Washington State Grange v. Washington State Republican Party

(Slip Opinion) OCTOBER TERM, 2007 1

Syllabus

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is

being done in connection with this case, at the time the opinion is issued.

The syllabus constitutes no part of the opinion of the Court but has been

prepared by the Reporter of Decisions for the convenience of the reader.

See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

WASHINGTON STATE GRANGE v. WASHINGTON

STATE REPUBLICAN PARTY ET AL.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR

THE NINTH CIRCUIT

No. 06–713. Argued October 1, 2007—Decided March 18, 2008*

After the Ninth Circuit invalidated Washington’s blanket primary sys-

tem on the ground that it was nearly identical to the California sys-

tem struck down in California Democratic Party v. Jones, 530 U. S.

567, state voters passed an initiative (I–872), providing that candi-

dates must be identified on the primary ballot by their self-

designated party preference; that voters may vote for any candidate;

and that the two top votegetters for each office, regardless of party

preference, advance to the general election. Respondent political par-

ties claim that the new law, on its face, violates a party’s associa-

tional rights by usurping its right to nominate its own candidates and

by forcing it to associate with candidates it does not endorse. The

District Court granted respondents summary judgment, enjoining I–

872’s implementation. The Ninth Circuit affirmed.

Held: I–872 is facially constitutional. Pp. 6–16.

(a) Facial challenges, which require a showing that a law is uncon-

stitutional in all of its applications, are disfavored: They often rest on

speculation; they run contrary to the fundamental principle of judi-

cial restraint that courts should neither “ ‘anticipate a question of

constitutional law in advance of the necessity of deciding it’ ” nor

“ ‘formulate a rule of constitutional law broader than is required by

the precise facts to which it is to be applied,’ ” Ashwander v. TVA, 297

U. S. 288, 483; and they threaten to shortcircuit the democratic proc-

ess by preventing laws embodying the will of the people from being

——————

* Together with No. 06–730, Washington et al. v. Washington State

Republican Party et al., also on certiorari to the same court.

2 WASHINGTON STATE GRANGE v. WASHINGTON STATE

REPUBLICAN PARTY

Syllabus

implemented consistent with the Constitution. Pp. 6–8.

(b) If I–872 severely burdens associational rights, it is subject to

strict scrutiny and will be upheld only if it is “narrowly tailored to

serve a compelling state interest,” Clingman v. Beaver, 544 U. S. 581,

586. Contrary to petitioners’ argument, this Court’s presumption in

Jones—that a nonpartisan blanket primary where the top two

votegetters proceed to the general election regardless of party would

be a less restrictive alternative to California’s system because it

would not nominate candidates—is not dispositive here. There, the

Court had no occasion to determine whether a primary system that

indicates each candidate’s party preference on the ballot, in effect,

chooses the parties’ nominees. Respondents’ arguments that I–872

imposes a severe burden are flawed. They claim that the law is un-

constitutional under Jones because it allows primary voters unaffili-

ated with a party to choose the party’s nominee, thus violating the

party’s right to choose its own standard bearer. Unlike California’s

primary, however, the I–872 primary does not, by its terms, choose

the parties’ nominees. The choice of a party representative does not

occur under I–872. The two top primary candidates proceed to the

general election regardless of their party preferences. Whether the

parties nominate their own candidate outside the state-run primary

is irrelevant. Respondents counter that voters will assume that can-

didates on the general election ballot are their preferred nominees;

and that even if voters do not make that assumption, they will at

least assume that the parties associate with, and approve of, the

nominees. However, those claims depend not on any facial require-

ment of I–872, but on the possibility that voters will be confused as to

the meaning of the party-preference designation. This is sheer specu-

lation. Even if voters could possibly misinterpret the designations, I–

872 cannot be struck down in a facial challenge based on the mere

possibility of voter confusion. The State could implement I–872 in a

variety of ways, e.g., through ballot design, that would eliminate any

real threat of confusion. And without the specter of widespread voter

confusion, respondents’ forced association and compelled speech ar-

guments fall flat. Pp. 8–15.

(c) Because I–872 does not severely burden respondents, the State

need not assert a compelling interest. Its interest in providing voters

with relevant information about the candidates on the ballot is easily

sufficient to sustain the provision. P. 15.

460 F. 3d 1108, reversed.

THOMAS, J., delivered the opinion of the Court, in which ROBERTS,

C. J., and STEVENS, SOUTER, GINSBURG, BREYER, and ALITO, JJ., joined.

ROBERTS, C. J., filed a concurring opinion, in which ALITO, J., joined.

SCALIA, J., filed a dissenting opinion, in which KENNEDY, J., joined.

Cite as: 552 U. S. ____ (2008) 1

Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in the

preliminary print of the United States Reports. Readers are requested to

notify the Reporter of Decisions, Supreme Court of the United States, Wash-

ington, D. C. 20543, of any typographical or other formal errors, in order

that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES

_________________

Nos. 06–713 and 06–730

_________________

WASHINGTON STATE GRANGE, PETITIONER

06–713 v.

WASHINGTON STATE REPUBLICAN PARTY, ET AL.

WASHINGTON, ET AL., PETITIONERS

06–730 v.

WASHINGTON STATE REPUBLICAN PARTY, ET AL.

ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE NINTH CIRCUIT

[March 18, 2008]

JUSTICE THOMAS delivered the opinion of the Court.

In 2004, voters in the State of Washington passed an

initiative changing the State’s primary election system.

The People’s Choice Initiative of 2004, or Initiative 872 (I–

872), provides that candidates for office shall be identified

on the ballot by their self-designated “party preference”;

that voters may vote for any candidate; and that the top

two votegetters for each office, regardless of party prefer-

ence, advance to the general election. The Court of Ap-

peals for the Ninth Circuit held I–872 facially invalid as

imposing an unconstitutional burden on state political

parties’ First Amendment rights. Because I–872 does not

on its face impose a severe burden on political parties’

associational rights, and because respondents’ arguments

to the contrary rest on factual assumptions about voter

confusion that can be evaluated only in the context of an

2 WASHINGTON STATE GRANGE v. WASHINGTON STATE

REPUBLICAN PARTY

Opinion of the Court

as-applied challenge, we reverse.

I

For most of the past century, Washington voters se-

lected nominees for state and local offices using a blanket

primary.1 From 1935 until 2003, the State used a blanket

primary that placed candidates from all parties on one

ballot and allowed voters to select a candidate from any

party. See 1935 Wash. Laws, ch. §§1–5, pp. 60–64. Under

this system, the candidate who won a plurality of votes

within each major party became that party’s nominee in

the general election. See 2003 Wash. Laws, §919, p. 775.

