FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
KENNETH KIRK; CARL EKSTROM;
MICHAEL MILLER,
Plaintiffs-Appellants,
v.
CHIEF JUSTICE WALTER CARPENETI,
in his official capacity as ex
officio Member of the Alaska
Judicial Council; JAMES H.
CANNON, in his official capacity as
Attorney Member of the Alaska
Judicial Council; KEVIN
FITZGERALD, in his official capacity No. 09-35860
as Attorney Member of the Alaska
Judicial Council; LOUIS JAMES D.C. No.
3:09-cv-00136-JWS
MENENDEZ, in his official capacity
as Attorney Member of the Alaska OPINION
Judicial Council; WILLIAM F.
CLARKE, in his official capacity as
Non-Attorney Member of the
Alaska Judicial Council; KATHLEEN
THOMPKINS-MILLER, in her official
capacity as Non-Attorney Member
of the Alaska Judicial Council;
CHRISTENA WILLIAMS, in her
official capacity as Non-Attorney
Member of the Alaska Judicial
Council,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Alaska
John W. Sedwick, District Judge, Presiding
16643
16644 KIRK v. CHIEF JUSTICE WALTER CARPENETI
Argued and Submitted
July 29, 2010—Anchorage, Alaska
Filed September 30, 2010
Before: Mary M. Schroeder, Diarmuid F. O’Scannlain and
Richard R. Clifton, Circuit Judges.
Opinion by Judge Schroeder
16646 KIRK v. CHIEF JUSTICE WALTER CARPENETI
COUNSEL
Joseph Vanderhulst, Terre Haute, Indiana, for plaintiffs-
appellants Kenneth Kirk et al.
Jeffrey M. Feldman, Anchorage, Alaska, for defendants-
appellees, Chief Justice Walter Carpeneti et al.
OPINION
SCHROEDER, Circuit Judge:
Since statehood in 1959, Alaska has selected its state
judges through a system generically and popularly known as
“merit selection.” The Governor appoints judges from a list of
nominees selected from all applicants by a merit selection
commission. In Alaska, all judges must be lawyers. Lawyers
therefore play a significant role on the merit selection com-
mission. The commission, known as the Judicial Council, is
chaired by the Chief Justice of the Alaska Supreme Court and
KIRK v. CHIEF JUSTICE WALTER CARPENETI 16647
composed of six additional members — three lay members
appointed by the Governor and confirmed by the Legislature,
and three attorney members appointed by the Board of Gover-
nors of the Alaska Bar Association. The Board is the Associa-
tion’s governing body and membership in the Association is
mandatory for all lawyers practicing in the state.
This suit is an attack on Alaska’s merit selection system,
brought by a group of individuals seeking to establish the
principle that all participants in the judicial selection process
must either be popularly elected, or be appointed by a popu-
larly elected official. Thus, Plaintiffs seek to enjoin operation
of the Alaska system because three members of the Judicial
Council are appointed by the governing body of the Alaska
Bar Association, which is in turn elected by the Bar member-
ship and not by the public at large.
Plaintiffs are hard-pressed to find legal support for the prin-
ciple they seek to establish. In the district court, Plaintiffs
urged that the selection of the Alaska Bar Association’s Board
of Governors by lawyers amounted to a violation of equal
protection. The district court dismissed the action, holding
that the election of the Board of Governors, and the Board of
Governors’ appointment of three lawyers to the Judicial
Council, did not constitute a violation of equal protection
because the role assigned to lawyers was rationally related to
the State’s interest in selecting a qualified judiciary composed
of lawyers.
On appeal, Plaintiffs touch upon a number of legal princi-
ples discussed in various election cases. None of their argu-
ments leads to any different result than that reached by the
district court. The legal principle Plaintiffs ask the courts to
establish is in fact a change in policy that requires amendment
to the Alaska Constitution. To date, there is no indication of
any desire on the part of Plaintiffs to invoke the amendment
process.
16648 KIRK v. CHIEF JUSTICE WALTER CARPENETI
The subject of judicial merit selection is not new to the fed-
eral courts. Voters in at least two other states have brought
challenges to merit selection systems that similarly rely on
attorney input in the nomination of candidates to the Gover-
nor. See Bradley v. Work, 916 F. Supp. 1446 (S.D. Ind. 1996),
aff’d, 154 F.3d 704 (7th Cir. 1998); African-American Voting
Rights Legal Defense Fund, Inc. v. Missouri, 994 F. Supp.
