# Appendix — Washington v. Washington State Republican Republican Republican Party (Nos. 06-730, 06-713)

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0510%3A06

## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 2007

## Text

ie CY,

IN THE SUPREME COURT OF
THE UNITED STATES

STATE OF WASHINGTON; ROB MCKENNA, ATTORNEY
GENERAL; SAM REED, SECRETARY OF STATE,

Petitioners,
Vv

WASHINGTON STATE REPUBLICAN PARTY:
CHRISTOPHER VANCE; BERTABELLE HUBKA;
STEVE NEIGHBORS; BRENT BOGER; MARCY
COLLINS; MICHAEL YOUNG; DIANE TEBELIUS:
MIKE GASTON; WASHINGTON STATE DEMOCRATIC
CENTRAL COMMITTEE; PAUL BERENDT;
LIBERTARIAN PARTY OF WASHINGTON STATE:
RUTH BENNETT; J.S. MILLS,
WASHINGTON STATE GRANGE,

Respondents.

ON PETITION For A WRIT OF CERTIORARI
To THE UNITED STATES COURT OF APPEALS
FoR THE NINTH CIRCUIT

APPENDIX TO THE PETITION FOR
A WRIT OF CERTIORARI

ROB MCKENNA
Attorney General

James K. Pharris*
Jeffrey T. Even

Deputy Solicitors General
1125 Washington Street SE
Olympia, WA 98504-0100
360-664-3027
* Counsel of Record

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APPENDIX
Table of Contents

Washington State Republican Party v. Washington

460 F.3d 1108 (9th Cir. 2006)............... la
Washington State Republican Party v. Logan

377 F. Supp. 2d 907 (W.D. Wash. 2005)...... 35a
Permanent Injunction (7-29-05) .............. 93a
ee EE cud icucecdecoccccscens 97a
Wash. Rev. Code § 29A.04.086............... 98a
Wash. Rev. Code § 29A.04.097............... 99a
Wash. Rev. Code § 29A.04.110............... 99a
Wash. Rev. Code § 29A.04.127.............. 100a
Wash. Rev. Code § 29A.04.128.............. 100a
Wash. Rev. Code § 29A.04.206.............. 100a
Wash. Rev. Code § 29A.20.121.............. 10la
Wash. Rev. Code § 29A.20.121.............. 103a
Wash. Rev. Code § 29A.24.030.............. 105a
Wash. Rev. Code § 29A.24.031.............. 106a
Wash. Rev. Code § 29A.36.010.............. 108a
Wash. Rev. Code § 29A.36.170.............. 108a
Wash. Rev. Code § 29A.36.171.............. 109a
Wash. Rev. Code § 29A.36.191.............. 110a
Wash. Rev. Code § 29A.36.201.............. Illa
Wash. Rev. Code § 29A.52.111.............. ll2a
Wash. Rev. Code § 29A.52.116.............. ll2a
Wash. Rev. Code § 29A.52.231.............. 1l2a

Initiative Measure No. 872................. ll4da

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United States Court of Appeals, Ninth Circuit.

WASHINGTON STATE REPUBLICAN PARTY;
Diane Tebelius; Bertabelle Hubka; Steve Neighbors;
Mike Gaston; Marcy Collins; Michael Young,
Plaintiffs-Appellees,

and Washington State Democratic Central
Committee; Paul Berendt; Libertarian Party of
Washington State; Ruth Bennett; J.S. Mills,
Plaintiffs-Intervenors-

Appellees,
Vv.

State of WASHINGTON; Rob McKenna, Attorney
General; Sam Reed, Secretary of State; Washington
State Grange, Defendants-Intervenors-Appellants.

Nos. 05-35774, 05-35780.
Argued and Submitted Feb. 6, 2006.
Filed Aug. 22, 2006.

Background: State political party brought § 1983
action for declaratory and _ injunctive relief,
challenging constitutionality of state’s modified
blanket primary system, which was adopted through
passage of initiative in general election, and other
political parties intervened. The United States
District Court for the Western District of
Washington, Thomas S. Zilly, J., 377 F. Supp. 2d
y¥07, granted political parties’ motions for summary
judgment and issued preliminary injunction barring
enforcement of initiative, and subsequently made
injunction permanent. State and initiative’s sponsor
appealed.

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Holdings: The Court of Appeals, Fisher, Circuit
Judge, held that:

(1) state system imposed severe burden on
political parties’ associational] rights;

(2) state system violated political parties’
association rights; and

(3) unconstitutional portions of initiative could
not be severed under Washington law, and therefore
initiative was unconstitutional in its entirety.

Affirmed.

Rob McKenna, Maureen A. Hart, Jeffrey T. Even and
James K. Pharris (argued), Office of the Washington
Attorney General, Olympia, WA, for the State of
Washington (defendant-intervenor-appellant).

Thomas F. Ahearne (argued), Ramsey Ramerman
and Rodrick J. Dembowski, Foster Pepper &
Shefelman PLLC, Seattle, WA, for the Washington
State Grange (defendant-intervenor-appellant).

John J. White, Jr. (argued) and Kevin B. Hansen,
Livengood, Fitzgerald & Alskog, Kirkland, WA, for
the Washington State Kepublican Party
(plaintiff-appellee).

David T. McDonald (argued) and Jay Carlson,
Preston Gates & Ellis, LLP, Seattle, WA, for the
Washington State Democratic Central Committee
(plaintiff-intervenor-appellee).

Richard Shepard (argued), Shepard Law Office, Inc.,
Tacoma, WA, for the Libertarian Party of
Washington State (plaintiff-intervenor-appellee).

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Appeal from the United States District Court
for the Western’ District of Washington;
Thomas S. Zilly, District Judge, Presiding.
D.C. No. CV-05-00927-TSZ.

Before D.W. NELSON, PAMELA ANN RYMER and
RAYMOND C. FISHER, Circuit Judges.

FISHER, Circuit Judge.

For the second time in three years, political
parties in Washington State are challenging the
constitutionality of their state's partisan primary
system, which was enacted as a result of the passage
of Initiative 872 in the November 2004 state general
election. In 2003, we concluded that Washington's
previous “blanket” primary system was
unconstitutional because it was “materially
indistinguishable from the California scheme held to
violate the constitutional right of free association in
Jones.” Democratic Party of Wash. v. Reed, 343 F.3d
1198, 1203 (8th Cir. 2003) (relying on Cal.
Democratic Party v. Jones, 530 U.S. 567, 120 S. Ct.
2402, 147 L. Ed. 2d 502 (2000)).

There are differences between Washington's
pre-Reed blanket primary and the “modified” blanket
primary being challenged in this case, and we are
mindful that Initiative 872 reflects the political will
of a majority of Washington voters. Nonetheless,
although attempting to craft a primary system that
does not unconstitutionally burden political parties’
right of association under the First and Fourteenth
Amendments, Initiative 872 fails to do so. Rather,
the Initiative retains a partisan primary, in which
each candidate may self-identify with a particular
party gardless of that party's willingness to be

associated with that candidate. The State of
Washington and Initiative 872’s sponsor, the
Washington State Grange (the Grange),' have not
ident‘fed any compelling state interests-apart from
those the Supreme Court rejected in Jones-that
would justify the Initiative’s severe burden on the
political parties’ associational rights; nor is Initiative
872’s modified blanket primary narrowly tailored.
We cannot sever the unconstitutional provisions from
Initiative 872 because “it cannot reasonably be
believed that” Washington voters would have passed
Initiative 872 without its unconstitutional
provisions. McGowan v. State, 148 Wash. 2d 278, 60
P.3d 67, 75 (2002). Accordingly, we hold that
Washington's modified blanket primary as enacted
by Initiative 872 is unconstitutional and affirm the
district court's permanent injunction against the
implementation of the Initiative.

I. BACKGROUND

To understand the fiaw in Initiative 872’s
partisan primary system, it is helpful to review the
nature and structure of the primary process in
general. A political primary is often thought of as a
“meeting of the registered voters of a political party
for the purpose of nominating candidates .. .”; and a
common definition of a primary election is a

' The Washington State Grange is a subsidiary
organization of the National Granze, which ts described by its
Washington chapter as “America’s oldest farm-based fraternal
organization” and as “a non-pa*tisan, grassroots advocacy
group for rural citizens with both legislative programs and
community activities.” Washington State Grange, What is the
Grange, Official Website at Attp:/ /www.wa-grange.org/whats-
the-grange.him.

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“preliminary election in which voters nominate party
candidates for office.” American Heritage College
Dictionary 1086 (3d ed. 2000). The Supreme Court
has characterized a candidate nominated in a
primary as the party’s “standard bearer,” Timmons
v. Twin Cities Area New Party, 520 U.S. 351, 359,
117 S. Ct. 1364, 137 L. Ed. 2d 589 (1997), or
“ambassador to the general electorate in winning it
over to the party's views,” Jones, 530 U.S. at 575, 120
S. Ct. 2402. In states that have adopted a “closed”
primary system, each party (or traditionally at least
each of the two major parties) selects its nominees
who are to appear on the general election ballot as
that party's candidates for particular offices. This
type of primary is referred to as “closed” because only
voters who formally associate themselves with a
party in some fashion in advance of the primary may
vote in that party's primary and thereby select the
party's nominee. See Jones, 530 U.S. at 577, 120 S.
Ct. 2402; see also Alexander J. Bott, Handbook of
United States Election Laws and Practices: Political
Rights 21, 43, 139 (1990).

Although many states employ a_ closed
primary, other alternative primary systems have
been and continue to be used in some states. One
such alternative used to be the “blanket” primary,
until the California version owas held
unconstitutional in Jones. In contrast to closed
primaries where each party's nominee is selected by
voters pre-affiliated with that party who vote only in
that party's primary, a blanket primary system uses
a common primary ballot shared by all candidates for
particular elective offices. All voters, regardless of
their own political party affiliations (if any),

could-until Jones-vote fer any candidate appearing
on the blanket primary ballot regardless of that
candidate's designated political party affiliation.”
The candidate who received the greatest number of
votes in relation to other candidates with the same
party affiliation would become that party's nominee
who would advance to the general election ballot. For
example, each of the Democratic and Republican
candidates with the greatest number of votes in the
blanket primary would appear as the only candidate
identified with that particular party designation on
the general ballot. See Jones, 530 U.S. at 570, 120
S. Ct. 2402. The Supreme Court, however, held that
California’s blanket primary violated the state
political parties’ right of association under the First
and Fourteenth Amendments, because allowing
nonparty members to vote for party candidates
forced a party's members to associate with voters
who were members of rival parties in the selection of
that party's nominee for the general election. See id.
at 577, 120 S. Ct. 2402.

Invoking Jones, the political parties in
Washington challenged the b anket primary that had
operated in that state since 1935. See Reed, 343 F.3d
at 1201. Like the California primary, the
Washington primary at issue in Reed advanced each
of the top primary election vote-getters within the
same party to the general election ballot. See id.‘ We

* For example, a primary voter could “split the ticket”
between a Republican gubernatorial candidate, a Democratic
candidate for attorney general and a Libertarian candidate for
secretary of state.

