Alaska Independence v. State of Alaska

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ALASKA INDEPENDENCE PARTY; 
LINDA WINKELMAN; ALASKA
LIBERTARIAN PARTY, INC.; SCOTT
KOHLHAAS, No. 07-35186
Plaintiffs-Appellants,
v.  D.C. No.
CV-06-00040-TMB
STATE OF ALASKA, Division of OPINION
Elections; LOREN LEMAN
Lieutenant Governor,
Defendants-Appellees.

Appeal from the United States District Court
for the District of Alaska
Timothy M. Burgess, District Judge, Presiding
Argued and Submitted
August 7, 2008—Anchorage, Alaska
Filed October 6, 2008
Before: Dorothy W. Nelson, A. Wallace Tashima and
Raymond C. Fisher, Circuit Judges.
Opinion by Judge Fisher
14177
14180 ALASKA INDEPENDENCE PARTY v. ALASKA
COUNSEL
Kenneth P. Jacobus, Anchorage, Alaska, for the plaintiffs-
appellants.
Michael A. Barnhill (argued), Senior Assistant Attorney Gen-
eral, and Talis J. Colberg, Attorney General, Juneau, Alaska,
for the defendants-appellees.
OPINION
FISHER, Circuit Judge:
Alaska requires political parties to nominate candidates for
the state’s general election ballot in a state-run primary, in
which any registered member of a political party may seek the
party’s nomination. Nominees are then chosen by the vote of
party-affiliated voters and any other voters whom the parties
choose to let participate. The Alaska Independence Party
(“AIP”) and the Alaska Libertarian Party (“ALP”) contend
that these laws burden their associational rights in violation of
the First Amendment because they force them to associate
with candidates who, they claim, are not members of their
party or are not ideologically compatible with the party. We
hold that Alaska’s primary system is justified by compelling
state interests and is therefore facially constitutional.
I. Factual and Procedural Background
Alaska has a mandatory direct primary system, in which all
candidates for elective state and national office who appear on
ALASKA INDEPENDENCE PARTY v. ALASKA 14181
the state’s general election ballot are “nominated in a primary
election by direct vote of the people.” Alaska Stat.
§ 15.25.010. Alaska allows each political party to choose who
among the electorate may vote in its primary. Under Alaska’s
default rule, a party’s nominee is selected by voters affiliated
with that political party, as well as voters who are not affili-
ated with any party. Id. Such a primary is conventionally
referred to as a “limited open primary” or “partially closed
primary.” See State v. Green Party of Alaska, 118 P.3d 1054,
1057-58 (Alaska 2005). A party may opt out of these default
provisions, however, by restricting its ballot to affiliated vot-
ers only, thereby holding a “closed primary,” or expanding its
ballot to even those voters who are registered with other polit-
ical parties, an “open primary.” See Alaska Stat.
§§ 15.25.010, 15.25.014(a); see also Green Party, 118 P.3d at
1057-58 (explaining the operation of Alaska’s mandatory
direct primary system). Parties that have opted to hold an
open primary may choose to combine their candidates on a
single ballot. See Green Party, 118 P.3d at 1070. In recent
elections, both the AIP and ALP elected to hold open prima-
ries and have their candidates appear on a combined ballot,
which listed AIP and ALP candidates together with candi-
dates from the Democratic and Green parties.
Given the considerable freedom that Alaska law provides
to political parties to determine who may vote to select their
nominee, the AIP and ALP unsurprisingly do not argue here
that the Alaska primary forces them to associate with any
unaffiliated or undesired voters. Rather, they argue that Alas-
ka’s laws run afoul of the First Amendment because they
force parties to associate with undesired candidates who
appear on the primary ballot and seek their parties’ nomina-
tions. Alaska allows “[a] member of a political party who
seeks to become a candidate of the party in the primary elec-
tion” to appear on the party’s primary ballot, provided the
candidate swears a declaration of candidacy with the state and
meets the state’s qualifications for office. Alaska Stat.