California used a nearly identical primary in its own

elections until our decision in California Democratic Party

v. Jones, 530 U. S. 567 (2000). In Jones, four political

parties challenged California’s blanket primary, arguing

that it unconstitutionally burdened their associational

rights by forcing them to associate with voters who did not

share their beliefs. We agreed and struck down the blan-

ket primary as inconsistent with the First Amendment. In

so doing, we emphasized the importance of the nomination

process as “ ‘the crucial juncture at which the appeal to

common principles may be translated into concerted ac-

tion, and hence to political power in the community.’ ” Id.,

at 575 (quoting Tashjian v. Republican Party of Conn., 479

U. S. 208, 216 (1986)). We observed that a party’s right to

exclude is central to its freedom of association, and is

never “more important than in the process of selecting its

nominee.” 530 U. S., at 575. California’s blanket primary,

——————

1 The

term “blanket primary” refers to a system in which “any person,

regardless of party affiliation, may vote for a party’s nominee.” Cali-

fornia Democratic Party v. Jones, 530 U. S. 567, 576, n. 6 (2000). A

blanket primary is distinct from an “open primary,” in which a person

may vote for any party’s nominees, but must choose among that party’s

nominees for all offices, ibid., and the more traditional “closed primary”

in which “only persons who are members of the political party . . . can

vote on its nominee,” id., at 570.

Cite as: 552 U. S. ____ (2008) 3

Opinion of the Court

we concluded, severely burdened the parties’ freedom of

association because it forced them to allow nonmembers to

participate in selecting the parties’ nominees. That the

parties retained the right to endorse their preferred can-

didates did not render the burden any less severe, as

“[t]here is simply no substitute for a party’s selecting its

own candidates.” Id., at 581.

Because California’s blanket primary severely burdened

the parties’ associational rights, we subjected it to strict

scrutiny, carefully examining each of the state interests

offered by California in support of its primary system. We

rejected as illegitimate three of the asserted interests:

“producing elected officials who better represent the elec-

torate,” “expanding candidate debate beyond the scope of

partisan concerns,” and ensuring “the right to an effective

vote” by allowing nonmembers of a party to vote in the

majority party’s primary in “ ‘safe’ ” districts. Id., at 582–

584. We concluded that the remaining interests—

promoting fairness, affording voters greater choice, in-

creasing voter participation, and protecting privacy—were

not compelling on the facts of the case. Even if they were,

the partisan California primary was not narrowly tailored

to further those interests because a nonpartisan blanket

primary, in which the top two votegetters advance to the

general election regardless of party affiliation, would

accomplish each of those interests without burdening the

parties’ associational rights. Id., at 585–586. The nonpar-

tisan blanket primary had “all the characteristics of the

partisan blanket primary, save the constitutionally crucial

one: Primary voters [were] not choosing a party’s nomi-

nee.” Ibid.

After our decision in Jones, the Court of Appeals for the

Ninth Circuit struck down Washington’s primary as “ma-

terially indistinguishable from the California scheme.”

Democratic Party of Washington State v. Reed, 343 F. 3d

4 WASHINGTON STATE GRANGE v. WASHINGTON STATE

REPUBLICAN PARTY

Opinion of the Court

1198, 1203 (2003). The Washington State Grange2

promptly proposed I–872 as a replacement.3 It passed

with nearly 60% of the vote and became effective in De-

cember 2004.

Under I–872, all elections for “partisan offices”4 are

conducted in two stages: a primary and a general election.

To participate in the primary, a candidate must file a

“declaration of candidacy” form, on which he declares his

“major or minor party preference, or independent status.”

Wash. Rev. Code §29A.24.030 (Supp. 2005). Each candi-

date and his party preference (or independent status) is in

turn designated on the primary election ballot. A political

party cannot prevent a candidate who is unaffiliated with,

or even repugnant to, the party from designating it as his

party of preference. See Wash. Admin. Code §434–215–

015 (2005). In the primary election, voters may select

“any candidate listed on the ballot, regardless of the party

preference of the candidates or the voter.” §434–262–012.

——————

2 The Washington State Grange is a fraternal, social, and civic or-

ganization chartered by the National Grange in 1889. Although origi-

nally formed to represent the interests of farmers, the organization has

advocated a variety of goals, including women’s suffrage, rural electrifi-

cation, protection of water resources, and universal telephone service.

The State Grange also supported the Washington constitutional

amendment establishing initiatives and referendums and sponsored

the 1934 blanket primary initiative.

3 Respondents make much of the fact that the promoters of I–872

presented it to Washington voters as a way to preserve the primary

system in place from 1935 to 2003. But our task is not to judge I–872

based on its promoters’ assertions about its similarity, or lack thereof,

to the unconstitutional primary; we must evaluate the constitutionality

of I–872 on its own terms. Whether the language of I–872 was pur-

posely drafted to survive a Jones-type constitutional challenge is

irrelevant to whether it has successfully done so.

4 “ ‘Partisan office’ means a public office for which a candidate may

indicate a political party preference on his or her declaration of candi-

dacy and have that preference appear on the primary and general

election ballot in conjunction with his or her name.” Wash. Rev. Code

§29A.04.110 (Supp. 2005).

Cite as: 552 U. S. ____ (2008) 5

Opinion of the Court

The candidates with the highest and second-highest

vote totals advance to the general election, regardless of

their party preferences. Ibid. Thus, the general election

may pit two candidates with the same party preference

against one another.5 Each candidate’s party preference is

listed on the general election ballot, and may not be

changed between the primary and general elections. See

§434–230–040.

Immediately after the State enacted regulations to

implement I–872, the Washington State Republican Party

filed suit against a number of county auditors challenging

the law on its face. The party contended that the new

system violates its associational rights by usurping its

right to nominate its own candidates and by forcing it to

associate with candidates it does not endorse. The Wash-

ington State Democratic Central Committee and Libertar-

ian Party of Washington State joined the suit as plaintiffs.

The Washington State Grange joined as a defendant, and

the State of Washington was substituted for the county

auditors as defendant. The United States District Court

for the Western District of Washington granted the politi-

cal parties’ motions for summary judgment and enjoined

the implementation of I–872. See Washington State Re-

publican Party v. Logan, 377 F. Supp. 2d 907, 932 (2005).

The Court of Appeals affirmed. 460 F. 3d 1108, 1125

(CA9 2006). It held that the I–872 primary severely bur-

dens the political parties’ associational rights because the

party-preference designation on the ballot creates a risk

that primary winners will be perceived as the parties’

nominees and produces an “impression of associatio[n]”

between a candidate and his party of preference even

——————

5 This is not a hypothetical outcome. The Court of Appeals observed

that, had the 1996 gubernatorial primary been conducted under the I–

872 system, two Democratic candidates and no Republican candidate

would have advanced from the primary to the general election. See 460

F. 3d 1108, 1114, n. 8 (CA9 2006).

6 WASHINGTON STATE GRANGE v. WASHINGTON STATE

REPUBLICAN PARTY

Opinion of the Court

when the party does not associate, or wish to be associ-

ated, with the candidate. Id., at 1119. The Court of Ap-

peals noted a “constitutionally significant distinction

between ballots and other vehicles for political expres-

sion,” reasoning that the risk of perceived association is

particularly acute when ballots include party labels be-

cause such labels are typically used to designate candi-

dates’ views on issues of public concern. Id., at 1121. And

it determined that the State’s interests underlying I–872

were not sufficiently compelling to justify the severe bur-

den on the parties’ association. Concluding that the provi-

sions of I–872 providing for the party-preference designa-

tion on the ballot were not severable, the court struck

down I–872 in its entirety.

We granted certiorari, 549 U. S. ___ (2007), to determine

whether I–872, on its face, violates the political parties’

associational rights.

