as explained above, it has been impossible

to this point for the LPO to maintain its party status for more than a period of a

few months. Equally apparent is the likelihood that the injury will be repeated.

Although the LPO was not a political party at the time of its suit, it has a

consistent record of demonstrating the ability to achieve party status. Moreover,

the LPO intends to petition to regain full political party status for the 2004

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election cycle, and thus it is likely that there will be a primary election with

various LPO candidates competing for the right to stand for election. Indeed,

“[t]here would be every reason to expect the same parties to generate a similar,

future controversy subject to identical time constraints if we should fail to resolve

the constitutional issues.” Norman, 502 U.S. at 288. Accordingly, we conclude

that the LPO has standing to bring the instant suit.

B

Turning to the merits of the appeal, the LPO’s claim requires us to consider

the impact of the Oklahoma election laws upon its rights to free association and

speech under the First and Fourteenth Amendments. To this end, we must balance

the state’s authority to regulate elections with the freedom of political parties to

choose those with whom they will associate. The Constitution grants the states

the power to legislate the “Times, Places, and Manner of holding Elections for

Senators and Representatives,” Art. I, § 4, cl. 1, and states have parallel control

over state elections. However, this general power alone “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 v. Republican Party of Conn., 479

U.S. 208, 217 (1986) (citation omitted).

The nature of the constitutional rights at stake in the instant case is

axiomatic; “[t]he freedom of association protected by the First and Fourteenth

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Amendments includes partisan political organization.” Id. at 214; see Elrod v.

Burns, 427 U.S. 347, 357 (1976) (plurality opinion); Buckley v. Valeo, 424 U.S.

1, 15 (1976). In this context, our conception of the freedom of association is not

simply an acknowledgment that individuals should be free to join or not join a

party. The associational rights of political parties are distinct; indeed, “[f]reedom

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.” Eu v. San Francisco County

Democratic Cent. Comm., 489 U.S. 214, 229 (1989) (citations omitted).

More recently, the Supreme Court reiterated:

In no area is the political association’s right to exclude more
important than in the process of selecting its nominee. That process
often determines the party’s positions on the most significant public
policy issues of the day, and even when those positions are
predetermined it is the nominee who becomes the party’s ambassador
to the general electorate in winning it over to the party’s views . . . .
[Thus we acknowledge] 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.

California Democratic Party v. Jones, 530 U.S. 567, 575 (2000) (citations

omitted). Moreover, the Supreme Court has recognized that party “enrollment or

public affiliation with the Party itself is merely one element in the continuum of

participation in Party affairs, and need not be . . . the most important.” Tashjian,

479 U.S. at 215. In accordance with this precedent, the LPO claims that the

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Oklahoma statutes burden its right to determine the bounds of its association in its

quest for political success.

Having articulated the associational rights at stake, we must assess the

degree of the burden imposed on those rights by the current Oklahoma election

laws. To determine whether a state election law’s burden on associational rights

is impermissible:

a court . . . must first consider the character and magnitude of the
asserted injury to the rights protected by the First and Fourteenth
Amendments that the plaintiff seeks to vindicate. It then must
identify and evaluate the precise interests put forward by the State as
justifications for the burden imposed by its rule. In passing
judgment, the Court must not only determine the legitimacy and
strength of each of those interests, it also must consider the extent to
which those interests make it necessary to burden the plaintiff’s
rights.

Anderson v. Celebrezze, 460 U.S. 780, 789 (1983). More recently, the Supreme

Court clarified that if the burden is severe, the regulation must be narrowly

tailored and advance a compelling state interest; on the other hand, if we

determine the burden to be less severe, then important regulatory interests are

generally enough to justify the regulation. Timmons v. Twin Cities Area New

Party, 520 U.S. 351, 358–59 (1997); Burdick v. Takushi, 504 U.S. 428, 434

(1992).

We must therefore determine the magnitude of the burden that the

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Oklahoma statutes place on the LPO. 3 Of course, not every burden that state

regulations impose on associational rights in the election law context is a severe

one. See, e.g., Burdick, 504 U.S. at 432–34 (concluding that Hawaii’s ban on

write-in voting was not entitled to strict scrutiny). The Court has applied

intermediate scrutiny, for example, when the law’s restrictions were chiefly

administrative. See, e.g., Rosario, 410 U.S. at 760–62 (employing intermediate

scrutiny in evaluating a New York law that required voters to enroll in a political

party by a cutoff date).

