Opposition Brief — California Democratic Party v. Jones

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CALIFORNIA DEMOCRATIC PARTY,

CALIFORNIA REPUBLICAN PARTY,

LIBERTARIAN PARTY OF CALIFORNIA

and PEACE AND FREEDOM PARTY, et al.,

_ Petitioners,

BILL JONES, SECRETARY OF STATE OF CALIFORNIA

and CALIFORNIANS FOR AN OPEN PRIMARY, et al.,

Respondents.

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

BRIEF IN OPPOSITION TO PETITION

FOR WRIT OF CERTIORARI

James P. CLARK

Gipson, DUNN & CRUTCHER

2029 Century Park East

Suite 4000

Los Angeles, CA 90067

Telephone: (213) 229-7000

Attorneys for Intervenor

Defendant/Respondent

Californians for An Open

Primary

Bit Lockyer

Attorney General

Manuet M. Meveiros

Senior Assistant Attorney

General

ANDREA LYNN HocH

Supervising Deputy

Attorney General

ALLEN SUMNER

Senior Assistant Attorney

General

Counsel of Record

1300 I St., Suite 125

P.O. Box 944255

Sacramento, CA

94244-2550

Telephone:

(916) 324-5463

Counsel for Respondent Bill

Jones, Secretary of State

of California

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTIONS PRESENTED

Respondents agree with petitioners’ characteriza-

tion of the basic issue presented: Whether California’s

Open Primary Act, which allows all voters, including

independents, to vote for any candidate for any office

regardless of the voter’s or the candidate’s party of

registration, violates the First and Fourteenth Amend-

ments to the United States Constitution.

Petitioners assert that this case presents a second

question: “Whether the associational rights of political

parties are afforded less protection under the First

Amendment than the associational rights of other private

associations.” It does not.

Political parties perform roles different from truly

private organizations — functions which the courts below

aptly characterized as “governmental” in nature. For

example, qualified political parties in California are

accorded automatic ballot access unavailable to private

organizations wishing to place candidates on the ballot.

As a condition of accepting automatic ballot access, polit-

ical parties are required to conduct their nominations

through a primary process open to all voters. However, if

a political party in California genuinely desires to be

treated the same as other “private” associations, it is free

to forego automatic ballot access via the open primary

and instead place its candidates on the ballot by circulat-

ing nominating petitions.

Thus, characterizing the question as to whether the

associational rights of political parties are afforded “less

QUESTIONS PRESENTED - Continued

protection” than other private associations is misleading.

The Ninth Circuit more accurately described petitioners’

position: “The parties contend that their interest in limit-

ing candidate selection to their own members is so great

that no matter what the State’s interest and no matter

how [the Open Primary Act] will work in practice, the

blanket primary must be unconstitutional on its face.”

LIST OF PARTIES

Petitioners are the California Democratic Party, the

California Republican Party, the Libertarian Party of Cali-

fornia, the Peace and Freedom Party, Art Torres, Kathy

Bowler, Paul Jorjorian, Gail Lightfoot, and C.T. Weber.

Respondents are Bill Jones, Secretary of State of Cali-

fornia, and Californians for An Open Primary.

TABLE OF CONTENTS

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CONSTITUTIONS, STATUTES OR REGULATIONS... 1

STATEMENT OF THE CASE...............2-00005: 2

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REED bbb bi cdvecdeccbcecccsccesssccocncesens 5

I. THE COURT OF APPEALS CORRECTLY

FOUND THAT CALIFORNIA’S OPEN PRI-

MARY ACT DOES NOT VIOLATE PETI-

TIONERS’ FIRST AMENDMENT RIGHTS..... 5

A. Proposition 198 Poses No First Amendment

Issue Because The Party Membership

RMBBTOEE D ooo ccccccccdvesvecscescoccess 5

B. The Open Primary Act Does Not Imper-

missibly Burden The Parties’ Associational

ES ond cc ddcdcccdsceséceecencutéeedete 7

C. The Asserted Harms To Parties Are Insub-

stantial Or Hypothetical.................. 10

D. Washington's Experience Refutes Peti-

EE Gee ceccessccccsccscdvesdés 11

E. The Parties May Avoid The Associational

ED Ce GE cs wwscevecescosoncodence 12

F. The Blanket Primary Advances Compelling

Bee TEED Secescccccsvccecececessesses 13

TABLE OF CONTENTS - Continued

Page

1. The Blanket Primary Will Produce Offi-

cials Who Better Represent The Electo-

Ge avec vececccccvccsoscccesesaccencas 13

2. The Blanket Primary Provides An Effec-

tive Vote To Disenfranchised Voters ... 15

3. The Blanket Primary Will Increase Voter

PUMEEIED ccccccsccccecnccccuceceens 16

Il. THE BLANKET PRIMARY IMPOSES NO PAR- .

TICULAR HARM TO MINOR PARTIES ....... 16

Ill. THE DECISION OF THE COURT OF APPEALS

DOES NOT CONFLICT WITH DECISIONS OF

THE SUPREME COURT, ANOTHER UNITED

STATES COURT OF APPEALS OR A STATE

CP GO GOED CUED cc cc eccccccscevccses 18

A. The Decision of The Court of Appeals Does

Not Conflict With Decisions of This Court .. 18

B. The Decision of The Court of Appeals Does

Not Conflict With Decisions of Other United

States Courts of Appeals.................. 20

C. The Decision of The Court of Appeals Does

Not Conflict With Decisions of State Courts

4,0 ol aa eo 21

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la eater ad ik ll ae lee ole App. 1

TABLE OF AUTHORITIES

Cases

Anderson v. Millikin, 186 Wash. 602, 59 P.2d 295

SD 9 6'060s086s00sebbensesboendeseedesoonences

Buckley v. Valeo, 424 U.S. 1 (1976)........ 6.66005.

Burdick v. Takushi, 504 U.S. 428 (1992)............

California Democratic Party v. Jones, 169 F.3d 646

GEE GR, BERG. cc cccccccccccccccsccescccccceses

California Democratic Party v. Jones, 984 F.Supp.

BARD GED. Cab. BOOT) occ cccscccccccscvccscccces

Colorado Republican Campaign Committee v. FEC,

FD Wk Be GS vce cccccccccccvcccevesoosees

Davis v. Bsandemer, 478 U.S. 109 (1986)...........

Democratic Party v. Wisconsin ex rel. LaFollette, 450

Se CY GE ov acccccdcccsccestcecescovessess

Duke v. Smith, 13 F.3d 388 (11th Cir. 1994) .......

Eu v. San Francisco Democratic Central Committee,

Ge Se, Se Co so vdnndecadaceecsecsaseused

Flagg Brothers, Inc. v. Brooks, 436 U.S. 149 (1978)...

Green Party v. Jones, 31 Cal.App.4th 747, 37

CABO SS GES CRGGED occ cccccccccsccccnscseses

Heavey v. Chapman, 93 Wash. 2d 700, 611 P.2d 1256

GRE oo ccccbcccncccscescccccéscedeccesséesdsvns

Illinois State Board of Elections, 440 U.S. 173 (1979)....

Lightfoot v. Eu, 964 F.2d 865 (9th Cir. 1992), cert.

es a Ge Se Sccceccdccccestacaséda

Vii

TABLE OF AUTHORITIES - Continued

Page

Morse v. Republican Party, 517 U.S. 186 (1996) ..8, 9, 12

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

SEED co voseetucccsncnccccoseusbencscececsescecsces 9

NAACP v. Alabama, 357 U.S. 449 (1957) .............. 7

O'Callaghan v. State, 914 P.2d 1250 (Alaska 1996) .... 11

O'Callaghan v. Alaska, 914 P.2d 1250 (Alaska 1996),

cert. denied, 520 U.S. 1209 (1997) ................4.. 21

Rosario v. Rockefeller, 410 U.S. 752 (1973) ............ 13

Smith v. Allwright, 321 U.S. 649 (1944). ............... 9

Socialist Workers Party v. Secretary of State, 765 F.2d

1417 (9th. Cir. 1985) rev'd on other grounds,

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

Sh SEs UE GE Don ceececcecéensewnsesecs 17

State ex rel. LaFollette v. Democratic Party, 287

N.W.2d 519 (Wis. Jan. 19, 1980), 450 U.S. 107

SPEED oc censenescesecesetoccescscescevesscesecseas 11

Storer v. Brown, 415 U.S. 724 (1974) ............... 9, 13

Tashjian v. Republican Party of Connecticut, 479 U.S.

208 (U.S. Conn. Dec. 10, 1986)......... 11, 18, 19, 20

Terry v. Adams, 345 U.S. 461 (1953).............00055 10

Timmons v. Twin Cities Area New Party, 117 S.Ct.

Se Se cbereccudesccesstccecedenvencsceses 4, 13

CONSTITUTIONAL PROVISIONS

United States Constitution First Amendment....1, 3, 9, 21

United States Constitution Fourteenth Amend-

Viii

TABLE OF AUTHORITIES - Continued

Page

STATUTES

Cal. Elec. Code

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OrHeR AUTHORITIES

Hill, Democracy in the Fifty States (Univ. Neb. Press

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BRIEF IN OPPOSITION

Respondents respectfully file this brief in opposition

to the petition for writ of certiorari to review the unani-

mows judgment of the United States Court of Appeals for

the Ninth Circuit.

JUDGMENT BELOW

The Ninth Circuit’s opinion, reported at California

Democratic Party v. Jones, 169 F.3d 646 (9th Cir. 1999), is

included at Appendix A hereto. The District Court’s opin-

ion is reported at California Democratic Party v. Jones, 984

F.Supp. 1288 (E.D. Cal. 1997).

CONSTITUTIONS, STATUTES OR REGULATIONS

This case involves the First Amendment to the

United States Constitution, as made applicable to the

states by the Fourteenth Amendment, and California’s

Open Primary Act, an initiative measure (Proposition

198) adopted by California’s voters on March 26, 1996.

The Open Primary Act provides in relevant part:

All persons entitled to vote, including those not

affiliated with any political party, shall have the

right to vote, except as otherwise provided by

law, at any election in which they are qualified

to vote, for any candidate regardless of the can-

didate’s political affiliation. Cal. Elec. Code

§ 2001.!

The text of the Open Primary Act is provided at Appen-

dix D to the petition for writ of certiorari.

STATEMENT OF THE CASE

A. Introduction

In 1996 the citizens of California concluded that the

closed primary then used to select candidates for public

office effectively disenfranchised millions of voters and

produced government officials unrepresentative of the

electorate at large. The voters overwhelmingly adopted

the Open Primary Act to enhance the democratic nature

of the State’s election process and the representativeness

of its elected officials.?

Petitioners, political parties and officials, assert that

the blanket primary is unconstitutional on its face. This

must come as a surprise to Washington and Alaska,

! All statutory references are to the California Elections

Code.

2 California utilizes what political scientists call a “blanket”

primary, which allows all voters, including independents, to

vote for any candidate for any office regardless of the

candidate's affiliation. § 2001. The top vote-getter of each party

goes on to the general election. § 15451. Washington and Alaska

are the only other states which also employ the blanket primary;

Louisiana uses a variant.

By comparison, in an “open” primary any voter may

request the ballot for any party, but may only vote in one

party’s primary election. App. at 11-12.

which have used the blanket primary for over 60 years.

No court has even intimated that the blanket primary is

unconstitutional per se. Indeed, every court which has

addressed the issue has concluded that the blanket pri-

mary does not violate the First Amendment associational

rights of political parties. There is thus no conflict in

decisions on the issue.

The courts below carefully assessed the potential

burden posed to petitioners and then balanced the inter-

ests of California’s voters. Both the District Court and

Ninth Circuit correctly decided that the blanket primary

does not violate petitioners’ First Amendment associa-

tional rights. Accordingly, the petition for writ of cer-

tiorari should be denied.

B. Proceedings Below

The District Court rejected petitioners’ assertion that

allowing non-party members to vote in a party’s primary

renders the blanket primary facially unconstitutional.

App. at 20 and 25. The court noted that twenty-one states

utilize open primaries allowing participation by non-

party members. /d. at 11. Under petitioners’ theory, these

primary schemes would also be unconstitutional per se.

Rather, the court concluded that, in order to assess peti-

tioners’ challenge, it must look instead to how voters will

actually behave under California’s blanket primary. Id. at

25.

