Washington State Republican Party v. State of Washington

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
WASHINGTON STATE REPUBLICAN 
PARTY; DIANE TEBELIUS;
BERTABELLE HUBKA; STEVE
NEIGHBORS; MIKE GASTON; MARCY
COLLINS; MICHAEL YOUNG,
Plaintiffs-Appellees,
and
WASHINGTON STATE DEMOCRATIC
CENTRAL COMMITTEE; PAUL Nos. 05-35774
BERENDT; LIBERTARIAN PARTY OF 05-35780
WASHINGTON STATE; RUTH  D.C. No.
BENNETT; J.S. MILLS, CV-05-00927-TSZ
Plaintiffs-Intervenors- OPINION
Appellees,
v.
STATE OF WASHINGTON; ROB
MCKENNA, Attorney General; SAM
REED, Secretary of State;
WASHINGTON STATE GRANGE,
Defendants-Intervenors-
Appellants.

Appeal from the United States District Court
for the Western District of Washington
Thomas S. Zilly, District Judge, Presiding
Argued and Submitted
February 6, 2006—Seattle, Washington
Filed August 22, 2006
10025
10026 WASHINGTON STATE REPUBLICAN v. WASHINGTON
Before: Dorothy W. Nelson, Pamela Ann Rymer and
Raymond C. Fisher, Circuit Judges.
Opinion by Judge Fisher
WASHINGTON STATE REPUBLICAN v. WASHINGTON 10029
COUNSEL
Rob McKenna, Maureen A. Hart, Jeffrey T. Even and James
K. Pharris (argued), Office of the Washington Attorney Gen-
eral, Olympia, Washington, for the State of Washington
(defendant intervenor-appellant).
Thomas F. Ahearne (argued), Ramsey Ramerman and Rod-
rick J. Dembowski, Foster Pepper & Shefelman PLLC, Seat-
tle, Washington, for the Washington State Grange (defendant-
intervenor-appellant).
John J. White, Jr. (argued) and Kevin B. Hansen, Livengood,
Fitzgerald & Alskog, Kirkland, Washington, for the Washing-
ton State Republican Party (plaintiff-appellee).
David T. McDonald (argued) and Jay Carlson, Preston Gates
& Ellis, LLP, Seattle, Washington, for the Washington State
Democratic Central Committee (plaintiff-intervenor-
appellee).
Richard Shepard (argued), Shepard Law Office, Inc., Tacoma,
Washington, for the Libertarian Party of Washington State
(plaintiff-intervenor-appellee).
10030 WASHINGTON STATE REPUBLICAN v. WASHINGTON
OPINION
FISHER, Circuit Judge:
For the second time in three years, political parties in
Washington State are challenging the constitutionality of their
state’s partisan primary system, which was enacted as a result
of the passage of Initiative 872 in the November 2004 state
general election. In 2003, we concluded that Washington’s
previous “blanket” primary system was unconstitutional
because it was “materially indistinguishable from the Califor-
nia scheme held to violate the constitutional right of free asso-
ciation in Jones.” Democratic Party of Wash. v. Reed, 343
F.3d 1198, 1203 (9th Cir. 2003) (relying on Cal. Democratic
Party v. Jones, 530 U.S. 567 (2000)).
There are differences between Washington’s pre-Reed
blanket primary and the “modified” blanket primary being
challenged in this case, and we are mindful that Initiative 872
reflects the political will of a majority of Washington voters.
Nonetheless, although attempting to craft a primary system
that does not unconstitutionally burden political parties’ right
of association under the First and Fourteenth Amendments,
Initiative 872 fails to do so. Rather, the Initiative retains a par-
tisan primary, in which each candidate may self-identify with
a particular party regardless of that party’s willingness to be
associated with that candidate. The State of Washington and
Initiative 872’s sponsor, the Washington State Grange (the
Grange),1 have not identified any compelling state interests —
apart from those the Supreme Court rejected in Jones — that
would justify the Initiative’s severe burden on the political
1
The Washington State Grange is a subsidiary organization of the
National Grange, which is described by its Washington chapter as “Ameri-
ca’s oldest farm-based fraternal organization” and as “a non-partisan,
grassroots advocacy group for rural citizens with both legislative programs
and community activities.” Washington State Grange, What is the Grange,
Official Website at http://www.wa-grange.org/whats_the_grange.htm.
WASHINGTON STATE REPUBLICAN v. WASHINGTON 10031
parties’ associational rights; nor is Initiative 872’s modified
blanket primary narrowly tailored. We cannot sever the
unconstitutional provisions from Initiative 872 because “it
cannot reasonably be believed that” Washington voters would
have passed Initiative 872 without its unconstitutional provi-
sions. McGowan v. State, 60 P.3d 67, 75 (Wash. 2002).
Accordingly, we hold that Washington’s modified blanket pri-
mary as enacted by Initiative 872 is unconstitutional and
affirm the district court’s permanent injunction against the
implementation of the Initiative.
I. Background
To understand the flaw in Initiative 872’s partisan primary
system, it is helpful to review the nature and structure of the
primary process in general. A political primary is often
thought of as a “meeting of the registered voters of a political
party for the purpose of nominating candidates . . .”; and a
common definition of a primary election is a “preliminary
election in which voters nominate party candidates for
office.” American Heritage College Dictionary 1086 (3d ed.
2000). The Supreme Court has characterized a candidate
nominated in a primary as the party’s “standard bearer,” Tim-
mons v. Twin Cities Area New Party, 520 U.S. 351, 359
(1997), or “ambassador to the general electorate in winning it
over to the party’s views,” Jones, 530 U.S. at 575. In states
that have adopted a “closed” primary system, each party (or
traditionally at least each of the two major parties) selects its
nominees who are to appear on the general election ballot as
that party’s candidates for particular offices. This type of pri-
mary is referred to as “closed” because only voters who for-
mally associate themselves with a party in some fashion in
advance of the primary may vote in that party’s primary and
thereby select the party’s nominee. See Jones, 530 U.S. at
577; see also Alexander J. Bott, Handbook of United States
Election Laws and Practices: Political Rights 21, 43, 139
(1990).
