Smothering Freedom of Association: the Alaska Supreme Court Errs in Upholding the State's Blanket Primary Statute

• Citation: Vol. 14
• Publication year: 1997

§ 14 Alaska L. Rev. 523. SMOTHERING FREEDOM OF ASSOCIATION: THE ALASKA SUPREME COURT ERRS IN UPHOLDING THE STATE'S BLANKET PRIMARY STATUTE

Alaska Law Review
Volume 14
Cited: 14 Alaska L. Rev. 523

SMOTHERING FREEDOM OF ASSOCIATION: THE ALASKA SUPREME COURT ERRS IN UPHOLDING THE STATE'S BLANKET PRIMARY STATUTE

Brian M. Castro

I. INTRODUCTION

II. O'CALLAGHAN V. STATE

III. THE UNITED STATES SUPREME COURT'S FREEDOM OF ASSOCIATION JURISPRUDENCE

A. The Right to Associate

B. The Supreme Court's Test for Election Laws that Affect the Right to Associate

C. State Law Versus Party Rule: The United States Supreme Court Establishes the Primacy of Party Rules

IV. THE ALASKA SUPREME COURT ERRED IN O'CALLAGHAN V. STATE

A. The Majority Opinion

B. The O'Callaghan Majority Erred in its Application of the Anderson Test

C. The O'Callaghan Majority Disregarded Controlling Supreme Court Precedent

V. CONCLUSION

I. INTRODUCTION

Striking a severe blow to the associational rights of political party members, the Alaska Supreme Court, in O'Callaghan v. State, ^[1] upheld as constitutional the state's blanket primary law. At issue in the case was whether a state statute providing for a blanket primary election unconstitutionally violates the associational rights of the state Republican party and its members by requiring them to include members of other political parties in the Republican primary.

This Note contends that it was error for the O'Callaghan court to uphold the statute on the basis of merely "legitimate and important" state interests. ^[2] Instead, in light of United States Supreme Court precedent which has established the test to be applied to election laws burdening associational rights, the Alaska Supreme [*pg 524] Court should have required the state to justify the statute by showing that it was narrowly tailored to advance compelling state interests. This Note also argues that the interests asserted by Alaska to justify the blanket primary are insufficient to withstand strict scrutiny.

The O'Callaghan majority further erred by disregarding controlling United States Supreme Court precedent, the holdings of which resolve the issue in O'Callaghan. This controlling precedent includes Tashjian v. Republican Party of Connecticut, ^[3] which established that political parties have the right to determine who may participate in their candidate selection process, and Democratic Party of the United States v. Wisconsin ex rel. LaFollette, ^[4] which held that a political party may not be compelled to abide by the results of an open primary.

Part II of this Note recounts the facts and holding of O'Callaghan. Part III discusses the development of United States Supreme Court jurisprudence regarding freedom of association and election law challenges. Finally, Part IV applies this jurisprudence to the facts of O'Callaghan to argue that O'Callaghan was wrongly decided.

It is instructive to preface this discussion by distinguishing among the three types of primary election systems. In a closed primary, only members of the sponsoring political party may participate in the party's primary election. Within the class of primaries that are closed, some require affiliation with the party for a period of time prior to the primary election, while others permit voters to declare an affiliation at the time of primary voting. The vast majority of states use closed primaries of some variety. ^[5]

In an open primary, any voter may vote for candidates for any party's nomination, but the voter may vote only for candidates running for one party's nomination. In a blanket primary, any voter may vote for candidates for any party's nomination, but -- in contrast to an open primary -- the voter may vote for candidates for the nomination of different political parties for various offices. ^[6] For example, in a blanket primary such as the one envisioned by the statute at issue, a registered Republican could vote for an independent for Governor, a Democrat for the U.S. House, and a Republican for the state Senate.