§ 15.25.030(a). As is relevant here, one of those qualifications
14182 ALASKA INDEPENDENCE PARTY v. ALASKA
is that the candidate must be “registered to vote as a member
of the political party whose nomination is being sought.” Id.§ 15.25.030(a)(16). Such party affiliation occurs when a can-
didate registers as a voter with Alaska’s voter registration
agency, id. § 15.07.050, but the parties themselves do not
exercise control over who may affiliate with the party in this
way. If the state receives a complaint concerning any candi-
date’s eligibility for a particular office, the state director of
elections must verify and make a determination of the candi-
date’s eligibility within 30 days. Id. § 15.25.042.
Both the AIP and ALP are governed by party constitutions
and internal bylaws that define party membership, specify
criteria for a party candidate’s eligibility for public office and
define various means by which the parties endorse or nomi-
nate party candidates, some of which they suggest signifi-
cantly conflict with state law. AIP bylaws state that party
membership is “limited to all residents of Alaska who have
registered to vote with the State Department of Elections and
selected the Alaskan Independence Party as their political
affiliation of preference.” AIP bylaws also state that those
who file for public office as a candidate of the AIP “shall be
registered members of the [AIP] at the time of filing.” ALP
bylaws do not appear to define party membership, but they do
state that “[a]ll candidates for nomination, election or
endorsement . . . shall be ALP members.” Both the AIP and
ALP have provisions in their bylaws that allow them to
endorse candidates for office at their conventions and decline
to endorse candidates with whom they do not agree. Both AIP
and ALP bylaws acknowledge that the state has imposed a
mandatory primary as the means for selecting nominees,
although both parties’ bylaws also provide, in the alternative,
for nominations by convention to the extent permitted by state
law.1
1
AIP bylaws provide for nomination by convention “[i]n any election
for public office where the Alaska Independence Party is authorized by
ALASKA INDEPENDENCE PARTY v. ALASKA 14183
The AIP and ALP (“Appellants”) brought this suit under 42
U.S.C. § 1983, alleging that Alaska’s primary system violates
their right to free speech and association and seeking declara-
tory and injunctive relief under the First Amendment and the
Alaska Constitution.2 Appellants requested a declaratory judg-
ment “that political parties themselves, and not the State of
Alaska, have the right to determine how their candidates to
appear on Alaska election ballots are to be selected, and that
the State of Alaska must allow a political party to select its
candidates for the general election ballot in a manner accept-
able to the political party,” and sought a permanent injunction
against Alaska’s election laws. Alaska moved to dismiss and
Appellants cross-moved for summary judgment. The district
court construed the state’s motion to dismiss as a motion for
summary judgment, which, after adducing evidence and
obtaining further briefing, it granted for the state. We review
the district court’s decision on cross-motions for summary
judgment de novo. Pocatello Educ. Ass’n v. Heideman, 504
F.3d 1053, 1056 (9th Cir. 2007), cert. granted sub nom.,
Ysursa v. Pocatello Educ. Ass’n, 128 S. Ct. 1762 (Mar. 31,
2008) (No. 07-869). We have jurisdiction under 28 U.S.C.
§ 1291, and we affirm.
II. Analysis
[1] “A political party has a First Amendment right to limit
its membership as it wishes, and to choose a candidate-
selection process that will in its view produce the nominee
law to nominate a candidate.” ALP bylaws more colorfully denounce the
state-run primaries as “a waste of taxpayers’ money, [that] serve only as
free advertising for candidates,” but state that “until that happy day when
government-sponsored primaries are abolished, and we may nominate all
our candidates at our own convention, we recognize the hard realities and
expediencies of politics, and consent to have Libertarian candidates for
elective public office appear on a primary ballot. . . .”
2
Appellants do not argue on appeal that the state-run primary violates
the Alaska Constitution.