1105 (E.D. Mo. 1997) (“AAVRLDF“), aff’d, 133 F.3d 921
(8th Cir. 1998) (per curiam) (unpublished). In Bradley, minor-
ity voters challenged the merit selection system for county
judges in Indiana, which, like this case, involved a nominating
commission composed in part of attorney members selected
by the licensed attorneys of the county. 916 F. Supp. at 1450.
The district court upheld the system as consistent with the
Equal Protection Clause, id. at 1455-59, and the voters did not
pursue the issue on appeal. Bradley, 154 F.3d at 706, 711.
Similarly, in AAVRLDF, African-American voters in Missouri
alleged they were denied equal protection of the laws because
they were at the time underrepresented in the Missouri Bar
Association, which selected attorney members of a nominat-
ing commission. AAVRLDF, 994 F. Supp. at 1126-27. The
district court upheld the constitutionality of Missouri’s merit
selection system because its purpose was not invidious dis-
crimination. Id. at 1126-29. The Eighth Circuit affirmed in an
unpublished opinion. AAVRLDF, 133 F.3d at 921.
Because the federal litigation has not resulted in any prece-
dential opinion in any circuit, this case has gained the atten-
tion of individuals and groups with an interest in either
protecting or replacing merit selection. This litigation, there-
fore, must be seen as part of a larger controversy generated by
attacks on merit selection by proponents of popularly elected
judges. See, e.g., Michael DeBow et al., The Case for Parti-
san Judicial Elections, 33 U. Tol. L. Rev. 393 (2002) (attack-
ing merit selection); Brian T. Fitzpatrick, The Politics of
Merit Selection, 74 Mo. L. Rev. 675 (2009) (evaluating poli-
ticization of merit selection process); Sandra Day O’Connor,
The Essentials and Expendables of the Missouri Plan, 74 Mo.
KIRK v. CHIEF JUSTICE WALTER CARPENETI 16649
L. Rev. 479 (2009) (defending merit selection). We therefore
take this opportunity to publish an opinion dealing with the
issues Plaintiffs raise as best we are able to perceive them. We
turn first, however, to the background of merit selection in
Alaska and of this litigation.
ALASKA’S MERIT SELECTION SYSTEM
Alaska’s Constitution and statutes establish a merit selec-
tion system for appointing state judges. The system was
adopted, after extensive debate, at the Constitutional Conven-
tion in 1955, when Alaska was still a territory. See generally
Alaska Constitutional Convention Minutes (“ACCM”), Days
32 and 35 (Dec. 9 and 12, 1955), available at http://
www.law.state.ak.us/doclibrary/cc_minutes.html. The Alaska
Constitution was ratified by Alaska’s voters and approved by
Congress, which found it to be “republican in form and in
conformity with the Constitution of the United States and the
principles of the Declaration of Independence.” Alaska State-
hood Act, Pub. L. No. 85-508, § 1, 72 Stat. 339, 339 (1958).
The system in the Alaska Constitution is based on the
“Missouri Plan,” developed in Missouri in the 1940s and later
adopted in whole or in part by 33 states and Washington, D.C.
Although there is no uniform approach to merit-based selec-
tion, there are characteristics common to the systems utilized
by Alaska and other states. These characteristics include,
among others: vesting responsibility for screening applicants
and recommending candidates in an independent, non-
partisan or bi-partisan nominating commission; specifying
that the nominating commission be composed of both lay peo-
ple and lawyers; and requiring the Governor to make an
appointment from a list of nominees submitted by the com-
mission.
The Alaska Constitution prescribes judicial selection for
the constitutionally created courts: the Alaska Supreme Court
and the Alaska Superior Court, which is the trial court of gen-
16650 KIRK v. CHIEF JUSTICE WALTER CARPENETI
eral jurisdiction for the State. Alaska Const. art. IV, §§ 1-8.
The Alaska legislature, by statute, adopted the same selection
procedures for the judges of Alaska’s other state courts.
Alaska Stat. §§ 22.07.070, 22.15.170(a), (e).