However, when states have statutorily restricted parties from defining the

bounds of their own association, the Court has tended to employ strict scrutiny.

See, e.g., Jones, 530 U.S. 567, 582 (2000); Eu, 489 U.S. 214, 225 (1989)

(requiring California’s election provisions prohibiting parties from endorsing

candidates in primaries to be narrowly tailored to serve a compelling state

interest); Tashjian, 479 U.S. at 225 (1986); Democratic Party of the United States

3
This task is somewhat complicated by the fact that prior to Burdick, the
Court had not specifically articulated the need for a court to base its analysis on
whether the burden imposed by an election statute on constitutional rights was a
“severe” one. Thus, many cases do not use that terminology. In such prior cases,
however, the Court either generally was explicit in employing strict scrutiny or
intermediate scrutiny to evaluate the burdens imposed by election statutes on
associational rights. We thus rely on the type of scrutiny employed as a useful
proxy for purposes of determining whether the Court viewed the particular burden
as severe (if it applied strict scrutiny) or less substantial (if it used intermediate
scrutiny).

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v. Wisconsin ex rel. La Follette, 450 U.S. 107, 124 (1981) (applying strict

scrutiny when Wisconsin attempted to force the Democratic Party to accept its

system for selecting delegates to the national party convention); Cousins v.

Wigoda, 419 U.S. 477, 489 (1975) (using strict scrutiny to analyze whether

Illinois’ interest in determining the delegates at its primaries trumped parties’

associational rights); but see Timmons, 520 U.S. at 358–59 (employing

intermediate scrutiny when analyzing Minnesota’s prohibition of fusion

candidacies).

Most instructive to our present analysis are Tashjian and Jones; the facts in

the case before us place it squarely between those two cases. In Tashjian, the

Court considered Connecticut’s election statutes, which provided for an entirely

closed primary system. Tashjian, 479 U.S. at 211. In other words, only voters

registered with a particular party could vote in that party’s primary; even

independents could not vote in Connecticut’s primaries. Id. Like the LPO in the

instant case, the Republican Party in Tashjian asserted that Connecticut’s election

statutes violated its First Amendment freedom of association rights by restricting

it from inviting certain registered voters to assist it in selecting its standard-

bearer. Id.

The Supreme Court explained that in order to trump the Republican Party’s

associational rights in this context, Connecticut’s regulation would need to be

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narrowly tailored to advance a compelling interest. Id. at 217. Deciding that

none of Connecticut’s asserted interests met strict scrutiny, the Court held that a

state could not restrict a party from inviting independent voters to participate in

its primary election absent a compelling state interest. 4 Id. at 229.

Almost two decades later in Jones, the Court analyzed California’s “blanket

primary” system, in which parties were required to allow voters to choose the

primaries in which they wanted to vote. Jones, 530 U.S. at 570. As directed by

Timmons, the Court analyzed the burden imposed by the California regulations

and concluded that it was severe. Id. at 581–82. Accordingly, it required

California to demonstrate that its regulations were narrowly tailored to serve a

compelling interest; concluding that none of the interests were sufficiently

compelling, the Court held that California’s primary system impermissibly

violated parties’ associational rights—more specifically, their ability to choose

4
Footnote 13 of Tashjian is relevant:

Our holding today does not establish that state regulation of primary
voting qualifications may never withstand challenge by a political
party or its membership. A party seeking, for example, to open its
primary to all voters, including members of other parties, would raise
a different combination of considerations. Under such
circumstances, the effect of one party’s broadening of participation
would threaten other parties with the disorganization effects which
the statutes in Storer v. Brown, 415 U.S. 724 (1974), and Rosario v.
Rockefeller, 410 U.S. 752 (1973), were designed to prevent.

479 U.S. at 224 n.13. This case poses such circumstances.

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the group of people who selected their candidates. Id. at 586.