14184 ALASKA INDEPENDENCE PARTY v. ALASKA
who best represents its political platform.” N.Y. Bd. of Elec-
tions v. Lopez Torres, 128 S. Ct. 791, 797 (2008). As the
Supreme Court has noted, however, “[t]hese rights are cir-
cumscribed . . . when the State gives the party a role in the
election process,” such as “by giving certain parties the right
to have their candidates appear with party endorsement on the
general-election ballot.” Id. at 797-98. Where, as here, the
state assumes this role, “then also the State acquires a legiti-
mate governmental interest in assuring the fairness of the
party’s nominating process, enabling it to prescribe what that
process must be.” Id. at 798. The validity of such an election
law “depends on the severity of the burden it imposes on the
exercise of constitutional rights and the strength of the state
interests it serves.” Nader v. Brewer, 531 F.3d 1028, 1034
(9th Cir. 2008). The question before us is whether Alaska has
a sufficiently compelling interest in its state-run mandatory
primary justifying the burden on Appellants’ associational
rights. We hold that it does.
“[I]n considering a constitutional challenge to an election
law, a court must weigh ‘the character and magnitude of the
asserted injury to the rights protected by the First and Four-
teenth Amendments’ against ‘the precise interests put forward
by the State as justifications for the burden imposed by its
rule.’ ” Id. (quoting Anderson v. Celebrezze, 460 U.S. 780,
789 (1983)). The Supreme Court has held that “the severity
of the burden the election law imposes on the plaintiff’s rights
dictates the level of scrutiny applied by the court.” Id. Specifi-
cally, “an election regulation that imposes a severe burden is
subject to strict scrutiny and will be upheld only if it is nar-
rowly tailored to serve a compelling state interest,” whereas
regulations that impose lesser burdens will be upheld as long
as they are justified by “a state’s ‘important regulatory inter-
ests.’ ” Id. at 1035 (quoting and citing Burdick v. Takushi, 504
U.S. 428, 434 (1992)); see also Clingman v. Beaver, 544 U.S.
581, 592 (2005) (“[N]ot every electoral law that burdens asso-
ciational rights is subject to strict scrutiny; . . . [i]nstead, . . .
strict scrutiny is appropriate only if the burden is severe.”).
ALASKA INDEPENDENCE PARTY v. ALASKA 14185
We need not decide in this case which level of scrutiny is
appropriate, however, because we hold that Alaska’s manda-
tory primary election law withstands even the more rigorous
scrutiny.
A. Alaska’s Mandatory Direct Partisan Primary
[2] Although Appellants’ argument is a bit muddled, they
first contend that Alaska’s state-run primary violates their
associational rights either by compelling them to nominate
their candidates by primary election instead of convention, or
by failing to allow them to “exclude candidates that do not
support the principles and philosophies of the parties from
their primary elections, and not have these candidates forced
on them by state law.” However framed, Appellants’ argu-
ment at its core is an attack on the mandatory direct primary
itself. Like most states, Alaska implemented its direct primary
during the Progressive Era, seeking to remove party nominat-
ing decisions from the infamous “smoke-filled rooms” and
place them instead in the hands of a party’s rank-and-file,
thereby destroying “ ‘the corrupt alliance’ between wealthy
special interests and the political machine.” See Lightfoot v.
Eu, 964 F.2d 865, 872 (9th Cir. 1992) (quoting Richard Hof-
stadter, The Age of Reform 257 (1955)). Alaska agrees that the
purpose of Alaska’s mandatory direct primary is to provide a
neutral mechanism for resolving party nominating decisions
that reduces the role of party leadership and gives ultimate
authority to party voters. This advances the state’s interest in
limiting opportunities for fraud and corruption by preventing
party leadership from controlling nominating decisions, while
promoting democratic decisionmaking. The state’s goals
would clearly be impeded if party leaders could either opt out
of the primary altogether or interfere with the democratic pro-
cess by exercising veto power over the candidates that might
seek the nomination.