10032 WASHINGTON STATE REPUBLICAN v. WASHINGTON
Although many states employ a closed primary, other alter-
native primary systems have been and continue to be used in
some states. One such alternative used to be the “blanket” pri-
mary, until the California version was held unconstitutional in
Jones. In contrast to closed primaries where each party’s
nominee is selected by voters pre-affiliated with that party
who vote only in that party’s primary, a blanket primary sys-
tem uses a common primary ballot shared by all candidates
for particular elective offices. All voters, regardless of their
own political party affiliations (if any), could — until Jones
— vote for any candidate appearing on the blanket primary
ballot regardless of that candidate’s designated political party
affiliation.2 The candidate who received the greatest number
of votes in relation to other candidates with the same party
affiliation would become that party’s nominee who would
advance to the general election ballot. For example, each of
the Democratic and Republican candidates with the greatest
number of votes in the blanket primary would appear as the
only candidate identified with that particular party designation
on the general ballot. See Jones, 530 U.S. at 570. The
Supreme Court, however, held that California’s blanket pri-
mary violated the state political parties’ right of association
under the First and Fourteenth Amendments, because allow-
ing nonparty members to vote for party candidates forced a
party’s members to associate with voters who were members
of rival parties in the selection of that party’s nominee for the
general election. See id. at 577.
Invoking Jones, the political parties in Washington chal-
lenged the blanket primary that had operated in that state
since 1935. See Reed, 343 F.3d at 1201. Like the California
primary, the Washington primary at issue in Reed advanced
each of the top primary election vote-getters within the same
2
For example, a primary voter could “split the ticket” between a Repub-
lican gubernatorial candidate, a Democratic candidate for attorney general
and a Libertarian candidate for secretary of state.
WASHINGTON STATE REPUBLICAN v. WASHINGTON 10033
party to the general election ballot. See id.3 We held Washing-
ton’s blanket primary unconstitutional in 2003 because it was
“materially indistinguishable from the California scheme” that
the Supreme Court invalidated in Jones. Id. at 1203.4
In the aftermath of Reed, two parallel efforts ensued to
create a replacement primary system — one undertaken by
the Washington state legislature and the other a ballot initia-
tive sponsored by the Grange. In January 2004, the Grange
filed the text of what was to become Initiative 872 on the
November 2004 Washington ballot with the Washington Sec-
retary of State. Initiative 872 made a number of changes to
Washington’s previous blanket primary system; but signifi-
cantly, it retained the partisan nature of the primary. As the
official voters’ pamphlet explaining Initiative 872 stated, the
Initiative “concerns elections for partisan offices” and “would
change the system used for conducting primaries and general
elections for partisan offices.” (Emphasis added.)5
3
“Minor” political parties were treated somewhat differently under
Washington’s pre-Reed blanket primary in that they were allowed to avoid
splintering their limited constituency at the blanket primary stage. They
held their own nominating conventions prior to the blanket primary, and
the single candidate each such minor party selected by convention would
advance from the blanket primary to the general election ballot if he or she
obtained at least one percent of the blanket primary vote. See, e.g., Wash.
Rev. Code §§ 29.24.020, 29.30.095 (1993).
4
Although California explicitly labeled those candidates who advanced
to the general elections as “the nominee of [a] party,” Jones, 530 U.S. at
570, a term Washington did not use, we concluded that Washington’s
avoidance of the label “nominee” was a “distinction[ ] without a differ-
ence.” Reed, 343 F.3d at 1203.
5
The Grange sponsored a website — http://www.blanketprimary.org/—
as part of its advocacy efforts on behalf of Initiative 872. In early 2004,
the “Frequently Asked Questions” portion of that website characterized
the primary system that would be enacted by the Initiative as follows:
The proposed initiative would replace the current nominating
system with a qualifying primary, similar to the nonpartisan pri-
maries used for city, school district, and judicial offices. As in
10034 WASHINGTON STATE REPUBLICAN v. WASHINGTON
Two of the most important proposed changes were: (1) the
redefinition of “partisan office” as “a public office for which
a candidate may indicate a political party preference”;6 and
(2) the adoption of a “top two” rule whereby the two candi-
dates with the greatest number of votes in the primary
advance to the general election regardless of their expressed
party preference. Under the Initiative 872 primary system,
therefore, those candidates expressing a particular party “pref-
erence” would be self-identified only;7 and the winner of the
largest number of votes among candidates with the same party
preference would no longer be guaranteed a place on the gen-
eral election ballot — an entitlement limited to the two top
vote getters overall. Indeed, two candidates with the same
party preference could be the only candidates for a particular
office appearing on the general election ballot.8
In March 2004, the Washington legislature adopted two
alternative primary systems, subject to the outcome of the
those primaries, the two candidates who receive the greatest num-
ber of votes would advance to the general election. Candidates
for partisan offices would continue to identify a political party
preference when they file for office, and that designation would
appear on both the primary and general election ballots. . . .
At the primary, the candidates for each office will be listed
under the title of that office, the party designations will appear
after the candidates’ names, and the voter will be able to vote for
any candidate for that office (just as they now do in the blanket
primary).
6
Ballots for partisan office under Washington’s pre-Reed primary sys-
tem simply listed a political party or independent designation next to a
candidate’s name. See Wash. Rev. Code § 29.30.020(3) (1993) (repealed
2004); see also Reed, 343 F.3d at 1201 & n.3.
7
The candidates’ party preference designation on the ballot cannot be
changed between the primary and general elections. See infra note 16.
8
For example, if the 1996 gubernatorial primary had been conducted
under the aegis of Initiative 872, two Democratic candidates — Gary
Locke and Norman Rice — and no Republican candidate would have
advanced from the primary to the general election.
WASHINGTON STATE REPUBLICAN v. WASHINGTON 10035
vote on Initiative 872 in the November 2004 general election.
