Washington State Republican Party v. Washington State Grange

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

WASHINGTON STATE REPUBLICAN 

PARTY, STEVE NEIGHBORS; MARCY

COLLINS; WILLIAM MICHAEL YOUNG;

DIANE TEBELIUS, BERTABELLE

HUBKA; MIKE GASTON,

Plaintiffs,

LIBERTARIAN PARTY OF WASHINGTON

STATE; RUTH BENNETT, J. S. MILLS,

Intervenor-Plaintiffs, No. 11-35122

and  D.C. No.

2:05-cv-00927-JCC

WASHINGTON STATE DEMOCRATIC

CENTRAL COMMITTEE,

Intervenor-Plaintiff-Appellant,

v.

WASHINGTON STATE GRANGE; SAM

REED, Secretary of State; STATE OF

WASHINGTON; ROB MCKENNA,

Intervenor-Defendants-Appellees.



467

468 WASHINGTON STATE REPUBLICAN v. WASHINGTON GRANGE

WASHINGTON STATE REPUBLICAN 

PARTY,

Plaintiff-Appellant,

and

WASHINGTON STATE DEMOCRATIC

CENTRAL COMMITTEE; LIBERTARIAN

PARTY OF WASHINGTON STATE; No. 11-35124

RUTH BENNETT; J. S. MILLS,  D.C. No.

Intervenor-Plaintiffs, 2:05-cv-00927-JCC

v.

WASHINGTON STATE GRANGE;

STATE OF WASHINGTON; ROB

MCKENNA; SAM REED, Secretary of

State,

Intervenor-Defendants-Appellees.



WASHINGTON STATE REPUBLICAN v. WASHINGTON GRANGE 469

WASHINGTON STATE REPUBLICAN 

PARTY,

Plaintiff,

WASHINGTON STATE DEMOCRATIC

CENTRAL COMMITTEE,

Intervenor-Plaintiff,

and No. 11-35125

LIBERTARIAN PARTY OF WASHINGTON

STATE; RUTH BENNETT; J. S. MILLS,

 D.C. No.

2:05-cv-00927-JCC

Intervenor-Plaintiffs-Appellants, OPINION

v.

WASHINGTON STATE GRANGE;

STATE OF WASHINGTON; ROB

MCKENNA; SAM REED, Secretary of

State,

Intervenor-Defendants-Appellees.



Appeal from the United States District Court

for the Western District of Washington

John C. Coughenour, District Judge, Presiding

Argued and Submitted

November 29, 2011—Pasadena, California

Filed January 19, 2012

Before: Dorothy W. Nelson, Raymond C. Fisher and

Milan D. Smith, Jr., Circuit Judges.

Opinion by Judge Fisher

472 WASHINGTON STATE REPUBLICAN v. WASHINGTON GRANGE

COUNSEL

David T. McDonald (argued for all appellants), Emily D.

Throop, Peter A. Talevich and Jennifer S. Addis, K&L Gates

WASHINGTON STATE REPUBLICAN v. WASHINGTON GRANGE 473

LLP, Seattle, Washington, for appellant Washington State

Democratic Central Committee.

John J. White, Jr., and Kevin B. Hansen, Livengood, Fitzger-

ald & Alskog, PLLC, Kirkland, Washington, for appellant

Washington State Republican Party.

Orrin Leigh Grover, Woodburn, Oregon, for appellants Liber-

tarian Party of Washington State, Ruth Bennett and John S.

Mills.

Robert M. McKenna, Attorney General; James K. Pharris,

Jeffrey T. Even (argued) and Allyson Zipp, Deputy Solicitors

General, Olympia, Washington, for appellees State of Wash-

ington, Rob McKenna and Sam Reed.

Thomas F. Ahearne (argued) and Kathryn Carder McCoy,

Foster Pepper PLLC, Seattle, Washington, for appellee Wash-

ington State Grange.

OPINION

FISHER, Circuit Judge:

We address whether the State of Washington has designed

its election ballots in a manner that eliminates the risk of

widespread voter confusion, a question left unresolved in

Washington State Grange v. Washington State Republican

Party (“Grange”), 552 U.S. 442 (2008). We hold that the state

has done so. The ballots, and related informational materials,

inform voters that, although each candidate for partisan office

may specify a political party that he or she prefers, a candi-

date’s preference does not imply that the candidate is nomi-

nated or endorsed by the party, or that the party approves of

or associates with that candidate. Given the design of the bal-

lot, and in the absence of evidence of actual voter confusion,

474 WASHINGTON STATE REPUBLICAN v. WASHINGTON GRANGE

we hold that Washington’s top two primary system, as imple-

mented by the state, does not violate the First Amendment

associational rights of the state’s political parties, the appel-

lants here. We also affirm the district court’s dismissal of the

plaintiffs’ ballot access and trademark claims. We reverse the

district court’s order granting the state’s request for reim-

bursement of attorney’s fees paid in accordance with a 2006

stipulation.