3 “Minor” political parties were treated somewhat
differently under Washington's pre-Reed blanket primary in

held Washington's blanket primary unconstitutional
in 2003 because it was “materially indistinguishable
from the California scheme” that the Supreme Court
invalidated in Jones. Id. at 1203.4

In the aftermath of Reed, two parallel efforts
ensued to create a replacement primary system-one
undertaken by the Washington state legislature and
the other a ballot initiative sponsored by the Grange.
In January 2004, the Grange filed the text of what
was to become Initiative 872 on the November 2004
Washington ballot with the Washington Secretary of
State. Initiative 872 made a number of changes to
Washington's previous blanket primary system; but
significantly, it retained the partisan nature of the
primary. As the official voters’ pamphlet explaining
Initiative 872 stated, the Initiative “concerns
elections for partisan offices” and “would change the
system used for conducting primaries and general
elections for partisan offices.” (Emphasis added.)°

that they were allowed to avoid sphntering their limited
constituency at the blanket primary stage. They held their own
nominating conventions prior to the blanket primary, and the
single candidate each such minor party selected by convention
would advance from the blanket primary to the general election
ballot if he or she obtained at least one percent of the blanket
primary vote. See, e.g., Wash. Rev. Code §§ 29.24.020, 29.30.095
(1993).

* Although Cahfornia explhicitly labeled those candidates
who advanced to the general elections as “the nominee of {a}
party,” Jones, 530 U.S. at 570, 120 S. Ct. 2402, a term
Washington did not use, we concluded that Washington's
avoidance of the label “nominee” was a “distinction[{ ] without a
difference.” Reed, 343 F.3d at 1203.

5 The Grange sponsored a website-hitp://www.bianket
primary.org/-as part of its advocacy efforts on behalf of

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Two of the most important proposed changes
were: (1) the redefinition of “partisan office” as “a
public office for which a candidate may indicate a
political party preference”;® and (2) the adoption of a
“top two” rule whereby the two candidates with the
greatest number of votes in the primary advance to
the general election regardless of their expressed
party preference. Under the Initiative 872 primary
system, therefore, those candidates expressing a
particular party “preference” would be self-identified

Initiative 872. In early 2004, the “requently Asked Questions”
portion of that website characterized the primary system that
would be enacted by the Initiative as follows:

The proposed initiative would replace the
current nominating systera with a qualifying
primary, similar to the ncnpartisan primaries
used for city, school district, and judicial offices.
As in those primaries, the two candidates who
receive the greatest number of votes would
advance to the general election. Candidates for
partisan offices would continue to identify a
political party preference when they
file for office, and that designation
would appear on both the primary and
general election ballots . . . .

At the primary, the candidates for each office will be
listed under the title of that office the party designations will
appear after the candidates’ names, and the voter will be able
to vote for any candidate for that cffice (just as they now do in
the blanket primary).

6 Ballots for partisan office under Washington's pre-
Reed primary system simply lhsted a political party or
independent designation next to a candidate's name. See Wash.
Rev. Code § 29.30.020(3) (1993) (repealed 2004); see also Reed,
343 F.3d at 1201 & n.3.

only;’? and the winner of the largest number of votes
among candidates with the same party preference
would no longer be guaranteed a place on the general
election ballot-an entitlement limited to the two top
vote getters overall. Indeed, two candidates with the
same party preference could be the only candidates
for a particular office appearing on the general
election ballot.§

In March 2004, the Washington legislature
adopted two alternative primary systems, subject to
the outcome of the vote on Initiative 872 in the
November 2004 general election. As its first choice,
the legislature adopted a “top two” primary system
similar, though not identical, to the one the Grange
proposed in Initiative 872.9 As a precaution in case
the anticipated legal challenges to the “top two”
system proved successful, the legislature also
adopted a “backup” primary system-the so called
“Montana” primary-which is essentially a type of
open primary.!°

* The candidates’ party preference designation on the
ballot cannot be changed between the primary and general
elections. See infra note 16.

* For example, if the 1996 gubernatorial primary had
been conducted under the aegis of Initiative 872, two
Democratic candidates-Gary Locke and Norman Rice-and no
Republican candidate would have advanced from the primary to
the general election.

* A “top two” primary is also sometimes referred to as a
“Cajun” or “Louisiana” primary, after the only other state that
employs a similar sort of primary.

'0 Jones described an open primary as follows:

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Governor Gary Locke vetoed the “top two”
primary system in April 2004, so the “Montana”
primary became Washington's primary system for
the fall 2004 elections. Nevertheless, Initiative 872
passed with nearly 60 per cent of the vote in the
November 2004 general election and became effective
as Washington law in December 2004. The
Washington legislature did not pass any other
measure concerning the state’s primary system in
the first half of 2005, although the secretary of state
did promulgate emergency regulations relating to
Initiative 872 in May 2005.

The Washington State Republican Party (the
Republican Party) filed suit in federal district court
in May 2005, seeking a declaratory judgment and
injunctive relief under 42 U.S.C. § 1983 against a
number of county auditors with respect to the
enforcement of Initiative 872 and the conduct of
primary elections. The Washington State Democratic
Central Committee (the Democratic Party) and the
Libertarian Party of Washington State (the
Libertarian Party) moved to intervene as plaintiffs.
The State of Washington and the Grange moved to
intervene as defendants. The district court granted

An open primary differs from a blanket primary
in that, although as in the blanket primary any
person, regardless of party affiliation, may vote
for a party's nominee, his choice is limited to
that party's nominees for a!l offices. He may not.
for example support a Republican nominee for
Governor and a Democratic nominee for
attorney general.

530 U.S. at 576 n.6, 120 S. Ct. 2402. See also Bott, Handbook of
United States Election Laws and Practices 21, 138.

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all of the motions to intervene and accepted the
substitution of the State of Washington as a
defendant in lieu of the county auditors, who
dropped out as parties to this litigation.

In July 2005, the district court granted the
political parties’ motions for summary judgment and
issued a preliminary injunction enjoining the
enforcement of Initiative 872, see Wash. State
Republican Party v. Logan, 377 F. Supp. 2d 907, 932
(W.D. Wash. 2005), and made the injunction
permanent on July 29, 2005. Both the State of
Washington and the Washington State Grange filed
timely notices of appeal. We now affirm the district
court’s permanent injunction because the Initiative
872 primary unconstitutionally burdens the
Washington state political parties’ associational
rights by permitting candidates to identify their
party “preference” on the ballot, notwithstanding
that party’s own preference.'!

Il. DISCUSSION
A. Standard of Review

“We review a summary judgment [order]
granting or denying a permanent injunction for
abuse of discretion and application of the correct
legal principles.” Fortyune v. Am. Muiti-Cinema, Inc.,
364 F.3d 1075, 1079 (9th Cir. 2004) (quoting EEOC
v. Goodyear Aerospace Corp., 813 F.2d 1539, 1544
(9th Cir. 1987)). However, “any determination

'! The motion of FairVote-The Center for Voting and
Democracy and others for leave to file a brief of amici curiae is
granted, but we do not consider issues raised by amici that are
beyond those argued by the parties.

12a

underlying the grant of an injunction [is reviewed
under] the standard that applies to that
determination.” Ting v. AT & T, 319 F.3d 1126,
1134-35 (9th Cir.2003). Accordingly, the district
court’s findings of fact are reviewed for clear error
while questions of law are reviewed de novo. See id.
at 1135.

The constitutionality of a state law is reviewed
de novo. See Am. Acad. of Pain Mgmt. v. Joseph, 353
F.3d 1099, 1103 (9th Cir. 2004). “[W]e review the
application of facts to law on free speech questions de
novo.” Brown v. Cal. Dep't of Transp., 321 F.3d 1217,
1221 (9th Cir. 2003) (citing Planned Parenthood v.
Am. Coalition of Life Activists, 290 F.3d 1058, 1070
(9th Cir. 2002) (en banc)). Lastly, “severability is a
question of state law that we review de novo.” Ariz.
Libertarian Party, Inc. v. Bayless, 351 F.3d 1277,
1283 (9th Cir. 2003) (per curiam).

B. Right of Association

“|T]he freedom to join together in furtherance
of common political beliefs”-to form and join political
parties-falls squarely within the right of association
protected by the First Amendment and the Due
Process Clause of the Fourteenth Amendment
against interference by the states. Tashjian v-.
Republican Party of Conn., 179 U.S. 208, 214, 107
S. Ct. 544, 93 L. Ed. 2d 514 (1986); see also NAACP
v. Alabama ex rel. Patterson, 357 U.S. 449, 460, 78
S. Ct. 1163, 2 L. Ed. 2d 1488 (1958). “Representative
democracy in any populous unit of governance is
_ unimaginable without” such freedom. Jones, 530
US. at 574, 120 S. Ct. 2402. The right of association
protects not only the activities of party stalwarts who

l3a

“devote substantial portions of their lives to
furthering [their party's] political and organizational
goals,” but also the more limited associational ties of
those who “limit their participation [in the party] to
casting their votes for some or all of the [p]arty’s
candidates.” Tashijan, 479 U.S. at 215, 107 S. Ct.
544. Indeed, even if “it is made quite easy for a voter
to change his party affiliation the day of the
primary,” that eleventh hour “cross[ing] over” still
constitutes an act of association in that the voter
“must formally become a member of the party.”
Jones, 530 U.S. at 577, 120 S. Ct. 2402 (emphasis
omitted).

The principle underlying the breadth of the
right of association is one of mutuality: both the
putative party member and the political party must
consent to the associational tie. Accordingly, the
freedom to associate necessarily includes some
freedom to exclude others from the association. See
id. at 574, 120 S. Ct. 2402. “Freedom of association
would prove an empty guarantee if associations could
not limit control over their decisions to those who
share the interests and persuasions that underlie the
association’s being.” Democratic Party of U.S. v.
Wisconsin ex rel. La Follette, 450 U.S. 107, 122 n.22,
101 S. Ct. 1010, 67 L. Ed. 2d 82 (1981) (quoting
Laurence H. Tribe, American Constitutional Law 791
(1978)). Neither voters nor political candidates can
force a political party to accept them against the will
of the party. See Tashijan, 479 U.S. at 215 n.6, 107
S. Ct. 544 (“[A] nonmember’s desire to participate in
the party's affairs is overborne by the countervailing
and legitimate right of the party to determine its
own membership qualifications.”); see also Duke v.

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Cleland, 954 F.2d 1526, 1531 (11th Cir. 1992)
(“[David] Duke has no right to associate with the
Republican Party if the Republican Party has
identified Duke as ideologically outside the party.”).

The right of association, however, especially
when it intersects with the public electoral process,
is not “boundless.” Clingman v. Beaver, 544 U.S. 581,
589, 125 S. Ct. 2029, 161 L. Ed. 2d 920 (2005).
“States have a major role to play in structuring and
monitoring the election process, including
primaries.” Jones, 530 U.S. at 572, 120 S. Ct. 2402.
Constitutionally permissible’ state regulations
touching upon political party affairs include those
“requir[ing}] parties to use the primary format for
selecting their nominees, in order to assure that
intraparty competition is resolved in a democratic
fashion,” “requir[ing] parties to demonstrate a
significant modicum of support before allowing their
candidates a place on [the general election] ballot”
and “requirling] party registration a reasonable
period of time before a primary election” in order to
prevent “party raiding.”'* Jd. (internal quotation
marks and citations omitted}. Accordingly, when we
are faced with a state electoral law that allegedly
violates associational 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

2 Party raiding is “a process :n which dedicated
members of one party formally switch to another party to alter
the outcome of that party's primary.” Jones, 530 U.S. at 572,
120 S. Ct. 2402.

l5a

consider the extent to which the State’s
concerns make the burden necessary.
Regulations imposing severe burdens on
plaintiffs’ rights must be narrowly
tailored and advance a compelling state
interest. Lesser burdens, however,
trigger less exacting review, and a
State’s important regulatory interests
will usually be enough to justify
reasonable, nondiscriminatory restrict-
tions.