The District Court received extensive testimony and

documentary evidence from party officials, political sci-

entists, campaign consultants and elections officials

regarding the expected operation of California’s blanket

primary. This was based, in part, on experience in the

states of Washington and Alaska, which have utilized

blanket primaries since 1935 and 1947, respectively.

The court correctly applied the “flexible” balancing

test articulated by this Court in Timmons v. Twin Cities

Area New Party, 520 U.S. 351, 358 (1997), for assessing the

potential impact of the blanket primary upon petitioners.

App. at 17-18.%

Petitioners assert that the blanket primary will have a

“destructive effect” on California’s political parties, with

crossover voting and raiding affecting the selection and

behavior of nominees and party officials, weakening

party discipline, increasing the cost of primary elections,

dampening the morale of party activists and disrupting

internal party governance. Id. at 26-27.

The court termed petitioners’ characterization “over-

drawn.” Id. at 27. The court found that California’s blan-

ket primary is a non-discriminatory measure, adopted by

the overwhelming majority of voters, which will not

diminish the efficacy or strength of political parties in

California by “any substantial degree.” Id. at 35. The

3 “In evaluating the constitutionality of Proposition 198,

the court therefore must first determine the character and

magnitude of the burdens imposed by the blanket primary on

the associational rights of the political parties. The court then

must consider the State’s interests and weigh the strength of

those interests against the particular burdens placed on the

parties’ associational rights. The greater the intrusion on the

parties’ associational rights, the greater must be the State’s

interests and the more narrowly tailored must be the

Proposition to advance those interests.” App. at 18.

Open Primary Act was intended to,enhance the demo-

cratic nature of California’s election process and the rep-

resentativeness of its elected officials. Id. at 39. These

state interests are compelling and outweigh the interest

which parties have in controlling who votes in their

primary. Id. at 42 and 44.

The Ninth Circuit reviewed de novo the constitu-

tionality of the blanket primary and the District Court's

determinations on questions of law and mixed questions

of law and fact. Id. at 4. After considering the record and

briefs, the Ninth Circuit affirmed and adopted the “care-

ful, detailed and eloquent” opinion of the District Court

as its own. Ibid.

Petitioners’ petition for rehearing en banc was

denied, with no judge on the Ninth Circuit requesting a

vote on the petition.

ARGUMENT

THE COURT OF APPEALS CORRECTLY FOUND

THAT CALIFORNIA’S OPEN PRIMARY ACT DOES

NOT VIOLATE PETITIONERS’ FIRST AMENDMENT

RIGHTS

A. Proposition 198 Poses No First Amendment

Issue Because It Was Approved By The Party

Membership

The Open Primary Act was adopted by California’s

voters in March of 1996 by a vote of 59.51 percent to 40.49

percent. It received a majority in every demographic sub-

group: sex, age, race, education, political ideology,

income, religion, and, most tellingly, party identification.

App. at 9-10. In particular, 69 percent of Independents, 61

percent of Democrats and 57 percent of Republicans car-

ried the initiative. bid. Given the ballot arguments for

and against the measure, the court found that the voters

were not misled or inadequately advised as to its purpose

and effect. Id. at 9, fn. 6.

It is not surprising that such large majorities of party

members voted against petitioner party leaders in adopt-

ing the blanket primary. Rank-and-file members have

different interests than party leaders. Here, the members

simply reached a different conclusion in balancing what

was best for their party, for themselves as voters, and for

California.

For example, the blanket primary gives every voter,

including party members, more choices on the ballot.

From a voter’s perspective, more choice is better. The

blanket primary also empowers party members who

belong to minority parties in districts safely held by

another party. Approximately one-quarter of all of Cali-

fornia’s voters fall into this category, effectively disen-

franchised by having no say in the election of their

governmental officials. App. at 39. To these party mem-

bers, the blanket primary allows a meaningful say in who

represents them without forcing them to abandon their

political affiliation.

Despite the party rank-and-file’s strong support for

the blanket primary, petitioner party leaders now ask this

Court to overturn it. In the words of petitioners’ expert,

“sovereignty” belongs to the party as organization, not to

its members. RT at 392.4

Petitioners’ attempt to impose their will upon their

own party members is fundamentally at odds with the

First Amendment. As this Court has made clear, collec-

tive entities, like political parties, enjoy associational

rights in order to more effectively promote the interests

of their members. “The [organization] is but the medium

through which its individual members seek to make more

effective the expression of their views.” NAACP v. Ala-

bama, 357 U.S. 449, 459 (1957); see also, Buckley v. Valeo, 424

U.S. 1, 22 (1976) (per curiam). The members’ interests are

primary. Since political parties exist to advance their

members’ shared political beliefs, Colorado Republican

Campaign Committee v. FEC, 518 U.S. 604, 029 (1996) (Ken-

nedy, J., concurring in the judgment and dissenting in

part), their associational rights cannot be asserted to

defeat their members’ will.

Petitioners’ challenge thus fails at the outset.

B. The Open Primary Act Does Not Impermissibly

Burden The Parties’ Associational Interests

Petitioners’ challenge presents a simple issue: What

are primaries for? App. at 15. Respondents contend the

primary is the first, critical step in the electoral process.

Its function is to choose people to run government, and it

is often the most important step in the electoral process.

“As a practical matter, the ultimate choice of the mass of

4 “RT” refers to the Reporter’s Transcript filed in the Court

of Appeals.

voters is predetermined when the nominations [by the

political parties] have been made.” Morse v. Republican

Party, 517 U.S. 186, 205 (1986) (opinion by Stevens, J.).

The parties’ challenge rests on the sweeping proposi-

tion that, as a matter of law, a critical step in the electoral

process must be run however they want. Petitioners

assert that parties have “allowed” nomination by primary

vote, but can “rescind” that decision and nominate by

caucus or convention if they desire. RT at 392.

The logic of this claim is troubling in many ways. It

would invalidate not just blanket primaries, but open

primaries and, indeed primaries altogether if the parties

so desire.®

5 The Court of Appeals thought this reason enough to reject

the parties’ challenge.

The parties contend that their interest in limiting

candidate selection to their own members is so great

that no matter what the State’s interest and no matter

how Proposition 198 will work in practice, the blanket

primary must be unconstitutional on its face. . . . If

this were true, then open primaries would also be

unconstitutional upon any party’s objection: an open

primary, every bit as much as a blanket primary,

permits voters who are not registered in a party to

vote in that party’s primary. But many of the States

have some version of an open primary and to

invalidate them all on this theoretical ground would

be an extraordinary intrusion into the complex and

changing election laws of the States and would

remove from the American political system a method

for candidate selection that many States consider

beneficial and which in the uncertain future could

take on new appeal and importance.

App. at 21.

No court has held that the First Amendment stretches

so far, and for good reason. Recognizing the absolute

primacy of a political party’s rules over conflicting state

law would allow parties to overthrow almost any State

regulation of primary elections, even rules requiring

them to nominate by direct primary, to accept votes from

party members that the parties may want to exclude, and

to count only registered voters.

It is too late in the day to argue that political parties

are purely private entities with a right to so control

primary elections. As this Court has recognized, “(t]he

primary election . . . in California . . . is ‘an integral part

of the entire election process . . . [that] functions to

winnow out and finally reject all but the chosen candi-

dates.’ ” Munro v. Socialist Workers Party, 479 U.S. 189, 196

(1986) (quoting Storer v. Brown, 415 U.S. 724, 735 (1974));

Burdick v. Takushi, 504 U.S. 428, 439 (1992). Because of the

role the State confers upon political parties in the elec-

toral process, they are not simply private actors. Only

parties get automatic ballot placement for their candi-

dates, and only parties seek, as their ultimate goal, to

obtain control of the levers of government.

Courts have thus already rejected petitioners’ basic

argument. Lightfoot v. Eu, 964 F.2d 865 (9th Cir. 1992), cert.

denied, 507 U.S. 919 (1993) (upholding direct primary over

party’s objection); Smith v. Allwright, 321 U.S. at 649

(striking down party’s exclusion of blacks from primary).

When they nominate candidates, established political

parties are subject to a wide range of State regulation, see,

Morse v. Republican Party, 517 U.S. at 218; Flagg Brothers,

Inc. v. Brooks, 436 U.S. 149, 157-58 (1978), and do not have

unfettered control over who can participate in their activ-

ities. See, Terry v. Adams, 345 U.S. 461 (1953); Duke v.

Smith, 13 F.3d 388 (11th Cir. 1994).

C. The Asserted Harms To Parties Are Insubstan-

tial Or Hypothetical

The parties assert that the blanket primary will result

in a parade of horribles. The District Court, however,

found that the blanket primary is not likely to prove

“severe or debilitating” to California’s political parties.

App. at 35.

Much attention was given to crossover voting. The

court found the parties’ characterization of the likely

amount or effects of crossover voting due to a blanket

primary to be “overdrawn.” Id. at 27. Indeed, petitioners’

expert acknowledged that crossover voting generally

does not change the outcome of elections; it merely accen-

tuates the margin of victory. RT at 488.° So too, the court

found “almost unanimity” among the experts that there is

little evidence raiding will be a factor in California’s

6 Petitioners cited only three races in the past 60 years

under the Alaska and Washington blanket primaries which

arguably were determined by crossover voting: Washington

Governor Clarence Martin in 1936, Alaska Governor J.

Hammond in 1974, and Washington Governor Dixie Lee Ray in

1976. In each instance, the nominee went on to win the general

election, giving the voters their candidate of choice. RT at 517

and 543-544. The First Amendment certainly does not prohibit a

majority of voters from coalescing to nominate and elect their

most preferred candidate.

blanket primary. App. at 28.7 In short, the court con-

cluded, “The parties do not show that the blanket pri-

mary is significantly different theoretically or practically

from the open primary.” App. at 35-36.

D. Washington’s Experience Refutes Petitioners’

Challenge

By every indication, the blanket primary has worked

well in the State of Washington for over 60 years. As this

Court observed, the blanket primary has resulted in nei-

ther the “destruction of the integrity of the election pro-

cess,” nor “the decay of responsible party government.”

Tashjian v. Republican Party, 479 U.S. 208, 223, fn. 12 (1986)

Petitioners’ experts acknowledged that Washington

enjoys a healthy, two-party democracy. RT at 490. Indeed,

to the extent that political systems can be rated, Washing-

ton’s has been ranked as “more democratic” than Califor-

nia’s. See, e.g., Hill, Democracy in the Fifty States (Univ.

Neb. Press 1994). App. at 35.

? This finding confirms the conclusion reached by other

courts which have addressed the issue. Tashjian v. Republican

Party, 479 U.S. 208, 219, fn. 9 (1986); Democratic Party v.

Wisconsin ex rel. LaFollette, 450 U.S. 107, 122, fm. 23 (1981);

O'Callaghan v. State, 919 P.2d 1250, 1261 (Alaska 1996)

(upholding Alaska’s blanket primary); State ex rel. LaFollette v.

Democratic Party, 287 N.W.2d 519, 533 (Wis. 1980), rev'd on other

grounds, Democratic Party of the United States v. Wisconsin ex rel.

LaFollette, 450 U.S. 107 (1981).

Petitioners’ experts acknowledged that the vast majority of

voters who cross over do so simply to vote for the candidate

they most prefer. RT at 486.

E. The Parties May Avoid The Associational Bur-

dens They Fear

California state courts have recognized that a politi-

cal party can avoid the primary process by declining to

seek qualified party status. If it does not do so, it is free to

support and nominate candidates through the indepen-

dent candidate approach, using a private primary, con-

vention, caucus or any other mechanism. Green Party v.

Jones, 31 Cal.App.4th 747, 755, fn. 9, 37 Cal.Rptr.2d at 411,

fn. 9 (1995). So long as the group satisfies the State's

nominating petition requirements, its candidate will

reach the general election. See, § 8400 et seq.

Petitioners do not want to pursue this option because

they reap great advantages from their status as qualified

parties, particularly automatic ballot access for their can-

didates. But petitioners cannot have it both ways. So long

as the State is pursuing legitimate objectives and not

discriminating among groups, parties participating in the

primary must accept reasonable regulation of the elec-

toral process. See, Morse v. Republican Party, 517 U.S. at

198 (opinion of Stevens, J.) (“If the Party chooses to avail

itself of [automatic ballot access], it necessarily become

subject to . . . regulation.”); Id. at 238 (opinion of Breyer,

J.) (party choice “to avail itself of special state-law prefer-

ences, in terms of ballot access and position|,]” among

other factors, subjects party nomination process to state

regulation).