I. Background

In 2003, this court invalidated Washington’s blanket pri-

mary as a violation of political parties’ First Amendment free-

dom of association. See Democratic Party of Wash. State v.

Reed, 343 F.3d 1198, 1201 (9th Cir. 2003). In response to that

decision, the Washington State Grange proposed the People’s

Choice Initiative of 2004, or Initiative 872 (I-872), as a

replacement. See Grange, 552 U.S. at 446-47. The initiative

passed with nearly 60 percent of the vote and became effec-

tive in December 2004. See id. at 447.

I-872 created a “top two” primary, in which the primary

serves as a means of winnowing the candidates to two rather

than selecting party nominees. “Under I-872, all elections for

‘partisan offices’ are conducted in two stages: a primary and

a general election.” Id. (footnote omitted).1 “To participate in

the primary, a candidate must file a ‘declaration of candidacy’

form, on which he declares his ‘major or minor party prefer-

ence, or independent status.’ ” Id. (quoting former Wash. Rev.

1

A “partisan office” is “a public office for which a candidate may indi-

cate a political party preference on his or her declaration of candidacy 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. Parti-

san offices include U.S. senator and U.S. representative, all state offices,

including legislative offices, except judicial offices and the office of

superintendent of public instruction, and all county offices except judicial

offices and those offices for which a county home rule charter provides

otherwise. See id.

WASHINGTON STATE REPUBLICAN v. WASHINGTON GRANGE 475

Code § 29A.24.030, superseded in part by Wash. Rev. Code

§ 29A.24.031). “Each candidate and his party preference (or

independent status) is in turn designated on the primary elec-

tion ballot,” and “[a] political party cannot prevent a candi-

date who is unaffiliated with, or even repugnant to, the party

from designating it as his party of preference.” Id. (citing for-

mer Wash. Admin. Code § 434-215-015). “In the primary

election, voters may select ‘any candidate listed on the ballot,

regardless of the party preference of the candidates or the

voter.’ ” Id. (quoting former Wash. Admin. Code § 434-262-

012). “The candidates with the highest and second-highest

vote totals advance to the general election, regardless of their

party preferences.” Id. at 447-48. “Each candidate’s party

preference is listed on the general election ballot, and may not

be changed between the primary and general elections.” Id. at

448 (citing former Wash. Admin. Code § 434-230-040).

In May 2005, the Washington State Republican Party filed

suit against the state, challenging I-872 on its face. See id.

“The party contended that the new system violates its associa-

tional rights by usurping its right to nominate its own candi-

dates and by forcing it to associate with candidates it does not

endorse.” Id. The Washington State Democratic Central Com-

mittee and Libertarian Party of Washington State joined the

suit as plaintiffs, and the Washington State Grange joined as

a defendant. See id. The district court granted the plaintiffs’

motions for summary judgment and enjoined the implementa-

tion of I-872, see Wash. State Republican Party v. Logan, 377

F. Supp. 2d 907, 932 (W.D. Wash. 2005), and this court

affirmed, see Wash. State Republican Party v. Washington,

460 F.3d 1108, 1125 (9th Cir. 2006). In a separate order, we

also awarded attorney’s fees on appeal to the plaintiffs and

against the state under 42 U.S.C. § 1988.

The Supreme Court reversed. The Court began by reciting

the general principle that “[e]lection regulations that impose

a severe burden on associational rights are subject to strict

scrutiny,” and will be upheld “only if they are ‘narrowly tai-

476 WASHINGTON STATE REPUBLICAN v. WASHINGTON GRANGE

lored to serve a compelling state interest.’ ” Grange, 552 U.S.

at 451 (quoting Clingman v. Beaver, 544 U.S. 581, 586

(2005)). “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.” Id. at 452 (quoting Anderson v. Cele-

brezze, 460 U.S. 780, 788 (1983)).

The Court next determined that I-872 did not on its face

severely burden the plaintiffs’ associational rights. First, the

Court rejected the plaintiffs’ argument that I-872 allows pri-

mary voters who are unaffiliated with a party to choose the

party’s nominees. See id. at 452-53. The flaw in the parties’

argument was that “the I-872 primary does not, by its terms,

choose parties’ nominees” — the parties are free to “nominate

their own candidates outside the state-run primary . . . by

whatever mechanism they choose.” Id. at 453.

Second, and relevant here, the Court considered the plain-

tiffs’ argument that I-872 “burdens their associational rights

because voters will assume that candidates on the general

election ballot are the nominees of their preferred parties.” Id.

at 454.2 Rejecting this argument, the Court said there was “no

basis to presume that a well-informed electorate w[ould]

interpret a candidate’s party-preference designation to mean

that the candidate is the party’s chosen nominee or representa-

2

The Court summarized the plaintiffs’ claims as follows:

At bottom, respondents’ objection to I-872 is that voters will be

confused by candidates’ party-preference designations. Respon-

dents’ arguments are largely variations on this theme. Thus, they

argue that even if voters do not assume that candidates on the

general 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 associate with candidates

they do not endorse, alters the messages they wish to convey, and

forces them to engage in counterspeech to disassociate them-

selves from the candidates and their positions on the issues.