As its first choice, the legislature adopted a “top two” primary
system similar, though not identical, to the one the Grange
proposed in Initiative 872.9 As a precaution in case the antici-
pated legal challenges to the “top two” system proved suc-
cessful, the legislature also adopted a “backup” primary
system — the so called “Montana” primary — which is essen-
tially a type of open primary.10
Governor Gary Locke vetoed the “top two” primary system
in April 2004, so the “Montana” primary became Washing-
ton’s primary system for the fall 2004 elections. Nevertheless,
Initiative 872 passed with nearly 60 per cent of the vote in the
November 2004 general election and became effective as
Washington law in December 2004. The Washington legisla-
ture did not pass any other measure concerning the state’s pri-
mary system in the first half of 2005, although the secretary
of state did promulgate emergency regulations relating to Ini-
tiative 872 in May 2005.
The Washington State Republican Party (the Republican
Party) filed suit in federal district court in May 2005, seeking
a declaratory judgment and injunctive relief under 42 U.S.C.
§ 1983 against a number of county auditors with respect to the
enforcement of Initiative 872 and the conduct of primary elec-
9
A “top two” primary is also sometimes referred to as a “Cajun” or
“Louisiana” primary, after the only other state that employs a similar sort
of primary.
10
Jones described an open primary as follows:
An open primary differs from a blanket primary in that, although
as in the blanket primary any person, regardless of party affilia-
tion, may vote for a party’s nominee, his choice is limited to that
party’s nominees for all offices. He may not, for example support
a Republican nominee for Governor and a Democratic nominee
for attorney general.
530 U.S. at 576 n.6. See also Bott, Handbook of United States Election
Laws and Practices 21, 138.
10036 WASHINGTON STATE REPUBLICAN v. WASHINGTON
tions. The Washington State Democratic Central Committee
(the Democratic Party) and the Libertarian Party of Washing-
ton State (the Libertarian Party) moved to intervene as plain-
tiffs. The State of Washington and the Grange moved to
intervene as defendants. The district court granted all of the
motions to intervene and accepted the substitution of the State
of Washington as a defendant in lieu of the county auditors,
who dropped out as parties to this litigation.
In July 2005, the district court granted the political parties’
motions for summary judgment and issued a preliminary
injunction enjoining the enforcement of Initiative 872, see
Wash. State Republican Party v. Logan, 377 F. Supp. 2d 907,
932 (W.D. Wash. 2005), and made the injunction permanent
on July 29, 2005. Both the State of Washington and the
Washington State Grange filed timely notices of appeal. We
now affirm the district court’s permanent injunction because
the Initiative 872 primary unconstitutionally burdens the
Washington state political parties’ associational rights by per-
mitting candidates to identify their party “preference” on the
ballot, notwithstanding that party’s own preference.11
II. Discussion
A. Standard of Review
“We review a summary judgment [order] granting or deny-
ing a permanent injunction for abuse of discretion and appli-
cation of the correct legal principles.” Fortyune v. Am. Multi-
Cinema, Inc., 364 F.3d 1075, 1079 (9th Cir. 2004) (quoting
EEOC v. Goodyear Aerospace Corp., 813 F.2d 1539, 1544
(9th Cir. 1987)). However, “any determination underlying the
grant of an injunction [is reviewed under] the standard that
11
The motion of FairVote — The Center for Voting and Democracy and
others for leave to file a brief of amici curiae is granted, but we do not
consider issues raised by amici that are beyond those argued by the par-
ties.
WASHINGTON STATE REPUBLICAN v. WASHINGTON 10037
applies to that determination.” Ting v. AT&T, 319 F.3d 1126,
1134-35 (9th Cir. 2003). Accordingly, the district court’s
findings of fact are reviewed for clear error while questions
of law are reviewed de novo. See id. at 1135.
The constitutionality of a state law is reviewed de novo.
See Am. Acad. of Pain Mgmt. v. Joseph, 353 F.3d 1099, 1103
(9th Cir. 2004). “[W]e review the application of facts to law
on free speech questions de novo.” Brown v. Cal. Dep’t of
Transp., 321 F.3d 1217, 1221 (9th Cir. 2003) (citing Planned
Parenthood v. Am. Coalition of Life Activists, 290 F.3d 1058,
1070 (9th Cir. 2002) (en banc)). Lastly, “severability is a
question of state law that we review de novo.” Ariz. Libertar-
ian Party, Inc. v. Bayless, 351 F.3d 1277, 1283 (9th Cir.
2003) (per curiam).
B. Right of Association
[1] “[T]he freedom to join together in furtherance of com-
mon political beliefs” — to form and join political parties —
falls squarely within the right of association protected by the
First Amendment and the Due Process Clause of the Four-
teenth Amendment against interference by the states. Tashjian
v. Republican Party of Conn., 479 U.S. 208, 214 (1986); see
also NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 460
(1958). “Representative democracy in any populous unit of
governance is unimaginable without” such freedom. Jones,
530 U.S. at 574. The right of association protects not only the
activities of party stalwarts who “devote substantial portions
of their lives to furthering [their party’s] political and organi-
zational goals,” but also the more limited associational ties of
those who “limit their participation [in the party] to casting
their votes for some or all of the [p]arty’s candidates.” Tash-
jian, 479 U.S. at 215. Indeed, even if “it is made quite easy
for a voter to change his party affiliation the day of the prima-
ry,” that eleventh hour “cross[ing] over” still constitutes an
act of association in that the voter “must formally become a
10038 WASHINGTON STATE REPUBLICAN v. WASHINGTON
member of the party.” Jones, 530 U.S. at 577 (emphasis omit-
ted).
[2] The principle underlying the breadth of the right of
association is one of mutuality: both the putative party mem-
ber and the political party must consent to the associational
tie. Accordingly, the freedom to associate necessarily includes
some freedom to exclude others from the association. See id.
at 574. “Freedom of association would prove an empty guar-
antee if associations could not limit control over their deci-
sions to those who share the interests and persuasions that
underlie the association’s being.” Democratic Party of U.S. v.