F. The Blanket Primary Advances Compelling

State Interests

Given petitioners’ failure to establish that the blanket

primary severely burdens party interests, the State need

only show that it advances important regulatory inter-

ests. Timmons, 520 U.S. at 358; Burdick, 504 U.S. at 434.

Here, the record established that the blanket primary

advances several important interests enhancing the dem-

ocratic nature of California’s election process.

1. The Blanket Primary Will Produce Officials

Who Better Represent The Electorate

First, the blanket primary advances one of the most

important goals of any election process - ensuring the

representativeness of elected officials. App. at 40-41. This

Court has long recognized that the State may regulate the

election process to ensure elections effectively translate

the will of the electorate. Storer, 415 U.S. at 732.

Enhanced representativeness helps maintain the sta-

bility of the political system, Storer, 415 U.S. at 736, and

the State also has a valid interest in preserving the integ-

rity of the electoral process. Rosario v. Rockefeller, 410 U.S.

752, 761 (1973). But an electoral process can hardly be

said to have integrity if it does not assure that the offi-

cials elected are representative of the people to be gov-

erned. The Court of Appeals explained:

The voters’ belief in the fairness of the election

process is also a substantial state interest; it is

apparent that the voters of California believe

that the system is fairer when all voters, includ-

ing independents and regardless of party affilia-

tion, may participate in framing the choice of

candidates at the general election. App. at 43.

By affording all voters the opportunity to consider all

of the participating candidates, the blanket primary gen-

erates election outcomes that are more closely aligned

with true voter preferences. See, Illinois State Board of

Elections, 440 U.S. 173, 185 (1979) (observing that expand-

ing choices in an election fosters the voter’s ability to

express political preferences). The record demonstrates

that officials elected under blanket primaries stand closer

to the median policy positions of their districts than do

those elected under closed primaries. App. at 41, fn. 34.

As the court found: “(T]he people of California agree that

a blanket primary system will lead to the election of more

representative ‘problem solvers’ who are less beholden to

party officials and ‘special groups.’” App. at 41.

Petitioners do not dispute that the blanket primary

tends to produce candidates who are more reflective of

the total electorate. Instead, they twist that virtue and

mischaracterize the State’s goal as restructuring its elec-

toral process to favor candidates of a particular philoso-

phy.

The blanket primary aims not to produce more mode-

rate candidates, but rather candidates who are more rep-

resentative of the electorate. Since most of the electorate

lies near the center of the ideological spectrum, the more

representative candidate will often appear the more

“moderate.” However, “reflective” and “moderate” are

not synonymous. Petitioners’ own experts pointed to

numerous candidates who benefitted from crossover vot-

ing who are not “moderates:” George Wallace, Eugene

McCarthy, Gary Hart, Ronald Reagan, and Jerry Brown.

ER Vol. II, No. 17, at 482-4838; RT at 292-294.

2. The Blanket Primary Provides An Effective

Vote To Disenfranchised Voters

The blanket primary will give millions of citizens a

more effective vote. California’s closed primary disen-

franchised one-quarter of the State’s registered voters by

denying them effective participation in a critical step of

the election process. App. at 39-40.

These voters were either registered as independents

(approximately 11% of California’s electorate), or lived in

districts “safe” for another party. Ibid. In California, a

majority of congressional, state senate and assembly dis-

tricts are considered safe for one party. RT at 851-852.

Such voters could not vote in the primary in any way that

mattered in deciding who would eventually represent

them. This Court has noted the political disadvantages

suffered by such voters in safe districts. Davis v. Bsan-

demer, 478 U.S. 109, 170 (1986) (Powell, J., concurring and

dissenting).

Petitioners’ experts acknowledged thai the blanket

primary opens up a determinative stage of the electoral

process to these voters who previously had no real say in

the choice of their representative. Some 3.5 to 4.4 million

8 “ER” refers to the Excerpts of Record filed in the Court of

Appeals.

California voters can now participate fully in the selec-

tion of the person who will represent them in govern-

ment. RT at 239-241.

3. The Blanket Primary Will Increase Voter

Participation

Finally, the blanket primary will increase voter turn-

out. During the past thirty years, California has wit-

nessed a 15-20 percent decline in voter participation in

both primary and general elections. RT at 658, 661-662. As

petitioners concede, allowing 1.5 million independent

voters in the blanket primary will boost participation. RT

at 372. So too, increasing the number of candidates and

the competitiveness of elections will increase voter turn-

out. App. at 42.

The court correctly found the State’s interests here

are “compelling,” and outweigh the acknowledged sub-

stantial interest which parties have in controlling who

votes in the primary. App. at 42. Accordingly, the deci-

sion below correctly rejected petitioners’ First Amend-

ment challenge on the merits. The petition for writ of

certiorari should thus be denied.

THE BLANKET PRIMARY IMPOSES NO PARTICU-

LAR HARM ON MINOR PARTIES

Petitioners contend that the blanket primary will par-

ticularly harm minor parties. This, too, is without founda-

tion. The District Court found that nothing suggests

crossover voting in minor party primaries will be wide-

spread, much less negatively impact these parties or their

candidates. App. at 31, fn. 26.

First, minor parties seldom have contested primaries.

In the approximately 2,000 partisan primary races in Cali-

fornia in which minor parties have fielded candidates

since 1968, only 102, approximately 5 percent, have been

contested. RT at 618, 630-631. Id.° If there is only one

candidate in the race, crossover voting obviously will not

change the outcome.

Furthermore, minor parties in California field candi-

dates in partisan elections primarily to recruit members

and spread the party’s message. RT at 615-616 and 632.

This is not to say that minor parties have any lesser rights

than major parties, but only that there is very little likeli-

hood of harm by crossover voting or raiding. RT at 427.

° As. this Court noted in discussing Washington’s blanket

primary, the focus of the primary is on contested races between

candidates for the nomination of the major parties, not on minor

party races. Socialist Workers Party v. Secretary of State, 765 F.2d

1417, 1421 (9th. Cir. 1985), »2v’d on other grounds, Munro v.

Socialist Workers Party, 479 U.S. 189 (1996).

THE DECISION OF THE COURT OF APPEALS DOES

NOT CONFLICT WITH DECISIONS OF THIS COURT,

ANOTHER UNITED STATES COURT OF APPEALS,

OR A STATE COURT OF LAST RESORT

A. The Decision of The Court of Appeals Does

Not Conflict With Decisions of This Court

This Court has never directly addressed the constitu-

tionality of the blanket primary.'° Petitioners nevertheless

allege that the holding below “cannot be squared” with

two decisions of this Court. Petitioners’ argument is mis-

placed.

Petitioners first cite this Court’s decision in Tashjian

v. Republican Party, 479 U.S. 208 (1986), as supporting

their position. It does not.

In Tashjian, Connecticut State Democratic

officeholders blocked Republican attempts to allow inde-

pendent voters to participate in the Republican primary.

Tashjian, 479 U.S. at 212-213, fn. 4. Considering whether

Democrats could act through the State to bar Republicans

from expanding their electoral base, this Court carefully

defined the associational interest at stake. The Republican

Party’s interest lay not in generally determining who

ceuld participate in the selection of its candidates, but

more specifically in not having that group of voters

“limit[ed.]” Tashjian, 479 U.S. at 215-216.

‘0 However, this Court has noted that the open primary

may well serve compelling State interests. Democratic Party v.

Wisconsin ex rel. LaFolette, 450 U.S. at 120-121.

Recently this Court reiterated the narrow scope of

Tashjian when it rejected a challenge to Minnesota’s anti-

fusion statute:

[I]n Tashjian, we held that Connecticut's closed-

primary statute, which required voters in a

party primary to be registered party members,

interfered with a party’s associational rights by

limiting “the group of registered voters whom

the Party may invite to participate in the basic

function of selecting the Party’s candidates.”

Timmons, 520 U.S. at 360 (emphasis added) (quoting Tash-

jian, 479 U.S. at 215-216).

Tashjian, then, hardly identifies the parties’ associa-

tional interest as a sweeping right to control who may

vote in primaries. Rather Tashjian and Timmons identify

the interest more specifically as one against having the

party’s electoral base restricted against its wishes. As

Tashjian notes, limiting those to whom the party may

appeal for support impairs the party’s “appeal to com-

mon principle [which] may be translated into concerted

action, and hence to political power in the community.”

Tashjian, 479 U.S. at 216. The interest runs not to the

party’s right to control who can participate in a critical

step of the electoral process, but rather to the ultimate

competitiveness of the party’s candidates in the general

election. The State simply does not have a right - over a

party’s objection — to limit the range of voters a primary

candidate can appeal to. By opening up the primary,

however, the blanket primary promotes, not impairs, this

interest.

Petitioners next cite this Court’s decision in Eu v. San

Francisco County Democratic Central Committee, 489 U.S.

214 (1989), as barring the blanket primary. But in Eu, this

Court struck down a statute prohibiting parties from

endorsing candidates in primaries and dictating the orga-

nization and composition of party governing bodies. The

case did not involve who could vote in primaries, only

whether parties could speak to their members and

whether parties could manage their internal organization

as they thought best — areas the Open Primary Act care-

fully avoids.'! Indeed, this Court noted that a party’s

interest in controlling its internal organization was much

different from and stronger than the party interests at

stake in the primary election in Tashjian. Eu, 489 U.S. at

230.

B. The Decision of The Court of Appeals Does Not

Conflict With Decisions of Other United States

Courts of Appeals

No United States Court of Appeals, other than the

Ninth Circuit in the instart case, has addressed the con-

stitutionality of the blanket primary. There is thus no

conflict between circuits. Nor is it likely that there will

be, because the only other states which use a blanket

primary such as California’s are Alaska and Washington.

App. at 12. Both of these states are within the Ninth

Circuit.

'! Under the Open Primary Act, election of party central

committees remains limited to party members. § 13300.

C. The Decision of The Court of Appeals Does Not

Conflict With Decisions of State Courts of Last

Resort

The state supreme courts of Washington and Alaska

have examined the constitutionality of the blanket pri-

mary and both have upheld this system as constitutional,

rejecting similar First Amendment challenges brought by

political parties in those states. See O'Callaghan v. Alaska,

914 P.2d 1250 (Alaska 1996), cert. denied, 520 U.S. 1209

(1997); Heavey v. Chapman, 93 Wash. 2d 700, 611 P.2d 1256

(1980); Anderson v. Millikin, 186 Wash. 602, 59 P.2d 295

(1936).

With no conflict between the decision of the Court of

Appeals below and any decision of this Court, another

United States Court of Appeals or any state court of last

resort, the Petition for writ of certiorari should be denied.

CONCLUSION

The District Court considered extensive evidence

from experts including party leaders, political scientists,

politicians and political consultants as to the likely effects

of California’s blanket primary. The District Court and

Court of Appeals, de novo, found that California’s Open

Primary Act, adopted by a majority of voters from all

major parties, does not severely burden petitioners’ asso-

ciational rights and advances compelling state interests in

enhancing the democratic nature of California’s election

process. The courts below correctly concluded that Cali-

fornia’s Open Primary Act withstands petitioners’ First

Amendment challenge.

22 App. 1

This decision confirms prior holdings by the Alaska APPENDIX A

and Washington State Supreme Courts reviewing blanket

primaries used in those states since 1935, and does not aeaidihae PARTY.

conflict with any decision by this Court or any United ART TORRES: KATHY 97-17442

States Court of Appeals. BOWLER; PAUL

D.C. No.

JORJORIAN; PEACE CV-96-02038-DFL

Accordingly, the petition for writ of certiorari shoul AND FREEDOM PARTY:

be denied. C.T. WEBER:

Dated: November 3, 1999. LIBERTARIAN PARTY

OF CALIFORNIA;

Respectfully submitted, GAIL LIGHTFOOT,

But Lockyer Plaintiffs,

Attorney General

Manuet M. Mepeiros and

Senior Assistant Attorney General

ANbREA LYNN HocH CALIFORNIA

Supervising Deputy Attorney REPUBLICAN PARTY,

General MICHAEL SCHROEDER;

ey ee SHAWN STEEL; DONNA

Senior Assistant Attorney General SHALANSKY,

Counsel of Record Plaintiffs-Intervenors-

Counsel for Respondent Bill Jones Appellants,

Secretary of State of California v

James P. CLark BILL JONES,

Gipson, DUNN & CRUTCHER SECRETARY OF THE

Counsel for Intervenor- STATE OF CALIFORNIA,

Defendant/Respondent Californians

For An Open Primary Defendant-Appellee.