Grange, 552 U.S. at 454.

WASHINGTON STATE REPUBLICAN v. WASHINGTON GRANGE 477

tive or that the party associates with or approves of the candi-

date.” Id. The Court recognized that it was “possible that

voters w[ould] 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.” Id. at 455.

Because the Court was considering a facial challenge, the

question was “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 456. The Court said it was “not difficult

to conceive of such a ballot.” Id.

For example, petitioners propose that the actual I-

872 ballot could include prominent disclaimers

explaining that party preference 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 candi-

date statement that emphasizes the candidate’s per-

sonal determination rather than the party’s

acceptance of the candidate, such as “my party pref-

erence is the Republican Party.” Additionally, the

State could decide to educate the public about the

new primary ballots through advertising or explana-

tory materials mailed to voters along with their bal-

lots. 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 association and

compelled speech fall flat.

Id. at 456-57 (footnotes omitted). In the Court’s view, “these

implementations of I-872 would be consistent with the First

Amendment.” Id. at 457.

478 WASHINGTON STATE REPUBLICAN v. WASHINGTON GRANGE

Given that I-872 did not on its face severely burden the

plaintiffs’ associational rights, strict scrutiny did not apply

and the state had to demonstrate only that I-872 furthered

important regulatory interests. The Court held this lesser scru-

tiny was satisfied because I-872 served the state’s important

regulatory interest in “providing voters with relevant informa-

tion about the candidates on the ballot.” Id. at 458. The Court

remanded, however, allowing the plaintiffs to challenge I-872

as applied. Anticipating that challenge, the Court said that

“whether voters will be confused by the party-preference des-

ignations will depend in significant part on the form of the

ballot.” Id. at 455.

The state subsequently implemented I-872 in a manner con-

sistent with the Supreme Court’s suggestions. First, each pri-

mary and general election ballot includes a disclaimer

informing voters of the absence of an association between the

candidate and the preferred party. This disclaimer states:

READ: Each candidate for partisan office may state

a political party that he or she prefers. A candidate’s

preference does not imply that the candidate is nomi-

nated or endorsed by the party, or that the party

approves of or associates with that candidate.

Wash. Admin. Code § 434-230-015(4)(a). Second, the ballots

denote a candidate’s party preference in the form of a candi-

date statement that emphasizes the candidate’s personal

choice rather than the party’s acceptance of the candidate.

Rather than designating a candidate’s party preference with a

simple “D” or “R,” or with the words “Democrat” or “Repub-

lican,” under each candidate’s name the ballots contain a par-

enthetical such as “(Prefers Democratic Party)” or “(Prefers

Republican Party).” Third, the state requires explanatory

materials to be mailed to voters.3 Every voter receives a “Vot-

3

Over 90 percent of Washington voters vote by mail. See Grange, 552

U.S. at 456 n.8.

WASHINGTON STATE REPUBLICAN v. WASHINGTON GRANGE 479

ers’ Pamphlet” before each primary and general election. The

pamphlet includes “an explanation that each candidate for

partisan office may state a political party that he or she pre-

fers, and that a candidate’s preference does not imply that the

candidate is nominated or endorsed by the party or that the

party approves of or associates with that candidate.” Wash.

Admin. Code § 434-381-200. Voters also receive along with

their ballots an insert stating:

Each candidate for partisan office may state a politi-

cal party that he or she prefers. A candidate’s prefer-

ence does not imply that the candidate is nominated

or endorsed by the party, or that the party approves

of or associates with that candidate.

Id. § 434-250-040(1)(j)-(k). Fourth, the state disseminated

educational information to the public about the new ballots

before the 2008 primary by airing public service announce-

ments on radio and television.

In the district court on remand, the plaintiffs argued that I-

872, as implemented by the state, violated their First Amend-

ment associational rights. They contended that strict scrutiny

applied because the state had failed to show that its imple-

mentation of I-872 eliminated the risk of widespread voter

confusion. They faulted the state for failing to present affir-

mative evidence to show that the ballot disclaimer and related

voter information were read and understood by voters, or that

these materials were effective at eliminating the risk of confu-

sion. They also offered evidence purporting to show actual

voter confusion regarding the I-872 ballot.

On cross motions for summary judgment, the district court

granted the defendants’ motions on the plaintiffs’ as-applied

associational rights claims. The court emphasized that the

state had implemented I-872 in accordance with the Supreme

Court’s suggestions, and that the plaintiffs’ evidence of actual

voter confusion was either legally irrelevant or factually

480 WASHINGTON STATE REPUBLICAN v. WASHINGTON GRANGE

insufficient to create a triable issue of widespread voter con-

fusion.

The district court also disposed of the remaining issues in

the case. The court granted summary judgment to the plain-

tiffs on their claim that the manner in which the state provided

for the election of local party officials — precinct committee

officers, or PCOs — violated the parties’ associational rights.