Wisconsin ex rel. La Follette, 450 U.S. 107, 122 n.22 (1981)
(quoting Laurence H. Tribe, American Constitutional Law
791 (1978)). Neither voters nor political candidates can force
a political party to accept them against the will of the party.
See Tashjian, 479 U.S. at 215 n.6 (“[A] nonmember’s desire
to participate in the party’s affairs is overborne by the coun-
tervailing and legitimate right of the party to determine its
own membership qualifications.”); see also Duke v. Cleland,
954 F.2d 1526, 1531 (11th Cir. 1992) (“[David] Duke has no
right to associate with the Republican Party if the Republican
Party has identified Duke as ideologically outside the party.”).
[3] The right of association, however, especially when it
intersects with the public electoral process, is not “bound-
less.” Clingman v. Beaver, 544 U.S. 581, 589 (2005). “States
have a major role to play in structuring and monitoring the
election process, including primaries.” Jones, 530 U.S. at 572.
Constitutionally permissible state regulations touching upon
political party affairs include those “requir[ing] parties to use
the primary format for selecting their nominees, in order to
assure that intraparty competition is resolved in a democratic
fashion,” “requir[ing] parties to demonstrate a significant
modicum of support before allowing their candidates a place
on [the general election] ballot” and “requir[ing] party regis-
tration a reasonable period of time before a primary election”
WASHINGTON STATE REPUBLICAN v. WASHINGTON 10039
in order to prevent “party raiding.”12 Id. (internal quotation
marks and citations omitted). Accordingly, when we are faced
with a state electoral law that allegedly violates associational
rights:
we weigh the character and magnitude of the burden
the State’s rule imposes on those rights against the
interests the State contends justify that burden, and
consider the extent to which the State’s concerns
make the burden necessary. Regulations imposing
severe burdens on plaintiffs’ rights must be narrowly
tailored and advance a compelling state interest.
Lesser burdens, however, trigger less exacting
review, and a State’s important regulatory interests
will usually be enough to justify reasonable, nondis-
criminatory restrictions.
Timmons v. Twin Cities Area New Party, 520 U.S. 351, 358
(1997) (internal quotation marks and citations omitted).
Therefore, we must first determine whether Initiative 872
severely burdens the Washington political parties’ associa-
tional rights; if it does, we must then determine whether a
compelling state interest justifies that burden and whether Ini-
tiative 872 is narrowly tailored to further that state interest.
1. Severe burden
Washington and the Grange contend that Initiative 872
does not severely burden the political parties’ associational
rights. They point to dictum in Jones discussing with approval
a nonpartisan blanket primary, see 530 U.S. at 585-86, and
argue that Initiative 872 created just such a primary. We dis-
agree, because the primary under Initiative 872 is not the kind
of nonpartisan election Jones contemplated.
12
Party raiding is “a process in which dedicated members of one party
formally switch to another party to alter the outcome of that party’s prima-
ry.” Jones, 530 U.S. at 572.
10040 WASHINGTON STATE REPUBLICAN v. WASHINGTON
The Jones dictum is found in that part of the opinion dis-
cussing the state interests California had identified in defense
of its blanket primary. The Court identified four legitimate
state interests that might justify allowing voters to vote for
any candidate regardless of the candidate’s party affiliation —
“promoting fairness, affording voters greater choice, increas-
ing voter participation, and protecting privacy” — but denied
that these were compelling reasons to burden political parties’
associational rights “in the circumstances of [that] case.” 530
U.S. at 584. The Court went on to reason, however, that even
if these four interests were compelling, California’s blanket
primary was “not a narrowly tailored means of furthering
them”:
Respondents could protect them all by resorting to a
nonpartisan blanket primary. Generally speaking,
under such a system, the State determines what qual-
ifications it requires for a candidate to have a place
on the primary ballot — which may include nomina-
tion by established parties and voter-petition require-
ments for independent candidates. Each voter,
regardless of party affiliation, may then vote for any
candidate, and the top two vote getters (or however
many the State prescribes) then move on to the gen-
eral election. This system has all the characteristics
of the partisan blanket primary, save the constitu-
tionally crucial one: Primary voters are not choosing
a party’s nominee. Under a nonpartisan blanket pri-
mary, a State may ensure more choice, greater par-
ticipation, increased “privacy,” and a sense of
“fairness” — all without severely burdening a politi-
cal party’s First Amendment right of association.
Id. at 585-86. In light of this statement, we agree that to the
extent Initiative 872 can be fairly characterized as enacting a
WASHINGTON STATE REPUBLICAN v. WASHINGTON 10041
nonpartisan blanket primary, Jones would lead us to uphold
Washington’s modified blanket primary.13
Initiative 872 resembles the Jones hypothetical nonpartisan
blanket primary in some respects, but it differs in at least one
crucial aspect. On the one hand, the “top two” feature of Ini-
tiative 872 seems indistinguishable from that referred to in
Jones, as does the aspect of Initiative 872 that allows “[e]ach
voter, regardless of party affiliation, [to] vote for any candi-
date.” 530 U.S. at 585. However, the crucial point of diver-
gence between Initiative 872 and Jones lies in the concept of
partisanship. Although the Court did not specify in what sense
it was using the term “nonpartisan,” an election is customarily
nonpartisan if candidates’ party affiliations are not identified
on the ballot. See Bott, Handbook of United States Election
Laws and Practices 145 (“Nonpartisan elections are ones in
which persons running for public office have their names
listed on the ballot but not their party affiliation.”). Jones’ use
of “nonpartisan” also appears to contemplate elections in
which primary voters play no role in the nomination of any
candidate as the representative of a political party. See Jones,
530 U.S. at 585-86 (asserting that the “constitutionally cru-
cial” element in the inquiry is the parties’ choice of their own
representative, and noting that states may condition access to
a nonpartisan primary ballot in part on prior and independent
nomination by an established political party). We therefore
understand the Court to align the term “nonpartisan” with the
process of nominating a candidate to appear on a general bal-
13
The Republican Party emphasizes that the statement in Jones is only
dictum. But as we have recognized, Supreme Court dicta is generally enti-
tled to “great weight,” Coeur D’Alene Tribe of Idaho v. Hammond, 384
F.3d 674, 683 (9th Cir. 2004), and “appropriate deference,” United States
v. Montero-Camargo, 208 F.3d 1122, 1132 n.17 (9th Cir. 2000). “[W]e do
not blandly shrug them off because they were not a holding,” id. (internal
quotation marks omitted), and therefore we accord the Jones dictum the
persuasive authority that it is due.