Appeals from the United States District Court for the

Eastern District of California

David F. Levi, District Judge, Presiding

Argued and Submitted

October 7, 1998-San Francisco, California

Filed March 4, 1999

—S ee eee aa2.2.2.Qg ae

App. 2

Before: Proctor Hug, Jr., Chief Judge, Betty B. Fletcher

and Stephen S. Trott, Circuit Judges.

Opinion by Judge B. Fletcher

APPENDIX A

CALIFORNIA DEMOCRATIC PARTY; Art Torres;

Kathy Bowler; Paul Jorjorian; Peace And Freedom

Party; C.T. Weber; Libertarian Party Of California; Gail

| Lightfoot,

Plaintiffs-Appellants,

and

California Republican Party, Michael Schroeder; Shawn

Steel; Donna Shalansky,

Plaintiffs-Intervenors,

Bill JONES, Secretary of the State of California,

Defendant-Appellee,

Californians For An Open Primary, Defendant-

Intervenor-Appellee.

California Democratic Party; Art Torres; Kathy Bowler;

Paul Jorjorian; Peace And Freedom Party; C.T. Weber;

Libertarian Party Of California; Gail Lightfoot,

Plaintiffs,

and

California Republican Party, Michael Schroeder; Shawn

Steel; Donna Shalansky,

Plaintiffs-Intervenors-Appellants,

Bill Jones, Secretary of the State of California,

Defendant-Appellee.

Nos. 97-17440, 97-17442,

United States Court of Appeals,

Ninth Circuit.

Argued and Submitted Oct. 7, 1998.

Decided March 4, 1999.

App. 3

Action was brought challenging constitutionality of

California proposition which converted the State’s pri-

mary election from a closed to a blanket primary in which

voters may vote for any candidate regardless of the

voter's or candidate’s party affiliation.

Proposition was upheld by the United States District

Court for the Eastern District of California, David F. Levi,

J., 984 FSupp. 1288, and plaintiffs appealed. The Court of

Appeals, Fletcher, Circuit Judge, adopting the opinion of

the District Court, held that the proposition is not uncon-

stitutional as violating the First Amendment right of

association.

Affirmed.

George Waters, Olson, Hagel, Leidigh, Waters & Fish-

burn, Sacramento, California, for plaintiffs-appellants.

Cyrus J. Rickards, Deputy Attorney General, Sacra-

mento, California, for defendant-appellee.

John E. Mueller, Nielsen, Merksamer, Parrinello,

Mueller & Naylor, Mill Valley, California, for intervenors-

plaintiffs-appellants.

James P. Clark, Gibson, Dunn, & Crutcher, Los

Angeles, California, for intervenor-defendant-appellee.

James L. Baldwin, Assistant Attorney General, for

Amicus, State of Alaska.

Jeffrey T. Even, Assistant Attorney General, for

Amicus, State of Washington.

Appeals from the United States District Court for the

Eastern District of California; David F. Levi, District

Judge, Presiding.

App. 4

D.C. No. CV-96-02038-DFL.

Before: HUG, Chief Judge, FLETCHER and TROTT,

Circuit Judges.

FLETCHER, Circuit Judge:

in 1996 California voters passed Proposition 198,

which converted the State’s primary election from a

closed to a blanket primary in which voters may vote for

any candidate regardless of the voter’s or candidate's

party affiliation. Appellants, the California Democratic,

Republican, Libertarian, and Peace and Freedom Parties,

together with other individuals, opponents of Proposition

198, seek reversal of the district court's judgment uphold-

ing its constitutionality. California Democratic Party v.

Jones, 984 F.Supp. 1288 (E.D.Cal.1997). We have jurisdic-

tion under 28 U.S.C. § 1291, and we affirm.

STANDARD OF REVIEW

We review the constitutionality of a statute de novo.

Crawford v. Lungren, 96 F.3d 380, 384 (9th Cir.1996), cert.

denied, 520 U.S. 1117, 117 S.Ct. 1249, 137 L.Ed.2d 330

(1997). A district court’s determinations on questions of

law and on mixed questions of law and fact that implicate

constitutional rights are also reviewed de novo. Neal v.

Shimoda, 131 F.3d 818, 823 (9th Cir.1997); Jacobsen v. United

States Postal Serv., 993 F.2d 649, 653 (9th Cir.1992). We

have undertaken that review.

CONCLUSION

We have reviewed the briefs to this court, the record

made before the district court, and the careful, detailed,

App. 5

and eloquent opinion of the district court. Because we

concur in it in every respect, we have elected to adopt it

as the opinion of our court.

We attach it as an appendix. It also may be found at

984 F.Supp. 1288 (E.D.Cal.1997) sub nom. California Demo-

cratic Party v. Jones. The judgment of the district court is

AFFIRMED.

ATTACHMENT

APPENDIX

CALIFORNIA DEMOCRATIC PARTY, Art Torres,

Kathy Bowler, Paul Jorjorian, Peace and Freedom Party,

C.T. Weber, Libertarian Party of California and Gail

Lightfoot, Plaintiffs,

Vv.

Bill JONES, Secretary of State of the State of Califor-

nia, Defendant.

California Republican Party, Michael Schroeder,

Shawn Steel and Donna Shalansky, Intervenors/ Plaintiffs,

Californians for an Open Primary, Intervenor/Defendant.

No. CIV. S-96-2038 DFL.

United States District Court,

E.D. California.

Nov. 17, 1997.

As Corrected Nov. 24, 1997.

MEMORANDUM OF OPINION AND FINDINGS

OF FACT AND CONCLUSIONS OF LAW

LEVI, District Judge.

In March of 1996, the people of the State of Califor-

nia, by a wide margin, adopted Proposition 198, an

App. 6

initiative statute known as the Open Primary Act. Propo-

sition 198 converts the State’s primary election from a

closed to an open or blanket primary in which voters may

vote for any candidate regardless of the candidate’s or

the voter's party a’ ation. In a blanket primary under

Proposition 198, one ballot will be prepared at the pri-

mary election for all voters just as in the general election.

Because a blanket primary permits voters to vote in the

primary election of a party without being registered in

that party, the political parties and party officials who

bring this action contend that Proposition 198 violates

their right of association guaranteed by the First Amend-

ment of the Constitution.

The court concludes that Proposition 198 withstands

this constitutional challenge.

Under Proposition 198 “All persons entitled to vote,

including those not affiliated with any political party,

shall have the right to vote . . . at any election in which

they are qualified to vote, for any candidate regardless of

the candidate's political affiliation.”' By this language

and the conforming amendments to the State Election

Code, Proposition 198 changed the California primary

' Proposition 198 added to the Election Code the language

quoted in text as a new § 2001. The Proposition also made

conforming amendments to §§ 2151, 13102, 13203, 13206, 13230,

13300, 13301, and 13302. See Dets.’ Ex. A.

App. 7

from a closed to an open or blanket system.? As the

Legislative Analyst explained in the ballot pamphlet dis-

tributed to voters before the election, under the closed

system “[iJn order to vote in primary elections for parti-

san offices, a voter must have identified a political party

affiliation when registering to vote and can vote only for

candidates of that party.” Defs.’ Ex. A at 5. Thus, for

example, in the closed primary a registered Democratic

Party voter receives a ballot that includes only candidates

competing for the Democratic Party nomination. Only

registered Democrats could vote for these candidates,

and the winner of the primary would be the Democratic

Party’s candidate at the general election.* By contrast, the

Legislative Analyst explained, in the blanket primary

instituted by Proposition 198:

[A]ll persons who are entitled to vote in primary

elections, including those not affiliated with a political

party [are allowed to] vote for any candidate regardless

of the candidate’s political party affiliation. Thus, voters

? California has had a closed primary since 1909 when the

Siate substituted direct nomination of candidates by primary

elections in place of nominating conventions held by the

political parties. In 1900 California briefly experimented with a

blanket primary, but the California Supreme Court held it

unconstitutional under the State Constitution. See Britton v.

Board of Election Comm'rs, 129 Cal. 337, 346-47, 61 P. 1115 (1900).

No claim is made under the State Constitution in the present

case.

* Cal. Elec.Code § 15451 provides: “The person who

receives the highest number of votes at a primary election as the

candidate of a political party for nomination to an office is the

nominee of that party at the ensuing general election.”

App. 8

———in- primary elections would be allowed to vote for candi-

dates across political party lines. Furthermore, the initia-

tive provides that county elections officials prepare only

one ballot for all voters. The candidates for an office

would be listed randomly on the ballot and not grouped -

by political party affiliation. The candidate of each politi-

cal party who receives the most votes for a state elective

office becomes the nominee of that party at the next

general election. Defs.’ Ex. A at 5. Therefore, in the blan-

ket primary after Proposition 198, a registered Demo-

cratic Party voter, for example, could vote for a

Republican Party candidate for Governor and a Demo-

cratic Party candidate for Assembly, and so on down the

ballot.

An independent voter could do the same.* Through

such cross-over voting, it is possible under the blanket

primary for independent voters and voters registered in

one party to participate in the primary election of another

party.

In the statement of support included in the ballot

pamphlet, proponents of Proposition 198 argued that the

closed primary “favors the election of party hard-liners,

contributes to legislative gridlock, and stacks the deck

against more moderate problem-solvers.” The open pri-

mary would permit voters to vote “for the best candidate

for each office, regardless of party affiliation” thereby

giving voters greater choice. In addition, according to

proponents, the blanket primary would increase voter

+ The election of political party committee members is not

affected by Proposition 198. As to these party offices, voters

may only vote for candidates of their own party registration.

App. 9

~ participation in the primary election, restore healthy com-

petition particularly in “safe” legislative districts in

which one party clearly dominates, make elected officials

more responsive to voters as opposed to party officials,

reduce the power of special interest groups, and

strengthen the political parties by assuring the nomina-

tion of candidates with broader bases of support. Oppo-

nents of Proposition 198 contended that it would work an

unconstitutional interference with the right of the parties

to choose their nominees:

“Allowing members of one party a large voice in

choosing another party’s nominee — which Prop-

osition 198 would do = is like letting UCLA‘s

football team choose USC’s head coach!”5

According to the opponents, the existing closed pri-

mary provided a “real choice” among candidates of dif-

ferent parties while a blanket primary would be “an

invitation to political mischief” by special interests and

political consultants. Defs.’ Ex. A at 6-7.°

At the election, Proposition 198 was adopted by a

convincing margin of those voting - 59.51 percent

5° “Should Democrats be allowed to nominate Republican

candidates for office? No! Should Republicans be allowed to

nominate Democratic candidates for office? No!” Defs.’ Ex. A at

ballot pamphlet, it cannot fairly be argued that the voters were

misled or inadequately advised as to the effects and purposes of

Proposition 198. Compare Jones v. Bates, 127 F.3d 839 (9th

Cir.1997), reh’g granted, 129 F.3d 494 (1997) (majority of panel

concludes that voters were not adequately advised as to effect of

Proposition 140, the term limit initiative).

~ (3,340,642 votes) to 40.49 percent (2,273,064 votes).

According to reliable exit polls, Proposition 198 was sup-

ported by 61 percent of Democrats, 57 percent of Republi-

cans, and 69 percent of Independents. The measure was

supported by a majority of every demographic subgroup,

including groupings by sex, age, race, education, political

ideology, income, religion and party identification. Defs.’

Exs. B & D. Proposition 198 commanded majorities in

every county in California and in 75 of the 80 Assembly

districts. Defs.’ Ex. I. Although the turnout by Califor-

nia’s six minor parties was too small to sample, given the

broad public support for Proposition 198 among all

groups of every sort, it is likely that a majority of the

members of these parties also favored the initiative. R.T.

at 847 (Testimony of Thomas Quinn). Moreover, the vote

on Proposition 198 reflects the long-standing support for

an open primary among California voters. According to

Mervin Field, an eminent California political polling

experi, Californians have favored an open primary by

wide margins since at least 1983. See Defs.’ Exs. L-2 &

L-5.” .

By passing Proposition 198, California joined a small

group of states, consisting of Alaska, Louisiana, and

Washington, who also have blanket or nonpartisan pri-

mary elections. The other states have either a closed or an

7 Mervin Field testified at the trial to his conclusion that as

_ to Proposition 198 “there was remarkable consistency over a 13-

year period, and that when the vote on Prop 198 was in,

comparing that with the study that we did then 13 years prior, it

showed that this concept, as it’s posed here, and as it was posed

in 198, struck a deep-seated chord with the voting public.” R.T.

at 645.

ee ie

————— — —_

open primary, or some variant of the closed or open

primary.* In the classic closed primary, such as California

had prior to Proposition 198, participation in a party's

primary election is limited to voters who have registered

as members of that party a specified period of time prior

to the primary election. Fifteen states have closed pri-

maries of this kind. See Defs.’ Ex. E, Gerber Report, at 2-4.

