Wash. State republican Party v. Wash. State Grange

WASHINGTON STATE REPUBLICAN PARTY, BERTABELLE HUBKA, STEVE NEIGHBORS, MARCY COLLINS, MICHAEL YOUNG, DIANE TEBELIUS, MIKE GASTON, Plaintiffs, andWASHINGTON STATE DEMOCRATIC CENTRAL COMMITTEE, PAUL BERENDT, Plaintiff-Intervenors, andLIBERTARIAN PARTY OF WASHINGTON STATE, RUTH BENNETT, J. S. MILLS, Plaintiff-Intervenors,

v. WASHINGTON STATE GRANGE, Defendant-Intervenor, andSTATE OF WASHINGTON, ROB MCKENNA, SAM REED, Defendant-Intervenors.

Case No. C05-0927-JCC

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

DATED: January 11, 2011

ORDER

This matter comes before the Court on Defendant-Intervenor State of Washington's ("Washington") motion for summary judgment (Dkt. No. 239), Plaintiff-Intervenor Washington State Democratic Central Committee's ("Democratic Party") motion for partial summary judgment (Dkt. No. 247), Defendant-Intervenor Washington State Grange's ("Grange") motion for summary judgment (Dkt. No. 249), Plaintiff Washington State Republican Party's ("Republican Party") motion for partial summary judgment (Dkt. No. 250), Washington's motion to strike certain witnesses (Dkt. No. 287), and the parties' multiple responses and replies, including those of Plaintiff-Intervenor Libertarian Party of Washington State ("Libertarian Party"). Having thoroughly considered the parties' briefing and the relevant record, the Court finds oral argument unnecessary and grants in part and denies in part Washington's and the Grange's motions for summary judgment (Dkt. Nos. 239, 249). The Court likewise grants in part and denies in part the Democratic and Republican Parties' motions for partial summary judgment (Dkt. Nos. 247, 250). The Court concludes that I-872 as implemented in partisan elections is constitutional because the ballot and accompanying information eliminate the possibility of widespread confusion among the reasonable, well--informed electorate. The Court further concludes that Washington's method of electing political-party precinct committee officers is unconstitutional because it allows non-party members to vote for officers of the political parties. The Court strikes the trial date and denies as moot the pending motion to strike certain witnesses.

I. BACKGROUND

From 1935 until 2003, candidates for state and local office in Washington State were nominated through a "blanket primary, " whereby all candidates from all parties were placed ona single ballot and voters could select a candidate from any party. See Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442, 445 (2008). The candidate who won the plurality of votes within each major party became that party's nominee in the general election. Id. The Ninth Circuit Court of Appeals, relying on the Supreme Court's landmark decision in California Democratic Party v. Jones, 530 U.S. 567 (2000), struck down Washington's blanket-primary system because that system violated the political parties' First Amendment right of free association by mandating that those parties allow nonmembers to participate in selecting their nominees. Democratic Party of Wash. State v. Reed, 343 F.3d 1198, 1207 (9th Cir. 2003).

In 2004, Washington voters approved Initiative 872 ("I-872"), which established a new primary system. Wash. State Grange, 552 U.S. at 446-47. Under this system, all elections for "partisan office" start with a primary in which every candidate filing a "declaration of candidacy" competes. Id. at 447. Each candidate declares his or her "party preference or independent status, " which is designated on the primary ballot with the candidate's name. See id.; Wash. Rev. Code § 29A.24.031(3). A candidate may state a party preference for any party he or she desires, even if that political party would itself prefer otherwise. See Wash. State Grange, 552 U.S. at 447. Voters may select any candidate listed on the ballot, regardless of party preference, and the two candidates that receive the highest votes, also regardless of party preference, advance to the general election. Id. at 447-48; Wash. Rev. Code § 29A.52.112(2). In this manner, the general election becomes a runoff between the top-two vote getters in the primary.