The system requires the Governor to appoint each judge
from a list of applicants nominated as most qualified by an
independent constitutional body, the Alaska Judicial Council
(“Judicial Council” or “Council”). Alaska Const. art. IV, § 5.
The Council consists of the Alaska Supreme Court Chief Jus-
tice, three citizens appointed by the Governor and confirmed
by the Legislature, and three attorneys appointed by the Board
of Governors of the Alaska Bar Association. Alaska Const.
art. IV, § 8. The Constitution describes the organization of the
Judicial Council as follows:
The judicial council shall consist of seven members.
Three attorney members shall be appointed for six-
year terms by the governing body of the organized
state bar. Three non-attorney members shall be
appointed for six-year terms by the governor subject
to confirmation by a majority of the members of the
legislature in joint session. Vacancies shall be filled
for the unexpired term in like manner. Appointments
shall be made with due consideration to area repre-
sentation and without regard to political affiliation.
The chief justice of the supreme court shall be ex-
officio the seventh member and chairman of the judi-
cial council. No member of the judicial council,
except the chief justice, may hold any other office or
position of profit under the United States or the
State. The judicial council shall act by concurrence
of four or more members and according to rules
which it adopts.
Id.
The Alaska Bar Association’s Board of Governors is the
“governing body of the organized state bar” and is responsible
KIRK v. CHIEF JUSTICE WALTER CARPENETI 16651
for appointing three of the seven members of the Judicial
Council. See Alaska Stat. § 08.08.030 (“The Alaska Bar is
governed by the Board of Governors of the Alaska Bar.”);
Alaska Const. art. IV, § 8 (delegating to Board of Governors
the power to appoint three members of the Judicial Council).
The Board of Governors consists of three non-attorney citi-
zens appointed by the Governor and confirmed by the Legis-
lature, and nine attorneys elected by the active members of
the Bar Association. Alaska Stat. §§ 08.08.040(b);
08.08.050(a). In order to practice law in Alaska, an attorney
must be a member of the Bar. Id. § 08.08.020(a). Only active
Bar members are eligible to vote for the nine attorney mem-
bers of the Board of Governors. Alaska Stat. § 08.08.040;
Alaska Bar Bylaws art. IV, § 2. Active members of the Bar
have passed a bar examination, paid their dues, and met the
Bar Association’s standard of character and fitness. Alaska
Bar Rules 2, 5.
Alaska’s statehood founders explicitly debated this struc-
ture at the State’s Constitutional Convention. See ACCM,
Days 32 and 35 (Dec. 9 and 12, 1955). At the convention, the
chair of the Committee on the Judiciary Branch, George
McLaughlin, explained to the convention delegates that judi-
cial independence suffers when judges are elected, and that an
appointive system would prevent the state judiciary from
being “controlled by a political machine.” ACCM, Day 32
(Dec. 9, 1955). McLaughlin also explained the importance of
having attorney members on the Judicial Council, because
they are knowledgeable about the strengths and weaknesses of
fellow attorneys with whom they work:
The whole theory of the Missouri Plan is that in sub-
stance, a select and professional group, licensed by
the state, can best determine the qualifications of
their brothers. The intent of the Missouri Plan was in
substance to give a predominance of the vote to pro-
fessional men who knew the foibles, the defects and
the qualifications of their brothers. It is unquestion-
16652 KIRK v. CHIEF JUSTICE WALTER CARPENETI
ably true that in every trade and every profession the
men who know their brother careerists the best are
the men engaged in the same type of occupation.
That was the theory of the Missouri Plan. The theory
was that the bar association would attempt to select
the best men possible for the bench because they had
to work under them.
ACCM, Day 35 (Dec. 12, 1955). McLaughlin also explained
the importance of having the Bar Association, rather than the
Governor, appoint the attorney representatives, because they
represent no outside interests:
The three who are appointed by the bar . . . are there,
based solely on their professional qualifications but
selected because they would represent in theory the
best thinking of the bar, and they are there solely
because they represent their craft.
Id. He described the involvement of the state bar association
in the selection of the attorney members as “the very essence”
of the Missouri Plan. Id.