Timmons v. Twin Cities Area New Party, 520 U.S.
351, 358, 117 S. Ct. 1364, 137 L. Ed. 2d 589 (1997)
(internal quotation marks and citations omitted).
Therefore, we must first determine whether
Initiative 872 severely burdens the Washington
political parties’ associational rights; if it does, we
must then determine whether a compelling state
interest justifies that burden and whether Initiative
872 is narrowly tailored to further that state
interest.

1. Severe burden

Washington and the Grange contend that
Initiative 872 does not severely burden the political
parties’ associational rights. They point to dictum in
Jones discussing with approval a nonpartisan
blanket primary, see 530 U.S. at 585-86, 120 S. Ct.
2402, and argue that Initiative 872 created just such
a primary. We disagree, because the primary under
Initiative 872 is not the kind of nonpartisan election
Jones contemplated.

The Jones dictum is found in that part of the
opinion discussing the state interests California had

l6a

identified in defense of its blanket primary. The
Court identified four legitimate state interests that
might justify allowing voters to vote for any
candidate regardless of the candidate's party
affiliation-"promoting fairness, affording voters
greater choice, increasing voter participation, and
protecting privacy’-but denied that these were
compelling reasons to burden political parties’
associational rights “in the circumstances of [that]
case.” 530 U.S. at 584, 120 S. Ct. 2402. The Court
went on to reason, however, that even if these four
interests were compelling California's blanket
primary was “not a narrowly tailored means of
furthering them”:

Respondents could protect them all by
resorting to a nonpartisan blanket
primary. Generally speaking, under
such a system, the State determines
what qualifications it requires for a
candidate to have a place on the
primary ballot-which may include
nomination by established parties and
voter-petition requirements for
independent candidates. Each voter,
regardless of party affiliation, may then
vote for any candidate, and the top two
vote getters (or however many the State
prescribes) then move on to the general
election. This system has all the
characteristics of the partisan blanket
primary, save the constitutionally
crucial one: Primary voters are not
choosing a party's nominee. Under a
nonpartisan blanket primary, a State

17a

may ensure more choice, greater
participation, increased “privacy,” and a
sense of “fairness”-all without severely
burdening a political party's First
Amendment right of association.

Id. at 585-86, 120 S. Ct. 2402. In light of this
statement, we agree that to the extent Initiative 872
can be fairly characterized as enacting a nonpartisan
blanket primary, Jones would lead us to uphold
Washington's modified blanket primary.'®

Initiative 872 resembles the Jones
hypothetical nonpartisan blanket primary in some
respects, but it differs in at least one crucial aspect.
On the one hand, the “top two” feature of Initiative
872 seems indistinguishable from that referred to in
Jones, as does the aspect of Initiative 872 that allows
“lelach voter, regardless of party affiliation, [to] vote
for any candidate.” 530 U.S. at 585, 120 S. Ct. 2402.
However, the crucial point of divergence between
Initiative 872 and Jones lies in the concept of
partisanship. Although the Court did not specify in
what sense it was using the term “nonpartisan,” an
election is customarily nonpartisan if candidates’
party affiliations are not identified on the ballot. See
Bott, Handbook of United States Election Laws and

‘3 The Republican Party emphasizes that the statement
in Jones 1s only dictum. But as we have recogmzed, Supreme
Court dicta is generally entitled to “great weight,” Coeur
D'Alene Tribe of Idaho v. Hammond, 384 F.3d 674, 683 (9th Cir.
2004), and “appropriate deference,” United Stuivs v. Montero-
Camargo, 208 F.3d 1122, 1132 n.17 (9th Cir. 2000). “[WJe do not
blandly shrug them off because they were not a holding,” id.
(internal quotation marks omitted), and therefore we accord the
Jones dictum the persuasive authority that it is due.

18a

Practices 145 (“Nonpartisan elections are ones in
which persons running for public office have their
names listed on the ballot but not their party
affiliation.”). Jones’ use of “nonpartisan” also appears
to contemplate elections in which primary voters
play no role in the nomination of any candidate as
the representative of a political party. See Jones, 530
U.S. at 585-86, 120 S. Ct. 2402 (asserting that the
“constitutionally crucial” element in the inquiry is
the parties’ choice of their own representative, and
noting that states may condition access to a
nonpartisan primary ballot in part on prior and
independent nomination by an established political
party). We therefore understand the Court to align
the term “nonpartisan” with the process of
nominating a candidate to appear on a general
ballot, without thereby nominating a candidate to
represent a political party as its standard bearer.'!

'4 The political parties argue that not only is Initiative
872 a partisan blanket primary, but it is indistinguishable from
the primaries invalidated by Jones and Reed because it
“nominates” candidates for the general election. Washington
and the Grange counter that Initiative 872 merely “winnows”
candidates. This debate is not partscularly illuminating because
“nominate” and “winnow” are two sides of the same coin-
candidates who are not ncminated are _ necessarily
winnowed-and the Supreme Court has used both terms to
describe the function of primaries. See, e.g., Storer v. Brown,
415 US. 724, 734, 735, 94 S. Ct. 1274, 39 L. Ed. 2d 714 (1974)
(‘After long experience, California came to the direct party
primary as a desirable way of nominating candidates for public
office .... The direct party primary . . . functions to winnow out
and finally reject all but the chosen candidates.”).

Furthermore, even if Initiative 872’s modified blanket
primary can be said to “nominate’ candidates, it does so in a
way that is distinguishable from Washington's pre-Reed or

19a

In contrast to the Jones hypothetical primary,
the primary envisioned by Initiative 872 is still
overtly partisan. The Initiative redefined the concept
of “partisan office,” but those offices remain partisan
and so does the primary.’ By including candidates’
self-identified political party preferences on the
primary ballot, Washington permits all voters to
select individuals who may effectively become the
parties’ standard bearers in the general election.
Whether or not the primary candidate is a party's
nominee, any candidate may appear on the ballot
showing that party as his or her “preference” and (if
one of the two top vote getters) may emerge as the
only one bearing that designation in the general
election. Whether or not the party wants to be
associated with that candidate, the party designation
is a powerful, partisan message that voters may rely
upon in casting a vote-in the primary and in the
general election. The Initiative thus perpetuates the
“constitutionally crucial” flaw Jones found in

Califorma’s pre-Jones blanket primaries. Unlike those
primaries, the top vote-getters in each party under Initiative
872 are not guaranteed a place on the general election ballot:
candidates advance only if they finish in the top two overall.
There is therefore a real possibility that one of the political
parties’ top vote-getters will not even make it into general
election or that two candidates from the same party will
advance. This 1s not a situation squarely contemplated by Jones
or the cases upon which it relies, all of which share the
underlying assumption that only one candidate emerges from a
partisan primary as the party's nominee. See Jones, 530 US. at
575, 120 S. Ct. 2402 (“In no area is the political association's
right to exclude more important than in the process of selecting
its nominee.”) (emphasis added) (citing cases).

'S See supra note 5 and accompanying text.

20a

California’s partisan primarv system. Not only does
a candidate's expression of a party preference on the
ballot cause the primary to remain partisan, but in
effect it forces political parties to be associated with
self-identified candidates not of the parties’ choosing.
This constitutes a severe burden upon the parties’
associational rights.

Washington and the Grange argue against
interpreting the Initiative 872 primary as partisan,
and assert that a party “preference” is
distinguishable from a party “designation” or some
other stronger affirmative indication of party
affiliation, such as membership. Such a distinction
exists as a matter of logic, but it is not meaningful in
the circumstances of this case. The district court
came to the commonsense conclusion that “|pjarty
affiliation plays a role im determining which
candidates voters select, whether characterized as
‘affiliation’ or ‘preference.’ " Wash. State Republican
Party v. Logan, 377 F. Supp. 2d 907, 926 (W.D.
Wash. 2005). Washington urges that a candidate's
political party preference simply provides
“information for the voters.” But a statement of party
preference on the ballot is more than mere voter
information. It represents an expression of
partisanship and occupies a privileged position as
the only information about the candidates (apart
from their names) that appears on the primary
ballot. Moreover, it also carries over onto the general
election ballot.'®

‘6 The Washington Secreta -y of State appears implicitly
to have recognized that voters’ reliance on candidates’ party
preferences was comparable to taeir rehance on candidates’

2la

Importantly, “party labels provide a shorthand
designation of the views of party candidates on
matters of public concern .. . .” Tashiyan, 479 U.S. at
220, 107 S. Ct. 544. Voters rely on party labels on the
ballot in deciding for whom to vote. This political
reality is illustrated by the Sixth Circuit’s decision in
Rosen v. Brown, 970 F.2d 169 (6th Cir. 1992). Rosen
held unconstitutional the provision in Ohio's election
law that “prohibit[ed] nonparty candidates for
elective office from having the designation
Independent or Independent candidate placed on the
ballot next to their name.” Jd. at 171. The court
relied on evidence that

[vJoting studies conducted since 1940
indicated that party identification is the
single most important influence on
political opinions and voting .. . . [T]he
tendency to vote according to party
loyalty increases as the voter moves
down the ballot to lesser known
candidates seeking lesser known offices
at the state and local level.

party designations, by amending Wash. Admin. Code § 434-230-
040 (2005) to read as follows: “A candidate for partisan office
who indicated a party preference on the declaration of
candidacy may not change the party preference between the
primary election and the general election.” (Emphasis added.)
The regulation previously stated that “[njo person who has
offered himself or herself as a candidate for the nomination of
one party at the primary, shall have his or her name printed on
the ballot of the succeeding general election as the candidate of
another political party. Wash. Admin. Code § 434-230-040
(1997).

22a

Id. at 172. Thus voters “are efforded a ‘voting cue’ on
the ballot in the form of a party label which research
indicates is the most significant determinant of
voting behavior.” /d. Similarly, to the extent
Initiative 182 allows candidates to self-identify with
a particular party-even if only as a “preference”-it
cloaks them with a powerful voting cue linked to that
party.

Given that the statement of party preference
is the sole indication of polit:cal affiliation shown on
the ballot, that statement creates the impression of
associational ties between the candidate and the
preferred party, irrespective of any actual connection
or the party's desire to distance itself from a
particular candidate. The practical result of a
primary conducted pursuant to Initiative 872 is that
a political partys members are unilaterally
associated on an undifferentiated basis with all
candidates who, at their discretion, “prefer” that
party.