This case falls between Tashjian and Jones. Whereas Tashjian concluded

that states could not restrict parties from allowing independent voters to vote in

their primaries, and Jones held that states could not compel parties to allow voters

from other parties to vote in their primaries, the instant case asks whether it is

permissible for states to forbid parties from allowing registered voters from other

parties to participate in their primaries. 5

The similarities among Tashjian, Jones, and this case prove useful in our

analysis, as they demonstrate that state regulations can impair associational rights

either by compelling political association as in Jones, or by precluding political

association as in Tashjian. More generally, in both cases the Supreme Court

considered statutes that directly affected a political party’s freedom to set the

boundaries of the group of voters it would invite to help it select its standard-

bearer. To this end, the Court explained that a state generally may not “prevent

5
One of our sister circuits had occasion to consider a question similar to
the one before us. In Cool Moose Party v. Rhode Island, the First Circuit
analyzed Rhode Island’s election statute, which like Oklahoma’s, provided for a
semi-closed primary system. 183 F.3d 80, 82–83 (1st Cir. 1999). The First
Circuit held that Rhode Island’s semi-closed primary system impermissibly
violated the associational rights of the Cool Moose Party. That case is somewhat
distinguishable from the instant case, because Rhode Island apparently asserted
only an interest in protecting the Cool Moose Party from raiding and swamping.
Concluding that those interests did not trump the party’s associational rights, the
First Circuit held that Rhode Island’s primary system was unconstitutional.

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the parties from taking internal steps affecting their own process for the selection

of candidates.” Tashjian, 479 U.S. at 224.

When read together, the clear and unavoidable implication of Tashjian and

Jones is that a state generally may not restrict the ability of a political party to

define the group of citizens that will choose its standard-bearer. 6 That conclusion

dictates the terms of our present analysis, for among Tashjian, Jones, and the

instant case runs a connecting thread. In each of the three cases, the regulation at

issue restricted the options of parties seeking to define the scope of their

associational rights. Faced with the prospect of such burdens in Tashjian and

Jones, the Supreme Court employed strict scrutiny. Given the similarities among

the cases, we are compelled to exercise similar vigilance here. Because we

conclude that the burden in the instant case is a severe one, we proceed to analyze

whether the regulations are narrowly tailored to serve a compelling state interest.

Jones, 530 U.S. at 586.

Oklahoma sets forth the following four state interests in support of its

current primary election statutes: (1) protecting the LPO from “swamping” and

“raiding”; (2) preventing voter confusion; (3) minimizing administrative

difficulties; and (4) promoting and protecting “the integrity of the election

6
Analyzed in the context of related cases such as Eu and La Follette,
moreover, it is apparent that the Court closely scrutinizes almost all state
regulations that disrupt the decisionmaking processes of the parties.

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process,” which includes “preserving the political parties as viable and

identifiable interest groups, insuring that the results of a primary election . . .

accurately reflect the voting of the party members, and prevention of confusion or

misleading of the general electorate to the extent that the voting public often

relies on party labels to make their choice.” (R. at 68–69.)

With respect to Oklahoma’s interest in protecting the LPO from “raiding”

and “swamping,” the Supreme Court has concluded that it is not for the state to

determine what is in the best interests of a political party, explaining that “even if

the State were correct, a State, or a court, may not constitutionally substitute its

own judgment for that of the Party.” LaFollette, 450 U.S. at 122. Even though it

employed only intermediate scrutiny in analyzing Oklahoma’s interests, the

district court in the instant case rejected the asserted interest of protecting the

LPO. We agree that Oklahoma may not substitute its judgment for that of the

LPO, and thus that its interest in protecting the LPO from itself is not sufficiently

compelling to justify the burden on the LPO’s associational rights.

As to Oklahoma’s interests in avoiding voter confusion and administrative

difficulties, whether such interests could ever be sufficiently compelling to justify

a severe burden in any instance is a question that we need not decide. The district

court found that on the record before it, the state had not offered sufficient facts

to demonstrate even a substantial possibility of either confusion or administrative

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problems. With respect to voter confusion, it found that the LPO’s exhibits

clearly showed that “simple rules for voting eligibility can be posted at polling

places when the primary and runoff elections are conducted,” (R. at 75), thus

eliminating the possibility of confusion. We owe deference to the district court

on these findings of fact and conclude that the findings were not clearly

erroneous. See Anderson, 470 U.S. at 573.