Another delegate proposed an amendment that would have
required legislative confirmation of the attorney members of
the Council. Id. Delegate McLaughlin spoke against the pro-
posal, arguing that the members should not have to be accept-
able politically:
[I]f this motion is passed you might as well tear up
the whole proposal and provide for the election of
juries, because then it would be more efficacious and
more democratic. . . . If you require a confirmation
of your attorney members you can promptly see
what will happen. The selection is not then made by
the organized bar on the basis of a man’s profes-
sional qualifications alone. The determination of the
selection of those people who are on the judicial
KIRK v. CHIEF JUSTICE WALTER CARPENETI 16653
council will be qualified by the condition, are they
acceptable to a house and a senate or a senate alone,
which is essentially Democratic or essentially
Republican. . . . If political correctness enters into
the determination of those professional members
who are to be placed upon the judicial council, the
whole system goes out the window.
Id. Delegate Ralph Rivers concurred:
I want to heartily second the remarks of Mr.
McLaughlin but also want to point out that the pur-
pose of the draft as now written is to have a nonpar-
tisan selection of these lawyer members, and the
minute you adopt something like this, you are mak-
ing a partisanship proposition out of it. We want to
carry through to a nonpartisan selection of judges
....
Id. The proposal to require legislative confirmation of the
lawyers appointed to the Judicial Council failed by a vote of
49 nays to four yeas, with two absent. Id.
Alaska has followed the judicial selection system adopted
at the Constitutional Convention for over 50 years. Every
judge who has been appointed since statehood has been
appointed by the Governor from the list of people nominated
by the Judicial Council.
In practice, the judicial selection process begins when the
Judicial Council receives notice that a vacancy exists or is
about to occur. The Council then begins seeking applicants
for the open position by issuing notification of the vacancy to
the public and the Alaska Bar Association. The Council’s
screening process involves an application form and a compre-
hensive investigation into the applicant’s education, employ-
ment, credit, and criminal records. The Judicial Council
solicits information from references, and interviews all appli-
16654 KIRK v. CHIEF JUSTICE WALTER CARPENETI
cants. The public is invited to comment on applicants by letter
or email, and the Council holds a public hearing to receive
testimony.
After reviewing the information gathered, the Council
meets to vote for the candidates who will be sent to the Gov-
ernor as nominees. Any action of the Council to recommend
a candidate requires the concurrence of four or more mem-
bers, Alaska Const. art. IV, § 5, and the Council must recom-
mend at least two candidates for any vacant position, id. art.
IV, § 8. The Governor must appoint one of the Council’s
nominees within 45 days of receiving the nominations. Alaska
Stat. § 22.05.080(a). The Governor is bound by the nominees
presented to him; the Governor may neither select a person
other than those nominated, nor ask the Council for additional
nominations. See Alaska Const. art. IV, § 5.
Once a judge is nominated by the Judicial Council and
appointed by the Governor, the judge is subject to a non-
partisan retention election at the first general election held
more than three years after appointment. Id. art. IV, § 5.
PROCEDURAL BACKGROUND
This is a suit by individual voters against the members of
the Judicial Council. Plaintiffs, Kenneth Kirk, Carl Anders
Ekstrom, and Michael Miller (collectively “Plaintiffs”), are all
registered voters in the State of Alaska. Kirk is also an active
member of the Alaska Bar Association and a former and
potential future applicant for vacant positions on the Alaska
Supreme Court and the Alaska Superior Court. Ekstrom is a
non-attorney member of the Board of Governors.
Defendants are the seven members of the Alaska Judicial
Council in their official capacities. They include Chief Justice
Walter Carpeneti of the Alaska Supreme Court, as well as the
three attorney members and the three non-attorney members
of the Council.
KIRK v. CHIEF JUSTICE WALTER CARPENETI 16655
Plaintiffs’ suit arose in 2009 in connection with an immi-
nent vacancy on the Alaska Supreme Court created when Jus-
tice Robert L. Eastaugh announced his anticipated retirement.
On April 15, 2009, the Council invited members of the Bar
to apply for the position to be filled pursuant to Alaska’s
merit selection procedures. In July 2009, Plaintiffs filed a
complaint and motion for preliminary injunction in the United
States District Court for the District of Alaska alleging that
their constitutional right to equal protection under the Four-
teenth Amendment of the United States Constitution was vio-
lated by Alaska’s merit selection system, as prescribed in
Alaska Constitution art. IV, sections 5 and 8, and as imple-
mented by Alaska Statutes sections 22.05.080, 22.07.070,
22.10.100, and 22.15.170.