[3] These benefits of mandatory direct primaries are the
reason why “[n]early every State in the Nation now mandates
14186 ALASKA INDEPENDENCE PARTY v. ALASKA
that political parties select their candidates for national or
statewide office by means of primary elections.” See Cling-
man, 544 U.S. at 599 (O’Connor, J., concurring). Although
the Supreme Court has never entertained a direct challenge to
a state’s use of a closed mandatory direct primary or an open
primary that is selected by the party itself, it has numerous
times stated that it is “too plain for argument” that “a State
may require parties to use the primary format for selecting
their nominees, in order to assure that intraparty competition
is resolved in a democratic fashion.” Cal. Democratic Party
v. Jones, 530 U.S. 567, 572 (2000) (quoting Am. Party of Tex.
v. White, 415 U.S. 767, 781 (1974); see Lopez Torres, 128
S. Ct. at 798. As the Court has noted, “[a] primary is not hos-
tile to intraparty feuds; rather it is an ideal forum in which to
resolve them.” Eu v. S.F. County Democratic Cent. Comm.,
489 U.S. 214, 227 (1989). We have also agreed that “the
State’s interest in enhancing the democratic character of the
election process overrides whatever interest the Party has in
designing its own rules for nominating candidates,” such as its
desire to nominate through party-run convention. Lightfoot,
964 F.2d at 873; see Tashjian v. Republican Party of Conn.,
479 U.S. 208, 237 (1986) (Scalia, J., dissenting) (noting that
“[a state] may lawfully require that significant elements of the
democratic election process be democratic — whether the
Party wants that or not”).
Appellants nonetheless argue that even if they may consti-
tutionally be compelled to participate in the primary, Alaska’s
primary impermissibly burdens their associational rights
because Alaska does not allow the party to exclude from the
ballot those candidates the party finds objectionable. For this
argument, Appellants rely on our decision in Washington
State Republican Party v. Washington, 460 F.3d 1108 (9th
Cir. 2006), rev’d by Washington State Grange v. Washington
State Republican Party, 128 S. Ct. 1184 (2008). Appellants,
however, misunderstand the burden on associational rights at
issue in Washington State, which involved a constitutional
challenge to a mandatory blanket primary. See 460 F.3d at
ALASKA INDEPENDENCE PARTY v. ALASKA 14187
1113. The Supreme Court has held that blanket primaries, in
which all candidates are combined on a single ballot and may
be voted upon by voters affiliated with any party, violate a
party’s associational right to have its nominee chosen by
members of its own party. See Jones, 530 U.S. at 577 (hold-
ing that a blanket primary “forces political parties to associate
with — to have their nominees, and hence their positions,
determined by — those who, at best, have refused to affiliate
with the party, and, at worst, have expressly affiliated with a
rival”). Because blanket primaries violate political parties’
First Amendment rights, they may not constitutionally be
used to “choos[e] a party’s nominee.” Id. at 586. The
Supreme Court has suggested, however, that blanket prima-
ries may be a permissible way for the voters to choose, on a
nonpartisan basis, the candidates who will appear on a gen-
eral election ballot. Id. at 585-86.
The blanket primary challenged in Washington State sought
to comply with Jones by presenting candidates without party
affiliations, thereby creating an ostensibly nonpartisan pri-
mary, yet allowed candidates to indicate a “political party
preference” without expressly having or running for the
party’s nomination. See 460 F.3d at 1114. The question the
Supreme Court faced in Washington State was whether a non-
partisan blanket primary “that indicates each candidate’s pref-
erence on the ballot, in effect, chooses the parties’ nominees,”
which would seemingly be impermissible under Jones. 128
S. Ct. at 1192. The Court held that although “it is possible that
voters will misinterpret the candidates’ party-preference des-
ignations as reflecting endorsement by the parties,” it could
not resolve this question without an “evidentiary record
against which to assess their assertions that voters will be con-
fused.” Id. at 1193-94. The Court therefore held that First
Amendment challenges to primary ballots that turn on “the
possibility that voters will be confused as to the meaning of
the party-preference designation” must be brought only
through an as-applied, not a facial, challenge. See id. at 1193.