[*pg 525] In addition to Alaska, Louisiana ^[7] and Washington ^[8] have blanket primaries. California voters recently approved a voter initiative authorizing a blanket primary, ^[9] though it has yet to go into effect and is being challenged in federal court. ^[10]

It is also worthwhile at the outset to consider Alaska's unique electoral composition, characterized by its unusually large number of undeclared and non-partisan voters relative to the number of party-affiliated voters. In August 1997, there were 431,976 registered voters in Alaska. ^[11] Of these, 16,895 were registered independents, 72,916 were registered Democrats, 106,983 were registered Republicans, and 3,157 were registered Green party members. ^[12] At the same time, there were 142,244 undeclared and 84,780 non-partisan registered voters. ^[13]

II. O'CALLAGHAN V. STATE

Alaska Statutes section 15.25.060 provides for a primary wherein all primary candidates are listed on a single ballot "without regard to their party affiliation." ^[14] Any voter may vote for any of the candidates, regardless of the party affiliation of the voter or of the candidate. Known as a blanket primary, this type of primary election was first enacted in Alaska in 1947 after a referendum. ^[15]

In 1990, the Republican Party of Alaska ("RPA") enacted a [*pg 526] party rule that provided that only registered Republicans, registered independents, and registered voters who state no preference of party affiliation may vote in Republican primaries. ^[16] Due to the obvious conflict between this party rule and the blanket primary statute, the Republican Party sued the State in federal court, challenging the statute's constitutionality. ^[17] Agreeing with the RPA, Judge James K. Singleton orally announced his "tentative decision" ^[18] that Alaska's blanket primary statute infringed on the RPA's right to free political association in violation of the United States Supreme Court's opinion in Tashjian. ^[19]

Subsequent to the judge's announcement, but prior to his entry of judgment in the matter, the RPA and the State agreed to certain stipulations and to dismissal of the suit. The district court approved the stipulations and dismissed the case without prejudice. The stipulations provided for two separate ballots for primary elections, the effect of which was that the 1992 Republican primary was conducted in accord with the Party rule, not the blanket primary law. ^[20] One ballot listed only Republican candidates, and was available only to Republican, non-partisan, and undeclared voters. The other ballot listed all other candidates, and was available to all voters. Voters, of course, could vote only one of these ballots.

Following the stipulation, and before the 1992 primary, the Director of Elections adopted emergency temporary regulations, implementing the two-ballot system described in the stipulation. ^[21] The Director adopted identical permanent regulations prior to the 1994 primary. ^[22] The 1992 and 1994 elections were conducted pursuant to these regulations. ^[23]

Then, a voter in the 1992 primary election, Mike O'Callaghan, filed a complaint against the Lieutenant Governor in Alaska Supe- [*pg 527] rior Court challenging the legality of the 1992 primary election. O'Callaghan asserted that the stipulated regulations providing for a two-ballot primary were inconsistent with state election law. The State argued that the regulations were valid because of the clear unconstitutionality of the blanket primary statute under Tashjian. ^[24] The court granted summary judgment for the State, and O'Callaghan appealed to the Alaska Supreme Court.

The Alaska Supreme Court, in O'Callaghan v. Coghill, ^[25] invalidated the stipulation because, through the stipulation, the state had effectively declared a law unconstitutional. The court noted that "a stipulation or consent judgment declaring a law unconstitutional is not valid" except in cases of clear unconstitutionality. ^[26] The clear unconstitutionality of the blanket primary statute had not been established, the court concluded. ^[27] Although the court declined to decide the constitutionality of the blanket primary statute, it invited the submission of briefs addressing the question. ^[28]

Following the election of a Democratic governor, the state abruptly changed course and argued that the statute was constitutional. It was only at this point that the RPA became involved in the O'Callaghan suit. The court granted the RPA's motion to intervene, and the RPA argued against the statute's constitutionality. Alaskan Voters for an Open Primary were also allowed to intervene. The Alaska Federation of Natives filed an amicus curiae brief, and the Alaskan Independence Party filed a submission in lieu of an amicus curiae brief. Of these groups, only the RPA argued that the blanket primary was unconstitutional.

Deciding the issue in O'Callaghan v. State, ^[29] the Alaska Supreme Court held that Alaska's statute providing for a single blanket primary election is constitutional. ^[30] The court declined to apply strict scrutiny to the blanket primary statute and instead upheld the law on the basis of state interests that were only "legitimate and important." ^[31]

The majority conceded that under Alaska's blanket primary system, political parties' association rights are burdened in two ways: the...