10042 WASHINGTON STATE REPUBLICAN v. WASHINGTON
lot, without thereby nominating a candidate to represent a
political party as its standard bearer.14
[4] In contrast to the Jones hypothetical primary, the pri-
mary envisioned by Initiative 872 is still overtly partisan. The
Initiative redefined the concept of “partisan office,” but those
offices remain partisan and so does the primary.15 By includ-
ing candidates’ self-identified political party preferences on
the primary ballot, Washington permits all voters to select
individuals who may effectively become the parties’ standard
bearers in the general election. Whether or not the primary
candidate is a party’s nominee, any candidate may appear on
the ballot showing that party as his or her “preference” and (if
14
The political parties argue that not only is Initiative 872 a partisan
blanket primary, but it is indistinguishable from the primaries invalidated
by Jones and Reed because it “nominates” candidates for the general elec-
tion. Washington and the Grange counter that Initiative 872 merely “win-
nows” candidates. This debate is not particularly illuminating because
“nominate” and “winnow” are two sides of the same coin — candidates
who are not nominated are necessarily winnowed — and the Supreme
Court has used both terms to describe the function of primaries. See, e.g.,
Storer v. Brown, 415 U.S. 724, 734, 735 (1974) (“After long experience,
California came to the direct party primary as a desirable way of nominat-
ing candidates for public office . . . . The direct party primary . . . func-
tions to winnow out and finally reject all but the chosen candidates.”).
Furthermore, even if Initiative 872’s modified blanket primary can be
said to “nominate” candidates, it does so in a way that is distinguishable
from Washington’s pre-Reed or California’s pre-Jones blanket primaries.
Unlike those primaries, the top vote-getters in each party under Initiative
872 are not guaranteed a place on the general election ballot; candidates
advance only if they finish in the top two overall. There is therefore a real
possibility that one of the political parties’ top vote-getters will not even
make it into general election or that two candidates from the same party
will advance. This is not a situation squarely contemplated by Jones or the
cases upon which it relies, all of which share the underlying assumption
that only one candidate emerges from a partisan primary as the party’s
nominee. See Jones, 530 U.S. at 575 (“In no area is the political associa-
tion’s right to exclude more important than in the process of selecting its
nominee.”) (emphasis added) (citing cases).
15
See supra note 5 and accompanying text.
WASHINGTON STATE REPUBLICAN v. WASHINGTON 10043
one of the two top vote getters) may emerge as the only one
bearing that designation in the general election. Whether or
not the party wants to be associated with that candidate, the
party designation is a powerful, partisan message that voters
may rely upon in casting a vote — in the primary and in the
general election. The Initiative thus perpetuates the “constitu-
tionally crucial” flaw Jones found in California’s partisan pri-
mary system. Not only does a candidate’s expression of a
party preference on the ballot cause the primary to remain
partisan, but in effect it forces political parties to be associ-
ated with self-identified candidates not of the parties’ choos-
ing. This constitutes a severe burden upon the parties’
associational rights.
Washington and the Grange argue against interpreting the
Initiative 872 primary as partisan, and assert that a party
“preference” is distinguishable from a party “designation” or
some other stronger affirmative indication of party affiliation,
such as membership. Such a distinction exists as a matter of
logic, but it is not meaningful in the circumstances of this
case. The district court came to the commonsense conclusion
that “[p]arty affiliation plays a role in determining which can-
didates voters select, whether characterized as ‘affiliation’ or
‘preference.’ ” Wash. State Republican Party v. Logan, 377 F.
Supp. 2d 907, 926 (W.D. Wash. 2005). Washington urges that
a candidate’s political party preference simply provides “in-
formation for the voters.” But a statement of party preference
on the ballot is more than mere voter information. It repre-
sents an expression of partisanship and occupies a privileged
position as the only information about the candidates (apart
from their names) that appears on the primary ballot. More-
over, it also carries over onto the general election ballot.16
16
The Washington Secretary of State appears implicitly to have recog-
nized that voters’ reliance on candidates’ party preferences was compara-
ble to their reliance on candidates’ party designations, by amending Wash.
Admin. Code § 434-230-040 (2005) to read as follows: “A candidate for
partisan office who indicated a party preference on the declaration of can-
10044 WASHINGTON STATE REPUBLICAN v. WASHINGTON
Importantly, “party labels provide a shorthand designation
of the views of party candidates on matters of public concern
. . . .” Tashjian, 479 U.S. at 220. Voters rely on party labels
on the ballot in deciding for whom to vote. This political real-
ity is illustrated by the Sixth Circuit’s decision in Rosen v.
Brown, 970 F.2d 169 (6th Cir. 1992). Rosen held unconstitu-
tional the provision in Ohio’s election law that “prohibit[ed]
nonparty candidates for elective office from having the desig-
nation Independent or Independent candidate placed on the
ballot next to their name.” Id. at 171. The court relied on evi-
dence that
[v]oting studies conducted since 1940 indicated that
party identification is the single most important
influence on political opinions and voting. . . . [T]he
tendency to vote according to party loyalty increases
as the voter moves down the ballot to lesser known
candidates seeking lesser known offices at the state
and local level.