A hypothetical may help illustrate the
situation confronting the political parties and the
voters of Washington in an Initiative 872 primary.
Let us assume the Republican Party holds its own
privately run party convention prior to the modified
blanket primary to select the Party's nominee for the
primary ballot for a particular state office. Cf. Jones,
530 U.S. at 585, 120 S. Ct. 2402 (noting that
candidates appearing on «a nonpartisan blanket
primary ballot may be nominated by established
political parties).'’ Let us further assume that two

‘7 In fact, the Washing:on State Republican and
Democratic Parties adopted continyency rules in anticipation of

23a

Republican candidates (both of whom are bona fide
party members)-Candidate C, a conservative, and
Candidate M, a moderate-compete against one
another for the nomination and that Candidate C
wins the Republican nomination at the convention.
Lastly, let us assume the existence of a third
candidate-Candidate W, a wild-eyed radical-who
purports to “prefer” the Republican Party but who is
not a Party member, whose views are anathema to
the Party's membership and who does not participate
in the Party’s convention process. Despite Candidate
C’s party nomination, Candidate M and Candidate W
decide that they want to appear on the primary
ballot.'® Given these assumptions, how would each of
these candidates be designated on the ballot, and

Initiative 872’s enactment whereby those parties would select
their nominees for state offices through private nominating
conventions conducted before the state-run blan. t primary.

18 It is quite easy to put one’s name on the Washington
partisan primary ballot with any given political party
preference under Initiative 872. All that is required is (1) a
declaration of registered voter status in the appropriate
jurisdiction (along with an address in that jurisdiction); (2) a
declaration of the position the candidate seeks; (3) a declaration
of party preference or independent status; (4) a filing fee; and
(5) a signed declaration that the candidate will support the
Constitution and the laws of the United States and Washington
State. The emergency regulations promulgated by the
Washington Secretary of State in May 2005 confirmed the
parties’ inability to control who runs using their name: “neither
endorsement by a political party nor a nominating convention
are [sic] required in order to file a declaration of candidacy and
appear on the primary election ballot.” Wash. Admin. Code
§ 434-215-015 (2005).

24a

how would voters be able to distinguish among
them?!

Presented with this scenario at oral argument,
the State of Washington conceded that all three
candidates would be designated in an identical
fashion on the primary ballot-all would be shown to
have “Republican” as their “party preference.”2° This

1% The questions posed by this hypothetical illustrate
that a number of the arguments advanced by the State of
Washington and the political parties need not be settled in
order to resolve the central issue on appeal. First, the State of
Washington argues that states are not compelled to provide
political parties with a publicly financed primary to select party
nominees and that by enacting the provisions of Initiative 872,
it is “getting out of the ‘party nomination’ business.” However,
the inclusion of candidates’ party preferences on the primary
ballot suggests that Washington has not gotten out of the party
nomination business entirely because Initiative 872 permuis
“spoiler” candidates from the same party and nonparty
members to present themselves on an equal footing with party
nominees on the ballot.

Second, Washington argies that “the associational
rights of political parties do not include the right to have their
nominees advance to the general election ballot.” But even if we
construed the political parties’ argument to be ‘hat they have a
right to have their respective nominees appear on the general
election ballot, that argument misses the mark because it only
addresses the “top two” nature of the Initiative 872 primary.
The concern in this case is not that the ten two vote-getters
advance from the primary to the general election. Rather. it 1s
that Initiative 872 provides candidates with a designated space
on the ballot to express their party preference, notwithstanding
the political parties’ unwillingness to associate with a
particular candidate or nominate that person as a standard
bearer.

2° The text of Imitiative 872 does not itself clearly
prescribe how the candidates’ party preferences are to be
worded on the primary ballot, nor do the Washington Secretary

25a

is the essence of Initiative 872’s constitutional flaw.
Because candidates can freely designate their
political party preferences on the primary ballot, but
the ballot does not show which candidates are the
political parties’ official nominees (or even true party
members), voters cannot differentiate (1) bona fide
party members such as Candidates C and M from
outsiders who purportedly prefer the party such as
Candidate W; or (2) party nominees such as
Candidate C from “spoiler” intraparty challengers
such as Candidate M.?' The net effect is that parties
do not choose who associates with them and runs
using their name; that choice is left to the candidates
and forced upon the parties by the listing of a
candidate's name “in cenjunction with” that of the
party on the primary ballot. Wash. Rev. Code
§ 29A.04.110 (2004). Such an assertion of association
by the candidates against the will of the parties and
their membership constitutes a severe burden on
political parties’ associational rights. See Tashijan,
479 US. at 215 n6, 107 S. Ct. 544; Duke,
954 F.2d at 1531.

of State’s emergency rules, issued on May 18, 2005,
implementing the provisions of Initiative 872. For instance, the
ballots could indicate party preference with letters hke “D” and
“R” or abbreviations like “Dem.” and “Rep.” following the names
of the primary candidates, without stating that they are
“preferences” only. For purposes of this appeal, however, we
assume that the ballots clearly state that a particular candidate
“prefers” a particular party.

2! The second of these two scenarios of voter confusion
would not be present if a party did not nominate a single
standard bearer in a private convention prior to the modified
blanket primary, but that would not cure the first problem.

26a

In so holding, we do not question a political
candidate's fundamental right to express a political
viewpoint, including a political preference, more
generally. See, e.g., Monitor Patriot Co. v. Roy, 401
U.S. 265, 272, 91 S. Ct. 621, 28 L. Ed. 2d 35 (1971)
(“{Ijt can hardly be doubted that the [First
Amendment's] constitutional guarantee has its
fullest and most urgent application precisely to the
conduct of campaigns for political office.”). We are
not deciding that an expression of a party preference
other than as a ballot designation-such as in
campaign literature or advertising, a candidate
statement in the voters’ pamphlet or a news
conference-constitutes a forced association between
the candidate stating the preference and the political
party being preferred. Rather, we are focused on the
specific primary election ballot created by Initiative
872, and the one-sided expression of party
preferences on that ballot. There is a constitutionally
significant distinction between ballots and other
vehicles for political expression. “Ballots serve
primarily to elect candidates, not as forums for
political expression.” Timmons, 520 U.S. at 363, 117
S. Ct. 1364. Here the ballot communicates a political
association that may be unreciprocated and
misleading to the voters, to the detriment of the
political parties and their bona fide members.

The State of Washington attempts to counter
our concern with this one-sidedness by itself
invoking Timmons. It suggests that the lack of
distinction between Candidates C, M and W on the
primary ballot could be cured by the more detailed
candidate statements that would likely reveal party
membership and a candidate's status as a political

27a

party’s nominee. Washington also contends that it is
permissible to place candidates’ party preferences on
the ballot without regard to the parties’ candidate
preferences, because parties have no more right to
use the ballot to send a message to voters than other
politically minded, nonparty organizations do. Cf. id.
We address and reject each of these contentions
in turn.

Candidate statements cannot cure Initiative
872’s one-sided party-preference labeling on the
primary ballot. As previously discussed, political
parties’ names matter; they are shorthand identifiers
that voters traditionally rely upon to signal a
candidate’s substantive and ideological positions. See
Rosen, 970 F.2d at 172. For some voters, the party
label may be enough; other voters may seek ont more
information about a candidate. As the Supreme
Court observed in Tashijan, “[t]o the extent that
party labels provide a shorthand designation of the
views of party candidates on matters of public
concern, the identification of candidates with
particular parties plays a role in the process by
which voters inform themselves for the exercise of
the franchise.” 479 U.S. at 220, 107 S. Ct. 544. When
the Libertarian Party challenged Oklahoma's semi-
closed primary law by seeking to open the
Libertarian Party primary beyond registered
Libertarians and independents to all _ voters
regardless of affiliation, the Court expressed its
concern about the possibility of voters’ being misled
by party labels: “Opening the [Libertarian Party's]
primary to all voters not only would render the
[Libertarian Party's] imprimatur an unreliable index
of its candidate's actual political philosophy, but it

28a

also would make registered party affiliations
significantly less meaningful .. . .” Clingman, 544
U.S. at 595, 125 S. Ct. 2029 (internal quotation
marks omitted).

A party should not be placed in the position of
having to overcome a false association between itself
and a candidate by relying on the candidate’s off-
ballot clarifying statements.2? It is too much to
expect candidate statements to clear up the
confusion engendered by the primary ballot
regarding who is the “real” Republican, Democratic
or Libertarian standard bearer for his or her
respective party, never mind whom party members
would acknowledge as a fellow member.**

We are similarly unconvinced by Washington's
argument that the political parties’ associational

22 Although the political parties have not expressed
their argument in exactly these terms, we note that the
Supreme Court has long recognized that “the choice to speak
includes within it the choice of what not to say.” Pac. Gas &
Elec. Co. v. Pub. Utils. Comm'n of Cal., 475 U.S. 1, 16, 106 S.
Ct. 903, 89 L. Ed. 2d 1 (1986). When a law “impermissibly
requires {someone} to associate wth speech with which [he or
she] may disagree,” that person “may be forced either to appear
to agree ... or to respond.” /d. at 15, 106 S. Ct. 903. “That kind
of forced response is antithetical to the free discussion that the
First Amendment seeks to foster.” [d. at 16, 106 S. Ct. 903.

23 We recognize that party affihations and political
views of candidates in races for high profile state offices, such
as governor, will be widely and publicly known, and in such
cases, voters may not be relying on the party preference
designation on the ballot. However, the same cannot be said for
lower profile state offices where the expression of party
preference on the ballot may well provide the decisive “voting
cue.” Rosen, 970 F.2d at 172.

29a

rights are not severely burdened because their
inability to indicate their candidate preference on the
primary ballot is no different from the inability of
other, nonparty organizations, such as labor unions
or better business bureaus, to indicate their
candidate preferences. First, Washington's argument
is undermined by the fact that Initiative 872 singles
out candidates’ political party preferences to be listed
on the primary ballot, but not preferences with
respect to any other organization. Second, a political
party is_ historically different from other
organizations with political interests in that it
nominates candidates to run for political office in the
party's name.?4 See Jones, 530 U.S. at 575-77, 120
S. Ct. 2402; Kusper v. Pontikes, 414 U.S. 51, 58, 94
S. Ct. 303, 38 L. Ed. 2d 260 (1973) (“Under our
political system, a basic function of a political party
is to select the candidates for public office to be
offered to the voters at general elections.”). We
therefore reject the premise of an equivalency
between political parties and other organizations
that lies at the heart of Washington’s argument.

In sum, because a party label-even if
expressed more ambiguously as a_ party
preference-conveys to voters “a shorthand
designation of the views of party candidates on
matters of public concern,” Tashijan, 479 U.S. at 220,

24 Like political parties, other organizations with
political interests-from the National Rifle Association to the
Sierra Club-may endorse candidates for office, but endorsement
is not the equivalent of nomination. Cf. Jones, 530 U.S. at 580,
120 S. Ct. 2402 (“The ability of the party leadership to endorse
a candidate is simply no substitute for the party members’
ability to choose their own nominee.”).

30a

107 S. Ct. 544, Initiative §&72’s party “preference”
designation allows some candidates to create a
mistaken impression of their true relationship with a
political party. That severe burden on parties’
associational rights is not negated by requiring
voters to rely on candidates’ or parties’ off-ballot
statements to clarify the nature or even lack of an
actual party association.