II

Respondents object to I–872 not in the context of an

actual election, but in a facial challenge. Under United

States v. Salerno, 481 U. S. 739 (1987), a plaintiff can only

succeed in a facial challenge by “establish[ing] that no set

of circumstances exists under which the Act would be

valid,” i.e., that the law is unconstitutional in all of its

applications. Id., at 745. While some Members of the

Court have criticized the Salerno formulation, all agree

that a facial challenge must fail where the statute has a

“ ‘plainly legitimate sweep.’ ” Washington v. Glucksberg,

521 U. S. 702, 739–740, and n. 7 (1997) (STEVENS, J.,

concurring in judgments). Washington’s primary system

survives under either standard, as we explain below.6 In

——————

6 Our

cases recognize a second type of facial challenge in the First

Amendment context under which a law may be overturned as imper-

missibly overbroad because a “substantial number” of its applications

are unconstitutional, “ ‘judged in relation to the statute’s plainly legiti-

Cite as: 552 U. S. ____ (2008) 7

Opinion of the Court

determining whether a law is facially invalid, we must be

careful not to go beyond the statute’s facial requirements

and speculate about “hypothetical” or “imaginary” cases.

See United States v. Raines, 362 U. S. 17, 22 (1960) (“The

delicate power of pronouncing an Act of Congress uncon-

stitutional is not to be exercised with reference to hypo-

thetical cases thus imagined”). The State has had no

opportunity to implement I–872, and its courts have had

no occasion to construe the law in the context of actual

disputes arising from the electoral context, or to accord the

law a limiting construction to avoid constitutional ques-

tions. Cf. Yazoo & Mississippi Valley R. Co. v. Jackson

Vinegar Co., 226 U. S. 217, 220 (1912) (“How the state

court may apply [a statute] to other cases, whether its

general words may be treated as more or less restrained,

and how far parts of it may be sustained if others fail are

matters upon which we need not speculate now”). Exercis-

ing judicial restraint in a facial challenge “frees the Court

not only from unnecessary pronouncement on constitu-

tional issues, but also from premature interpretations of

statutes in areas where their constitutional application

might be cloudy.” Raines, supra, at 22.

Facial challenges are disfavored for several reasons.

Claims of facial invalidity often rest on speculation. As a

consequence, they raise the risk of “premature interpreta-

tion of statutes on the basis of factually barebones re-

cords.” Sabri v. United States, 541 U. S. 600, 609 (2004)

(internal quotation marks and brackets omitted). Facial

challenges also run contrary to the fundamental principle

of judicial restraint that courts should neither “ ‘anticipate

——————

mate sweep.’ ” New York v. Ferber, 458 U. S. 747, 769–771 (1982)

(quoting Broadrick v. Oklahoma, 413 U. S. 601, 615 (1973)). We

generally do not apply the “ ‘strong medicine’ ” of overbreadth analysis

where the parties fail to describe the instances of arguable overbreadth

of the contested law. See New York State Club Assn., Inc. v. City of

New York, 487 U. S. 1, 14 (1988).

8 WASHINGTON STATE GRANGE v. WASHINGTON STATE

REPUBLICAN PARTY

Opinion of the Court

a question of constitutional law in advance of the necessity

of deciding it’ ” nor “ ‘formulate a rule of constitutional law

broader than is required by the precise facts to which it is

to be applied.’ ” Ashwander v. TVA, 297 U. S. 288, 347

(1936) (Brandeis, J., concurring) (quoting Liverpool, New

York & Philadelphia S. S. Co. v. Commissioners of Emi-

gration, 113 U. S. 33, 39 (1885)). Finally, facial challenges

threaten to short circuit the democratic process by pre-

venting laws embodying the will of the people from being

implemented in a manner consistent with the Constitu-

tion. We must keep in mind that “ ‘[a] ruling of unconsti-

tutionality frustrates the intent of the elected representa-

tives of the people.’ ” Ayotte v. Planned Parenthood of

Northern New Eng., 546 U. S. 320, 329 (2006) (quoting

Regan v. Time, Inc., 468 U. S. 641, 652 (1984) (plurality

opinion)). It is with these principles in view that we turn

to the merits of respondents’ facial challenge to I–872.

A

The States possess a “ ‘broad power to prescribe the

“Times, Places and Manner of holding Elections for Sena-

tors and Representatives,” Art. I, §4, cl. 1, which power is

matched by state control over the election process for state

offices.’ ” Clingman v. Beaver, 544 U. S. 581, 586 (2005)

(quoting Tashjian, 479 U. S., at 217); Timmons v. Twin

Cities Area New Party, 520 U. S. 351, 358 (1997) (same).

This power is not absolute, but is “subject to the limitation

that [it] may not be exercised in a way that violates . . .

specific provisions of the Constitution.” Williams v.

Rhodes, 393 U. S. 23, 29 (1968). In particular, the State

has the “ ‘responsibility to observe the limits established

by the First Amendment rights of the State’s citizens,’ ”

including the freedom of political association. Eu v. San

Francisco County Democratic Central Comm., 489 U. S.

214, 222 (1989) (quoting Tashjian, supra, at 217).

Election regulations that impose a severe burden on

Cite as: 552 U. S. ____ (2008) 9

Opinion of the Court

associational rights are subject to strict scrutiny, and we

uphold them only if they are “narrowly tailored to serve a

compelling state interest.” Clingman, supra, at 586; see

also Rhodes, supra, at 31 (“ ‘only a compelling state inter-

est in the regulation of a subject within the State’s consti-

tutional power to regulate can justify limiting First

Amendment freedoms’ ” (quoting NAACP v. Button, 371

U. S. 415, 438 (1963))). If a statute imposes only modest

burdens, however, then “the State’s important regulatory

interests are generally sufficient to justify reasonable,

nondiscriminatory restrictions” on election procedures.

Anderson v. Celebrezze, 460 U. S. 780, 788 (1983). “Ac-

cordingly, we have repeatedly upheld reasonable, politi-

cally neutral regulations that have the effect of channeling

expressive activity at the polls.” Burdick v. Takushi, 504

U. S. 428, 438 (1992).

The parties do not dispute these general principles;

rather, they disagree about whether I–872 severely bur-

dens respondents’ associational rights. That disagreement

begins with Jones. Petitioners argue that the I–872 pri-

mary is indistinguishable from the alternative Jones

suggested would be constitutional. In Jones we noted that

a nonpartisan blanket primary, where the top two vote-

getters proceed to the general election regardless of their

party, was a less restrictive alternative to California’s

system because such a primary does not nominate candi-

dates. 530 U. S., at 585–586 (The nonpartisan blanket

primary “has all the characteristics of the partisan blanket

primary, save the constitutionally crucial one: Primary

voters are not choosing a party’s nominee”). Petitioners

are correct that we assumed that the nonpartisan primary

we described in Jones would be constitutional. But that is

not dispositive here because we had no occasion in Jones

to determine whether a primary system that indicates

each candidate’s party preference on the ballot, in effect,

chooses the parties’ nominees.