Eight additional states have a “semi-closed” primary:

participation in a party’s primary is limited to those who

have registered as party members and independents. Id.

Participation of registered members of other parties is not

permitted.

In an open primary, a registered voter may request,

on election day, the ballot for any party’s primary in

which the voter intends to vote, whether or not the voter

previously has registered as a member of that party;

however, the voter may only vote in one party’s primary

election. Twenty-one states have an open primary in this

sense of the term. /d.° Finally, four states have blanket or

* “The distinctions between open and closed primaries are

easy to exaggerate. Too simple a distinction ignores the range of

nuances and varieties within the closed primary states.” F.

Sorauf, Party Politics in America 206 (4th ed.1980), quoted in

Democratic Party of United States v. Wisconsin ex rel. LaFollette, 450

U.S. 107, 133 n. 8, 101 S.Ct. 1010, 1025 n. 8, 67 L.Ed.2d 82 (1981)

(Powell, J., dissenting). Similarly, there are many variations

within the open and blanket primary states.

* The open primary is sometimes defined more narrowly to

include only those primaries in which the “ ‘voter is not

required to declare publicly a party preference or to have that

preference publicly recorded.’ ” Democratic Party of United States

v. Wisconsin ex rel. LaFollette, 450 U.S. 107, 112 n. 4, 101 S.Ct.

1010, 1014 n. 4, 67 L.Ed.2d 82 (1981) (citation omitted).

App. 12

nonpartisan primaries. The blanket primary is a version

of the open primary in which the voter is not limited to

the ballot-of any single party. All voters receive the same

ballot, and a voter is not limited to the candidates of any

single party but may vote, as to each office contested, for

any candidate regardless of party affiliation. This is the

primary system in Washington and Alaska, and is the

system adopted by Proposition 198. Alaska first adopted

a blanket primary in 1947 and has had a blanket primary

since that time with the exception of the period from 1960

to 1966 when it adopted a traditional open primary.

Washington has had a blanket primary continuously

since 1935. Finally, Louisiana has a version of a blanket

primary, a nonpartisan primary open to all registered

voters. Similar to the blanket primary in the sense that a

voter can vote for any candidate without regard to party

affiliation and is not limited to one party’s nominees, the

nonpartisan primary differs because “[t]he two top vote

receivers, regardless of party, meet in a subsequent (run-

off or general) election.” Id. at 3.

“The relative merits of closed and open pri-

maries have been the subject of substantial

debate since the beginning of this century and

no consensus has as yet emerged.” Tashjian v.

Approximately ten states have this kind of open primary. See

Pls.’ Ex. 7, Costantini Report at 3; Tashjian v. Republican Party of

Conn., 479 U.S. 208, 222 n. 11, 107 S.Ct. 544, 552 n. 11, 93 L.Ed.2d

514 (1986). The other states follow practices that are sometimes

classified as “semi-open” or “semi-closed.” In these states the

voter is permitted to request any party’s ballot the day of the

primary, but some record of the request is made or a public

statement of party affiliation is made prior to voting.

moe

ee ee ey oe ee ———

ation

a ww"

App. 13

Republican Party of Conn., 479 U.S. 208, 222, 107

S.Ct. 544, 552, 93 L.Ed.2d 514 (1986). It is appar-

ent from this very case that the States continue

to debate the question and to try new

approaches. !°

All of the four political party plaintiffs in this case

have bylaws that prohibit persons who are not registered

in their parties from voting in their parties’ primary.

Article X, § 8 of the By-Laws & Rules of the California

Democratic Party states that “No person shall be entitled

to vote for a Democratic candidate at a partisan primary

election unless he or she is a registered Democrat.” Pls.’

Ex. 1 at 36. The Republican Party also disputes the legit-

imacy of an open or blanket primary: “The [State Central]

Committee shall recognize only those partisan nomina-

tion processes under California law that limit the electo-

rate for partisan nomination elections to registered

Republican voters, and which do not impose upon the

Committee, without its express concurrence, a nomina-

tion process open to voters registered in other parties or

10 When the Supreme Court decided Tashjian in 1986 it

found that 21 states provided for the classic closed primary.

According to Professor Gerber, as of 1990 the number of closed

primaries had fallen to sixteen, including California. See Defs.’

Ex. E., Gerber Report, at 2. Because it is not easy to classify the

differing systems and because analysts use somewhat different

definitions of the “closed” and “open” primaries, this change in

numbers may be more the product of differing classification

systems than changes in the states’ election laws. The Tashjian

Court also found that four states, including Virginia, had

blanket primaries. The inclusion of Virginia as a blanket state

appears to have been in error. See Va.Code § 24.1-182 (“No

person shall vote for the candidates of more than one party.”).

App. 14

as decline to state.” Defs.’ Ex. § at 2. The Peace & Free-

dom Party Sta*e Central Committee By-Laws and the

Libertarian Party of California Bylaws have similar provi-

sions. See Pls.’ Ex. 3 at 6, and Ex. 4 at 13."!

The California Democratic Party, the Peace and Free-

dom Party, and the Libertarian Party of California and

certain of their officers brought this action against the

Secretary of State of the State of California seeking a

declaration that Proposition 198 is unconstitutional and

requesting an injunction against its implementation. !2

The California Republic Party and certain of its officers

intervened as plaintiffs. Californians For An Open Pri-

mary intervened as a defendant.‘* The court heard testi-

mony over four days and has received numerous exhibits,

including the reports of various experts.

'! The Democratic National Committee's charter requires

that state party delegates to the national convention be chosen

through “processes which... restrict participation to Democrats

only.” Pls.’ Ex. 2 at 2 (Art. 2, § 4(e)). See also Pls.’ Ex. 9 at 4 (Rules

2.A. and 2.B. of the Delegate Selection Rules). The Rules of the

Republican Party have a similar rule against blanket and open

primaries. See Defs.’ Ex. T at 25 (Rule No. 34(f)).

'2 It appears that the political parties did not mount a

campaign against Proposition 198 with the voters at the time of

the election. See R.T. at 230; Nader v. Schaffer, 417 F.Supp. 837, 850

(D.Conn.1976), aff'd. without opinion, 429 U.S. 989, 97 S.Ct. 516,

50 L.Ed.2d 602 (1976) (criticizing plaintiffs for “seeking a change

in the law by judicial fiat” rather than by political activity).

'S For ease of reference, throughout this opinion the terms

“plaintiffs” and “defendants” shall include the intervenors, and

when the political “parties” are referred to as taking a position

in this action, the term shall include the individual officers who

are also plaintiffs.

App. 15

This case presents two competing views as to the

function of the direct primary and, to some extent, as to

the function of the political parties. From the parties’

perspective, the parties are autonomous organizations

and the primary is their opportunity to select their

leaders and to define their positions on political ques-

tions. From the defendants’ perspective, the primaries are

the first step by which the electorate as a whole, regard-

less of party affiliation, chooses its leaders, and the politi-

cal parties, as they operate to frame the choice of

candidates, are a part of a highly regulated governmental

activity - the election process. Both positions find sup-

port in the Constitution and the relevant case law. The

“freedom of association protected by the First and Four-

teenth Amendments includes partisan political organiza-

tion.” Tashjian v. Republican Party of Connecticut, 479 U.S.

208, 214, 107 S.Ct. 544, 548, 93 L.Ed.2d 514 (1986). “As a

result, political parties’ government, structure, and activ-

ities enjoy constitutional protection.” Timmons v. Twin

Cities Area New Party, 520 U.S. 351, 357, 117 S.Ct. 1364,

1369, 137 L.Ed.2d 589 (1997). However, the States also

have a strong interest in the conduct of elections. “[T]he

Constitution grants to the States a broad power to pre-

scribe the ‘Times, Places and Manner of holding Elections

for Senators and Representatives,’ Art. I, § 4, cl. 1, which

power is matched by state control over the election pro-

cess for state offices.” Tashjian, 479 U.S. at 217, 107 S.Ct. at

549.

It is the clash of these two constitutionally rooted

interests that must be resolved in this case.

App. 16

The Supreme Court has never directly considered the

constitutionality of a blanket or open primary. In Demo-

cratic Party of United States v. Wisconsin ex rel. LaFollette,

450 U.S. 107, 101 S.Ct. 1010, 67 L.Ed.2d 82 (1981), the

Court had the opportunity to decide the constitutionality

of Wisconsin's open primary but decided the case on a

different basis, merely noting that the State Supreme

Court had concluded that the “open primary serves [a]

compelling state interest” and that “[u]pon this issue, the

Wisconsin Supreme Court may well be correct.” Jd. at 121,

101 S.Ct. at 1018.'* Perhaps the closest case is Tashjian v.

Republican Party of Connecticut, 479 U.S. 208, 107 S.Ct. 544,

93 L.Ed.2d 514 (1986), but in Tashjian the Court addressed

the reverse of the situation presented here; in Tashjian the

state election law provided for a closed primary and the

political party desired to open its primary to independent

voters.'° Thus, the Court had no occasion to address

'* The Court viewed the issue as “whether the State may

compel the National Party to seat a delegation chosen in a way

that violates the rules of the Party.” 450 U.S. at 121, 101 S.Ct. at

1018. Justice Powell in dissent would have held that the open

primary was supported by compelling interests that

outweighed the burden on the National Party. /d. at 126, 101

S.Ct. at 1020.

Justice Powell's dissent, like Justice Abrahamson’s opinion

for the Wisconsin Supreme Court, discusses many of the issues

relevant to this case.

'S The Court expressly cautioned that its holding was

limited to the particular set of circumstances before it. Id. at 224

n. 13, 107 S.Ct. at 554 n. 13 (“Our holding today does not

establish that state regulation of primary voting qualifications

may never withstand challenge by a political party or its

membership.”). Nader v. Schaffer, 417 F.Supp. 837 (D.Conn.),

aff'd. without opinion, 429 U.S. 989, 97 S.Ct. 516, 50 L.Ed.2d 602

(1976), also addressed the constitutionality of a closed primary.

App. 17

either the State's interests in an open or blanket primary

or the burdens imposed on a political party by such a

primary system. Two State Supreme Courts - the

Supreme Courts of Alaska and Washington - have exam-

ined the constitutionality of the blanket primary and both

have concluded that a blanket primary withstands a

party's First Amendment challenge. See O'Callaghan v.

Alaska, 914 P.2d 1250 (Alaska 1996), cert. denied, 520 U.S.

1209, 117 S.Ct. 1690, 137 L.Ed.2d 818 (1997); Heavey v.

Chapman, 93 Wash.2d 700, 611 P.2d 1256 (1980); Anderson

v. Millikin, 186 Wash. 602, 59 P.2d 295 (1936). As noted

above, the Supreme Court of Wisconsin came to the same

conclusion concerning the Wisconsin open primary in the

face of the Democratic Party’s claim that by permitting

non-party members to vote in its primary, including

Republicans and adherents of other parties, the State's

open primary violated the Party’s associational rights. See

Wisconsin ex rel. La Follette v. Democratic Party, 93 Wis.2d

473, 287 N.W.2d 519 (1980).

The court held that the State’s closed primary was

constitutional in the face of a challenge from two voters

who wanted to vote in the primary elections without

registering with a party. The court concluded that the

closed primary was reasonably related to the legitimate

goal of protecting the associational rights of party mem-

bers.

The Supreme Court recently has explained the stan-

dard and manner of review that should be applied when

a state election law is challenged by a political party on

the basis of the First Amendment:

App. 18

When deciding whether a state election law vio-

lated First and Fourteenth Amendment associa-

tional rights, we weigh the ‘character and

magnitude’ of the burden the State's rule

imposes on those rights against the interests the

State contends justify that burden, and consider

the extent to which the State’s concerns make

the burden necessary. Regulations imposing

severe burdens on plaintiffs’ rights must be nar-

rowly tailored and advance a compelling state

interest. Lesser burdens, however, trigger less-

exacting review, and a State’s “important regu-

latory interests” will usually be enough to jus-

tify “reasonable nondiscriminatory restrictions.”