3. Compelling state interest and
narrow tailoring

Washington and the Grange have focused
their arguments on appeal on the contention that
Initiative 872 does not severely burden the political
parties’ associational rights at all. They have not
articulated any compelling state interest that
justifies such a burden. To the extent that we can
read compelling state interests between the lines of
their arguments-essentially those interests
articulated and found inadequate by the Supreme
Court in Jones-we conclude that such interests could
be sufficiently served by a more narrowly tailored
primary system. One obvious approach would be to
create a true nonpartisan primary, such as the one
discussed in Jones, where only a candidate's name
without any party preference or designation appears
on the ballot. Therefore, we hold that the modified
blanket primary enacted by Initiative 872 in
November 2004 is unconstituzional.

C. Severing Unconstitutional Provisions

As a fallback position, Washington and the
Grange argue that any unconstitutional provisions in
Initiative 872-namely those that provide for the
designation of candidate party preferences-can be

3la

severed from the rest of the Initiative. Following
Washington law, which guides our severability
inquiry, see Ariz. Libertarian Party, Inc. v. Bayless,
351 F.3d 1277, 1283 (9th Cir. 2003) (per curiam), we
conclude that it is not possible to sever the
constitutionally deficient portions from the rest of
Initiative 872.

The Washington Supreme Court has set forth
its state severability doctrine as follows:

[A]Jn act or statute is not
unconstitutional in its entirety unless
invalid provisions are unseverable and
it cannot reasonably be believed that
the legislative body would have passed
one without the other, or unless
elimination of the invalid part would
render the remaining part useless to
accomplish the legislative purposes. A
severability clause may provide the
assurance that the legislative body
would have enacted remaining sections
even if others are found invalid. It is not
necessarily dispositive on that question,
though ... . The independence of the
valid from the invalid parts of an act
does not depend on their being located
in separate sections. The invalid
provision must be grammatically,
functionally, and volitionally severable.

32a

McGowan v. State, 148 Wash. 2d 278, 60 P.3d 67, 75
(2002) (internal punctuation marks, footnote and
citations omitted).2°

Conceptually speaking, severing all references
to party preference from Initiative 872 seems fairly
straightforward even though, as a practical matter, a
fair number of provisions or portions of provisions
would have to be severed.2° However, even if we
assume without deciding that the problematic
provisions are “grammatically” or even “functionally”
severable,2’7 they are not “volitionally” severable.
Volitional severability is ancther way of stating the
McGowan requirement that “it cannot reasonably be
believed” that Washington voters would have passed
the remaining portions of Initiative 872 without the
excised party preference provisions. Jd.

Even if we grant Washington and the Grange’s
argument that Washington voters understood that
Initiative 872 redefined candidate partisanship (i.e.,
as a party preference rather than as a stronger form
of party affiliation), excising all mentions of party

25 Initiative 872 contains no severability clause,
although under McGowan, this fact is not dispositive. 60 P.3d
at 75.

26 The district court identified Sections 4, 5, 7(2), 7(3),
9(3), 11 and 12 as provisions cf Initiative 872 that were
“potentially severable.” We need not decide whether or not the
district court accurately identified all of the Initiative’s
provisions that are “potentially severable” because Initiative
872 fails the volitional prong of McGowan.

27 We understand functional severability to be a
restatement of the McGowan requirement that “elimination of
the invalid part would [not] rende> the remaining part useless
to accomplish the legislative purposes.” 60 P.3d at 75.

33a

preference from the modified blanket primary would
transform a partisan primary into a nonpartisan one.
It is not reasonable to believe that Washington
voters would have passed Initiative 872 if they knew
it would result in nonpartisan primaries for all
statewide offices. Because the party preference
provisions in Initiative 872 do not pass the volitional
severability test in McGowan, we conclude that
Initiative 872 cannot be saved by severing its
provisions for candidate party preferences. We hold
that Initiative 872 is unconstitutional in its
entirety.**

Il. CONCLUSION

Although the Constitution grants States “a
broad power ... to regulate the time, place, and
manner of elections{, that power] does not justify,
without more, the abridgement of fundamental
rights, such as .. . the freedom of political
association.” Tashijan, 479 U.S. at 217, 107 S. Ct.
544 (internal citations omitted). A political party's
“determination of the boundaries of its own
association, and of the structure which best allows it
to pursue its political goals, is protected by the
Constitution.” Jd. at 224, 107 S. Ct. 544. Initiative
872 severely burdens the Washington political
parties associational rights by allowing all
candidates to state their party preferences on the
primary ballot. This one-sided statement of party
preferences on the ballot has the potential to force a

28 Because we have held Initiative 872 to be
unconstitutional under the First and Fourteenth Amendments
we do not reach any of the other arguments that the political
parties advance with respect to Initiative 872.

34a

political party into an unwanted association with a
candidate who may be anataema to everything the
party stands for. We hold that Initiative 872 is
unconstitutional in its entirety because the party
preference provisions are not severable from the rest
of Initiative 872 under Washington law. The
judgment of the district court is affirmed.

AFFIRMED.

35a

United States District Court, W.D. Washington.

WASHINGTON STATE REPUBLICAN
PARTY, et al.,

Plaintiffs,

and Washington State Democratic Central
Committee, et al.,

Flaintiff Intervenors,
and Libertarian Party of Washington State, et al.,
Plaintiff Intervenors,
v.

Dean LOGAN, King County Records & Elections
Division Manager, et al., Defendants,

State of Washington,
Defendant Intervenors,
and Washington State Grange,
Defendant Intervenors.
No. C 05-927Z.

July 15, 2005.

Background: Major political parties sued State of
Washington, seeking determination that initiative
governing primary elections violated their First
Amendment rights. Parties moved and cross moved

for summary judgment.

36a

Holdings: The District Court, Zilly, J., held that:

(1) initiative involved nomination of
candidates, which was fundamental associational
right of political p»rties protected by First
Amendment;

(2) associational rights of parties was
violated when initiative provided that voters of any
or no political party could vote in primary for any
candidate running for particular office, regardless of
party preference indicated by candidate;

(3) associational rights were also violated
through provision allowing for candidates to self
identify themselves as preferring particular party,
regardless of whether party approved of candidate;

(4) provisions of state statutes governing
ballot placement of minority parties were preempted,
precluding argument by major parties that initiative
violated their equal protection rights by allowing
minority party statutory procedure from which they
were now excluded; and

(5) constitutional provisions could not be
separated from unconstitutional provisions.

Judgment for political parties.

John James White, Jr., Kevin B. Hansen, Livengood,
Carter, Tjossem, Fitzgerald & Alskog, Kirkland, WA,
David Thomas McDonald, Jay S Carlson, Preston
Gates & Ellis, Seattle, WA, Richard Dale Shepard,
Shepard Law Office Inc., Tacoma, WA, for Plaintiff.

Janine Joly, Thomas William Kuffel, King County
Courthouse Civil Division, Seattle, WA, Thomas
Fitzgerald Ahearne, Foster Pepper & Shefelman,

37a

Seattle, WA, Gordon W. Sivley, Robert Tad Seder,
Snohomish County Prosecuting Attorney Civil
Division, Everett, WA, Steven James Kinn, Spokane
County Prosecutor's Office, Spokane, WA, Curtis
Guy Wyrick, Clark County Prosecuting Attorney's
Office, Vancouver, WA, Ronald S. Marshall, Cowlitz
County Prosecutor's Office, Kelso, WA, James Garnet
Baker, Grays Harbor Prosecuting Attorney's Office,
Montesano, WA, Frederick Alan Johnson,
Wahkiakum County Prosecuting Attorney,
Cathlamet, WA, David W. Alvarez, Jefferson County
Prosecuting Attorney's Office, Port Townsend, WA,
for Defendants.

James Kendrick Pharris, Jeffrey T. Even, Maureen
Alice Hart, Attorney General of Washington,
Olympia, WA, for Defendant Intervenors.

ORDER
ZILLY, District Judge.
IV. INTRODUCTION

On May 19, 2005, the Washington State
Republican Party (the “Republican Party”) filed this
action against Dean Logan, King County Records
and Elections Division Manager and the Auditors of
eight other counties. Complaint, docket no. 1. The
Republican Party's Complaint challenges Initiative
872 on the basis of the First and Fourteenth
Amendments to the United States Constitution. The
Washington State Democratic Central Committee
(the “Democratic Party”) and the Washington State
Libertarian Party (the Libertarian Party”) have now

38a

intervened as Plaintiffs and also contend that
Initiative 872 is unconstitutional. See docket
nos. 2, 3.

Plaintiff Republican Party contends that
Initiative 872 is unconstitutional because the
Initiative prevents voters who share party affiliation
from selecting their party's nominees. The
Republican Party also alleges that Initiative 872
forces the Party to be associated publicly with
candidates who have not been nominated by the
Party, who will alter the political message and
agenda the Party seeks to advance, and who will
confuse the voting public with respect to what the
Party and its adherents stand for.

The Democratic Party contends portions of
Initiative 872 are unconstitutional to the extent that
they authorize the County Auditors to permit non-
affiliates of the Democratic Party to participate in its
nomination process, and to tne extent Initiative 872
allows crossover voting in violation of the Party's
associational rights.

The Libertarian Party claims that Initiative
872 is unconstitutional because it “places
impermissible limits on access to the general election
ballot” contrary to the United States Constitution,
and allows a person to appropriate the Libertarian
Party label without compliance with its nominating
rules and without allowing the Party to define what
the Party label means.

The State of Washington and the Washington
State Grange (the “Grange”) have also intervened as
Defendants. See Order, docket no. 30; see also
Minute Entry, docket no. 45. The State of

39a

Washington and the Grange contend that Initiative
872 is constitutional.

This case presents a classic conflict between
the rights of the voters to establish by initiative a
new system for conducting primaries and general
elections for partisan offices, and the rights of
political parties to control the nomination of partisan
candidates for elective office and to protect their
rights of association. Primaries constitute a “crucial
juncture” in the elective process and a “vital forum”
for expressive association among voters and political
parties. Clingman v. Beaver, --- U.S. ---, 125 S. Ct.
2029, 2042, 161 L. Ed. 2d 920 (2005) (O'Connor, J.,
concurring). The voters by Initiative 872 seek to
create a system “that best protects the rights of
voters to make such choices, increases voter
participation, and advances compelling interests of
the state of Washington.” Initiative 872, Sec. 2.!

Plaintiffs seek to have Initiative 872 declared
unconstitutional under the United’ States
Constitution as constituting an illegal nomination
process, as requiring an unconstitutional “forced
association,” and for violating equal protection under
the law. The recent invalidation of the Washington
blanket primary forced Washington voters to choose
between two strikingly different versions of a
primary election. The voters were forced to choose
between voter choice and party nominations, and the
voters chose voter choice.

! The Text of Initiative 872 can be found at Wash. Rev.
Code. Ann. § 29A.52 (West Supp. 2005). Throughout this
Order, the Court will cite to the text of Initiative 872 as

”

“Initiative 872, Sec. _”.

40a

In considering the issues presented in this
case, the Court does not begin with a clean slate.
Rather, the United States Constitution and binding
court precedent have created the landscape for
deciding these important issues.