14188 ALASKA INDEPENDENCE PARTY v. ALASKA
Alaska’s self-selected closed, open or partially closed pri-
mary system does not resemble the one at issue in Washington
State, because it is not a blanket primary and therefore does
not present the risk that — if used to choose a party’s nominee
— the nominee will be chosen by voters with whom the party
prefers not to associate. The Alaska primary is even more
respectful of a party’s associational rights than is constitution-
ally required, because it allows parties to decide whether they
want to allow nonparty members to participate, as both the
AIP and ALP have elected to do. Cf. Clingman, 544 U.S. at
592-93 (holding that a state law forbidding parties from invit-
ing members of other parties to participate in their primary
places “no heavy burden” on parties’ associational rights).
Contrary to Appellants’ argument here, there seems little risk
that voters will mistake the candidates running in a partisan
primary — where the very purpose, unlike in a nonpartisan
blanket primary, is to allow party voters to choose the party’s
nominee — to be the party’s nominee. Further, even to the
extent such voter confusion might be possible, the Supreme
Court has made clear that First Amendment challenges that
rest on the risk of voter confusion must be brought only on an
as-applied basis. See Wash. State, 128 S. Ct. at 1195.3
[4] The potential burden that Alaska’s type of primary
places on parties’ associational rights is therefore quite differ-
ent from the one posed by the nonpartisan blanket primary at
issue in Washington State. Appellants’ argument, when dis-
tilled to its essence, is that a partisan ballot open only to those
voters chosen by the party itself, nonetheless burdens parties’
associational rights because a candidate may seek the party’s
nomination against the wishes of the party’s leadership. Such
3
Although Appellants make a late-hour attempt to argue that their law-
suit was, in fact, an as-applied challenge to Alaska’s primary ballots from
2004 and 2006, neither the relief they sought in their complaint nor the
arguments they made to the district court were consonant with an as-
applied challenge. We therefore reject Appellants’ attempt during oral
argument to refashion their suit in light of the Supreme Court’s holding
in Washington State.
ALASKA INDEPENDENCE PARTY v. ALASKA 14189
a primary undoubtedly intrudes on the party’s associational
rights, because it limits the party’s ability to “choose a
candidate-selection process that will in its view produce the
nominee who best represents its political platform.” Lopez
Torres, 128 S. Ct. at 797. The AIP and ALP would prefer to
present primary voters with a limited set of pre-approved can-
didates, whereas Alaska law permits any registered affiliate of
the party to run in the primary. The burden on the parties’
rights, therefore, is the conflict between the party’s wish to
enforce greater top-down control and the state’s mandate that
rank-and-file party voters have the opportunity to consider
and vote for any affiliated party member who seeks the nomi-
nation.
[5] We are skeptical that such a conflict imposes a severe
burden on parties’ associational rights. Instead of having its
nominee selected or screened by party leadership, the party’s
nominee is selected democratically by registered party voters
(and any others whom the party chooses to let participate),
from a slate of all qualified, affiliated candidates who seek the
nomination. The burden on parties’ associational rights is fur-
ther lessened because the Supreme Court has long protected
the party’s First Amendment right to “state[ ] whether a can-
didate adheres to the tenets of the party or whether party offi-
cials believe that the candidate is qualified for the position
sought,” which protects the party’s right to distance itself
from undesired candidates and urge party voters to choose the
nominee who the party feels best represents the party plat-
form. See Eu, 489 U.S. at 223. Appellants do not contend that
they are prohibited by state law from endorsing their preferred
candidate and disavowing undesired candidates.