10 WASHINGTON STATE GRANGE v. WASHINGTON STATE

REPUBLICAN PARTY

Opinion of the Court

That question is now squarely before us. Respondents

argue that I–872 is unconstitutional under Jones because

it has the same “constitutionally crucial” infirmity that

doomed California’s blanket primary: it allows primary

voters who are unaffiliated with a party to choose the

party’s nominee. Respondents claim that candidates who

progress to the general election under I–872 will become

the de facto nominees of the parties they prefer, thereby

violating the parties’ right to choose their own standard-

bearers, see Timmons, supra, at 359, and altering their

messages. They rely on our statement in Jones reaffirm-

ing “the special place the First Amendment reserves for,

and the special protection it accords, the process by which

a political party ‘select[s] a standard bearer who best

represents the party’s ideologies and preferences.’ ” Jones,

550 U. S., at 575 (quoting Eu, supra, at 224).

The flaw in this argument is that, unlike the California

primary, the I–872 primary does not, by its terms, choose

parties’ nominees. The essence of nomination—the choice

of a party representative—does not occur under I–872.

The law never refers to the candidates as nominees of any

party, nor does it treat them as such. To the contrary, the

election regulations specifically provide that the primary

“does not serve to determine the nominees of a political

party but serves to winnow the number of candidates to a

final list of two for the general election.” Wash. Admin.

Code §434–262–012. The top two candidates from the

primary election proceed to the general election regardless

of their party preferences. 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.7

——————

7 It is true that parties may no longer indicate their nominees on the

Cite as: 552 U. S. ____ (2008) 11

Opinion of the Court

Respondents counter that, even if the I–872 primary

does not actually choose parties’ nominees, it nevertheless

burdens their associational rights because voters will

assume that candidates on the general election ballot are

the nominees of their preferred parties. This brings us to

the heart of respondents’ case—and to the fatal flaw in

their argument. At bottom, respondents’ objection to I–

872 is that voters will be confused by candidates’ party-

preference designations. Respondents’ arguments are

largely variations on this theme. Thus, they argue that

even if voters do not assume that candidates on the gen-

eral election ballot are the nominees of their parties, they

will at least assume that the parties associate with, and

approve of, them. This, they say, compels them to associ-

ate with candidates they do not endorse, alters the mes-

sages they wish to convey, and forces them to engage in

counterspeech to disassociate themselves from the candi-

dates and their positions on the issues.

We reject each of these contentions for the same reason:

They all depend, not on any facial requirement of I–872,

but on the possibility that voters will be confused as to the

meaning of the party-preference designation. But respon-

dents’ assertion that voters will misinterpret the party-

preference designation is sheer speculation. It “depends

upon the belief that voters can be ‘misled’ by party labels.

But ‘[o]ur cases reflect a greater faith in the ability of

individual voters to inform themselves about campaign

——————

ballot, but that is unexceptionable: The First Amendment does not give

political parties a right to have their nominees designated as such on

the ballot. See Timmons v. Twin Cities Area New Party, 520 U. S. 351,

362–363 (1997) (“We are unpersuaded, however, by the party’s conten-

tion that it has a right to use the ballot itself to send a particularized

message, to its candidate and to the voters, about the nature of its

support for the candidate”). Parties do not gain such a right simply

because the State affords candidates the opportunity to indicate their

party preference on the ballot. “Ballots serve primarily to elect candi-

dates, not as forums for political expression.” Id., at 363.

12 WASHINGTON STATE GRANGE v. WASHINGTON STATE

REPUBLICAN PARTY

Opinion of the Court

issues.’ ” Tashjian, 479 U. S., at 220 (quoting Anderson,

460 U. S., at 797). There is simply no basis to presume

that a well-informed electorate will interpret a candidate’s

party-preference designation to mean that the candidate is

the party’s chosen nominee or representative or that the

party associates with or approves of the candidate. See

New York State Club Assn., Inc. v. City of New York, 487

U. S. 1, 13–14 (1988) (rejecting a facial challenge to a law

regulating club membership and noting that “[w]e could

hardly hold otherwise on the record before us, which con-

tains no specific evidence on the characteristics of any club

covered by the [l]aw”). This strikes us as especially true

here, given that it was the voters of Washington them-

selves, rather than their elected representatives, who

enacted I–872.

Of course, it is possible that voters will misinterpret the

candidates’ party-preference designations as reflecting

endorsement by the parties. But these cases involve a

facial challenge, and we cannot strike down I–872 on its

face based on the mere possibility of voter confusion. See

Yazoo, 226 U. S., at 219 (“[T]his court must deal with the

case in hand and not with imaginary ones”); Pullman Co.

v. Knott, 235 U. S. 23, 26 (1914) (A statute “is not to be

upset upon hypothetical and unreal possibilities, if it

would be good upon the facts as they are”). Because re-

spondents brought their suit as a facial challenge, we have

no evidentiary record against which to assess their asser-

tions that voters will be confused. See Timmons, 520

U. S., at 375–376 (STEVENS, J., dissenting) (rejecting

judgments based on “imaginative theoretical sources of

voter confusion” and “entirely hypothetical” outcomes).

Indeed, because I–872 has never been implemented, we do

not even have ballots indicating how party preference will

be displayed. It stands to reason that whether voters will

be confused by the party-preference designations will

depend in significant part on the form of the ballot. The

Cite as: 552 U. S. ____ (2008) 13

Opinion of the Court

Court of Appeals assumed that the ballot would not place

abbreviations like “ ‘D’ ” and “ ‘R,’ ” or “ ‘Dem.’ ” and “ ‘Rep.’ ”

after the names of candidates, but would instead “clearly

state that a particular candidate ‘prefers’ a particular

party.” 460 F. 3d, at 1121, n. 20. It thought that even

such a clear statement did too little to eliminate the risk of

voter confusion.

But we see no reason to stop there. As long as we are

speculating about the form of the ballot—and we can do no

more than speculate in this facial challenge—we must, in

fairness to the voters of the State of Washington who

enacted I–872 and in deference to the executive and judi-

cial officials who are charged with implementing it, 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. See Ayotte, 546 U. S., at 329 (noting that

courts should not nullify more of a state law than neces-

sary so as to avoid frustrating the intent of the people and

their duly elected representatives); Ward v. Rock Against

Racism, 491 U. S. 781, 795–796 (1989) (“ ‘[I]n evaluating a

facial challenge to a state law, a federal court must . . .

consider any limiting construction that a state court or

enforcement agency has proffered.’ ” (quoting Hoffman

Estates v. Flipside, Hoffman Estates, Inc., 455 U. S. 489,

494, n. 5 (1982))).

It is not difficult to conceive of such a ballot. For exam-

ple, petitioners propose that the actual I–872 ballot could

include prominent disclaimers explaining that party pref-

erence reflects only the self-designation of the candidate

and not an official endorsement by the party. They also

suggest that the ballots might note preference in the form

of a candidate statement that emphasizes the candidate’s

personal determination rather than the party’s acceptance

of the candidate, such as “my party preference is the Re-

publican Party.” Additionally, the State could decide to

14 WASHINGTON STATE GRANGE v. WASHINGTON STATE

REPUBLICAN PARTY

Opinion of the Court

educate the public about the new primary ballots through

advertising or explanatory materials mailed to voters

along with their ballots.8 We are satisfied that there are a

variety of ways in which the State could implement I–872

that would eliminate any real threat of voter confusion.

And without the specter of widespread voter confusion,

respondents’ arguments about forced association9 and

compelled speech10 fall flat.