Plaintiffs sought to enjoin the three attorney members of
the Council from exercising their powers to deliberate and
vote on nominees to fill the vacancy created by Justice Eas-
taugh’s retirement. As a corollary matter, in order to allow the
remaining lay members of the Judicial Council to act, Plain-
tiffs sought to enjoin the requirement that four votes were
needed for the Council to propose a nomination.
Defendants moved to dismiss, arguing that the judicial
selection system did not violate equal protection. After a hear-
ing, the district court granted Defendants’ motion to dismiss
and denied Plaintiffs’ consolidated motion for a preliminary
injunction. The district court identified the three stages of
decision-making involved in Alaska’s merit selection system
and concluded that none violates the Equal Protection Clause.
The district court first looked at the overall appointment of
judicial nominees, and held that the general “one person, one
vote” rule first established in legislative redistricting cases
does not apply to judicial elections and appointments. The
district court then examined the two steps preceding the judi-
cial appointment itself: the election of the Board of Governors
by the Alaska Bar Association, and the Board of Governors’
appointment of attorney members to the Judicial Council. The
16656 KIRK v. CHIEF JUSTICE WALTER CARPENETI
district court held that the election of the Board of Governors
by the membership of the Alaska Bar Association did not vio-
late the Equal Protection Clause because the election fell
within an exception from general election requirements that is
recognized for limited purpose entities. It also held that the
Board of Governors’ selection of the attorney members of the
Judicial Council presented no constitutional issue under elec-
tion law principles because the members of the Judicial Coun-
cil are appointed, rather than elected. Finding no
constitutional barrier to Alaska’s system, the district court dis-
missed Plaintiffs’ suit. Plaintiffs then timely appealed to this
court.
DISCUSSION
[1] Virtually all litigation challenging the selection process
for state public officials has concerned the political branches
of government, i.e., the legislative and executive branches.
See Pamela S. Karlan, Electing Judges, Judging Elections,
and the Lessons of Caperton, 123 Harv. L. Rev. 80, 82-83
(2009) (discussing limited extension of election law principles
to the judicial branch). The challenges have focused princi-
pally on the election process, rather than appointments. This
case involves neither the political branches, nor the direct
election of the members of any branch of government. The
federal courts have recognized no constitutional principle that
supports Plaintiffs’ contention that all participants in the judi-
cial selection process must be either popularly elected or
appointed by a popularly elected official, and have rejected all
such assertions. Plaintiffs therefore cannot obtain the changes
they seek through the courts. Our conclusion is demonstrated
by the election cases upon which Plaintiffs rely.
[2] Plaintiffs cite the body of cases in which the Supreme
Court has applied the Equal Protection Clause of the Four-
teenth Amendment to the selection of state and local public
officials. See, e.g., Kramer v. Union Free Sch. Dist. No. 15,
395 U.S. 621 (1969); Reynolds v. Sims, 377 U.S. 533 (1964).
KIRK v. CHIEF JUSTICE WALTER CARPENETI 16657
The Fourteenth Amendment provides: “No State shall . . .
deny to any person within its jurisdiction the equal protection
of the laws.” U.S. Const. amend. XIV, § 1. The Supreme
Court has repeatedly recognized that the Fourteenth Amend-
ment does not protect a generalized “right to vote,” but rather
protects a citizen’s right to participate in elections on equal
footing with other citizens in the jurisdiction. Rodriguez v.
Popular Democratic Party, 457 U.S. 1, 9-10 (1982); San
Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 36 n.78
(1973). The Court has interpreted the Equal Protection Clause
to protect an individual’s right to equal voting participation in
at least two ways: through rejecting overly restrictive voter
qualifications (“vote denial”), and through rejecting dispro-
portionate voting districts (“vote dilution”). See Kramer, 395
U.S. at 626-27 (recognizing the Court’s protections against
vote denial and vote dilution).