[6] Although we therefore believe it unlikely that Alaska’s
primary law imposes a severe burden on Appellants’ associa-
tional rights, we ultimately need not decide what level of
scrutiny to apply, because Alaska’s primary election law
withstands even strict scrutiny. See Nader, 531 F.3d at 1035(holding that “an election regulation that imposes a severe
14190 ALASKA INDEPENDENCE PARTY v. ALASKA
burden is subject to strict scrutiny and will be upheld only if
it is narrowly tailored to serve a compelling state interest”).
We have long recognized that a state’s interest in eliminating
the fraud and corruption that frequently accompanied party-
run nominating conventions is compelling, and that a demo-
cratic primary is narrowly tailored to advance these state
interests. See Lightfoot, 964 F.2d at 873 (upholding a state’s
mandatory direct primary under strict scrutiny, because “the
State’s interest in enhancing the democratic character of the
election process overrides whatever interest the Party has in
designing its own rules for nominating candidates,” and “no
measure short of the direct primary would be adequate” to
these goals). Appellants’ challenge to Alaska’s democratic
mandatory direct primary therefore fails.
B. Alaska’s Party Affiliation Rule
Appellants also make a second argument, which is that
Alaska’s primary election law compels them to associate with
candidates who are not in fact party members or who are not
qualified under party rules to run as party candidates, thereby
also burdening their associational rights. Although Appellants
concede that state law requires all candidates who seek the
nomination to be registered affiliates of the party, see Alaska
Stat. § 15.25.030(a)(16), Appellants nonetheless protest that
such registration “does not confirm ‘party membership,’ ”
because affiliation occurs under state law by the candidate’s
own choice, regardless of whether “that person is a member
or supporter of the party, or whether the political party even
wants that person as a member.” They argue that political par-
ties, as expressive associations, have the right to define their
own membership. See Roberts v. U. S. Jaycees, 468 U.S. 609(1984). By certifying candidates for office who, the Appel-
lants claim, are not true members of the party or are not quali-
fied to run for office under the party’s bylaws, the state forces
members and candidates unwillingly upon them.
[7] Appellants provide no support for their argument that
their own party membership and candidacy rules conflict with
ALASKA INDEPENDENCE PARTY v. ALASKA 14191
state law, however. AIP bylaws in fact support the contrary
conclusion, because they define party membership to include
“all residents of Alaska who have registered to vote with the
State Department of Elections and selected the Alaskan Inde-
pendence Party as their political affiliation of preference.”
These same bylaws permit anyone to run as a candidate of the
AIP so long as that person is a “registered member[ ] of the
[AIP] at the time of filing.” AIP requirements to run for office
are therefore seemingly identical to Alaska’s laws, which
allow a candidate to seek the nomination if he or she is “regis-
tered to vote as a member of the political party whose nomi-
nation is being sought,” which occurs when the voter
“mark[s] the voter’s choice of party affiliation on the voter
registration application form.” Alaska Stat.
§§ 15.25.030(a)(16), 15.07.050. We also find nothing to the
contrary within ALP bylaws. Because Appellants have pro-
vided no citation to the record or support for their claim that
their own bylaws conflict with the state’s definition of party
membership, we hold that this argument is waived. Further,
to the extent Appellants argue that certain specific candidates
for office have been improperly certified by Alaska in the
past, these challenges would be properly brought on an as-
applied, not facial, challenge. See Wash. State, 128 S. Ct. at
1191.
III. Conclusion
There is no question that the state must “proceed with great
caution when it acts in ways that undermine the ability of
individuals” to form and run political parties as they choose.
Lightfoot, 964 F.2d at 873. However, “[t]urning the entire
electoral apparatus over to political parties would pose as
great a threat to the integrity of our system of government as
would the state’s unprincipled meddling in the political pro-
cess.” Id. Alaska’s mandatory direct primary is justified by
compelling state interests in avoiding fraud and corruption
and promoting democratic decisionmaking, and therefore
14192 ALASKA INDEPENDENCE PARTY v. ALASKA
does not on its face impermissibly burden parties’ associa-
tional rights.
AFFIRMED.