Metropolitan News-Enterprise


Tuesday, October 7, 2008


Page 1


Ninth Circuit Upholds Alaska Law Governing Primaries


By SHERRI M. OKAMOTO, Staff Writer


Political parties do not have the right to determine how their candidates for Alaska’s general election ballots are selected, the Ninth U.S. Circuit Court of Appeals held yesterday.

The three judge panel ruled that Alaska’s interest in avoiding fraud and corruption in the parties’ nomination process justified the burden placed on the parties’ associational rights by the state’s direct primary system—which allowed any voter registered as a member of a political party to seek that party’s nomination—and affirmed the decision of U.S. District Court Judge Timothy M. Burgess of the District of Alaska in favor of the state.

Alaska required political parties to nominate candidates for the state’s general election ballot in a state-run primary. State law permitted the political parties to select who among the electorate may vote in the primary election to select the party’s nominee, but also provided that any voter registered as a member of a polical party run for candidacy in the primary.

The Alaska Independence Party and the Alaska Libertarian Party filed suit claiming that the state’s primary system violated their right to free speech and association by forcing the parties to associate with candidates who, they claimed, were not members of their party or were not ideologically compatible with the party. They sought declaratory and injunctive relief under the First Amendment and the Alaska Constitution

Both political parties were governed by party constitutions and internal bylaws that define party membership, specified criteria for eligibility for public office, defined various means by which the parties endorsed or nominated party candidates, and permitted the parties to decline to endorse candidates with whom they do not agree.

Alaska moved to dismiss, and the political parties cross-moved for summary judgment. The district court construed the state’s motion to dismiss as a motion for summary judgment, which it subsequently granted for the state.

Writing for the appellate court, Judge Raymond C. Fisher explained where a state has given certain parties the right to have their candidates appear with party endorsement on the general-election ballot, the state acquires a legitimate government interest in assuring the fairness of the party’s nominating process and may prescribe what that process shall be.

The level of judicial scrutiny varies depending on the burden imposed on the political parties’ right of association, Fisher continued, but added that the court did not need to determine which level of scrutiny was appropriate because Alaska’s primary election law withstood even strict scrutiny.

Fisher characterized the case as a “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 nomination.”

He reasoned that the state’s interest in enhancing the democratic character of the election process and limited opportunities for fraud and corruption by preventing party leadership from controlling nominating decisions “‘overrides whatever interest the Party has in designing its own rules for nominating candidates.’”

Noting that the Alaska primary system also allowed political parties to determine whether non-party members could vote for the party’s candidate, Fisher concluded“[t]he Alaska primary is even more respectful of a party’s associational rights than is constitutionally required.”

Judges Dorothy W. Nelson and A. Wallace Tashima joined Fischer in his opinion.

The case is Alaska Independence Party v. State of Alaska, 07-35186


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