The court granted the defendants’ motions to dismiss the

plaintiffs’ ballot access and trademark claims, denied the

plaintiffs leave to amend their complaints to add a claim

under the Washington Constitution and granted the state’s

motion for reimbursement of the attorney’s fees it paid in con-

nection with the previous Ninth Circuit appeal.

The plaintiffs timely appealed. The defendants did not

cross appeal the court’s ruling on the PCO elections. We have

jurisdiction under 28 U.S.C. § 1291, and we affirm in part and

reverse in part.

II. Discussion

A. Freedom of Association Claims

The district court granted the defendants summary judg-

ment on the plaintiffs’ claims that I-872 violates their First

Amendment associational rights as applied. Reviewing de

novo, see Humane Soc’y of U.S. v. Locke, 626 F.3d 1040,

1047 (9th Cir. 2010), we affirm.

[1] To trigger strict scrutiny, the plaintiffs must show that

the state’s implementation of I-872 severely burdens their

freedom of association.4 To do so, they must show that “a

4

The plaintiffs dispute this proposition, arguing that the burden was on

the state to prove that its implementation of I-872 eliminates any risk of

voter confusion. We disagree. Under the First Amendment, plaintiffs bear

the initial burden of demonstrating that a challenged election regulation

WASHINGTON STATE REPUBLICAN v. WASHINGTON GRANGE 481

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.” Grange, 552

U.S. at 454. This inquiry “depend[s] in significant part on the

form of the ballot.” Id. at 455.

1. Form of the Ballot

[2] The “form of the ballot” plainly supports the conclu-

sion that I-872 does not impose a severe burden on the plain-

tiffs’ freedom of association. As described above, the state in

implementing the ballot adopted each of the Supreme Court’s

suggestions. See Grange, 552 U.S. at 456. The ballot includes

a prominent disclaimer explaining that party preference

reflects only the self-designation of the candidate and not an

endorsement by the party. The ballot describes a candidate’s

party preference as “(Prefers Republican Party)” rather than

as “R,” “Republican” or “Republican Party.” Voters’ Pam-

phlets and ballot inserts also inform voters that party prefer-

ence reflects only a candidate’s self-designation. The form of

the ballot thus points to an absence of voter confusion.

2. Evidence of Actual Voter Confusion

The plaintiffs attempt to rebut this inference with evidence

of actual voter confusion. This purported evidence falls into

four categories, which we address in turn. As did the district

severely burdens their First Amendment rights. See Prete v. Bradbury, 438

F.3d 949, 951 & 953 n.5 (9th Cir. 2006). The burden then falls on the state

to demonstrate either that the regulation is narrowly tailored to achieve a

compelling state interest or, if the regulation imposes only a modest bur-

den on First Amendments rights, that the regulation furthers the state’s

important regulatory interests. See id. at 961. Here, it was the plaintiffs’

burden to demonstrate the existence of widespread voter confusion, not

the defendants’ burden to demonstrate its absence.

482 WASHINGTON STATE REPUBLICAN v. WASHINGTON GRANGE

court, we find this evidence insufficient to create a triable

issue of widespread voter confusion.

[3] First, the plaintiffs rely on newspaper articles in which

the news media and elected officials refer to candidates as

“Democrats” or “Republicans” when they are not official

party nominees or representatives but have simply declared a

preference for the Democratic or Republican Party. Such

statements do not establish that members of the media or

elected officials are confused about these candidates’ party

affiliations, however. The speakers in these examples may

simply be “using shorthand” to indicate the party preference

the candidate listed on his or her declaration of candidacy. As

the district court explained, these “isolated incidents do not

show the type of widespread voter confusion the Supreme

Court contemplated in its review.”

[4] Second, the plaintiffs introduced a study of voter con-

fusion by Mathew Manweller, a professor of political science.

Manweller conducted cognitive experiments to determine

whether voters are likely to perceive candidates listed on the

I-872 primary and general election ballots as nominees or rep-

resentatives of the political parties the candidates have

declared as their preference. His results suggest voter confu-

sion, but Manweller did not give the subjects in his experi-

ments the ballot inserts and voter pamphlets the state provides

to the actual electorate. The sample ballots Manweller used

also did not conform to the ballots used in actual elections:

whereas state law requires that the disclaimer regarding the

lack of party association appear “immediately above the first

partisan congressional, state or county office,” Wash. Admin.

Code § 434-230-015(4)(a), the ballots used in the study

placed the notice on the bottom-left corner, below the first

partisan race. Manweller’s results therefore are not relevant

evidence of whether “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

WASHINGTON STATE REPUBLICAN v. WASHINGTON GRANGE 483

that the party associates with or approves of the candidate.”

Grange, 552 U.S. at 454 (emphasis added).

[5] Third, the plaintiffs argue that Washington’s statutes

and regulations create voter confusion over whether political

parties associate with or approve of candidates who specify a

preference for that party on their declarations of candidacy.