Our conclusion that these implementations of I–872

would be consistent with the First Amendment is fatal to

respondents’ facial challenge. See Schall v. Martin, 467

——————

8 Washington counties have broad authority to conduct elections en-

tirely by mail ballot rather than at in-person polling places. See Wash.

Rev. Code §29A.48.010. As a result, over 90% of Washington voters

now vote by mail. See Tr. of Oral Arg. 11.

9 Respondents rely on Hurley v. Irish-American Gay, Lesbian and

Bisexual Group of Boston, Inc., 515 U. S. 557 (1995) (holding that a

State may not require a parade to include a group if the parade’s

organizer disagrees with the group’s message), and Boy Scouts of

America v. Dale, 530 U. S. 640 (2000) (holding that the Boy Scouts’

freedom of expressive association was violated by a state law requiring

the organization to admit a homosexual scoutmaster). In those cases,

actual association threatened to distort the groups’ intended messages.

We are aware of no case in which the mere impression of association

was held to place a severe burden on a group’s First Amendment rights,

but we need not decide that question here.

10 Relying on Pacific Gas & Elec. Co. v. Public Util. Comm’n of Cal.,

475 U. S. 1 (1986) (holding that a state agency may not require a utility

company to include a third-party newsletter in its billing envelope),

respondents argue that the threat of voter confusion will force them to

speak to clarify their positions. Because I–872 does not actually force

the parties to speak, however, Pacific Gas & Elec. is inapposite. I–872

does not require the parties to reproduce another’s speech against their

will; nor does it co-opt the parties’ own conduits for speech. Rather, it

simply provides a place on the ballot for candidates to designate their

party preferences. Facilitation of speech to which a political party may

choose to respond does not amount to forcing the political party to

speak. Cf. Rumsfeld v. Forum for Academic and Institutional Rights,

Inc., 547 U. S. 47, 64–65 (2006).

Cite as: 552 U. S. ____ (2008) 15

Opinion of the Court

U. S. 253, 264 (1984) (a facial challenge fails where “at

least some” constitutional applications exist). Each of

their arguments rests on factual assumptions about voter

confusion, and each fails for the same reason: In the ab-

sence of evidence, we cannot assume that Washington’s

voters will be misled. See Jones, 530 U. S., at 600

(STEVENS, J., dissenting) (“[A]n empirically debatable

assumption . . . is too thin a reed to support a credible

First Amendment distinction” between permissible and

impermissible burdens on association). That factual

determination must await an as-applied challenge. On its

face, I–872 does not impose any severe burden on respon-

dents’ associational rights.

B

Because we have concluded that I–872 does not severely

burden respondents, the State need not assert a compel-

ling interest. See Clingman, 544 U. S., at 593 (“When a

state electoral provision places no heavy burden on asso-

ciational rights, ‘a State’s important regulatory interests

will usually be enough to justify reasonable, nondiscrimi-

natory restrictions’ ” (quoting Timmons, 520 U. S., at

358)). The State’s asserted interest in providing voters

with relevant information about the candidates on the

ballot is easily sufficient to sustain I–872. See Anderson,

460 U. S., at 796 (“There can be no question about the

legitimacy of the State’s interest in fostering informed and

educated expressions of the popular will in a general

election”).11

——————

11 Respondent Libertarian Party of Washington argues that I–872 is

unconstitutional because of its implications for ballot access, trademark

protection of party names, and campaign finance. We do not consider

the ballot access and trademark arguments as they were not addressed

below and are not encompassed by the question on which we granted

certiorari: “Does Washington’s primary election system . . . violate the

associational rights of political parties because candidates are permit-

ted to identify their political party preference on the ballot?” Pet. for

16 WASHINGTON STATE GRANGE v. WASHINGTON STATE

REPUBLICAN PARTY

Opinion of the Court

III

Respondents ask this Court to invalidate a popularly

enacted election process that has never been carried out.

Immediately after implementing regulations were en-

acted, respondents obtained a permanent injunction

against the enforcement of I–872. The First Amendment

does not require this extraordinary and precipitous nullifi-

cation of the will of the people. Because I–872 does not on

its face provide for the nomination of candidates or compel

political parties to associate with or endorse candidates,

and because there is no basis in this facial challenge for

presuming that candidates’ party-preference designations

will confuse voters, I–872 does not on its face severely

burden respondents’ associational rights. We accordingly

hold that I–872 is facially constitutional. The judgment of

the Court of Appeals is reversed.

It is so ordered.

——————

cert. in No. 06–730, p. i. The campaign finance issue also was not

addressed below and is more suitable for consideration on remand.

Cite as: 552 U. S. ____ (2008) 1

ROBERTS, C. J., concurring

SUPREME COURT OF THE UNITED STATES

_________________

Nos. 06–713 and 06–730

_________________

WASHINGTON STATE GRANGE, PETITIONER

06–713 v.

WASHINGTON STATE REPUBLICAN PARTY, ET AL.

WASHINGTON, ET AL., PETITIONERS

06–730 v.

WASHINGTON STATE REPUBLICAN PARTY, ET AL.

ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE NINTH CIRCUIT

[March 18, 2008]

CHIEF JUSTICE ROBERTS, with whom JUSTICE ALITO

joins, concurring.

I share JUSTICE SCALIA’s concern that permitting a

candidate to identify his political party preference on an

official election ballot—regardless of whether the candi-

date is endorsed by the party or is even a member—may

effectively force parties to accept candidates they do not

want, amounting to forced association in violation of the

First Amendment.

I do think, however, that whether voters perceive the

candidate and the party to be associated is relevant to the

constitutional inquiry. Our other forced-association cases

indicate as much. In Boy Scouts of America v. Dale, 530

U. S. 640, 653 (2000), we said that Dale’s presence in the

Boy Scouts would “force the organization to send a mes-

sage . . . [to] the world” that the Scouts approved of homo-

sexuality. In other words, accepting Dale would lead

outsiders to believe the Scouts endorsed homosexual

conduct. Largely for that reason, we held that the First

2 WASHINGTON STATE GRANGE v. WASHINGTON STATE

REPUBLICAN PARTY

ROBERTS, C. J., concurring

Amendment entitled the Scouts to exclude Dale. Id., at

659. Similarly, in Hurley v. Irish-American Gay, Lesbian

and Bisexual Group of Boston, Inc., 515 U. S. 557 (1995),

we allowed the organizers of Boston’s St. Patrick’s Day

Parade to exclude a pro-gay rights float because the float’s

presence in the parade might create the impression that

the organizers agreed with the float-sponsors’ message.

See id., at 575–577.

Voter perceptions matter, and if voters do not actually

believe the parties and the candidates are tied together, it

is hard to see how the parties’ associational rights are

adversely implicated. See Rumsfeld v. Forum for Aca-

demic and Institutional Rights, Inc., 547 U. S. 47, 65

(2006) (rejecting law schools’ First Amendment objection

to military recruiters on campus because no reasonable

person would believe the “law schools agree[d] with any

speech by recruiters”). After all, individuals frequently

claim to favor this or that political party; these prefer-

ences, without more, do not create an unconstitutional

forced association.

What makes these cases different, as JUSTICE SCALIA

explains, is the place where the candidates express their

party preferences: on the ballot. See post, at 4 (dissenting

opinion) (noting “the special role that a state-printed

ballot plays in elections”). And what makes the ballot

“special” is precisely the effect it has on voter impressions.