No bright line separates permissible election-

related regulation from unconstitutional

infringements on First Amendment freedoms.

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

358, 117 S.Ct. 1364 1370, 137 L.Ed.2d 589 (1997) (citations

omitted). In describing the “flexible” balancing test now

used by the Court, the Ninth Circuit has cautioned that

even when “strict scrutiny,” the highest standard of

review, has been invoked, “its invocation in election law

cases has not preordained their outcome.” Lightfoot v. Eu,

964 F.2d 865, 869 (9th Cir.1992). Moreover, the Court does

not require “elaborate, empirical verification of the

weightiness of the State’s asserted justifications.” Tim-

mons, 520 U.S. at 363, 117 S.Ct. at 1372.

In evaluating the constitutionality of Proposition 198,

the court therefore must first determine the character and

magnitude of the burdens imposed by the blanket pri-

mary on the associational rights of the political parties.

The court then must consider the State’s interests and

App. 19

weigh the strength of those interests against the particu-

lar burdens placed on the parties’ associational rights.

The greater the intrusion on the parties’ associational

rights, the greater must be the State’s interests and the

more narrowly tailored must be the Proposition to

advance those interests.'®

It is only by inference that it can be concluded that

minor party members also supported Proposition 198.

Moreover, and second, even if the polls are accurate, this

is not the way in which decisions customarily are made in

our democracy. In no other context do we accept the

results of polling for the act of voting. Finally, the parties

have selected certain procedures for the modification of

their rules. These procedures require deliberation and

decisionmaking by the parties’ respective central commit-

tees. Other deliberative bodies have similar procedural

rules. Such rules may affect the nature of the debate -

indeed, may cause there to be debate - and may affect the

outcome of the decision. We would not accept a poll of

legislators as the equivalent of a legislative vote. For

much the same reason, a poll of voters is not the equiva-

lent of a decision by a party according to the procedural

‘© Defendants stress an argument that must be addressed at

the outset. Defendants argue that because a majority of the

members of the Democratic and Republican parties, and

presumably of the minor parties, voted for Proposition 198, the

membership of the parties have consented to Proposition 198

and therefore there is no issue for the court to resolve. There are

three problems with this argument. First, even though the polls

appear to be accurate, those polls do not report the votes of

minor party members.

App. 20

rules of the party. The court therefore rejects the argu-

ment that the “parties,” defined as the electorate, have

agreed to Proposition 198 and that this lawsuit is merely

an attempt by dissidents to carry on intra-party disputes

that they previously lost at the ballot box. For an interest-

ing discussion of “who gets to speak for ‘the party’,” see

Daniel H. Lowenstein, Associational Rights of Major Political

Parties: A Skeptical Inquiry, 71 Tex. L.Rev. 1741, 1777

(1993).

The parties’ main argument is that a blanket primary

permits voters who are not members of a particular party

- who may indeed be hostile to that party’s electoral

interests - to vote in that party’s primary and thus to

participate in the process by which the party defines its

positions on a variety of issues and by which it chooses

its standard bearers. In Tashjian the Supreme Court recog-

nized the importance of these interests in invalidating a

Connecticut statute that forbade the parties from permit-

ting non-members from voting in their primaries:

[T]he freedom to join together in furtherance of

common political beliefs ‘necessarily presup-

poses the freedom to identify the people who

constitute the association.’ . . . The statute here

places limits upon the group of registered voters

whom the Party may invite to participate in the

basic function’ of selecting the Party’s candi-

dates. The State thus limits the Party’s associa-

tional opportunities at the crucial juncture at

which the appeal to common principles may be

translated into concerted action, and hence to

political power in the community.

App. 21

Tashjian, 479 U.S. at 215-16, 107 S.Ct. at 548-49 (citations

omitted). Accord Timmons v. Twin Cities Area New Party,

520 U.S. 351, 359, 117 S.Ct. 1364, 1370, 137 L.Ed.2d 589

(1997) (“the New Party, and not someone else, has the

right to select the New Party’s standard bearer’ ”).

The parties contend that their interest in limiting

candidate selection to their own members is so great that

no matter what the State’s interest and no matter how

Proposition 198 will work in practice, the blanket primary

must be unconstitutional on its face. Yet while the interest

in determining who will vote in a party’s primary is one

protected by the First Amendment, and is undoubtedly

an important interest, this is not the end of the inquiry. If

it were, then open primaries would also be unconstitu-

tional upon any party’s objection: an open primary, every

bit as much as a blanket primary, permits voters who are

not registered in a party to vote in that party’s primary.

But many of the States have some version of an open

primary and to invalidate them all on this theoretical

ground would be an extraordinary intrusion into the

complex and changing election laws of the States and

would remove from the American political system a

method for candidate selection that many States consider

beneficial and which in the uncertain future could take on

new appeal and importance.'”

17 The expert witnesses in this c* « differ as to how many of

the States have open primaries «. some feature of an open

primary. Part of this dispute depends on how to classify those

States that treat a voter’s request for a ballot as tantamount to a

App. 22

Similarly, were the parties’ power to determine mem-

bership and to select their nominees unfettered, then the

States would also lack power to prescribe candidate selec-

tion through a primary election or to require that all

voters who have met a State’s registration requirements

be permitted to vote in the parties’ primaries notwith-

standing any other membership requirement that a party

might impose.'* However, the States have considerable

declaration of party affiliation. Even if this patent fiction were

accepted, close to half of the States permit voters who are not

members of a particular party, and who may be independent or,

in some States, members of other parties, to vote in that party’s

primary election. Moreover, as Justice Powell noted, when a

voter may register immediately before voting at the primary,

“the difference between open and closed primaries loses its

practical significance.” Democratic Party, 450 U.S. at 132, 101

S.Ct. at 1024 (Powell, J., dissenting).

18 The most dramatic example of government control of a

political party’s membership requirements are the White

Primary Cases in which the Supreme Court held that the

Democratic Party of Texas could not exclude black voters from

its primary. See Smith v. Allwright, 321 U.S. 649, 64 S.Ct. 757, 88

L.Ed. 987 (1944). An interesting example of how a party’s desire

to limit its membership could conflict with state law is

suggested by the testimony of plaintiff Gail Lightfoot, a member

of the State Executive Committee of the Libertarian Party: “You

become a member of the Libertarian Party by joining, by asking.

It’s a request to become a member. And you pay dues and signa

pledge [of nonviolence]. In California, because of state law, state

law says that all registered voters that take the name Libertarian

are members of the party. But we consider pledge-signing

individuals who have paid their dues and signed the pledge to

be the true members of our party.” R.T. at 153-54; see also R.T. at

179 (Peace and Freedom Party confers party membership on

persons who are “deprived of the right vote by the State of

California because of age, citizenship, or prior social behavior”).

App. 23

regulatory authority over the process of candidate selec-

tion and may require that the parties select their candi-

dates by a primary election open to registered voters. See

Lightfoot v. Eu, 964 F.2d 865, 871 (9th Cir.1992) (“political

parties’ rights to nominate whomever they want, how-

ever they want, is not sacred”); Timmons v. Twin Cities

Area New Party, 520 U.S. 351, 117 S.Ct. 1364, 137 L.Ed.2d

589 (1997) (State can prohibit fusion candidacies). The

States’ authority over the political parties stems in part

from the Constitution, Art. I, 4, cl. 1, and in part from the

public function that the political parties perform in the

candidate nominating and political processes.

Moreover, the analogy on which the parties rely so

heavily, the analogy between the political parties and the

myriad of private political, charitable, recreational, edu-

cational or religious associations at the center of Ameri-

can life, is imperfect at best. The political scientists who

testified in this case agree that a political party cannot be

described simply as a private club or association; instead,

a political party has three distinct aspects — the party in

the electorate, the party organization, and the party in

government.'? Unlike other private associations, at least

19 See Pls.’ Ex. 6, Cain Report, at 15 (“Since the seminal

work of the scholar V.O. Key, parties are thought to consist of

three components: the party in government, the party in the

constituency and the party as organization.”); Lowenstein, supra,

71 Tex. L.Rev. at 1760 (1993) (“Although there have been a great

many typologies of the varying ‘locations’ and functions of

parties, probably the most common identifies three: the party in

the electorate, the party organization, and the party in or

running for public office ... The very fact that references to ‘the

Democrats’ and ‘the Republicans’ are more common in ordinary ‘

conversation than references to the Democratic party’ and ‘the

App. 24

in one of their avatars - the party in government - the

political parties are very like the government itself. See

Lowenstein, supra, at 1757 (“unlike any other private

groups, political parties routinely, pervasively, and legit-

imately exercise their influence from within the govern-

ment”). And the parties perform functions that are fairly

characterized as governmental in nature, such as the

nomination of candidates.

Furthermore, at least the major political parties lack

the unity of purpose and cohesive membership charac-

teristic of most private organizations. The major political

parties in this country ” ‘have been characterized by a

fluidity and overlap of philosophy and membership.’ It

can hardly be denied that [the parties] generally [have]

been composed of various elements reflecting most of the

American political spectrum.” Democratic Party, 450 U.S.

at 133, 101 S.Ct. at 1024 (Powell, J., dissenting) (citations

omitted).

And, as discussed above, the term “party member”

as applied to registered voters is something of a mis-

nomer. The States determine who will vote at primary

elections - registered voters. See Cal. Elections Code

§§ 2151, 7164, 7362, 7804, 8001. These voters have not

allied themselves to a political party in the customary

way that one normally becomes a member of a private

association; they have not paid dues, taken an oath,

expressed agreement with certain ideals or goals,

attended meetings, accepted any obligations, or attended

Republican party’ testifies to the loose and manifold nature of

our concept of ‘party.’ ”).

App. 25

upon any other rite of initiation. The parties do not and

could not insist upon more than mere registration as the

price of voting in the primary elections.2° Thus, to con-

tend that Proposition 198 permits non-party members to

vote in a party’s primary, while accurate, covers over

much of the imprecision in the political reality.

In short, it is necessary to look beyond the parties’

claim that their constitutional interest in limiting candi-

date selection to their respective members necessarily

prevails over any State interest and without regard to

how the voters may behave under a blanket primary.

20 “(T]he essence of the legal definitions of party

membership in the United States wili surely continue to be self-

designation. The fact remains that today even in Illinois, New

York, or any other closed-primary state you are a Democrat if

you say you are; no one can effectively say you are not; and you

can become a Republican any time the spirit moves you simply

by saying that you have become one. You accept no obligations

by such a declaration; you receive only a privilege, the privilege

of taking an equal part in the making of the party’s most

important decision, the nomination of its candidates for public

office. The only remaining restriction is that in some states, such

as California, you may have to let the registrar of voters know

that you have changed parties, and you may have to do so

severs| weeks or even months before your new party’s next

primary. But in many closed-primary states you do not even

have to do that, and in Wisconsin and the other open-primary

states you are not allowed to make an official declaration of

your party membership. One can only conclude that the so-

called ‘closed’ primaries are just a hair more closed than the so-

called ‘open’ primaries.” A. Ranney, Curing the Mischiefs of

Faction 166-67 (1975), quoted in Wisconsin ex rel. LaFollette v.

Democratic Party, 93 Wis.2d 473, 287 N.W.2d 519, 535 (1980).

App. 26

Turning to the more practical implications of a blan-

ket primary, the parties contend that a blanket primary

process in California will have a destructive effect on all

political parties both major and minor. The parties predict

that there will be widespread cross-over voting, whether

benevolent or malicious, and that the consequences of

this large cross-over vote will be many and adverse to the

parties. The parties contend that the cross-over vote, and

the prospect of a large cross-over vote, will affect the

selection and behavior of party nominees and elected

officials; weaken party discipline; increase the costs of

primary elections by causing candidates to compete as if

it were a general election; dampen the morale of party

activists; and disrupt internal party structure and gover-

nance. Much of the testimony at trial was directed to the

question of whether voters in blanket primary states tend

to cross over in sufficient numbers to influence the out-

come of elections and whether they cross over for benev-

olent or malevolent reasons. A cross-over voter is one

who votes for a candidate of a party in which the voter is

not registered. Thus, the cross-over voter could be an

independent voter or one who is registered to a compet-

ing political party.2! A cross-over voter may be actuated

by three different purposes. First, the voter’s purpose

may be to vote for the voter’s most preferred choice to

win in the general election; this kind of cross-over voter

is sometimes referred to as engaging in “sincere” voting.

Second, the voter may be engaged in “strategic” voting,

21 Some of the experts exclude independents from their

definition of cross-over voters.