V. HISTORY OF WASHINGTON’S
PRIMARY PROCESS

For over 100 years, Washington has had a
partisan election system. Historically, voters at the
general election were provided a choice between
representatives of each qualifying political party.
From 1890 through 1907, candidates for partisan
offices were chosen either by convention or by
petition. In 1907, the Washington State Legislature
established the first direct primary system for
partisan candidates, requiring political parties to
choose their representative through a_ public
primary. See State ex rel. Wells v. Dykeman,
70 Wash. 599, 127 P. 218 (1912). In this system
separate ballots were printed for each political party
and voters could only cast ballots in one party's

primary.
Washington State’s “blanket primary

ep

2 system

2 In a “closed” primary, cnly voters who register as
members of a party may vote in promaries to select that party's
candidates. In an “open” primary, the voter can choose the
ballot of any party but then is limited to the candidates on that
party's ballot. In a “blanket primary,” a voter can vote for
candidates of any party on the same ballot. In a “nonpartisan
blanket primary,” voters can vote for anyone on the primary
ballot, and the top vote-getters, regardless of party, run against
each other in the general electior. See Democratic Party of
Wash. v. Reed, 343 F.3d 1198, 1203 (9th Cir. 2003).

4la

was first established in 1935. Except for presidential
primaries,’ all properly registered voters could vote

Currently, thirty seven states conduct some type of
closed primary. Ala. Code § 17-16-14(b); Alaska Stat.
§ 15.25.010; Ariz. Rev. Stat. § 16-467; Ark. Code Ann.
§§ 7-7-307, 7-7-308; Cal. Elec. Code § 2151; Colo. Rev. Stat.
§§ 1-7-201, 1-2-218.5; Conn. Gen. Stat. § 9-431; Del. Code Ann.
tit. 15, § 3161; Fla. Stat. Ann. § 101.021; 10 Ill. Comp. Stat.
5/7-43(a); Ind. Code § 3-10-1-6; lowa Code Ann. §§ 43.41, 43.42;
Kan. Stat. Ann. § 25-3301; Ky. Rev. Stat. Ann. § 116.055; Me.
Rev. Stat. Ann. tit. 21-A, § 340; Md. Code Ann., Election Law,
§ 8-802; Mass. Gen. Laws Ann. ch. 53 § 37; Miss. Code Ann.
§ 23-15-575; Neb. Rev. Stat. § 32-912; Nev. Rev. Stat. 293.287;
N.H. Rev. Stat. Ann § 654.34(1I); N.J. Stat. Ann. § 19:23-45.1;
N.M. Stat. Ann. § 1-12-7; N.Y. Elec. Laws § 1-104(9); N.C. Gen.
Stat. § 163-59; Ohio Rey. Code Ann. § 3513.19; Okla. Stat. tit.
26, § 1-104; Or. Rev. Stat. § 254.365; 25 Pa. Cons. Stat. Ann.
§ 2832; R.I. Gen. Laws §§ 17-15-21, 17-15-24, 17-9.1-23; S.C.
Code Ann. § 7-9-20; S.D. Codified Laws § 12-6-26; Tenn. Code
Ann. § 2-7-115; Tex. Elec. Code Ann. §§ 162.003, 162.012,
162.013; Utah Code Ann. §§ 20A-3-104.5, 20A-3-202; W. Va.
Code § 3-1-35; Wyo. Stat. Ann. § 22-5-212.

Eleven states conduct open primaries. Ga. Code Ann.
§ 21-2-224; Haw. Rev. Stat. § 12-31; Idaho Code §§ 34-402,
34-404, 34-904; Mich. Comp. Laws § 168.576; Minn. Stat.
§ 204D.08: Mo. Rev. Stat. § 115.397; Mont. Code Ann.
§ 13-10-301; N.D. Cent. Code § 16.1-11-22; Vt. Stat. Ann. tit. 17,
§ 2363; Va. Code Ann. § 24.2-530; Wis. Stat. §§ 5.37, 6.80.

Two states conduct so-called nonpartisan blanket
primaries. Louisiana is the only state other than Washington
to conduct such a primary. La. Rev. Stat. Ann. §§ 18:401,
18:481, 18:482.

All states but Louisiana and Washington limit voters to
voting 1n only one political party’s primary.

’ None of the primary systems addressed in this Order
affect Presidential and Vice Presidential primaries. These
primaries are addressed by a separate system found in Wash.
Rev. Code § 29A.56.010, et seq.

42a

for their choice at any primary for “any candidate for
each office, regardless of political affiliation and
without a declaration of political faith or adherence
on the part of the voter.” Wash. Rev. Code Ann.
§ 29.18.200 (West 2003). As a result, each voter
received a ballot listing all candidates of all parties
and could vote for any candidate as opposed to
getting an exclusively Republican, Democratic, or
other party ballot. | Under the blanket primary
system, voters coutd choose candidates from some
parties for some positions, others for other positions,
and engage in cross-over vot.ng or “ticket splitting.”
Wash. Rev. Code Ann. § 29.18.200 (2003). Under the
blanket primary system, minor parties selected their
nominees at conventions prior to the date of the
primary. Wash. Rev. Code Ann. § 29.24.020 (2003).
These nominees would be placed on the ballot for the
primary election. To be placed on the general
election ballot, under the prior blanket primary
procedure, minor party nominees had to receive a
number of votes equal to at ‘east one percent of the
total number cast for all candidates for that position.
Wash. Rev. Code Ann. § 29.30.095 (2003).4

In 2000, the United States Supreme Court
held that California's blanket primary, similar in
many respects to Washington's blanket primary, was

* A “ ‘major political party’ is] a political party of which
at least one nominee for president, vice president, United
States senator, or a statewide office received at least five
percent of the total vote cast at the last preceding state general
election in an even-numbered year.” Wash. Rev. Code
§ 29A4.04.086. A minor political party is “a political organization
other than a major political party.” Wash. Rev. Code
§ 29A.04.097.

43a

unconstitutional. California Democratic Party v.
Jones, 530 U.S. 567, 120 S. Ct. 2402, 147 L. Ed. 2d
502 (2000). The Supreme Court held that the
California blanket primary placed a severe burden
on political parties’ right of association, was not
narrowly tailored to achieve a compelling state
interest, and was therefore unconstitutional. Jd. at
582-85, 120 S. Ct. 2402.

In 2003, relying on Jones, the Ninth Circuit
Court of Appeals held that Washington’s blanket
primary system was unconstitutional in Democratic
Party of Washington v. Reed, 343 F.3d 1198 (9th Cir.
2003), cert. denied, 540 U.S. 1213, 124 S. Ct. 1412,
158 L. Ed. 2d 140 (2004). The Ninth Circuit stated
that Washington's primary system was “materially
indistinguishable” from the invalidated California
system. /d. at 1203. As a result, Washington's
blanket primary that had been used for over sixty-
five years was held unconstitutional and the State
was legally enjoined from “conducting the challenged
primary in future elections.” Amended Judgment,
Washington State Democratic Party v. Reed,
No. C00-5419FDB (W.D. Wash. May 13, 2004).

On January 8, 2004, the Grange filed
Initiative 872 with the Secretary of State (the
“Secretary’).© Dembowski Decl., docket nos. 68 and

* The Washington Constitution was amended in 1912 to
allow direct government by the people in the form of popularly
enacted initiatives and referendums on laws passed by the
Legislature. Wash. Const. art. II, § 1 (“the people reserve to
themselves the power to propose bills, laws, and to enact or
reject the same at the polls, independent of the legislature, and
also reserve power, at their own option, to approve or reject at
the polls any act, item, section, or part of any bill, act, or law

44a

69, Ex. F. Initiative 872 proposed a “top two”
primary system in which a properly registered voter
has “the right to cast a vote for any candidate for
each office without any limitation based on party
preference or affiliation of either the voter or the
candidate.” Initiative 872, Sec. 5.® Initiative 872
defines a partisan primary as a “procedure for
winnowing candidates for public office to a final list
of two as part of a special or general election.” Jd.

While sponsors of Initiative 872 were
gathering signatures,’ the Washington State
Legislature was faced with the task of developing a
new primary system in Washington State after the

passed by the legislature”). The initiative process allows the
electorate to petition to place proposed legislation on the ballot.
If the initiative’s supporters timely file a petition with
signatures of legal voters equaling eight percent of the votes
cast for the office of governor at the last regular gubernatorial
election, the proposed legislation is placed on the ballot. Wash.
Rev. Code §§ 29A.72.150, 29A.72.250. Voters are then able to
directly vote on the proposed legislation at the next general
election or special election called by the Legislature. Since the
State adopted the initiative process in 1912, voters have
approved sixty-one statewide initiatives.

° The primary system proposed by Initiative 872 has
been referred to as the “modified blanket primary,” the
“People’s Choice Initiative,” and the “top two” primary. For
purposes of this Order the Court will refer to the primary
system under attack in this litigaticn as simply Initiative 872.

’ To begin the process of placing a proposed initiative on
the ballot, a legal voter must file with the Secretary a legible
copy of the proposed measure accoinpamied by an affidavit that
the proposer is a legal voter and the requisite filing fee. Wash
Rev. Code § 29A.72.010. This filirg must be made within ten
months of the date of the election at which the measure is to be
submitted to a vote. Wash. Rev. Code § 29A.72.030.

45a

Reed decision invalidated the blanket primary. On
March 10, 2004, the Legislature enacted a bill which
would have provided for two alternative primary
systems. E.S.B. 6453, 58th Leg., 2004 Reg. Sess.
(Wash. 2004). Part I of the bill provided for a
“Louisiana” style primary system, commonly referred
to as the “top two” approach. See id., Part Il. Under
the top two approach, a registered voter would be
permitted to cast a vote for each office appearing on
the ballot without any limitation based on the party
preference of either the voter or the candidate. /d.,
§ 5. The top two candidates would then proceed to
the general election.*

Aware that the political parties would
probably challenge the constitutionality of the top
two system, the Legislature also enacted a “backup
plan” to take effect if the top two system was
invalidated. /d., Part Il. Under this alternative, also
referred to as the “Montana system,” candidates
qualify for the general election through a process in
which voters are not required to register with a
party, but choose among candidates of a single party.
Their choice of the ballot selected is not public.
Under this backup plan, major political party
candidates for partisan offices would be nominated
by way of a primary election in which a voter would
have to choose a political party's ballot and could
only vote for candidates on that party's ballot. /d.,

* The top two system passed by the Legislature is
similar, although not identical, to the primary system proposed
in Initiative 872.

doa

§ 126.9 Under the Montana system, minor party
candidates would be nominated by a _ party
nominating convention, Wash. Rev. Code
§ 29A.20.121(1), and the minor party candidate
selected would be placed on the ballot for the general
election. Wash. Rev. Code §§ 29A.20.121;
29A.20.141. Minor party candidates will appear only
on the general election ballot under the Montana
system.

On April 1, 2004, Governor Gary Locke vetoed
the top two approach. E.S.B. 6453, 58th Leg., 2004
Reg. Sess. (Wash. 2004) (Governor's Veto Message).
As a result, the Montana primary system took effect
and was used by Washington voters in the primary
election in the fall of 2004.