In the vote denial cases, the Supreme Court has held that
the Equal Protection Clause prohibits states from imposing
voter qualifications that result in the wholesale exclusion of
a particular constituency from an election, unless the state can
demonstrate that the classification serves a compelling state
interest. See, e.g., Hill v. Stone, 421 U.S. 289, 297 (1975)
(holding unconstitutional Texas laws denying franchise in city
bond elections to those not paying property tax); Kramer, 395
U.S. at 622 (holding unconstitutional a New York statute lim-
iting franchise in school board elections to owners or lessees
of real property and parents of school children); Harper v. Va
State Bd. of Elections, 383 U.S. 663 (1966) (holding Virginia
poll tax unconstitutional); Carrington v. Rash, 380 U.S. 89
(1965) (holding unconstitutional Texas law denying vote to
members of armed forces who move to state in course of mili-
tary duty). States may thus restrict the franchise on the
grounds of residence, age, and citizenship, but other classifi-
cations are suspect and subject to strict scrutiny. Hill, 421
U.S. at 297.
While recognizing that states generally cannot deny citi-
zens the right to vote on the basis of suspect classifications,
16658 KIRK v. CHIEF JUSTICE WALTER CARPENETI
the Supreme Court has also recognized that states and locali-
ties can restrict voting in certain elections involving so-called
“limited purpose entities” are involved. See Ball v. James, 451
U.S. 355, 371 (1981); Salyer Land Co. v. Tulare Lake Basin
Water Storage Dist., 410 U.S. 719, 728 (1973). Limited pur-
pose entities characteristically serve only a “special limited
purpose” and have no power to impose taxes or enact laws.
Salyer, 410 U.S. at 728. They do not administer “such normal
functions of government” as maintenance of streets, operation
of schools, or provision of sanitation, health, or welfare ser-
vices. Ball, 451 U.S. at 366. States and localities may there-
fore, without violating the Equal Protection Clause, limit the
election of the governing board of such an entity to the group
of people disproportionally affected by the entity’s decisions.
With respect to voter apportionment, the Supreme Court
has held that the Equal Protection Clause requires state and
local entities to divide electoral districts on the basis of popu-
lation, so that each person’s vote is equally effective. See
Reynolds, 377 U.S. at 568-69 (apportionment of seats in Ala-
bama Legislature unconstitutional because not based on popu-
lation); Hadley v. Junior Coll. Dist. of Metro. Kan. City, 397
U.S. 50, 55-56 (1970) (extending apportionment rule to all
state and local elections of legislative and administrative offi-
cials); Bd. of Estimate v. Morris, 489 U.S. 688, 692-93 (1989)
(tracing the development of the “reapportionment doctrine”).
These cases all recognize that the collective dilution of many
individuals’ votes can result in a form of unconstitutional dis-
enfranchisement, even when no one individual is turned away
at the ballot box. This principle is best recognized by the
catch-phrase “one person, one vote.” Reynolds, 377 U.S. at
558 (internal quotation marks omitted).
In this case, Plaintiffs are not claiming that their votes
count less because of any disproportionate allocation of elec-
toral districts. Indeed, Plaintiffs expressly disclaim reliance on
such a theory. Plaintiffs’ concession is compelled, because the
Supreme Court has held that the Equal Protection Clause does
KIRK v. CHIEF JUSTICE WALTER CARPENETI 16659
not require states to distribute judicial election districts
according to population. See Wells v. Edwards, 409 U.S. 1095
(1973), summarily aff’g, 347 F. Supp. 453 (M.D. La. 1972);
Chisom v. Roemer, 501 U.S. 380, 389-90 (1991) (acknowl-
edging Wells’s constitutional holding in a judicial election
case resolved on statutory grounds).
Nor do Plaintiffs argue they are being excluded from an
election for a state official in which they are entitled to vote.
The only election involved in Alaska’s merit selection system
is the election of the Alaska Bar Association’s Board of Gov-
ernors. Plaintiffs concede that the Alaska Bar Association is
a limited purpose entity, and therefore the election of the
Board of Governors may legitimately be restricted to the bar
membership. See Ball, 451 U.S. at 370-71; Salyer, 410 U.S.
at 728-30. Plaintiffs do not seek to open up the election of the
Board of Governors to the general public. This concession is
also sound, as the Alaska Bar Association is, indeed, a limited
purpose entity. As Plaintiffs recognize, the function of the
Alaska Bar Association is to regulate the legal profession in
Alaska, and so its actions disproportionately affect its mem-
bers. The Alaska Bar Association does not exercise any of the
“normal functions of government” identified in Salyer and
Ball.