See Cook v. Gralike, 531 U. S. 510, 532 (2001) (Rehnquist,

C. J., concurring in judgment) (“[T]he ballot . . . is the last

thing the voter sees before he makes his choice”); Ander-

son v. Martin, 375 U. S. 399, 402 (1964) (“[D]irecting the

citizen’s attention to the single consideration of race . . .

may decisively influence the citizen to cast his ballot along

racial lines”).

But because respondents brought this challenge before

the State of Washington had printed ballots for use under

the new primary regime, we have no idea what those

Cite as: 552 U. S. ____ (2008) 3

ROBERTS, C. J., concurring

ballots will look like. Petitioners themselves emphasize

that the content of the ballots in the pertinent respect is

yet to be determined. See Reply Brief for Washington

State Grange 2–4, 7–13.

If the ballot is designed in such a manner that no rea-

sonable voter would believe that the candidates listed

there are nominees or members of, or otherwise associated

with, the parties the candidates claimed to “prefer,” the

I–872 primary system would likely pass constitutional

muster. I cannot say on the present record that it would

be impossible for the State to design such a ballot. Assum-

ing the ballot is so designed, voters would not regard the

listed candidates as “party” candidates, any more than

someone saying “I like Campbell’s soup” would be under-

stood to be associated with Campbell’s. Voters would

understand that the candidate does not speak on the

party’s behalf or with the party’s approval. On the other

hand, if the ballot merely lists the candidates’ preferred

parties next to the candidates’ names, or otherwise fails

clearly to convey that the parties and the candidates are

not necessarily associated, the I–872 system would not

survive a First Amendment challenge.

JUSTICE SCALIA complains that “[i]t is hard to know how

to respond” to such mistaken views, post, at 6 (dissenting

opinion), but he soldiers on nonetheless. He would hold

that a party is burdened by a candidate’s statement of

preference even if no reasonable voter believes from the

ballot that the party and the candidate are associated. I

take his point to be that a particular candidate’s “en-

dorsement” of a party might alter the party’s message, and

this violates the party’s freedom of association. See post,

at 7 (dissenting opinion).

But there is no general right to stop an individual from

saying, “I prefer this party,” even if the party would rather

he not. Normally, the party protects its message in such a

case through responsive speech of its own. What makes

4 WASHINGTON STATE GRANGE v. WASHINGTON STATE

REPUBLICAN PARTY

ROBERTS, C. J., concurring

this case different of course is that the State controls the

content of the ballot, which we have never considered a

public forum. See Timmons v. Twin Cities Area New

Party, 520 U. S. 351, 363 (1997) (ballots are not “forums

for political expression”). Neither the candidate nor the

party dictates the message conveyed by the ballot. In such

a case, it is important to know what the ballot actually

says—both about the candidate and about the party’s

association with the candidate. It is possible that no

reasonable voter in Washington State will regard the

listed candidates as members of, or otherwise associated

with, the political parties the candidates claim to prefer.

Nothing in my analysis requires the parties to produce

studies regarding voter perceptions on this score, but I

would wait to see what the ballot says before deciding

whether it is unconstitutional.

Still, I agree with JUSTICE SCALIA that the history of the

challenged law suggests the State is not particularly

interested in devising ballots that meet these constitu-

tional requirements. See post, at 7–8 (dissenting opinion).

But this record simply does not allow us to say with cer-

tainty that the election system created by I–872 is uncon-

stitutional. Accordingly, I agree with the Court that

respondents’ present challenge to the law must fail, and I

join the Court’s opinion.

Cite as: 552 U. S. ____ (2008) 1

SCALIA, J., dissenting

SUPREME COURT OF THE UNITED STATES

_________________

Nos. 06–713 and 06–730

_________________

WASHINGTON STATE GRANGE, PETITIONER

06–713 v.

WASHINGTON STATE REPUBLICAN PARTY, ET AL.

WASHINGTON, ET AL., PETITIONERS

06–730 v.

WASHINGTON STATE REPUBLICAN PARTY, ET AL.

ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE NINTH CIRCUIT

[March 18, 2008]

JUSTICE SCALIA, with whom JUSTICE KENNEDY joins,

dissenting.

The electorate’s perception of a political party’s beliefs is

colored by its perception of those who support the party;

and a party’s defining act is the selection of a candidate

and advocacy of that candidate’s election by conferring

upon him the party’s endorsement. When the state-

printed ballot for the general election causes a party to be

associated with candidates who may not fully (if at all)

represent its views, it undermines both these vital aspects

of political association. The views of the self-identified

party supporter color perception of the party’s message,

and that self-identification on the ballot, with no space for

party repudiation or party identification of its own candi-

date, impairs the party’s advocacy of its standard bearer.

Because Washington has not demonstrated that this

severe burden upon parties’ associational rights is nar-

rowly tailored to serve a compelling interest—indeed,

because it seems to me Washington’s only plausible inter-

2 WASHINGTON STATE GRANGE v. WASHINGTON STATE

REPUBLICAN PARTY

SCALIA, J., dissenting

est is precisely to reduce the effectiveness of political

parties—I would find the law unconstitutional.

I

I begin with the principles on which the Court and I

agree. States may not use election regulations to undercut

political parties’ freedoms of speech or association. See

U. S. Term Limits, Inc. v. Thornton, 514 U. S. 779, 833–

834 (1995). Thus, when a State regulates political parties

as a part of its election process, we consider “the ‘character

and magnitude’ ” of the burden imposed on the party’s

associational rights and “the extent to which the State’s

concerns make the burden necessary.” Timmons v. Twin

Cities Area New Party, 520 U. S. 351, 358 (1997). Regula-

tions imposing severe burdens must be narrowly tailored

to advance a compelling state interest. Ibid.

Among the First Amendment rights that political par-

ties possess is the right to associate with the persons

whom they choose and to refrain from associating with

persons whom they reject. Democratic Party of United

States v. Wisconsin ex rel. La Follette, 450 U. S. 107, 122

(1981). Also included is the freedom to choose and pro-

mote the “ ‘standard bearer who best represents the

party’s ideologies and preferences.’ ” Eu v. San Francisco

County Democratic Central Comm., 489 U. S. 214, 224

(1989).

When an expressive organization is compelled to associ-

ate with a person whose views the group does not accept,

the organization’s message is undermined; the organiza-

tion is understood to embrace, or at the very least tolerate,

the views of the persons linked with them. We therefore

held, for example, that a State severely burdened the right

of expressive association when it required the Boy Scouts

to accept an openly gay scoutmaster. The scoutmaster’s

presence “would, at the very least, force the organization

to send a message, both to the youth members and the

Cite as: 552 U. S. ____ (2008) 3

SCALIA, J., dissenting

world, that the Boy Scouts accepts homosexual conduct as

a legitimate form of behavior.” Boy Scouts of America v.

Dale, 530 U. S. 640, 653 (2000).

A political party’s expressive mission is not simply, or

even primarily, to persuade voters of the party’s views.