On November 2, 2004, Initiative 872 was
approved by the voters by almost 60 percent.
Dembowksi Decl., docket nos. 68 and 69, Ex. J
(Washington State Election Measures Results).
Initiative 872 became effective on December 2, 2004,
thirty days after it was apprcved in the 2004 general
election. Wash. Const. art. I], § 1.'°

Initiative 872 provides the process for the
selection of candidates for partisan office in
Washington. A “major political party” means a

* Under the categones of primary the Court has
identified, the Montana primary system can be categonzed as
an open primary.

’° Initiative 872 also does not amend the statutes
governing how the special primary for the office of US.
President will be conducted. The Presidential election process,
involving nominations by the national parties, is not subject to
state-by-state regulation.

47a

political party of which at least one nominee for
President, Vice President, United States Senator, or
a statewide office received at least five percent of the
total vote cast at the last preceding state general
election in an even numbered year. Wash. Rev. Code
§ 29A.04.086. A “minor political party” is any
political organization other than a major political
party. Wash. Rev. Code § 29A.04.097.

Initiative 872 did not explicitly amend or
repeal any sections of the Revised Code of
Washington regulating the nomination of minor
party candidates. Initiative 872, Sec. 17; Wash. Rev.
Code §§ 29A.20.110-29A.20.201. The party
nominating procedures established by the Montana
primary system were not in existence at the time
Initiative 872 was filed, making it impossible for the
Initiative to have repealed or otherwise addressed
these procedures. In addition, Initiative 872 did not
refer to, repeal, or amend related sections of the
Revised Code of Washington in existence at the time
of the filing of the Initiative in January 2004. These
provisions, which were part of the blanket primary,
see Wash. Rev. Code Ann. §§ 29.24.020, 29.30.005,
29.30.095 (West 2003), provided in substance that
minor party candidates would be nominated at party
conventions. If a minor party candidate received
one percent of the vote in the primary, that
candidate would appear on the general election

ballot.!!

In the 2005 legislative session, the Secretary
sponsored legislation in both the State House and

'' The Reed court decision did not address the provisions
relating to minor party candidates.

48a

the Senate to “implement” Initiative 872. See H.B.
1750, 59th Leg., 2005 Reg. Sess. (Wash.2005); S.B.
5745, 59th Leg. 2005 Reg. Sess. (Wash. 2005).
These bills would have eliminated minor party
nominating conventions, other than for President
and Vice President. H.B. 1750, Sec. 9. The
Legislature did not enact any legislation dealing
with Initiative 872 in 2005.!2

On May 18, 2005, the Secretary adopted
emergency regulations relating to primary elections
in Washington. One of these regulations, Wash.
Admin. Code § 434-215-015, purports to abolish the
minor party convention rights that were not
addressed in the text of Initiative 872 or by the
Washington Legislature during 2004. Pharris Decl.,
docket no. 66, Ex. C (New Section: WAC
434-215-015).

'? E-mail correspondence from individuals within the
state government indicates that at least some believed any
changes made to Initiative 872 would have to be made by a two-
thirds majority vote of the Legislature. Hansen Decl., docket
no. 64, Ex. 3 at 22-23 (E-mail trom Rep. Kathy Haigh to
Bob Terwilliger). Another internal e-mail indicates that some
state legislators beheved that any legislation that would change
the minor party nominating procedure would also have to pass
by a two-thirds majority. Jd. at 26 (E-mail from John Pearson
to Katie Blinn). Article II, Section 41, of the Washington State
Constitution provides that no act, law or bill enacted by a
majority of voters can be amended or repealed within two years
of its enactment except by a two-thirds vote of the Legislature.
Wash. Const. art. II, § 41.

49a

VI. ISSUES PRESENTED AND
RELIEF REQUESTED

Pursuant to the Court’s request, the parties
have stipulated that the following legal issues should
be addressed at this time.

1. Does the primary system established by
Initiative 872 nominate political party candidates for
public office?

2. If the primary system under Initiative 872
does not nominate political party candidates for
public office, does each political party have the right
to select for itself the only candidate who will be
associated with it on either a primary or general
election ballot?

3. If the primary system under Initiative 872
nominates political party candidates for public office,
does Initiative 872 violate the First Amendment by
compelling a political party to associate with
unaffiliated voters and members of other political
parties in the selection of its nominees?

4. Does Washington's filing statute impose
forced association of political parties with candidates
in violation of the parties’ First Amendment
associational rights?

5. Does Initiative 872’'s limitation of access to
the general election ballot to only the top two vote-
getters in the primary for partisan office
unconstitutionally limit ballot access for minor
political parties?

50a

See Stipulated Statement of Legal Issues,
docket no. 40. In addition, the parties have briefed
the issue of whether Initiative 872 is severable if the
Court finds portions of the Initiative
unconstitutional. Plaintiffs Republican Party,
Democratic Party and Libertarian Party move the
Court for Summary Judgment in their facial
challenge to Initiative 872.

Plaintiff Republican Party asks the Court
for a ruling as a matter of law that Initiative
872 and Washington’s filing statutes, Wash.
Rev. Code §§ 29A.24.030, 29A.24.031, impose an
unconstitutional burden on First Amendment rights.
Plaintiff moves for a permanent injunction
preventing any partisan election pursuant to
Initiative 872, or the identification of any candidate
as “Republican,” if not authorized by the Republican
Party.

Plaintiff Democratic Party asks the Court for a
ruling as a matter of law that Initiative 872 burdens
First Amendment rights by (1) allowing any
candidate, regardless of their party affiliation or
relationship to the party, to self-identify as a
member of a political party and to appear on the
primary and general election ballots as a candidate
for that party; and (2) allowing any voter, regardless
of party affiliation, to vote for any political party
candidate in the primary election. Plaintiff moves
for a permanent injunction preventing the State of
Washington or any political subdivision of the State
from enforcing or implementing Initiative 872 at any
primary or general election.

5la

Plaintiff Libertarian Party asks the Court for
a ruling as a matter of law that Initiative 872
and Washington's filing statutes, Wash. Rev.
Code §§ 29A.24.030, 29A.24.031, impose an
unconstitutional burden on First Amendment rights
and unconstitutionally limit minor party ballot
access. Plaintiff moves for a permanent injunction
preventing a partisan election under Initiative 872;
the identification as “Libertarian” of any
unauthorized candidate; and any election which
requires more than a “modicum of support” to secure
general election ballot access.

The State of Washington and the Grange
oppose Plaintiffs’ Motions for Summary Judgment
and the relief requested by the Plaintiffs. The
Defendants contend Initiative 872 does not impose a
burden on First Amendment associational rights,
and request the Court enter an Order and Judgment
in their favor.

VII. SUPPLEMENTAL REQUEST

In addition to the issues addressed in opening
briefs, the Republican Party submitted a Supplement
to its Motion for Summary Judgment, docket no. 63.
In the Supplement, the Republican Party requests a
finding that Initiative 872 is unconstitutional
because it violates the right to equal protection
under the law, in violation of the United States
Constitution. The Republican Party contends that
“Initiative 872 violates the Equal Protection clause
by allowing minor political parties to nominate
candidates-and control their message, but denying
the same right to the [major political parties.]” See
Republican Supplement, docket no. 63, at 4.

The Republican Party's Supplement was filed
on June 23, 2005, after the deadline for Opening
Briefs. The State of Washington has moved to strike
the Republican Party's Supplement, see Motion to
Strike, docket no. 65, and argues the Supplemental
filing is untimely and prejudicial. /d. at 10. The
Republican Party argues that the Court should
consider its additional argument and notes that its
equal protection argument was raised in its
Complaint, docket no. 1, at 44 22-23, and previous
Motion for Preliminary’ Injunction, docket
no. 7, at 10.

The Court finds that the Republican's
Supplement to Summary Judgment Motion, docket
no. 63, provided adequate notice to the Defendant
State of Washington and the Defendant Washington
State Grange. The Supplement raises important
issues of equal protection related to the treatment of
minor parties under Initiative 872.

The Court DENIES the Motion to Strike,
docket no. 65.

VIIl. LEGAL STANDARD

This is a facial challenge to Initiative 872,
which Plaintiffs allege burdens the exercise of their
First Amendment rights. All parties agree that this
facial challenge is ripe for adjudication,'* and that

'* A statute may be challenged in two distinct ways.
First, a statute may be challenged on its face, whereby a court
examines solely the text of the document to determine its
constitutionaltty. Second, a statute may be challenged as it 1s
apphed. In an “as apphed” challenge, a court considers the
constitutionality of a statute as it has been apphed to the
parties to the action. The Court has previously directed the

53a

the alleyed “threat” to the political parties’
associational rights is more than hypothetical. The
allegation of imminent injury to established First
Amendment rights warrants intervention by the
federal courts. See Buckley v. Valeo, 424 U.S. 1, 117,
96 S. Ct. 612, 46 L. Ed. 2d 659 (1976).

Our constitutional system does not authorize
the judiciary to sit as a superlegislature to judge the
wisdom or desirability of legislative or initiative
policy decisions. See Heller v. Doe, 509 U.S. 312,
319, 113 S. Ct. 2637, 125 L. Ed. 2d 257 (1993).
Rather, courts must give state statutes and lawfully
enacted initiatives a strong presumption of validity.
See Broadrick v. Oklahoma, 413 U.S. 601, 611-13,
93 S. Ct. 2908, 37 L. Ed. 2d 830 (1973). The
presumption of validity is especially strong in this
case because Plaintiffs are making a facial
challenge to Initiative 872. See United States
v. Salerno, 481 U.S. 739, 745, 107 S. Ct. 2095,
95 L. Ed. 2d 697 (1987).

In a facial challenge, there is no analytic
scheme whereby the political parties must submit
evidence establishing that they have been harmed.
See Reed, 343 F.3d at 1203. Rather, the Court
evaluates the challenged statute on its face, in light
of the constitutional burdens or infringements
alleged. Jd. Plaintiffs in this case allege that
Initiative 872 burdens their First Amendment
associational rights by allowing non-affiliates of the
party to participate in a party's nominee selection

parties to limit their briefs to Plaintiffs’ facial challenge of
Initiative 872. The Court reserved issues related to Plaintiffs’
as apphed challenge.

54a

process and forcing a party to associate with a
candidate other than those selected by the party.

Where a statutory scheme imposes a severe
burden on core First Amendment rights, the scheme
must be found unconstitutional unless the State
affirmatively demonstrates that the scheme is
narrowly tailored to advance a compelling state
interest.'* Reed, 343 F.3d at 1204. In Reed, the
Ninth Circuit discussed the applicable framework for
this Court's review:

This is a facial challenge to a statute
burdening the exercise of a _ First
Amendment right .... In Jones, the
Court read the state blanket primary
statutes, determined that on their face
they restrict free association,
accordingly subjected them to strict
scrutiny, and only then looked at the
evidence to determine whether the
State satisfied its burden of showing
narrow tailoring toward a compelling
state interest.