[3] Plaintiffs argued in the district court that the vote
denial cases served to invalidate the selection of the members
of the Judicial Council. As the district court correctly con-
cluded, however, the right to equal voting participation has no
application to the Judicial Council because the members of
the Council are appointed, rather than elected. See Rodriguez,
457 U.S. at 9-10; Sailors v. Bd. of Educ., 387 U.S. 105, 111
(1967).
On appeal, Plaintiffs are therefore left only with their novel
argument that all participants in Alaska’s judicial selection
process must either be elected themselves, or be appointed by
a popularly elected official. This is not a traditional equal pro-
16660 KIRK v. CHIEF JUSTICE WALTER CARPENETI
tection argument, as it does not depend on any allegation that
the State has classified or categorized its citizens in an imper-
missible way. Plaintiffs’ authority for this proposition is a
footnote in Kramer, an election case from 1969, in which the
Supreme Court briefly mentioned the concept of voters’ “indi-
rect” influence over appointments. See 395 U.S. at 627 n.7.
Although Plaintiffs’ legal support for the principle they ask us
to adopt is thin, we nevertheless address it with comprehen-
sive care.
In Kramer, the plaintiff sought the right to vote in a school
board election. Kramer, a 31-year old bachelor who lived with
his parents, challenged a New York statute limiting voting in
certain school board elections to property owners, leasehold-
ers, and parents with children enrolled in the public schools.
Id. at 622-23. The Supreme Court applied strict scrutiny and
held that the voting restrictions violated the Equal Protection
Clause because they impermissibly denied citizens who have
a legitimate interest in school affairs the opportunity to partic-
ipate in elections. Id. at 630-32. The statute excluded large
groups of potentially interested voters—including senior citi-
zens, clergy, those living on tax-exempt property, boarders
and lodgers, and parents with children too young to attend
school or with children enrolled in private schools—and thus
was not narrowly tailored to achieve the State’s professed
interest in restricting the franchise to those “primarily inter-
ested in school affairs.” Id.
Kramer contained a brief discussion, in a footnote, of the
relationship between elections and appointments. It contrasted
the New York statute at issue, which provided for election of
the school board by a subset of the general public, with a typi-
cal appointive system. Id. at 627 n.7. The Court explained that
a voter has “indirect” influence over an appointment by virtue
of voting for the appointing official. Because of the potential
for indirect influence in appointments, the Court concluded
that selective disenfranchisement of certain voters can result
in more exclusion than the entire elimination of an election.
KIRK v. CHIEF JUSTICE WALTER CARPENETI 16661
The Court explained its reasoning with a hypothetical that
contains one sentence Plaintiffs now claim to be dispositive
here:
Of course, the effectiveness of any citizen’s voice in
governmental affairs can be determined only in rela-
tionship to the power of other citizens’ votes. For
example, if school board members are appointed by
the mayor, the district residents may effect a change
in the board’s membership or policies through their
votes for the mayor. Cf. N.Y.Educ.Law § 2553,
subds. 2, 4 (1953), as amended (Supp. 1969). Each
resident’s formal influence is perhaps indirect, but it
is equal to that of other residents. However, when
the school board positions are filled by election and
some otherwise qualified city electors are precluded
from voting, the excluded residents, when compared
to the franchised residents, no longer have an effec-
tive voice in school affairs.
Id. (emphasis added).
This passage was part of the Court’s explanation of the
importance of equal participation in state and local elections.
Kramer went on to discuss the relationship between elections
and appointments in its discussion of the applicable standard
of review. See id. at 628-29. The Court cautioned that the
need for strict scrutiny of the election process was “undimin-
ished” by the fact that the public office at issue could, without
constitutional problem, have been filled by appointment rather
than election. Id. at 628. The Court concluded that states have
flexibility to determine whether an official should be elected
or appointed, but that once a state chooses to hold an election,
the election must comport with the requirements of the Equal
Protection Clause. Id. at 629. Thus, a city charter could legiti-
mately provide for appointment of the mayor by a city council
elected by the general population. Id. at 629. In contrast, how-
ever, a city charter providing for a mayoral election in which
16662 KIRK v. CHIEF JUSTICE WALTER CARPENETI
only some resident citizens could vote would call for strict
scrutiny. Id. at 629-30.