The plaintiffs point to two sections of Washington election

law that refer to a candidate’s statement of party preference

as that candidate’s “party affiliation.” See Wash. Rev. Code

§ 42.17A.205(f)5; Wash. Admin. Code § 390-05-274.6 They

contend that, if voters were to read these sections and see that

the state equates a candidate’s “party preference” with that

candidate’s “party affiliation,” they would come away with

the impression that candidates are official representatives of

their “preferred” parties. We disagree. In the first place, we

find implausible the premise that even well-informed voters

are aware of the intricacies of Washington’s election regula-

tions. It is highly unlikely that voters would read and rely on

§§ 42.17A.205(f) and 390-05-274 to obtain an understanding

of I-872. Even if voters were aware of those provisions, we

do not find them confusing. There is nothing inherently mis-

leading about equating a candidate’s self-declared party pref-

erence with party affiliation: a candidate who has declared a

preference for a particular political party has affiliated with

that party. The confusion that is at issue here is whether voters

mistakenly believe the party has affiliated with the candidate,

not vice versa. In light of the clear language of the ballot, the

Voters’ Pamphlet and the ballot insert, no reasonable voter

would be confused by §§ 42.17A.205(f) and 390-05-274.7

5

Formerly codified as Washington Revised Code § 42.17.040(f).

6

The language of these sections may reflect the state’s efforts to harmo-

nize I-872’s concept of self-declared “party preference” with existing elec-

tion laws using pre-I-872 terminology.

7

Section 390-05-274(1), in fact, states: “A candidate’s preference does

not imply that the candidate is nominated or endorsed by that party, or that

the party approves of or associates with that candidate.”

484 WASHINGTON STATE REPUBLICAN v. WASHINGTON GRANGE

[6] Fourth, the Democratic Party complains that in several

I-872 primary elections its official nominee failed to advance

to the general election. It attributes those results to voter con-

fusion, speculating that its nominee failed to finish among the

top two votegetters because another self-declared Democrat

entered the race and siphoned votes from the official nominee.

The plaintiffs offer no evidence, however, that these election

results reflect voter confusion rather than voters’ actual pref-

erences. The plaintiffs have not, for example, produced sur-

veys of actual voters showing that they voted for a candidate

they mistakenly believed to be an official party nominee or

representative. That official party nominees have failed to

advance does not, without more, suggest voter confusion.

[7] In sum, the plaintiffs have not demonstrated a triable

issue that the state’s implementation of I-872 imposes a

severe burden on their freedom of association. The state there-

fore need show only that I-872 furthers an important regula-

tory interest. They have done so, because, as the Supreme

Court held in Grange, I-872 serves the state’s important regu-

latory interest in “providing voters with relevant information

about the candidates on the ballot.” 552 U.S. at 458. We

therefore affirm summary judgment in favor of the defendants

on the plaintiffs’ as-applied freedom of association claims.

B. Ballot Access Claims

The Libertarian Party argues that I-872 violates its funda-

mental right of access to the ballot by making it difficult for

a minor-party candidate to qualify for the general election bal-

lot. We review de novo the district court’s dismissal of these

claims under Federal Rule of Civil Procedure 12(b)(6). See

Cook v. Brewer, 637 F.3d 1002, 1004 (9th Cir. 2011).

When evaluating the constitutionality of ballot access regu-

lations, we weigh the degree to which the regulations burden

the exercise of constitutional rights against the state interests

the regulations promote. See Libertarian Party of Wash. v.

WASHINGTON STATE REPUBLICAN v. WASHINGTON GRANGE 485

Munro, 31 F.3d 759, 761 (9th Cir. 1994). If the burden is

severe, the challenged procedures must be narrowly tailored

to achieve a compelling state interest. See id. If the burden is

slight, the procedures will survive review as long as they fur-

ther a state’s “important regulatory interests.” Nader v.

Brewer, 531 F.3d 1028, 1035 (9th Cir. 2008) (quoting Burd-

ick v. Takushi, 504 U.S. 428, 434 (1992)) (internal quotation

marks omitted). In determining whether the burden is severe,

“[t]he question is whether ‘reasonably diligent’ minor party

candidates can normally gain a place on the ballot, or if

instead they only rarely will succeed.” Libertarian Party of

Wash., 31 F.3d at 762; accord Nader, 531 F.3d at 1035.

Here, the Libertarian Party acknowledges that it has broad

access to the I-872 primary. To qualify for the primary ballot,

a candidate — whether from a major or minor party — need

only (1) file a declaration of candidacy and (2) either pay a

filing fee equal to 1 percent of the annual salary for the office

or submit a signature petition in lieu of the filing fee. See

Wash. Rev. Code §§ 29A.24.031, 29A.24.091. The Libertar-

ian Party argues, however, that its rights are violated because

I-872 makes it difficult for a minor-party candidate to prog-

ress to the general election ballot. A candidate, whether from

a major or minor party, can attain a place in the general elec-

tion only by finishing in the top two in the primary.