Regarding the specter of administrative problems raised by Oklahoma, the

district court found that Oklahoma had introduced into the record “no basis for a

finding that the implementation of a party-open primary system would create

insuperable administrative burdens.” (R. at 76.) We are unable to locate any

evidence in the record that administrative difficulties would ensue under the

LPO’s proposed system; therefore, we conclude that the district court’s finding

that Oklahoma failed to show that administrative problems would occur if it

implemented the LPO’s proposed primary scheme was not clear error. See

Anderson, 470 U.S. at 573.

Thus, we turn finally to Oklahoma’s asserted interest in “protecting the

integrity of the political process . . . [by] preserving the political parties as viable

and identifiable interest groups, [and] insuring that the results of a primary

election . . . accurately reflect the voting of the party members.” (R. at 68–69.)

This interest might be separated into two distinct interests—preserving political

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stability as a general matter, and protecting the non-LPO parties from the

“poaching” of their voters by the LPO.

As to Oklahoma’s general interest in political stability, the Supreme Court

held in Timmons that though states may not “completely insulate the two-party

system from minor parties’ or independent candidates’ competition and

influence,” 520 U.S. at 367, a state’s interest in the stability of its political system

is strong. In the ballot access context, moreover, the Court described a state’s

interest in political stability as “not only permissible, but compelling.” Storer v.

Brown, 415 U.S. 724, 736 (1974).

We grant that a state has a compelling interest in political stability as a

general matter, but our task is to examine whether “in the circumstances of this

case, [that interest is] compelling.” Jones, 530 U.S. at 584. In Jones, for

example, California asserted state interests in promoting fairness, affording voters

greater choice, increasing voter participation, and protecting privacy. The Court

recognized that theoretically, those interests might be compelling; however, it

explained that the determination of whether they were compelling in any

particular case was “not to be made in the abstract, by asking whether fairness,

privacy, etc., are highly significant values; but rather by asking whether the aspect

of fairness, privacy, etc., addressed by the law at issue is highly significant.” Id.

In Eu, California asserted that its regulation forbidding parties from

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endorsing candidates was justified by its compelling state interest in political

stability. Alhough conceding that a state’s interest in political stability was

compelling as a general matter, the Court held that California had not

demonstrated that the interest was compelling in the circumstances of that case.

It explained that “[m]aintaining a stable political system is, unquestionably, a

compelling state interest. California, however, never adequately explains how

banning parties from endorsing or opposing primary candidates advances that

interest.” Eu, 489 U.S. at 226 (citation omitted).

Our determination of whether Oklahoma’s interest in political stability is

sufficiently compelling in the instant case begins with the Supreme Court’s

comparison of the statute in Storer, 415 U.S. at 736, which considered a

California statute forbidding a ballot position to an independent candidate who

“had a registered affiliation with [a] political party at any time within one year

prior to the immediately preceding primary election,” to Connecticut’s closed

primary system in Tashjian, the latter of which is much more closely analogous to

the Oklahoma regulations at issue. The Court articulated:

The statute in Storer was designed to protect the parties and the party
system against the disorganizing effect of independent candidacies
launched by unsuccessful putative party nominees. This protection
[was] undertaken to prevent the disruption of the political parties
from without, and not, as in this case, to prevent the parties from
taking internal steps affecting their own process for the selection of
candidates . . . . The Party’s determination of the boundaries of its
own association, and of the structure which best allows it to pursue

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 its political goals, is protected by the Constitution.

Tashjian, 479 U.S. at 224 (citation omitted).

On its face, the Court’s language suggests that Oklahoma’s interest in

protecting the integrity of the political process is insufficiently compelling. After

all, the regulation at issue here “prevent[s] the parties from taking internal steps

affecting their own process for the selection of candidates.” Id. However,

Tashjian specifically disclaimed in footnote 13 that such a conclusion necessarily

followed from its holding, suggesting that a case like the one before us would

“raise a different combination of considerations . . . [by] threaten[ing] other

parties with [] disorganization effects.” Tashjian, 479 U.S. at 224 n.13.