[4] Plaintiffs’ attempt to characterize Kramer, and particu-
larly the footnote 7 sentence referring to equal indirect influ-
ence in appointments, as holding that the Equal Protection
Clause requires limiting the appointment power to officials
who have been popularly elected. They thus contend that
Kramer renders the power of Bar-selected Council members
unconstitutional. The Kramer footnote does not stand for any
such proposition. Kramer illustrated how voters could indi-
rectly influence school board appointments as part of its
explanation of why New York’s exclusion of certain voters in
school board elections was unconstitutional. The Court did
not suggest a sweeping new constitutional rule that appoint-
ments for all positions in every branch of government must be
made by an official who is popularly elected.
[5] In fact, the Supreme Court has already rejected Plain-
tiffs’ far-reaching proposition. In Rodriguez, the Supreme
Court considered whether Puerto Rico could delegate to a
political party the power to appoint someone to fill an interim
vacancy in the Puerto Rico Legislature. 457 U.S. at 3. Mem-
bers of the opposing party argued that the appointment mech-
anism was constitutionally defective because the power to
appoint had to be vested in an elected official. Id. at 12. The
Supreme Court disagreed, finding no such constitutional
requirement. Id. The Court therefore upheld a regime in
which appointments on a temporary basis were made by a
body not elected by the “people as a whole.”
[6] Moreover, even assuming there is some validity to the
general proposition Plaintiffs advance, there is no meaningful
violation of it here. In this case, the power vested in the Judi-
cial Council is not to make the final appointment, but to nomi-
nate persons for judicial selection. The ultimate power to
appoint judges is in the Governor, who is popularly elected by
the people of Alaska. In addition, the people have the oppor-
KIRK v. CHIEF JUSTICE WALTER CARPENETI 16663
tunity to reject the appointment in subsequent retention elec-
tions.
Alaska is not the only state to give a significant role to
attorneys in the merit selection process. Fourteen other states,
including Alabama, Hawaii, Indiana, Iowa, Kansas, Ken-
tucky, Missouri, Nebraska, Nevada, New Mexico, Oklahoma,
South Dakota, Vermont, and Wyoming, have systems in
which (1) the nominating commission includes attorney mem-
bers who are chosen neither through popular election nor by
a popularly elected government official; and (2) the governor
of the state must select a candidate nominated by the commis-
sion.
There are also well-established federal judicial appoint-
ments that do not conform to Plaintiffs’ desired universal
principle. For example, federal magistrate judges are nomi-
nated by merit selection panels composed of lawyers and
community members, and then appointed by a majority of dis-
trict court judges in the district where the magistrate is to
serve. See 28 U.S.C. § 631(a), (b)(5). Similarly, federal bank-
ruptcy judges are nominated by merit screening committees
and then appointed by federal appellate judges. See id.
§ 152(a)(1). In both cases, neither the judges nor the members
of the nominating body are popularly elected.
Ultimately, Plaintiffs seek to effectuate a change in Alas-
ka’s constitutional policy through the courts because Plaintiffs
would prefer judges to be elected and want to reduce attorney
influence. The pros and cons of merit selection as a system for
selecting state court judges, and the pros and cons of giving
attorneys a particular role in that system, were discussed at
the Alaska Constitutional Convention. Debate continues to the
present day. See Jeffrey D. Jackson, Beyond Quality: First
Principles in Judicial Selection and Their Application to a
Commission-Based Selection System, 34 Fordham Urb. L.J.
125 (2007) (characterizing debate). In the United States, the
discussion of merit selection and attorney influence is ongo-
16664 KIRK v. CHIEF JUSTICE WALTER CARPENETI
ing and increasingly informed by empirical data. Some states
have acted through the legislature or referendum to reduce
attorney influence. See, e.g., O’Connor, 74 Mo. L. Rev. at 492
(describing Arizona’s “move from attorney-dominated selec-
tion commissions to commissions dominated by lay members
of the public”).
[7] Alaska’s founders, when considering the selection of
the members of the Judicial Council at the Constitutional
Convention, discussed these tensions and resolved the debate
in favor of the expertise that attorneys could bring to the pro-
cess. The Equal Protection Clause, as long interpreted by the
federal courts, does not preclude Alaska from making that
choice.
AFFIRMED.