App. 27

designed to obtain the best possible outcorne, by voting

for the voter’s second choice in a setting where the

voter’s first choice, within the voter’s own party, either

has no apparent chance of victory at the general election

or is so certain to win the party’s nomination that the

voter perceives that his or her vote is best spent influenc-

ing another party’s primary and thus the choice at the

general election. Finally, the voter may be a raider, cross-

ing over to vote for a candidate who is perceived as the

“weakest” of an opposing party’s candidates in the hopes

that this candidate will win the primary only to be

trounced at the general election.??

The parties contend that a blanket primary will

unleash a torrent of cross-over voting even by compari-

son to open primaries. The parties reason that unlike an

open primary, a blanket primary permits a voter to cross

over as to particular contested elections without losing

the ability to vote in the remainder of the contests in the

voter’s own party. The evidence at trial suggests that the

parties are correct that cross-over voting will be more

prevalent after Proposition 198. Indeed, defendants can

hardly dispute this point while maintaining that the

State’s interests are furthered by a blanket primary pre-

cisely because it facilitates cross-over voting. Nonethe-

less, the parties’ characterization of the likely amount or

effects of cross-over voting due to a blanket primary is

overdrawn.

22 A sophisticated raider will vote for the weakest among

those candidates who have a realistic chance of prevailing at the

primary.

App. 28

To begin with, there is little evidence that raiding will

be a factor under the blanket primary. On this point there

is almost unanimity among the political scientists who

were called as experts by the plaintiffs and defendants.

Professor Costantini, for plaintiffs, gave his opinion that

[sJurvey evidence tends not to support any fear that

raiding (sometimes characterized as “mischievous vot-

ing”) will be a common phenomenon under Proposition

198. At least in open presidential primaries (the focus of

almost all the relevant studies), it appears that the great

majority of crossover voters — from 90% to 95% or more -

invade a party’s primary to vote for a preferred candidate

and not to vote for a candidate who they will oppose in

the general election and who they believe will be easier to

defeat in that election. Pls.’ Ex. 7, Costantini Report, at 7;

R.T. at 485-86. Professor Donald Olson of the University

of Washington-Seattle, reflecting on the over half century

of experience with a blanket primary in Washington,

explained that the conditions for successful raiding rarely

exist:

The potential for raiding under the blanket pri-

mary generates wide media attention and

spawns electioneering lore that is simply unwar-

ranted by actual experience. Technically

defined, raiding would occur where partisan

voters of party X cross-over in sufficient

numbers to help select the weakest or most vul-

nerable candidate in party Y. The requirements

for this form of electoral subterfuge are: (1) the

absence of a meaningful primary contest in

party X; (2) provision of sufficient information

to identify the weaker and most vulnerable

potential opponent in party Y; (3) concerted

action by a large enough bloc of voters in party

App. 29

X to influence the outcome in the primary of

party Y; and (4) the abandonment of traditional

party loyalties by partisan voters to enter the

opponent's primary. In the experience of Wash-

ington state, these requirements are simply too

demanding and have not been fulfilled in actual

practice. Defs.’ Ex. G, Olson Report, at 6. See

Pls.’ Ex. 6, Cain Report, at 6-7; R.T. at 355.

Given that the purpose of raiding is to weaken a

competitive party’s advantage at the general election,

raiding is not a concern for minor parties because their

candidates rarely have a chance of prevailing at the gen-

eral election. Indeed, no conclusive instance of raiding in

such numbers as to affect the outcome of any primary

was offered by plaintiffs.

As to benevolent cross-over voting, the evidence sug-

gests that there will be particular elections in which there

will be a substantial amount of cross-over voting - per-

haps as high as 25% of the vote for that office —- although

the cross-over vote will rarely change the outcome of any

election and in the typical contest will not be at signifi-

cantly higher levels than in open primary states. There

will be a small number of elections in which the cross-

over vote proves decisive, and there will be other elec-

tions in which the possible importance of the cross-over

2 Professor Cain suggests that the 1974 Alaska

Gubernatorial Republican primary may be an example of

raiding in which Democrats and Independents “raided” to

support liberal Republican Jay Hammond over former

Governor Walter Hickel. However, as Professor Cain notes, the

cross-over voters may have been “liberal shoppers” as opposed

to saboteurs. See Pls.’ Ex. 6, Cain Report, at 7.

App. 30

vote will be an influence on the conduct of the primary

campaign and the conduct of elected officials.

The experience in Washington suggests that as to the

election for any particular office, approximately 10% of

the voters are cross-over voters, excluding independents,

while in some exceptional cases this figure may rise as

high as 20-25%. R.T. at 511.74

Typically the cross-over vote in Washington does not

change the result of an election but only the margin of

victory. R.T. at 513. Moreover, the amount of cross-over

voting is greater in a blanket primary than an open

primary but not dramatically so. According to Professor

Nagler, who co-authored the most comprehensive study

of patterns of cross-over voting presented at the trial, the

average cross-over rate, excluding independents, is some-

thing on the order of 5% of voters in closed primary

states,25 10% of voters in open primary states, and 11-15%

in blanket primary states. R.T. at 780, 788; Defs.’ Ex. H,

Alvarez and Nagler Report, at 11-12. The study concludes

that “crossover voting in blanket primaries is not dramat-

ically higher than in other types of open primary sys-

tems” and that “there is very little crossover voting in

24 According to Professor Olson, approximately 25-33% of

voters vote for candidates of only one party throughout the

ballot, voting a straight ticket. The remainder of the voters cross

over at least once.

25 In a closed primary state, a cross-over voter is one who

identifies with one party but decides to register in another party

for the purpose of voting in the primary of that other party.

App. 31

general in primary elections in the United States.” Id. at

35-36.76

Although cross-over voting typically does not change

the outcome of a primary and may not be much greater in

a blanket than in an open primary, it is probable over

time that there will be some elections under Proposition

198 that will be decided by the cross-over vote. Cross-

over voting is most likely to occur when one party's

primary is competitive while the other party’s primary is

not. When this condition of “asymmetric competition”

occurs, voters of the party with the noncompetitive pri-

mary may cross over to the other primary to influence the

choice. The incentive to cross over will be particularly

high if the winner of the other party’s primary is almost

certain to win at the general election. See Pls.’ Ex. 6, Cain

Report, at 8. Every two years in California there are 80

6 Plaintiffs fail to present substantial or convincing

evidence that the minor political parties will be affected by

cross-over voting to any significant degree. A strategic voter

would not cross-over to vote in a minor party's primary because

the victor of the minor party primary will not likely be the

winner in the general election. Moreover, the minor parties

rarely have contested primaries. R.T. at 167, 618, 630-31. Finally,

the minor parties make much of their small turn-out at the

primary election compared to the much larger numbers of

voters who select their candidates at the general election. From

this disparity, the minor parties argue that they will be

swamped at the primary election by the same nonparty

members who vote for their candidates at the general election.

This conclusion does not follow. Those non-party members who

vote for minor party candidates at the general election are most

likely voters whose preferred candidates were not selected in

the primary of a major party. R.T. at 193.

App. 32

Assembly races, 20 State Senate races, and 52 Congres-

sional races. Examining the 1996 Assembly primaries,

Professor Cain identified ten races in which there were

asymmetric competitive conditions. In some of these

races, a cross-over rate of 5% could have changed the

outcome of the election had all of the cross-over voters

voted for the same candidate. Given that in Washington,

cross-over rates occasionally reach levels as high as

20-25%, and that the cross-over rate in California could

be higher than Washington,’ it is likely that in the full-

ness of time some California primary races will be

decided by cross-over voters, even if the number of such

occasions is not large. Depending on the circumstances,

the swing of even one seat could give a legislative major-

ity to one party.

Furthermore, the possibility of a decisive cross-over

vote - whether or not that vote materializes - could well

affect the conduct of elections and elected officials. Under

a blanket or open primary, the primary election becomes

similar to the general election. Candidates will perceive a

need or opportunity to attract support from the entire

electorate, not simply from members of their respective

parties. This will affect not only the cost of the primary -

which is likely to increase, see R.T. at 270 — but may affect

the positions that candidates take on political issues as

they seek to attract cross-over voters. Moreover, once

elected, candidates may perceive that the cross-over vote

makes them less vulnerable at the primary to the wrath of

27 See R.T. at 574. Whether cross-over rates in California

will be similar to those in the other blanket primary states is

necessarily a matter of conjecture.

App. 33

the party organization or party regulars for acts of apos-

tasy. A blanket or open primary weakens the “disciplin-

ing effect” of the primary challenge in requiring “the

officeholder [to] carry out the party philosophy and“sup-

port the majority position of the party caucus.” R.T. at

214. The corollary to this loss of discipline is a loss of

power to party activists such that the ardor of party

volunteers and activists may be dampened in a system

that permits nonparty members to exert influence over

the party’s selection of a candidate. This has been the

experience in Washington and is likely to occur in Cali-

fornia. See R.T. at 558; R.T. at 18; R.T. at 989-990.

Finally, the parties argue that their internal gover-

nance will be disrupted by the blanket primary and the

cross-over vote. Although Proposition 198 specifically

exempts party committee positions from the blanket pri-

mary, both the Republican and Democratic Parties permit

officeholders and nominees to appoint members of their

governing bodies, the Democratic State Central Commit-

tee and the Republican State Central Committee. Because

nominees may have been selected by non-party members,

and because the nominees in turn choose members of the

Central Committees, the parties contend that their gov-

erning body may be adulterated.

Further, the parties warn that their respective

national organizations may not accept the results of the

California presidential primary, if that primary is a blan-

ket primary, with the result that the parties may be forced

to hold a nominating convention or caucus. Neither of

these contentions is particularly forceful, however. As to

membership on the Central Committee, the parties are

App. 34

free to change their selection process if they wish. More-

over, both parties already give more positions on the

Central Committee to successful candidates; yet these

successful candidates are precisely those who have

appealed more broadly across party lines. R.T. at 9, 224.

As to the national nominating conventions, the California

parties may be forced to adopt a different procedure for

delegate selection other than the presidential primary or

they may receive a waiver from their national organiza-

tions such as Wisconsin eventually received from the

Democratic Party. R.T. at 123, 145. This is a choice for the

parties to make, and they can do so as they please with-

out interference from the State.

The magnitude of the burdens imposed on the parties

by Proposition 198 are not fairly characterized either as

“severe” or as “negligible,” the two labels most often

applied in the caselaw at this juncture of the analysis. The

burdens are not negligible. State law requires each party

to select its candidate through a primary, and the winner

of the primary will be the party’s nominee.

The blanket primary wrests a measure of control of

the primary process from the party and its members. This

is its purpose. The party may still endorse a ~andidate

and may throw financial support to a particular candi-

date. And, in the typical election, the cross-over vote will

not be decisive. Yet by permitting non-party members to

vote in a party’s primary — even granting the uncertainty

of the label “party member” - Proposition 198 is an

intrusion on a party’s traditional right to select its own

App. 35

candidate. In this respect, the blanket primary is no dif-

ferent from an open primary although the practical effect

of a blanket primary on the selection process may be

somewhat greater than an open primary. In addition, a

blanket primary, like an open primary, may depress the

vigor and morale of party activists and may affect the

ability of the party to discipline errant legislators.

On the other hand, the burdens on the parties due to

Proposition 198 are not likely to prove severe or debilitat-

ing. The Washington experience, as well as that of the

many open primary states, suggests that Proposition 198

will not diminish the efficacy or strength of the political

parties in California by any substantial degree.?* Indeed,

a study of the political parties in the 1970’s and 1980's in

13 western states, including Washington and California,

concluded that the political parties in Washington were

the most competitive with one another of all 13 states.

R.T. at 524; see Tashjian, 479 U.S. at 223 n. 12, 107 S.Ct. at

553 n. 12 (“dire” predictions as to decay of parties not

borne out by the 29 States that have open primary fea-

tures). Both the Democratic and Republican Parties con-

tinue to be strong political parties in Washington, and can

be expected to operate with little diminution in their

effectiveness in California.?? The parties do not show that

_28 Professor Cain would not expect a blanket primary to be

so debilitating to the parties that it should be removed as an

option altogether even if the parties were in favor of it. R.T. at

457. Professor Cain’s greatest concern is to protect party

autonomy.