On May 19, 2005, the Republican Party filed this action to have I-872 declared unconstitutional and to enjoin its implementation. (Dkt. No. 1.) That same day, the Democratic Party and Libertarian Party moved to intervene as plaintiffs. (Dkt. Nos. 2, 3.) The Republican Party alleged that the new election scheme (1) compels it to associate with any candidate who expressed a "preference" for the party, thereby diluting the party's message; (2) allowscandidates to "appropriate" the party's name without permission; (3) allows party nominees to be determined by voters whose beliefs were antithetical to those of the party, in violation of Jones, 530 U.S. at 586; and (4) impermissibly denies major parties protections that it offers to minor parties, in violation of the Equal Protection Clause.¹ (Dkt. No. 1 at 5-7.) The Democratic Party made identical claims. (See Dkt. No. 31.) The Libertarian Party made similar First Amendment claims; additionally, it alleged that I-872 arbitrarily deprived minor parties access to the general election ballot.² (See Dkt. No. 28.)

The Court set an expedited briefing schedule and required that the parties stipulate to the legal issues that would be covered in the motions. (See Dkt. Nos. 40, 45.) On July 15, 2005, the Court³ granted the political parties' motions for summary judgment. (Dkt. No. 87.) The Court held that I-872 still served to "nominate" party candidates, despite Washington's characterization of I-872 as a "winnowing" or a "qualifying" primary. (Id. at 25-26.) On the basis of that holding, the Court concluded that I-872 was unconstitutional on two grounds: First, like the blanket primary invalidated in Jones, the I-872 primary "force[d] 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, " in violation of the freedom of association. (Id. at 28.) Second, the Court held thatby "allowing any candidate, including those who may oppose party principles and goals, to appear on the ballot with a party designation, " I-872 would "foster confusion and dilute the party's ability to rally support behind its candidates." (Id. at 30.) The Court concluded that the unconstitutional provisions of I-872 could not be severed from the remaining provisions and therefore struck down the initiative in its entirety. (Id. at 38-39.)

The Ninth Circuit affirmed. Wash. State Republican Party v. Washington, 460 F.3d 1108, 1125 (9th Cir. 2006). The Ninth Circuit held that a candidate's self-identification of party preference necessarily created an association between the candidate and the party. Id. at 1119-20. By allowing candidates to create such an association against the party's will, I-872 constituted "a severe burden on political parties' associational rights" that could not be justified as narrowly tailored to compelling state interests. Id. at 1121, 1123. Accordingly, the Ninth Circuit held that I-872 was unconstitutional on its face. Id. at 1124.

The Supreme Court, however, granted certiorari and reversed on the merits. Wash. State Grange, 552 U.S. at 459. The Supreme Court emphasized that the political parties' challenge, as it had appeared before the lower courts, was to I-872's constitutionality on its face and hence could only succeed if Plaintiffs demonstrated that "the law [was] unconstitutional in all of its applications." Id. at 449 (emphasis added); see also id. ("[A] plaintiff can only succeed in a facial challenge by establishing that no set of circumstances exists under which the Act would be valid...." (quotation marks omitted)). Significantly, the Supreme Court concluded that "the I-872 primary does not, by its terms, choose parties' nominees.... Whether parties nominate their own candidates outside the state-run primary is simply irrelevant. In fact, parties may now nominate candidates by whatever mechanism they choose because I-872 repealed Washington's prior regulations governing party nominations." Id. at 453. If a political party chose to nominate a candidate through outside means, that nomination would not be so designated on the ballot, but "[t]he First Amendment does not give political parties a right to have their nominees designated as such on the ballot." Id. at 453 n.7.

The Supreme Court further determined that each of the political parties' arguments relied on an assumption that voters would misinterpret a candidate's self-identified party preference as some form of endorsement by or association with the political party. Id. at 454. Having concluded that each of the political parties' arguments "rests on factual assumptions about voter confusion, " the Supreme Court held that "each fails for the same reason: In the absence of evidence, we cannot assume that Washington's voters will be misled." Id. at 457. Holding that any potential confusion "will depend in significant part on the form of the ballot, " the Supreme Court explained that I-872 could be implemented in such a way as to make clear that a candidate's party-preference designation does not constitute an endorsement of or association with that political party. Id. at 455; see also id. at 456 ("[We must] ask whether the ballot could conceivably be printed in such a way as to eliminate the possibility of widespread voter confusion and with it the perceived threat to the First Amendment."); id. at 460 (Roberts, C.J., concurring) (emphasizing the importance of the form of the ballot with respect to possible voter confusion). Accordingly, the Supreme Court rejected the political parties' facial challenge to I-872. Id. at 457-59.

On remand, the Ninth Circuit vacated its opinion and remanded the case back to this Court with instructions to (1) "dismiss all facial...