The Libertarian Party relies on cases invalidating early fil-

ing deadlines for minor-party and independent candidates

seeking access to general election ballots. In Anderson v.

Celebrezze, 460 U.S. 780 (1983), the Court struck down a

statute requiring an independent candidate for president to file

a statement of candidacy and nominating petition in March in

order to appear on the November general election ballot. The

Court held that the early filing deadline placed an unconstitu-

tional burden on voting and associational rights because it

prevented independents from taking advantage of unantici-

pated political opportunities that might arise later in the elec-

tion cycle and required independent candidates to gather

486 WASHINGTON STATE REPUBLICAN v. WASHINGTON GRANGE

petition signatures at a time when voters were not attuned to

the upcoming campaign. See Anderson, 460 U.S. at 786, 790-

92.

[8] By giving minor-party candidates access to the August

primary ballot rather than the November general election bal-

lot, I-872 poses, albeit to a lesser extent, some of these same

concerns. I-872, however, is distinguishable from the ballot

access rules invalidated in Anderson. First, the I-872 primary

is in August, not March. Second, unlike the system challenged

in Anderson, in which independent candidates were required

to file petitions before the major parties selected their nomi-

nees, the Libertarian Party participates in a primary at the

same time, and on the same terms, as major party candidates.

Libertarian Party candidates thus have an opportunity to

appeal to voters at a time when election interest is near its

peak, and to respond to events in the election cycle just as

major party candidates do. In addition, whereas conventional

systems guarantee major-party candidates a place on the gen-

eral election ballot, I-872 gives minor-party candidates the

same opportunity as major-party candidates to advance to the

general election.

[9] In light of these distinctions, we hold that I-872 does

not impose a severe burden on the Libertarian Party’s rights.

See Munro v. Socialist Workers Party, 479 U.S. 189, 199

(1986) (“It can hardly be said that Washington’s voters are

denied freedom of association because they must channel

their expressive activity into a campaign at the primary as

opposed to the general election.”). The Party has not shown

that I-872 impermissibly “limit[s] the field of candidates from

which voters might choose.” Anderson, 460 U.S. at 786 (quot-

ing Bullock v. Carter, 405 U.S. 134, 143 (1972)) (internal

quotation marks omitted). In addition, because I-872 gives

major- and minor-party candidates equal access to the primary

and general election ballots, it does not give the “established

parties a decided advantage over any new parties struggling

for existence.” Williams v. Rhodes, 393 U.S. 23, 31 (1968).

WASHINGTON STATE REPUBLICAN v. WASHINGTON GRANGE 487

[10] We recognize the possibility that I-872 makes it more

difficult for minor-party candidates to qualify for the general

election ballot than regulations permitting a minor-party can-

didate to qualify for a general election ballot by filing a

required number of petition signatures. This additional bur-

den, however, is an inherent feature of any top two primary

system, and the Supreme Court has expressly approved of top

two primary systems. See Cal. Democratic Party v. Jones,

530 U.S. 567, 585-86 (2000). The district court therefore

properly dismissed these claims.

C. Trademark Claims

The Libertarian Party also contends that the state’s imple-

mentation of I-872 infringes its rights under federal trademark

law. We review de novo the district court’s Rule 12(b)(6) dis-

missal of these claims. See Cook, 637 F.3d at 1004.

[11] To establish a federal trademark infringement claim,

the Libertarian Party is required to show that the defendant —

here, the State of Washington — uses the Party’s registered

mark “in connection with the sale, offering for sale, distribu-

tion, or advertising of any goods or services.” 15 U.S.C.

§ 1114(1)(a) (emphasis added). This “does not require any

actual sale of goods [or] services.” Bosley Med. Inst., Inc. v.

Kremer, 403 F.3d 672, 679 (9th Cir. 2005). At minimum,

however, the plaintiff must show that the defendant “offers

competing services to the public.” Id.

[12] The Libertarian Party correctly points out that “ser-

vices” can include activities performed by a political party.

See United We Stand Am., Inc. v. United We Stand, Am. N.Y.,

Inc., 128 F.3d 86, 90 (2d Cir. 1997). But it has not plausibly

alleged that the state uses party labels on the ballot to perform

a service in competition with the Libertarian Party. Nor has

it even attempted to make this showing. On the contrary,

although the district court focused on this weakness in the

Party’s case, and although the state presses the same issue in

488 WASHINGTON STATE REPUBLICAN v. WASHINGTON GRANGE

its brief on appeal, the Party has not explained how the state

uses the Party’s mark in connection with the provision of

competing services. We therefore affirm dismissal of the

trademark claims.8

D. Attorney’s Fees

In 2006, after ruling in the plaintiffs’ favor on the merits,

we issued an order awarding attorney’s fees on appeal to the

plaintiffs and against the state under 42 U.S.C. § 1988. The

parties subsequently entered into a settlement governing the

amount and payment of those fees. They reduced their settle-

ment to a written stipulation, which was filed in this court.