2? According to Professor Olson the Washington

Republican Party has been ranked as among the strongest

Republican parties in the nation. Professor Olson states that the

App. 36

the blanket primary is significantly different theoretically

or practically from the open primary. Nor do they show

or even contend that Proposition 198 has any discrimina-

tory purpose or effect. Thus, the burden imposed by a

blanket primary falls evenly on all of the parties what-

ever their size or ideology. Finally, Proposition 198 leaves

untouched the wide field of party endeavor that is not

directed specifically to the primary, activities such as

developing the party platform, registering new voters,

and getting out the vote on election day. Defs.’ Ex. I,

Quinn Report at 18.

In light of all of these considerations, the court finds

that the parties have succeeded in showing that the blan-

ket primary imposes a significant but not severe burden

on their associational rights. To survive the challenge

mounted by plaintiffs, Proposition 198 must be supported

by interests that are sufficient to outweigh the burdens

identified above. Those interests need not be compelling,

given that the burdens are not crushing, but they must be

important.

Washington Republican Party “is alive, it is healthy, it is well, it

is vigorous. It is the single most important institution for

recruiting candidates to run for office. It’s the single most

important institution for endorsing candidates. It is the most

important fundraising institution in the conduct of elections.”

R.T. at 527. According to Professor Olson although the

Washington Democratic Party is not so dynamic as its

competitor, it is still of above average organizational strength as

compared to the Democratic parties of the 50 states. R.T. at 528.

App. 37

IV.

The States have broad regulatory authority over the

conduct of elections including primaries. The primary

election is the critical first stage in the electoral process:

“The direct primary in California is not merely an exer-

cise or warm-up for the general election but an integral

part of the entire election process, the initial stage in a

two-stage process by which the people choose their pub-

lic officers.” Storer v. Brown, 415 U.S. 724, 735, 94 S.Ct.

1274, 1281, 39 L.Ed.2d 714 (1974). “As a practical matter,

the ultimate choice of the mass of voters is predetermined

when the nominations [by the political parties] have been

made.” Morse v. Republican Party, 517 U.S. 186, 205-06, 116

S.Ct. 1186, 1199, 134 L.Ed.2d 347 (1996) (citation omitted).

Proposition 198 is the latest development in a history

of political reform measures that began in the Progressive

Era. “The Progressives believed democracy should be

something greater than competition between political

parties.” Lightfoot v. Eu, 964 F.2d at 872. The Progressives

sought to diminish the importance of the parties and

30 “[T]here must be a substantial regulation of elections if

they are to be fair and honest and if some sort of order, rather

than chaos, is to accompany the democratic processes. In any

event, the States have evolved comprehensive and in many

respects complex, election codes regulating in most substantial

ways, with respect to both federal and state elections, the time,

place, and manner of holding primary and general elections, the

registration and qualifications of voters, and the selection and

qualification of candidates.” Storer v. Brown, 415 U.S. 724,

729-30, 94 S.Ct. 1274, 1278-79, 39 L.Ed.2d 714 (1974).

App. 38

“party bosses” by establishing nonpartisan local elec-

tions, a comprehensive civil service system, direct legisla-

tion through the initiative and referendum, and the cross-

filing system by which members of one party could run

in the primary of the other party. See Defs.’ Ex. I, Quinn

Report, at 7 (quoting J. Owens and E. Costantini, Califor-

nia Politics and Parties (1970)).3! The cross-filing system

is of particular note because in practice it bore some

resemblance to a blanket or nonpartisan primary sys-

tem.3?

, a“

31 Lowenstein contrasts the Progressives’ “vision of a

democracy purged of corruption by placing widely dispersed

power in the hands of common men and women” with the

views of “party renewal advocates” who believe in

autonomous, strong, cohesive political parties who engage in

“responsible party government” much on the European

parliamentary model. See Lowenstein, supra, 71 Tex. L.Rev. at

1761-71, 1791. The debate in this case has been framed by the

experts in similar terms.

32 Under the cross-filing system, “[a] candidate registered

in one party may seek the nomination of all parties at the

primary. If he fails to secure the nomination of his own party, he

cannot be the candidate of any party at the general election.”

Jones v. McCollister, 159 Cal.App.2d 708, 324 P.2d 639 (1958).

Under the cross-filing system voters registered to different

parties had the opportunity to vote for the same candidates.

According to Dr. Quinn, as the system worked in California, the

winner of one party’s primary tended to be the winner of the

other party’s primary as well:

The cross filing system existed in California from 1911

to 1959. Under this system, a legislator or member of

congress could file to run in both the Democratic and

Republican primaries, and so long as he or she won

their own party nomination, they would win the

nomination of the other party as well. . . . On the

general election ballot, the winners, usually

App. 39

Defendants advance a number of State interests fur-

thered by Proposition 198. All of the various interests,

however, reduce to one fundamental contention: accord-

ing to defendants, Proposition 198, like other Progressive

Era reforms, enhances the democratic nature of the elec-

tion process and the representativeness of elected offi-

cials.

Defendants stress that a blanket primary opens up

the candidate selection process to two types of arguably

“disenfranchised” voters - independents and minority

party voters in safe districts. In a blanket primary, inde-

pendent voters will be able to participate in framing the

choice that they will ultimately have to make in the

general election. Approximately 11% of the electorate in

California are registered as independents, and the pro-

portion of independent voters is growing rapidly. R.T. at

940. Moreover, many California voters reside in “safe

districts,” districts in which one party is dominant.

Voters in these districts who belong to the minority party

have no influence or voice because the general election is

decided as a practical matter in the primary of the domi-

nant party. Of 15.6 million registered voters in California,

approximately one quarter are “disenfranchised” in this

incumbents, are shown as the nominees of both

parties. Defs.’ Ex. I, Quinn Report, at 7.

33 According to Dr. Quinn, “A district could be considered

safe if it had not been contested between the parties since it was

created in the 1991 reapportionment; the area covered had been

historically one party in its voting . . . ; there was no significant

money spent in the election between the two parties in ‘94 and

‘96... ; and if the incumbent received more than 55 percent of

all of the votes cast in the election.” R.T. at 847-48.

App. 40

way. R.T. at 854. Defendants suggest that the inability of

these voters to influence the outcome of the election in

their districts leads to the election of representatives who

see no need to represent these voters or to pay heed to

their interests. Of course, such voters could register in the

majority party, but this would require them to give up

their current party or independent registration.

Apart from the exclusion of independents and minor-

ity voters in safe districts, defendants contend that the

closed primary gives undue power to party members and

loyalists, including incumbent elected officials, such that

the voters in the general election are presented with

candidates who are more partisan and who take positions

on the policy issues of the day that are not representative

of the majority of the electorate. See R.T. at 243, 269, 299,

857. Defendants note that turnout is low at primary elec-

tions, and thus that a minority of more partisan party

members, influenced by the endorsements of party

leaders, determine the choice for the much larger group

of all voters at the coming general election. Defendants

suggest that this skewing of the process toward partisan

candidates leads to legislative impasse and thus aliena-

tion of the electorate from the political system. Defen-

dants contend that candidates who would command

majorities at the general election are unable to prevail at

the primary such that the voters at the general election

are forced to pick among candidates none of whom is the

first choice of the majority of voters. R.T. at 255-256.

Although these assertions are not readily susceptible of

App. 41

proof, many are not contested,** or are supported by

persuasive opinion evidence from defendants’ experts.

See, e.g., R.T. at 954-963, 974-975. Furthermore, these

contentions are clearly stated in the ballot pamphlet, and

it is a fair inference from the margin of support that the

people of California agree that a blanket primary system

will lead to the election of more representative “problem-

solvers” who are less beholden to party officials and

“special interest groups.” While political scientists may

disagree on the question of whether the political system

is benefitted when parties are more or less distinct or

polarized, it is apparent that the voters have sided with

less partisanship in adopting Proposition 198.55

34 There is some evidence that elected officials from blanket

primary states are closer to the views of the electorate as a

whole than officials from closed primary states. See Defs.’ Ex. E,

Gerber Report, at 11. Some of plaintiffs’ experts apparently

would agree that candidates selected in a blanket primary are

likely to take less partisan or extreme positions than those

selected in a closed primary. They do not concede that this is

healthy, however, because they believe that the system is

benefitted by greater partisanship and greater distance between

the parties.

35 There is some suggestion in defendants’ brief that the

blanket primary will also make the parties more representative

and therefore will benefit and strengthen the political parties.

Defs.’ Post-Trial Brief at 45. The Supreme Court has given little

weight, however, to State interests couched in terms of what is

good for the parties. The Court has found that it is for the

parties to decide what is in their interest. See Tashjian, 479 U.S. at

222-24, 107 S.Ct. at 552-53; Eu v. San Francisco County Democratic

Cent. Comm., 489 U.S. 214, 227-28, 109 S.Ct. 1013, 1022-23, 103

L.Ed.2d 271 (1989).

App. 42

Defendants also argue that representativeness and

democratic participation are benefitted by the higher

voter participation expected in a blanket primary elec-

tion. Voter participation in primary and general elections

in California has declined markedly over the past two

decades. R.T. at 658. Turnout rates in blanket primary

states have been higher than in California, and there is

reason to expect that by providing more choice, the blan-

ket primary may encourage more voters to participate at

the primary election. Similarly, defendants contend that

elections will be more competitive under the blanket

primary, again leading to an increase in voter interest and

participation. Although the empirical case for the asser-

tion that blanket primaries are more competitive than

other primaries is not conclusive, there is reason to expect

some increase in the number of candidates, the closeness

of elections, and, therefore, voter turnout.

Finally, defendants point to one interest - voter pri-

vacy — that does not fit neatly under the representative-

ness or participation headings, although it is possible that

greater privacy could lead to greater participation. Defen-

dants note that a blanket primary protects voter privacy

by permitting voters to participate in the primary election

without publicly declaring a party affiliation as is the

case in closed primary states and in some open primary

states.

Taken as a whole the State’s interests that suppor: the

blanket primary are substantial, indeed compelling.

App. 43

There is a “substantial state interest in encouraging com-

promise and political stability, in attempting to ensure

that the election winner will represent a majority of the

community.” Storer v. Brown, 415 U.S. 724, 729, 94 S.Ct.

1274, 1278, 39 L.Ed.2d 714 (1974). In attempting to reduce

partisan strife, Proposition 198 is similar to other mea-

sures adopted by the States to deal with the problem of

factionalism, a problem that deeply troubled the framers

of the Constitution. See The Federalist No. 10 (Madison).

A State’s interest in ameliorating “unrestrained factional-

ism” is a compelling one. Increasing the representative-

ness of elected officials, giving voters greater choice, and

increasing voter turnout and participation in the primary

process are all interests of the first order. See Lightfoot v.

Eu, 964 F.2d 865, 872 (9th Cir.1992) (State’s interest in a

direct primary is compelling). The voters’ belief in the

fairness of the electoral process is also a substantial state

interest; it is apparent that the voters of California believe

that the system is fairer when all voters, including inde-

pendents and regardless of party affiliation, may partici-

pate in framing the choice of candidates at the general

election. And while the parties argue that there are other

ways to increase voter turnout, the fundamental goal of

enhancing representativeness by providing all voters

with a choice that is not predetermined by party mem-

bers alone can only be advanced by the blanket primary.

Unlike Tashjian in which the Democratic Party controlled

the legislature and attempted to tell the Republican party

who could vote in its primary, and where the State’s

purported interest in a closed primary was to protect the

parties from disruption from without, Proposition 198 is a

non-discriminatory measure that was adopted by a clear

App. 44

majority of voters, with a convincing margin from both

major parties, and which advances interests that are

uniquely those of the State and its electorate as opposed

to the parties. These interests outweigh the also substan-

tial interest that the political parties have in controlling

who votes in the primary

In reaching this conclusion, the court does not decide

whether a blanket primary is a good idea; it may prove to

be a bad idea, in which case the people of the State

presumably will act to reform the system in the future as

they have in the past. Nor does the court decide whether

the voters were correct in concluding that a more repre-

sentative and participatory system is desirable at this

time in the State’s history or whether it is wise to weaken

the parties by some degree to further the goals of repre-

sentativeness and participation. These important ques-

tions are for the people of the State to decide.

Each of the States has its own experiment in demo-

cratic government. The history of election law is one of

change and adaptation as the States have responded to

the play of different political forces and circumstances.

There is little reason to expect that the future will be any

different. The court concludes that a bianket primary

serves sufficiently weighty interests that the State of Cali-

fornia should not be precluded from ever trying such a

procedure.

Judgment is awarded to defendants.

IT IS SO ORDERED.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.