Id. at 172. Thus voters “are afforded a ‘voting cue’ on the bal-
lot in the form of a party label which research indicates is the
most significant determinant of voting behavior.” Id. Simi-
larly, to the extent Initiative 182 allows candidates to self-
identify with a particular party — even if only as a “prefer-
ence” — it cloaks them with a powerful voting cue linked to
that party.
[5] Given that the statement of party preference is the sole
indication of political affiliation shown on the ballot, that
statement creates the impression of associational ties between
didacy may not change the party preference between the primary election
and the general election.” (Emphasis added.) The regulation previously
stated that “[n]o person who has offered himself or herself as a candidate
for the nomination of one party at the primary, shall have his or her name
printed on the ballot of the succeeding general election as the candidate
of another political party.” Wash. Admin. Code § 434-230-040 (1997).
WASHINGTON STATE REPUBLICAN v. WASHINGTON 10045
the candidate and the preferred party, irrespective of any
actual connection or the party’s desire to distance itself from
a particular candidate. The practical result of a primary con-
ducted pursuant to Initiative 872 is that a political party’s
members are unilaterally associated on an undifferentiated
basis with all candidates who, at their discretion, “prefer” that
party.
A hypothetical may help illustrate the situation confronting
the political parties and the voters of Washington in an Initia-
tive 872 primary. Let us assume the Republican Party holds
its own privately run party convention prior to the modified
blanket primary to select the Party’s nominee for the primary
ballot for a particular state office. Cf. Jones, 530 U.S. at 585
(noting that candidates appearing on a nonpartisan blanket
primary ballot may be nominated by established political par-
ties).17 Let us further assume that two Republican candidates
(both of whom are bona fide party members) — Candidate C,
a conservative, and Candidate M, a moderate — compete
against one another for the nomination and that Candidate C
wins the Republican nomination at the convention. Lastly, let
us assume the existence of a third candidate — Candidate W,
a wild-eyed radical — who purports to “prefer” the Republi-
can Party but who is not a Party member, whose views are
anathema to the Party’s membership and who does not partic-
ipate in the Party’s convention process. Despite Candidate C’s
party nomination, Candidate M and Candidate W decide that
they want to appear on the primary ballot.18 Given these
17
In fact, the Washington State Republican and Democratic Parties
adopted contingency rules in anticipation of Initiative 872’s enactment
whereby those parties would select their nominees for state offices through
private nominating conventions conducted before the state-run blanket pri-
mary.
18
It is quite easy to put one’s name on the Washington partisan primary
ballot with any given political party preference under Initiative 872. All
that is required is (1) a declaration of registered voter status in the appro-
priate jurisdiction (along with an address in that jurisdiction); (2) a decla-
10046 WASHINGTON STATE REPUBLICAN v. WASHINGTON
assumptions, how would each of these candidates be desig-
nated on the ballot, and how would voters be able to distin-
guish among them?19
[6] Presented with this scenario at oral argument, the State
of Washington conceded that all three candidates would be
designated in an identical fashion on the primary ballot — all
ration of the position the candidate seeks; (3) a declaration of party
preference or independent status; (4) a filing fee; and (5) a signed declara-
tion that the candidate will support the Constitution and the laws of the
United States and Washington State. The emergency regulations promul-
gated by the Washington Secretary of State in May 2005 confirmed the
parties’ inability to control who runs using their name: “neither endorse-
ment by a political party nor a nominating convention are [sic] required
in order to file a declaration of candidacy and appear on the primary elec-
tion ballot.” Wash. Admin. Code § 434-215-015 (2005).
19
The questions posed by this hypothetical illustrate that a number of
the arguments advanced by the State of Washington and the political par-
ties need not be settled in order to resolve the central issue on appeal.
First, the State of Washington argues that states are not compelled to pro-
vide political parties with a publicly financed primary to select party nom-
inees and that by enacting the provisions of Initiative 872, it is “getting out
of the ‘party nomination’ business.” However, the inclusion of candidates’
party preferences on the primary ballot suggests that Washington has not
gotten out of the party nomination business entirely because Initiative 872
permits “spoiler” candidates from the same party and nonparty members
to present themselves on an equal footing with party nominees on the bal-
lot.
Second, Washington argues that “the associational rights of political
parties do not include the right to have their nominees advance to the gen-
eral election ballot.” But even if we construed the political parties’ argu-
ment to be that they have a right to have their respective nominees appear
on the general election ballot, that argument misses the mark because it
only addresses the “top two” nature of the Initiative 872 primary. The con-
cern in this case is not that the top two vote-getters advance from the pri-
mary to the general election. Rather, it is that Initiative 872 provides
candidates with a designated space on the ballot to express their party
preference, notwithstanding the political parties’ unwillingness to asso-
ciate with a particular candidate or nominate that person as a standard
bearer.
WASHINGTON STATE REPUBLICAN v. WASHINGTON 10047
would be shown to have “Republican” as their “party prefer-
ence.”20 This is the essence of Initiative 872’s constitutional
flaw. Because candidates can freely designate their political
party preferences on the primary ballot, but the ballot does not
show which candidates are the political parties’ official nomi-
nees (or even true party members), voters cannot differentiate
(1) bona fide party members such as Candidates C and M
from outsiders who purportedly prefer the party such as Can-
didate W; or (2) party nominees such as Candidate C from
“spoiler” intraparty challengers such as Candidate M.21 The
net effect is that parties do not choose who associates with
them and runs using their name; that choice is left to the can-
didates and forced upon the parties by the listing of a candi-
date’s name “in conjunction with” that of the party on the
primary ballot. Wash. Rev. Code § 29A.04.110 (2004). Such
an assertion of association by the candidates against the will
of the parties and their membership constitutes a severe bur-
den on political parties’ associational rights. See Tashjian,
479 U.S. at 215 n.6; Duke, 954 F.2d at 1531.
In so holding, we do not question a political candidate’s
fundamental right to express a political viewpoint, including
a political preference, more generally. See, e.g., Monitor
Patriot Co. v. Roy, 401 U.S. 265, 272 (1971) (“[I]t can hardly
be doubted that the [First Amendment’s] constitutional guar-
20
The text of Initiative 872 does not itself clearly prescribe how the can-
didates’ party preferences are to be worded on the primary ballot, nor do
the Washington Secretary of State’s emergency rules, issued on May 18,
2005, implementing the provisions of Initiative 872. For instance, the bal-
lots could indicate party preference with letters like “D” and “R” or abbre-
viations like “Dem.” and “Rep.” following the names of the primary
candidates, without stating that they are “preferences” only. For purposes
of this appeal, however, we assume that the ballots clearly state that a par-
ticular candidate “prefers” a particular party.