The Supreme Court thereafter granted certiorari and reversed

our decision, and the state then moved for reimbursement of

the fees, arguing that the plaintiffs were no longer prevailing

parties. The plaintiffs opposed the motion, arguing that the

settlement had definitively resolved the fee issue, irrespective

of further proceedings. The district court granted the motion,

and the plaintiffs appeal. Because this issue turns on a ques-

tion of contract interpretation, we review de novo. See Doe I

v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009)

(“Contract interpretation is a question of law that we review

de novo.”).

Under Washington law, contracts are interpreted in accor-

dance with the context rule. See Spectrum Glass Co. v. Pub.

Util. Dist. No. 1, 119 P.3d 854, 858 (Wash. Ct. App. 2005).

“Under the context rule, extrinsic evidence is admissible to

assist the court in ascertaining the parties[’] intent and in

interpreting the contract.” Id. “The court may consider (1) the

subject matter and objective of the contract, (2) the circum-

8

The plaintiffs suggest for the first time in the Democratic Party’s reply

brief that the state could be liable for trademark infringement on a theory

of contributory infringement. We decline to reach this issue because it was

not timely raised. See Eberle v. City of Anaheim, 901 F.2d 814, 818 (9th

Cir. 1990).

WASHINGTON STATE REPUBLICAN v. WASHINGTON GRANGE 489

stances surrounding the making of the contract, (3) the subse-

quent conduct of the parties to the contract, (4) the

reasonableness of the parties’ respective interpretations, (5)

statements made by the parties in preliminary negotiations,

(6) usages of trade, and (7) the course of dealing between the

parties.” Id. “Such evidence is admissible regardless of

whether the contract language is deemed ambiguous,” though

“[e]xtrinsic evidence cannot be considered: (a) to show a

party’s unilateral or subjective intent as to the meaning of a

contract word or term; (b) to show an intention independent

of the instrument; or (c) to vary, contradict, or modify the

written word.” Id.

The state argues that the stipulation expressly reserved its

right to reimbursement. The stipulation states in relevant part:

The parties agree that this stipulation relates only to

fees and costs incurred by appellees in the appeal of

the District Court’s July 29, 2005 Order (“the

Appeal”) to the date of this Order. Appellees are not

entitled to an award of any fees or costs incurred in

the Ninth Circuit portion of the Appeal beyond the

amounts awarded under this stipulation and order, to

the date of this Order. No waiver is intended of any

claims for further proceedings in the appeal or in

any other aspect of the case (including district court

proceedings).

(Emphasis added.) We do not agree with the state that this

language unequivocally reserved the state’s right to seek

reimbursement in the event of a favorable ruling from the

Supreme Court. The reservation could reasonably be under-

stood as definitively resolving liability for fees associated

with the Ninth Circuit appeal, while reserving the parties’

rights to seek additional fees for further proceedings on

appeal, including proceedings in the Supreme Court, or pro-

ceedings on remand from the Supreme Court. We therefore

490 WASHINGTON STATE REPUBLICAN v. WASHINGTON GRANGE

look to extrinsic evidence to discern the meaning of the par-

ties’ settlement.

[13] That evidence supports the plaintiffs’ position. In a

September 15, 2006 email discussing the proposed settlement,

counsel for the Democratic Party wrote: “We understand this

settlement to be final as to our claims for attorneys’ fees and

costs for the Ninth Circuit proceedings related to the appeal

of Judge Zilly’s July, 2005 decision through the date of settle-

ment, irrespective of further proceedings in the case” (empha-

sis added). Counsel for the Republican Party sent a similarly

worded email. These emails, which were sent to counsel for

the state, plainly contemplated that the settlement would

definitively resolve the question of fees for the Ninth Circuit

appeal, irrespective of further proceedings in the case. See

Spectrum Glass, 119 P.3d at 858 (explaining that “statements

made by the parties in preliminary negotiations” are admissi-

ble to assist the court in ascertaining the parties’ intent in

forming the contract). One would have expected the state

either to respond to the emails or to include a much clearer

reservation of rights in the stipulation if the state believed the

parties’ settlement preserved a right to reimbursement in the

event of a reversal by the Supreme Court. We conclude that

the settlement definitively resolved the state’s liability for

fees. The order granting the state’s request for reimbursement

is therefore reversed.9

9

Even if the extrinsic evidence does not show that this was the parties’

shared understanding, it at least shows that the state was on notice of the

meaning attached to the agreement by the plaintiffs. See Restatement (Sec-

ond) of Contracts § 201(2) (1981) (“Where the parties have attached dif-

ferent meanings to a promise or agreement or a term thereof, it is

interpreted in accordance with the meaning attached by one of them if at

the time the agreement was made (a) that party did not know of any differ-

ent meaning attached by the other, and the other knew the meaning

attached by the first party.”).