We are mindful that footnote 13 of Tashjian counsels caution; in so

proceeding, however, we ultimately conclude that Oklahoma’s interest on this

record and in the circumstances of this case is not a compelling one. Finding the

interest in protecting the integrity of the political process to be sufficiently

important, the district court relied on evidence that close to twenty-four percent of

Oklahoma’s primaries were decided by a margin of five percent or less in 2000.

(R. at 63.) Those numbers in hand, it hypothesized that the LPO’s proposed

party-option open primary might result in enough cross-over to change some

election results and that the integrity of the political system would thereby be

undermined. (Id.)

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 We acknowledge that the district court’s hypothetical might come to

fruition. To be sure, some election results might change if Oklahoma switches

from a semi-closed primary system to a party-option open primary system. It may

be the very possibility of such change that impels the litigation before us. What

is less clear, and what Oklahoma fails to demonstrate, is why a few changed

outcomes in tightly contested primaries would undermine the integrity of the

political process, or how somewhat altered election results would diminish

Oklahoma’s political stability.

Relevant to our analysis of whether Oklahoma’s interest in political

stability is compelling under these circumstances is that the system urged by the

LPO is already in place in two states. Specifically, Utah 7 and Alaska 8 currently

employ a party-option open primary, and in neither state has there been a report of

instability in the political process. We grant that a state has a compelling interest

in general political stability, but the fact that neither Utah nor Alaska has

collapsed under the weight of its allegedly destabilizing primary system calls into

question whether Oklahoma’s interest in political stability is implicated under

these circumstances.

In analyzing Oklahoma’s asserted interest in political stability and viability

7
See Utah Code Ann. § 20A-9-403.
8
See Alaska Stat. § 15-25-010.

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of the political parties, the district court also seemed concerned with protecting

the non-LPO parties from “poaching” by the LPO. In worrying about the impact

upon the associational rights of the other Oklahoma parties of allowing the LPO

to open its primary to registered members of those parties, the district court

explained that Oklahoma’s statutes were justifiable in part because they “bar a

party from poaching another party’s primary election voters.” (R. at 82.)

It is true, as Oklahoma asserts, that at first blush this case appears to

require us to consider both the associational rights of the LPO and those of the

other parties in Oklahoma, each of which is virtually certain to be affected to

some degree by a change in the statute. It would effect a strange result indeed to

protect some associational rights at the direct expense of others, and if allowing

the LPO to choose to invite members of the Republican and Democratic parties to

vote in the LPO’s primary election burdened the corresponding associational

rights of the Republican and Democratic parties, this would be a different case.

Such an argument, however, reflects a fundamental misunderstanding of the

freedom of association, which at its core protects against state regulations that:

(1) preclude association, Roberts v. United States Jaycees, 468 U.S. 609, 622

(1984); or (2) “force[] inclusion of an unwanted person in a group,” Boy Scouts

of America v. Dale, 530 U.S. 640, 648 (2000). By finding protection against

poaching of other parties’ voters to justify the regulations at issue, the district

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court effectively would add a new associational right that has to this point been

absent from constitutional discussion—the ability of a group to harness and

control the associational opportunities of its members.

Parties may assuredly guard their associational rights against forced

inclusion of unwanted people, see, e.g., Jones; such an option is readily available

under the LPO’s proposed alternatives, for parties may choose not to open their

primary elections to members of other parties under a party-option open primary

scheme. We cannot conclude, however, that the associational rights asserted by

the LPO in this case are counterbalanced by any associational rights of parties

seeking to restrict the associational opportunities of their registered members.

Moreover, any concern that the Republican and Democratic parties might

have for losing voters to the LPO primary elections overlooks the countervailing

consideration that allowing Oklahoma’s voters additional choices in primary

voting promotes the associational rights of the individual voters within those

parties. In this regard, to allow the LPO to invite registered voters of other

parties to participate in their primaries not only advances the associational

interests of the members of the LPO, but it also allows voters the benefit of

choosing a primary.

III

Absent a clearer demonstration of political instability than the one present

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in the record before us, we conclude that Oklahoma’s current election statutes are

not narrowly tailored to advance a compelling state interest. Because Oklahoma’s

semi-closed primary scheme does not survive our strict scrutiny, we REVERSE

the district court’s denial of the LPO’s request for a permanent injunction and

REMAND for proceedings consistent with this opinion.

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