21
The second of these two scenarios of voter confusion would not be
present if a party did not nominate a single standard bearer in a private
convention prior to the modified blanket primary, but that would not cure
the first problem.
10048 WASHINGTON STATE REPUBLICAN v. WASHINGTON
antee has its fullest and most urgent application precisely to
the conduct of campaigns for political office.”). We are not
deciding that an expression of a party preference other than as
a ballot designation — such as in campaign literature or
advertising, a candidate statement in the voters’ pamphlet or
a news conference — constitutes a forced association between
the candidate stating the preference and the political party
being preferred. Rather, we are focused on the specific pri-
mary election ballot created by Initiative 872, and the one-
sided expression of party preferences on that ballot. There is
a constitutionally significant distinction between ballots and
other vehicles for political expression. “Ballots serve primar-
ily to elect candidates, not as forums for political expression.”
Timmons, 520 U.S. at 363. Here the ballot communicates a
political association that may be unreciprocated and mislead-
ing to the voters, to the detriment of the political parties and
their bona fide members.
The State of Washington attempts to counter our concern
with this one-sidedness by itself invoking Timmons. It sug-
gests that the lack of distinction between Candidates C, M and
W on the primary ballot could be cured by the more detailed
candidate statements that would likely reveal party member-
ship and a candidate’s status as a political party’s nominee.
Washington also contends that it is permissible to place candi-
dates’ party preferences on the ballot without regard to the
parties’ candidate preferences, because parties have no more
right to use the ballot to send a message to voters than other
politically minded, nonparty organizations do. Cf. id. We
address and reject each of these contentions in turn.
Candidate statements cannot cure Initiative 872’s one-sided
party-preference labeling on the primary ballot. As previously
discussed, political parties’ names matter; they are shorthand
identifiers that voters traditionally rely upon to signal a candi-
date’s substantive and ideological positions. See Rosen, 970
F.2d at 172. For some voters, the party label may be enough;
other voters may seek out more information about a candi-
WASHINGTON STATE REPUBLICAN v. WASHINGTON 10049
date. As the Supreme Court observed in Tashjian, “[t]o the
extent that party labels provide a shorthand designation of the
views of party candidates on matters of public concern, the
identification of candidates with particular parties plays a role
in the process by which voters inform themselves for the exer-
cise of the franchise.” 479 U.S. at 220. When the Libertarian
Party challenged Oklahoma’s semi-closed primary law by
seeking to open the Libertarian Party primary beyond regis-
tered Libertarians and independents to all voters regardless of
affiliation, the Court expressed its concern about the possibil-
ity of voters’ being misled by party labels: “Opening the [Lib-
ertarian Party’s] primary to all voters not only would render
the [Libertarian Party’s] imprimatur an unreliable index of its
candidate’s actual political philosophy, but it also would
make registered party affiliations significantly less meaning-
ful . . . .” Clingman, 544 U.S. at 595 (internal quotation marks
omitted).
A party should not be placed in the position of having to
overcome a false association between itself and a candidate
by relying on the candidate’s off-ballot clarifying statements.22
It is too much to expect candidate statements to clear up the
confusion engendered by the primary ballot regarding who is
the “real” Republican, Democratic or Libertarian standard
bearer for his or her respective party, never mind whom party
members would acknowledge as a fellow member.23
22
Although the political parties have not expressed their argument in
exactly these terms, we note that the Supreme Court has long recognized
that “the choice to speak includes within it the choice of what not to say.”
Pac. Gas & Elec. Co. v. Pub. Utils. Comm’n of Cal., 475 U.S. 1, 16
(1986). When a law “impermissibly requires [someone] to associate with
speech with which [he or she] may disagree,” that person “may be forced
either to appear to agree . . . or to respond.” Id. at 15. “That kind of forced
response is antithetical to the free discussion that the First Amendment
seeks to foster.” Id. at 16.
23
We recognize that party affiliations and political views of candidates
in races for high profile state offices, such as governor, will be widely and
publicly known, and in such cases, voters may not be relying on the party
preference designation on the ballot. However, the same cannot be said for
lower profile state offices where the expression of party preference on the
ballot may well provide the decisive “voting cue.” Rosen, 970 F.2d at 172.
10050 WASHINGTON STATE REPUBLICAN v. WASHINGTON
We are similarly unconvinced by Washington’s argument
that the political parties’ associational rights are not severely
burdened because their inability to indicate their candidate
preference on the primary ballot is no different from the
inability of other, nonparty organizations, such as labor
unions or better business bureaus, to indicate their candidate
preferences. First, Washington’s argument is undermined by
the fact that Initiative 872 singles out candidates’ political
party preferences to be listed on the primary ballot, but not
preferences with respect to any other organization. Second, a
political party is historically different from other organiza-
tions with political interests in that it nominates candidates to
run for political office in the party’s name.24 See Jones, 530
U.S. at 575-77; Kusper v. Pontikes, 414 U.S. 51, 58 (1973)
(“Under our political system, a basic function of a political
party is to select the candidates for public office to be offered
to the voters at general elections.”). We therefore reject the
premise of an equivalency between political parties and other
organizations that lies at the heart of Washington’s argument.