WASHINGTON STATE REPUBLICAN v. WASHINGTON GRANGE 491

E. Leave to Amend

The plaintiffs challenge the district court’s decision deny-

ing leave to amend their complaints to add a new claim that

the enactment of I-872 violated article II, section 37 of the

Washington Constitution. We review for an abuse of discre-

tion both denial of leave to amend, see In re Dynamic Ran-

dom Access Memory (DRAM) Antitrust Litig., 546 F.3d 981,

990 (9th Cir. 2008), and a district court’s decision to decline

supplemental jurisdiction, see Trs. of Constr. Indus. & Labor-

ers Health & Welfare Trust v. Desert Valley Landscape &

Maint., Inc., 333 F.3d 923, 925 (9th Cir. 2003).

[14] “Under Federal Rule of Civil Procedure 15(a), leave

to amend shall be freely given when justice so requires,” but

a “district court may exercise its discretion to deny leave to

amend due to ‘undue delay, bad faith or dilatory motive on

part of the movant, repeated failure to cure deficiencies by

amendments previously allowed, undue prejudice to the

opposing party . . . , [or] futility of amendment.’ ” Carvalho

v. Equifax Info. Servs., LLC, 629 F.3d 876, 892 (9th Cir.

2010) (quoting Foman v. Davis, 371 U.S. 178, 182 (1962)).

[15] Here, the district court reasonably concluded that the

plaintiffs had failed to provide “any reasonable justification

for not bringing this claim in [their] initial Complaint[s].”

Furthermore, the court concluded that “even if the parties had

a reasonable justification for failing to raise this claim at the

outset, the Court would decline to exercise supplemental

jurisdiction” because the “applicability of article II, section 37

to I-872’s enactment undoubtedly raises novel and complex

issues of state constitutional law best decided by the state

courts.” See 28 U.S.C. § 1367(c)(1) (providing that a district

court may decline to exercise supplemental jurisdiction when

“the claim raises a novel or complex issue of State law”).

There was no abuse of discretion.

492 WASHINGTON STATE REPUBLICAN v. WASHINGTON GRANGE

F. Compelled Speech

The plaintiffs challenge a provision of Washington law pro-

viding that “[f]or partisan office, if a candidate has expressed

a party or independent preference on the declaration of candi-

dacy, that party or independent designation shall be clearly

identified in electioneering communications, independent

expenditures, or political advertising.” Wash. Rev. Code

§ 42.17A.320(1).10 The plaintiffs contend this provision

requires them to engage in compelled speech, in violation of

the First Amendment. Specifically, they complain that they

are impermissibly required to repeat a candidate’s self-

professed party preference in the party’s own political adver-

tising, even if the party disagrees with the candidate’s self-

described party preference.

We decline to reach this issue because it does not appear

that the plaintiffs sought the invalidation of § 42.17A.320(1)

in their initial or amended complaints. Although the plaintiffs’

pleadings sought the invalidation of numerous sections of the

Washington election code, § 42.17A.320(1) was not among

them. Accordingly, we deem this issue waived.

G. Severability

The plaintiffs argue that I-872 is not severable, and that its

entire implementation should be enjoined as a result of the

district court order declaring the election of precinct commit-

tee officers (PCOs) unconstitutional. We disagree.11

Under Washington law, “[o]rdinarily, only the part of an

enactment that is constitutionally infirm will be invalidated,

leaving the rest intact.” In re Parentage of C.A.M.A., 109 P.3d

10

Formerly codified as Washington Revised Code § 42.17.510(1).

11

“[S]everability is a question of state law that we review de novo.”

Ariz. Libertarian Party, Inc. v. Bayless, 351 F.3d 1277, 1283 (9th Cir.

2003) (per curiam).

WASHINGTON STATE REPUBLICAN v. WASHINGTON GRANGE 493

405, 413 (Wash. 2005) (quoting Guard v. Jackson, 921 P.2d

544, 548 (1996)) (internal quotation marks omitted). “An

unconstitutional provision may not be severed, however, if its

connection to the remaining, constitutionally sound provision

is so strong that it could not be believed that the legislature

would have passed one without the other; or where the part

eliminated is so intimately connected with the balance of the

act as to make it useless to accomplish the purposes of the

legislature.” Id. (quoting Guard, 921 P.2d at 548) (internal

quotation marks omitted).

Here, the plaintiffs’ argument that voters would not have

approved I-872’s top two primary for partisan offices if they

could not also vote for PCOs defies common sense. As the

state’s brief says, “[i]t strains credulity to suggest that Wash-

ington’s voters would choose to discard the entire Top Two

primary if it did not include PCO elections.” The plaintiffs’

severability argument is without merit.12

III. Conclusion

We reverse the order granting the state’s request for reim-

bursement of attorney’s fees. In all other respects, we affirm

the district court. Each party shall bear its own costs on

appeal.

AFFIRMED IN PART; REVERSED IN PART.

12

We need not reach the state’s two alternative reasons for rejecting the

plaintiffs’ severability argument — that the plaintiffs abandoned this the-

ory on summary judgment and that Washington’s laws governing PCO

elections are not part of I-872 and, therefore, no question arises as to

whether I-872 can be severed from them.