Parties seek principally to promote the election of candi-

dates who will implement those views. See, e.g., Tashjian

v. Republican Party of Conn., 479 U. S. 208, 216 (1986);

Storer v. Brown, 415 U. S. 724, 745 (1974); M. Hershey &

P. Beck, Party Politics in America 13 (10th ed. 2003).

That is achieved in large part by marking candidates with

the party’s seal of approval. Parties devote substantial

resources to making their names trusted symbols of cer-

tain approaches to governance. See, e.g., App. 239 (Decla-

ration of Democratic Committee Chair Paul J. Berendt); J.

Aldrich, Why Parties? 48–49 (1995). They then encourage

voters to cast their votes for the candidates that carry the

party name. Parties’ efforts to support candidates by

marking them with the party trademark, so to speak, have

been successful enough to make the party name, in the

words of one commentator, “the most important resource

that the party possesses.” Cain, Party Autonomy and

Two-Party Electoral Competition, 149 U. Pa. L. Rev. 793,

804 (2001). And all evidence suggests party labels are

indeed a central consideration for most voters. See, e.g.,

id., at 804, n. 34; Rahn, The Role of Partisan Stereotypes

in Information Processing About Political Candidates, 37

Am. J. Pol. Sci. 472 (1993); Klein & Baum, Ballot Informa-

tion and Voting Decisions in Judicial Elections, 54 Pol.

Research Q. 709 (2001).

II

A

The State of Washington need not like, and need not

favor, political parties. It is entirely free to decline run-

ning primaries for the selection of party nominees and to

4 WASHINGTON STATE GRANGE v. WASHINGTON STATE

REPUBLICAN PARTY

SCALIA, J., dissenting

hold nonpartisan general elections in which party labels

have no place on the ballot. See California Democratic

Party v. Jones, 530 U. S. 567, 585–586 (2000). Parties

would then be left to their own devices in both selecting

and publicizing their candidates. But Washington has

done more than merely decline to make its electoral ma-

chinery available for party building. Recognizing that

parties draw support for their candidates by giving them

the party imprimatur, Washington seeks to reduce the

effectiveness of that endorsement by allowing any candi-

date to use the ballot for drawing upon the goodwill that a

party has developed, while preventing the party from

using the ballot to reject the claimed association or to

identify the genuine candidate of its choice. This does not

merely place the ballot off limits for party building; it

makes the ballot an instrument by which party building is

impeded, permitting unrebutted associations that the

party itself does not approve.

These cases cannot be decided without taking account of

the special role that a state-printed ballot plays in elec-

tions. The ballot comes into play “at the most crucial

stage in the electoral process—the instant before the vote

is cast.” Anderson v. Martin, 375 U. S. 399, 402 (1964). It

is the only document that all voters are guaranteed to

see, and it is “the last thing the voter sees before he makes

his choice,” Cook v. Gralike, 531 U. S. 510, 532 (2001)

(Rehnquist, C. J., concurring in judgment). Thus, we have

held that a State cannot elevate a particular issue to

prominence by making it the only issue for which the

ballot sets forth the candidates’ positions. Id., at 525–526

(opinion of the Court). And we held unconstitutional

California’s election system, which listed as the party’s

candidate on the general election ballot the candidate

selected in a state-run “blanket primary” in which all

citizens could determine who would be the party’s nomi-

nee. Jones, 530 U. S., at 586. It was not enough to sus-

Cite as: 552 U. S. ____ (2008) 5

SCALIA, J., dissenting

tain the law that the party remained free to select its

preferred candidate through another process, and could

denounce or campaign against the candidate carrying the

party’s name on the general election ballot. Forced asso-

ciation with the party on the general election ballot was

fatal. Id., at 575–577.

The Court makes much of the fact that the party names

shown on the Washington ballot may be billed as mere

statements of candidate “preference.” See ante, at 11–14.

To be sure, the party is not itself forced to display favor for

someone it does not wish to associate with, as the Boy

Scouts were arguably forced to do by employing the homo-

sexual scoutmaster in Dale, and as the political parties

were arguably forced to do by lending their ballot-

endorsement as party nominee in Jones. But thrusting an

unwelcome, self-proclaimed association upon the party on

the election ballot itself is amply destructive of the party’s

associational rights. An individual’s endorsement of a

party shapes the voter’s view of what the party stands for,

no less than the party’s endorsement of an individual

shapes the voter’s view of what the individual stands for.

That is why party nominees are often asked (and regularly

agree) to repudiate the support of persons regarded as

racial extremists. On Washington’s ballot, such repudia-

tion is impossible. And because the ballot is the only

document voters are guaranteed to see, and the last thing

they see before casting their vote, there is “no means

of replying” that “would be equally effective with the

voter.” Cook, supra, at 532 (Rehnquist, C. J., concurring

in judgment).

Not only is the party’s message distorted, but its good-

will is hijacked. There can be no dispute that candidate

acquisition of party labels on Washington’s ballot—even if

billed as self-identification—is a means of garnering the

support of those who trust and agree with the party. The

“I prefer the D’s” and “I prefer the R’s” will not be on the

6 WASHINGTON STATE GRANGE v. WASHINGTON STATE

REPUBLICAN PARTY

SCALIA, J., dissenting

ballot for esthetic reasons; they are designed to link can-

didates to unwilling parties (or at least parties who are

unable to express their revulsion) and to encourage voters

to cast their ballots based in part on the trust they place in

the party’s name and the party’s philosophy. These harms

will be present no matter how Washington’s law is imple-

mented. There is therefore “no set of circumstances”

under which Washington’s law would not severely burden

political parties, see United States v. Salerno, 481 U. S.

739, 745 (1987), and no good reason to wait until Wash-

ington has undermined its political parties to declare that

it is forbidden to do so.

B

THE CHIEF JUSTICE would wait to see if the law is im-

plemented in a manner that no more harms political

parties than allowing a person to state that he “ ‘like[s]

Campbell’s soup’ ” would harm the Campbell Soup Com-

pany. See ante, at 3 (concurring opinion). It is hard to

know how to respond. First and most fundamentally,

there is simply no comparison between statements of

“preference” for an expressive association and statements

of “preference” for soup. The robust First Amendment

freedom to associate belongs only to groups “engage[d] in

‘expressive association,’ ” Dale, 530 U. S., at 648. The

Campbell Soup Company does not exist to promote

a message, and “there is only minimal constitutional

protection of the freedom of commercial association,”

Roberts v. United States Jaycees, 468 U. S. 609, 634 (1984)

(O’Connor, J., concurring in part and concurring in

judgment).

Second, I assuredly do not share THE CHIEF JUSTICE’s

view that the First Amendment will be satisfied so long as

the ballot “is designed in such a manner that no reason-

able voter would believe that the candidates listed there

are nominees or members of, or otherwise associated with,

Cite as: 552 U. S. ____ (2008) 7

SCALIA, J., dissenting

the parties the candidates claimed to ‘prefer.’ ” Ante, at 3.

To begin with, it seems to me quite impossible for the

ballot to satisfy a reasonable voter that the candidate is

not “associated with” the party for which he has expressed

a preference. He has associated himself with the party by

his very expression of a preference—and that indeed is the

whole purpose of allowing the preference to be expressed.