In sum, because a party label — even if expressed more
ambiguously as a party preference — conveys to voters “a
shorthand designation of the views of party candidates on
matters of public concern,” Tashjian, 479 U.S. at 220, Initia-
tive 872’s party “preference” designation allows some candi-
dates to create a mistaken impression of their true relationship
with a political party. That severe burden on parties’ associa-
tional rights is not negated by requiring voters to rely on can-
didates’ or parties’ off-ballot statements to clarify the nature
or even lack of an actual party association.
24
Like political parties, other organizations with political interests —
from the National Rifle Association to the Sierra Club — may endorse
candidates for office, but endorsement is not the equivalent of nomination.
Cf. Jones, 530 U.S. at 580 (“The ability of the party leadership to endorse
a candidate is simply no substitute for the party members’ ability to
choose their own nominee.”).
WASHINGTON STATE REPUBLICAN v. WASHINGTON 10051
2. Compelling state interest and narrow tailoring
[7] Washington and the Grange have focused their argu-
ments on appeal on the contention that Initiative 872 does not
severely burden the political parties’ associational rights at
all. They have not articulated any compelling state interest
that justifies such a burden. To the extent that we can read
compelling state interests between the lines of their arguments
— essentially those interests articulated and found inadequate
by the Supreme Court in Jones — we conclude that such
interests could be sufficiently served by a more narrowly tai-
lored primary system. One obvious approach would be to
create a true nonpartisan primary, such as the one discussed
in Jones, where only a candidate’s name without any party
preference or designation appears on the ballot. Therefore, we
hold that the modified blanket primary enacted by Initiative
872 in November 2004 is unconstitutional.
C. Severing Unconstitutional Provisions
[8] As a fallback position, Washington and the Grange
argue that any unconstitutional provisions in Initiative 872 —
namely those that provide for the designation of candidate
party preferences — can be severed from the rest of the Initia-
tive. Following Washington law, which guides our severabil-
ity inquiry, see Ariz. Libertarian Party, Inc. v. Bayless, 351
F.3d 1277, 1283 (9th Cir. 2003) (per curiam), we conclude
that it is not possible to sever the constitutionally deficient
portions from the rest of Initiative 872.
[9] The Washington Supreme Court has set forth its state
severability doctrine as follows:
[A]n act or statute is not unconstitutional in its
entirety unless invalid provisions are unseverable
and it cannot reasonably be believed that the legisla-
tive body would have passed one without the other,
or unless elimination of the invalid part would render
10052 WASHINGTON STATE REPUBLICAN v. WASHINGTON
the remaining part useless to accomplish the legisla-
tive purposes. A severability clause may provide the
assurance that the legislative body would have
enacted remaining sections even if others are found
invalid. It is not necessarily dispositive on that ques-
tion, though. . . . The independence of the valid from
the invalid parts of an act does not depend on their
being located in separate sections. The invalid provi-
sion must be grammatically, functionally, and voli-
tionally severable.
McGowan v. State, 60 P.3d 67, 75 (Wash. 2002) (internal
punctuation marks, footnote and citations omitted).25
Conceptually speaking, severing all references to party
preference from Initiative 872 seems fairly straightforward
even though, as a practical matter, a fair number of provisions
or portions of provisions would have to be severed.26 How-
ever, even if we assume without deciding that the problematic
provisions are “grammatically” or even “functionally” sever-
able,27 they are not “volitionally” severable. Volitional sever-
ability is another way of stating the McGowan requirement
that “it cannot reasonably be believed” that Washington vot-
ers would have passed the remaining portions of Initiative 872
without the excised party preference provisions. Id.
25
Initiative 872 contains no severability clause, although under McGo-
wan, this fact is not dispositive. 60 P.3d at 75.
26
The district court identified Sections 4, 5, 7(2), 7(3), 9(3), 11 and 12
as provisions of Initiative 872 that were “potentially severable.” We need
not decide whether or not the district court accurately identified all of the
Initiative’s provisions that are “potentially severable” because Initiative
872 fails the volitional prong of McGowan.
27
We understand functional severability to be a restatement of the
McGowan requirement that “elimination of the invalid part would [not]
render the remaining part useless to accomplish the legislative purposes.”
60 P.3d at 75.
WASHINGTON STATE REPUBLICAN v. WASHINGTON 10053
[10] Even if we grant Washington and the Grange’s argu-
ment that Washington voters understood that Initiative 872
redefined candidate partisanship (i.e., as a party preference
rather than as a stronger form of party affiliation), excising all
mentions of party preference from the modified blanket pri-
mary would transform a partisan primary into a nonpartisan
one. It is not reasonable to believe that Washington voters
would have passed Initiative 872 if they knew it would result
in nonpartisan primaries for all statewide offices. Because the
party preference provisions in Initiative 872 do not pass the
volitional severability test in McGowan, we conclude that Ini-
tiative 872 cannot be saved by severing its provisions for can-
didate party preferences. We hold that Initiative 872 is
unconstitutional in its entirety.28
III. Conclusion
Although the Constitution grants States “a broad power . . .
to regulate the time, place, and manner of elections[, that
power] does not justify, without more, the abridgement of
fundamental rights, such as . . . the freedom of political asso-
ciation.” Tashjian, 479 U.S. at 217 (internal citations omit-
ted). A political party’s “determination of the boundaries of
its own association, and of the structure which best allows it
to pursue its political goals, is protected by the Constitution.”
Id. at 224. Initiative 872 severely burdens the Washington
political parties’ associational rights by allowing all candi-
dates to state their party preferences on the primary ballot.
This one-sided statement of party preferences on the ballot
has the potential to force a political party into an unwanted
association with a candidate who may be anathema to every-
thing the party stands for. We hold that Initiative 872 is
unconstitutional in its entirety because the party preference
provisions are not severable from the rest of Initiative 872
28
Because we have held Initiative 872 to be unconstitutional under the
First and Fourteenth Amendments, we do not reach any of the other argu-
ments that the political parties advance with respect to Initiative 872.
10054 WASHINGTON STATE REPUBLICAN v. WASHINGTON
under Washington law. The judgment of the district court is
affirmed.
AFFIRMED.