If all THE CHIEF JUSTICE means by “associated with” is

that the candidate “does not speak on the party’s behalf or

with the party’s approval,” ibid., none of my analysis in

this opinion relies upon that misperception, nor upon the

misperception that the candidate is a member or the

nominee of the party. Avoiding those misperceptions is far

from enough. Is it enough to say on the ballot that a

notorious and despised racist who says that the party is

his choice does not speak with the party’s approval?

Surely not. His unrebutted association of that party with

his views distorts the image of the party nonetheless. And

the fact that the candidate who expresses a “preference”

for one or another party is shown not to be the nominee of

that party does not deprive him of the boost from the

party’s reputation which the party wishes to confer only

on its nominee. THE CHIEF JUSTICE claims that “the

content of the ballots in the pertinent respect is yet to be

determined,” ibid. I disagree. We know all we need to

know about the form of ballot. When pressed, Washing-

ton’s Attorney General assured us at oral argument that

the ballot will not say whether the party for whom the

candidate expresses a preference claims or disavows him.

(Of course it will not, for that would enable the party

expression that it is the very object of this legislation to

impair.)

And finally, while THE CHIEF JUSTICE earlier expresses

his awareness that the special character of the ballot is

what makes these cases different, ante, at 2, his Camp-

bell’s Soup example seems to forget that. If we must

8 WASHINGTON STATE GRANGE v. WASHINGTON STATE

REPUBLICAN PARTY

SCALIA, J., dissenting

speak in terms of soup, Washington’s law is like a law that

encourages Oscar the Grouch (Sesame Street’s famed bad-

taste resident of a garbage can) to state a “preference” for

Campbell’s at every point of sale, while barring the soup

company from disavowing his endorsement, or indeed

using its name at all, in those same crucial locations.

Reserving the most critical communications forum for

statements of “preference” by a potentially distasteful

speaker alters public perceptions of the entity that is

“preferred”; and when this privileged connection under-

mines not a company’s ability to identify and promote

soup but an expressive association’s ability to identify

and promote its message and its standard bearer, the

State treads on the constitutionally protected freedom of

association.

The majority opinion and THE CHIEF JUSTICE’s concur-

rence also endorse a wait-and-see approach on the grounds

that it is not yet evident how the law will affect voter

perception of the political parties. But contrary to the

Court’s suggestion, it is not incumbent on the political

parties to adduce “evidence,” ante, at 15, that forced asso-

ciation affects their ability to advocate for their candidates

and their causes. We have never put expressive groups to

this perhaps-impossible task. Rather, we accept their own

assessments of the matter. The very cases on which THE

CHIEF JUSTICE relies for a wait-and-see approach, ante, at

1–2, establish as much. In Dale, for example, we did not

require the Boy Scouts to prove that forced acceptance of

the openly homosexual scoutmaster would distort their

message. See 530 U. S., at 653 (citing La Follette, 450

U. S., at 123–124). Nor in Hurley v. Irish-American Gay,

Lesbian and Bisexual Group of Boston, Inc., 515 U. S. 557

(1995), did we require the organizers of the St. Patrick’s

Day Parade to demonstrate that including a gay contin-

gent in the parade would distort their message. See id., at

577. Nor in Jones, 530 U. S. 567, did we require the politi-

Cite as: 552 U. S. ____ (2008) 9

SCALIA, J., dissenting

cal parties to demonstrate either that voters would incor-

rectly perceive the “nominee” labels on the ballot to be the

products of party elections or that the labels would change

voter perceptions of the party. It does not take a study to

establish that when statements of party connection are

the sole information listed next to candidate names on the

ballot, those statements will affect voters’ perceptions of

what the candidate stands for, what the party stands for,

and whom they should elect.

III

Since I conclude that Washington’s law imposes a severe

burden on political parties’ associational rights, I would

uphold the law only if it were “narrowly tailored” to ad-

vance “a compelling state interest.” Timmons, 520 U. S.,

at 358. Neither the Court’s opinion nor the State’s sub-

mission claims that Washington’s law passes such scru-

tiny. The State argues only that it “has a rational basis”

for “providing voters with a modicum of relevant informa-

tion about the candidates,” Brief for Petitioners in No. 06–

730, pp. 48–49. This is the only interest the Court’s opin-

ion identifies as well. Ante, at 15.

But “rational basis” is the least demanding of our tests;

it is the same test that allows individuals to be taxed at

different rates because they are in different businesses.

See Allied Stores of Ohio, Inc. v. Bowers, 358 U. S. 522,

526–527 (1959). It falls far, far short of establishing the

compelling state interest that the First Amendment re-

quires. And to tell the truth, here even the existence of a

rational basis is questionable. Allowing candidates to

identify themselves with particular parties on the ballot

displays the State’s view that adherence to party philoso-

phy is “an important—perhaps paramount—consideration

in the citizen’s choice.” Anderson, 375 U. S., at 402. If

that is so, however, it seems to me irrational not to allow

the party to disclaim that self-association, or to identify its

10 WASHINGTON STATE GRANGE v. WASHINGTON STATE

REPUBLICAN PARTY

SCALIA, J., dissenting

own endorsed candidate.

It is no mystery what is going on here. There is no state

interest behind this law except the Washington Legisla-

ture’s dislike for bright-colors partisanship, and its desire

to blunt the ability of political parties with noncentrist

views to endorse and advocate their own candidates. That

was the purpose of the Washington system that this en-

actment was adopted to replace—a system indistinguish-

able from the one we invalidated in Jones, which required

parties to allow nonmembers to join in the selection of the

candidates shown as their nominees on the election ballot.

(The system was held unconstitutional in Democratic

Party of Washington State v. Reed, 343 F. 3d 1198 (CA9

2003).) And it is the obvious purpose of Washington legis-

lation enacted after this law, which requires political

parties to repeat a candidate’s self-declared party “prefer-

ence” in electioneering communications concerning the

candidate—even if the purpose of the communication

is to criticize the candidate and to disavow any con-

nection between him and the party. Wash. Rev. Code

§42.17.510(1) (2006); see also Wash. Admin. Code §390–

18–020 (2007).

Even if I were to assume, however, that Washington has

a legitimate interest in telling voters on the ballot (above

all other things) that a candidate says he favors a particu-

lar political party; and even if I were further to assume

(per impossibile) that that interest was a compelling one;

Washington would still have to “narrowly tailor” its law to

protect that interest with minimal intrusion upon the

parties’ associational rights. There has been no attempt to

do that here. Washington could, for example, have per-

mitted parties to disclaim on the general-election ballot

the asserted association or to designate on the ballot their

true nominees. The course the State has chosen makes

sense only as an effort to use its monopoly power over the

ballot to undermine the expressive activities of the politi-

Cite as: 552 U. S. ____ (2008) 11

SCALIA, J., dissenting

cal parties.

* * *

The right to associate for the election of candidates is

fundamental to the operation of our political system, and

state action impairing that association bears a heavy

burden of justification. Washington’s electoral system

permits individuals to appropriate the parties’ trade-

marks, so to speak, at the most crucial stage of election,

thereby distorting the parties’ messages and impairing

their endorsement of candidates. The State’s justification

for this (to convey a “modicum of relevant information”) is

not only weak but undeserving of credence. We have here

a system which, like the one it replaced, does not merely

refuse to assist, but positively impairs, the legitimate role

of political parties. I dissent from the Court’s conclusion

that the Constitution permits this sabotage.