343 F.3d at 1203. A “[cjonstitutional challenge to
specific provisions of a State’s election laws .
cannot be resolved by any ‘litmus-paper test’ that

‘* The State and the Grange argue that a facial
challenge requires the challenger to establish “that no set of
circumstances exists under whict the Act would be vahd.”
E.g., State Response, docket no. 65, at 4 (citing United States v.
Salerno, 481 U.S. 739, 745, 107 S. Ct. 2095, 95 L. Ed. 2d 697
(1987)). Because Plaintiffs challenge to Initiative 872 raises
First Amendment nghts, the Court will subject any restrictions
on free association to strict scrutiny. Reed, 343 F.3d at 1203.

will separate valid from invalid restrictions.”
Tashjian v. Republican Party of Conn., 479 U.S. 208,
213-14, 107 S. Ct. 544, 93 L. Ed. 2d 514 (1986)
(quoting Anderson v. Celebrezze, 460 U.S. 780, 789,
103 S. Ct. 1564, 75 L. Ed. 2d 547 (1983) (internal
citations and quotations omitted)).

Instead, a court . . . must first consider
the character and magnitude of the
asserted injury to the rights protected
by the First and _ Fourteenth
Amendments that the plaintiff seeks to
vindicate. It must then identify and
evaluate the precise interests put
forward by the State as justifications for
the burden imposed by its rule. In
passing judgment, the Court must not
only determine the legitimacy and
strength of each of those interests, it
must also consider the extent to which
those interests make it necessary to
burden the plaintiff's rights.

Tashjian, 479 U.S. at 214, 107 S. Ct. 544 (quoting
Anderson, 460 U.S. at 789, 103 S. Ct. 1564).

The nature of the asserted First Amendment
- interest in this case is evident: “freedom to engage
in association for the advancement of beliefs and
ideas is an inseparable aspect of the ‘liberty’ assured
by the Due Process Clause of the Fourteenth
Amendment, which embraces freedom of speech.”
Tashjian, 479 U.S. at 214, 107 S. Ct. 544 (quoting
NAACP v. Alabama ex rel. Patterson, 357 U.S. 449,
460, 78 S. Ct. 1163, 2 L. Ed. 2d 1488 (1958)). The
freedom to join together in furtherance of common

political beliefs “necessarily presupposes the freedom
to identify the people who constitute the association.”
Tashjian, 479 U.S. at 214-15, 107 S. Ct. 544. “jA]
corollary of the right to associate is the right not to
associate.” Jones, 530 U.S. at 574, 120 S. Ct. 2402
(emphasis added).

A. California Democratic Party v. Jones

Prior to 1996, political party nominees in
California were determined in a “closed” partisan
primary, in which only persons who were members of
the political party (i.e., who nad declared affiliation
with that party when they registered to vote) could
vote for the party’s nominee. See Cal. Elec. Code
Ann. § 2151 (West 1996). In 1996, California voters
adopted Proposition 198, which changed the
California partisan primary from a closed primary to
a blanket primary. Under Proposition 198, “all
persons entitled to vote, including those not affiliated
with any political party,” had the right to vote “for
any candidate regardless of the candidate’s political
affiliation.” Cal. Elec. Code Ann. § 2001 (West
Supp. 2000). The candidate of each party winning
the greatest number of votes became “the nominee of
that party at the ensuing general election.”
Cal. Elec. Code Ann. § 15451 (West 1996).
California law expressly provided that the name of
the candidate of each party with the most votes was
the party’s “nominee.” Jd. Proposition 198 was
promoted as a measure that would “weaken” party
“hard-liners” and ease the way for “moderate
problem-solvers.” See Jones, 530 U.S. at 570,

57a

120 S. Ct. 2402. Four political parties brought suit
in California alleging the blanket primary adopted
by Proposition 198 violated their First Amendment
rights of association.

The United States Supreme Court in Jones
recognized the “major role [the States have] to play
in structuring and monitoring the election process,
including primaries,” and the State’s ability to
“require parties to use the primary format for
selecting their nominees.” Jones, 530 U.S. at 572,
120 S. Ct. 2402. Nevertheless, the Court held the
California blanket primary unconstitutional. The
Supreme Court held that “when States regulate
parties’ internal processes, they must act within the
limits imposed by the Constitution.” Jones, 530 U.S.
at 573, 120S. Ct. 2402.

Representative democracy in any
populous unit of governance is
unimaginable without the ability of
citizens to band together in promoting
among the electorate candidates who
espouse their political views. The
formation of national political parties
was almost concurrent with the
formation of the Republic itself.
Consistent with this tradition, the
Court has recognized that the First
Amendment protects the freedom to join
together in furtherance of common
political beliefs, which necessarily
presupposes the freedom to identify the
people who constitute the association,
and to limit the association to those
people only.

58a

Id. at 574, 120 S. Ct. 2402. The Jones Court held
that “[i]n no area is the political association's right to
exclude more important than in the process of
selecting its nominee,” id. at 575, 120 S. Ct. 2402,
and concluded that the ability of a political party to
select its “own candidate,” or “nominee,”
unquestionably implicates associational freedom.
See id. at 575-76, 120 S. Ct. 2402. Proposition 198,
by allowing all voters to vote for any candidate
regardless of political affiliation, violated the First
Amendment associational rights of the political
parties, and forced “political parties to associate
with-to have their nominees, and hence their
positions, determined by-these who, at best, have
refused to affiliate with the party, and, at worst,
have expressly affiliated with a rival.” Jd. at 577,
120 S. Ct. 2402.

B. Democratic Party v. Reed

Washington State’s blanket primary differed
from California’s blanket primary in that it did not
explicitly name the candidate of each party with the
most votes as its “nominee. Compare Cal. Elec.
Code Ann. § 15451. Under Washington's blanket
primary, “all properly registered voters” could vote at
any primary “for any candidate for each office,
regardless of political affiliation and without a
declaration of political faith or adherence on the part
of the voter.” Wash. Rev. Code Ann. § 29.18.200
(West 2003). To reach the general election ballot, a
candidate had to receive a plurality of the votes cast
for candidates of his or her party, and at least one
percent of the total votes cast at the primary for all
candidates for that office. Wash. Rev. Code Ann.
§ 29.30.095 (West 2003).

59a

Because all candidates from all parties were
listed on the primary ballot, and were voted on by all
registered voters, the Ninth Circuit concluded that
Washington's blanket primary was “materially
indistinguishable” from California's blanket primary.
Reed, 343 F.3d at 1203. The Ninth Circuit held that
Washington's blanket primary was “on its face an
unconstitutional burden on the rights of free
association” of the political parties. Jd. at 1207.

The State of Washington argued in Reed that
Washington's blanket primary was distinguishable
from California's blanket primary because
Washington does not register voters by party, and
because winners of the primary are “ ‘nominees’ not
of the parties but of the electorate.” Jd. at 1203. As
such, the State argued Washington’s primary was a
nonpartisan blanket primary. Jd. The Ninth Circuit
disagreed, concluding that Washington’s blanket
primary denied “party adherents the opportunity to
nominate their party's candidate free of the risk of
being swamped by voters whose preference is for the
other party.” Jd. at 1204.

The right of people adhering to a
political party to freely associate is not
limited to getting together for cocktails
and canapés. Party adherents are
entitled to associate to choose their
party's nominees for public office. * * *
Put simply, the blanket primary
prevents a party from picking its
nominees.

Id. The Ninth Circuit concluded that the First
Amendment's protection of freedom of association

60a

required invalidation of Washington's blanket
primary. /d. As a result, Washington's blanket
primary was held unconstitutional and the State was
enjoined from using the blanket primary system in
the future.

IX. ANALYSIS OF INITIATIVE 872

A. Does the primary system established by
Initiative 872 nominate political party
candidates for public office?

The parties dispute whether the primary
system under Initiative 872 “nominates” political
party candidates for public office, and whether it
violates the First Amendment associational rights of
the political parties. This inquiry is important
because under Jones, primary voters at large may
not choose a party's nominee. 530 U.S. at 585-86,
120 S. Ct. 2402.

The 2004 Voters’ Pamphlet description of
Initiative 872 stated:

Initiative Measure No. 872 concerns
elections to partisan offices.

This measure would allow voters to
select among all candidates in a
primary. Ballots would indicate
candidates’ party preference. The two
candidates receiving most votes advance
to the general election regardless of
party.

Pharris Decl., docket no. 66, Ex. A (2004 Voters’
Pamphlet at 10).

6la

1. Statutory Modifications

Initiative 872 added a new definition for
“Partisan office” in Wash. Rev. Code § 29A.04, and
modified the definition of “Primary” in Wash. Rev.
Code § 29A.04.127, as follows:

Sec. 4. A new section is added to
chapter 29A.04 RCW to read as follows:

“Partisan office” means a public office
for which a candidate may indicate a
political party preference on his or her
declaration of candidacy and have that
preference appear on the primary and
general election ballot in conjunction
with his or her name. _ The following
are partisan offices:

(1) United States senator and United
States representative;

(2) All state offices, including
legislative, except (a) judicial offices and
(b) the office of superintendent of public
instruction;

(3) All county offices except (a) judicial
offices and (b) those offices for which a
county home rule charter provides
otherwise.

Sec. 5. RCW 29A.04.127 and 2003
c 111s 122 are each amended to read as
follows:

“Primary” or “primary election” means a
( (Stet HtoEy ) ) procedure for
((RominatiRE)) winnowing candidates

62a

((te)) for public office ((at+he-peHs)) to a
final list of two as part of a special or
general election. Each voter has the
right to cast a vote for any candidate for
each office without any limitation based
on party preference or affiliation, of
either the voter or the candidate.

See Initiative 872, Secs. 4-5. The State and County
Auditors recognize no nomination process for a major
party other than by the primary. White Decl.,
docket no. 8, Ex. 8 (County Auditors “not aware of
any language associated with the Initiative that
contemplates a partisan nominating process separate
from the primary.”). Under Initiative 872, the only
way for a partisan candidate to reach the general
election is through the “top two” primary.

The Grange alleges that the Initiative 872
primary “determines the two candidates or nominees
for the general election ballot, while allowing each
candidate to disclose to the voters his or her own
political preference.” See Answer, docket no. 37, at
16 (emphasis added). Nevertheless, the Grange
contends that determining the “candidates or
nominees” for the general election does not select the
candidate or nominee for any political party. 7d.

The State of Washington argues that Initiative
872 does not “nominate” political party candidates
for public office, and does not create a nominating
primary. Rather, the State contends that Initiative
872 makes “party nominations . . . irrelevant to
qualifying candidates to the ballot.” See State
Response, docket no. 65, at 12. The State urges that
unlike a “nominating” primary, Initiative 872 is a

ae et”

63a

“winnowing” primary in which the primary voters do
not choose the party's nominee. Changes by the
Initiative to Wash. Rev. Code § 29A.04.127 revised
“nominating” to “winnowing.” The Republican
Party argues that calling the primary a “winnowing
primary,” rather than a “nominating primary,” does
not distinguish the Initiative 872 primary system
from the blanket primaries rejected in Jones and
Reed, and does not change the fact that Initiative
872’s primary nominates candidates. All Plaintiffs
argue that the Court must analyze the framework of
the Initiative, rather than changes to statutory
wording, in determining its effect and possible
burden on First Amendment rights.

The Republican Party notes that the State
unsuccessfully proffered its “winnowing” arguments

'S However, similar changes were not made to other
statutes which require the major parties to advance candidates
for Congressional, State and County offices by means of these
partisan nominating primaries: “[mjajor political party
candidates for all partisan elected offices, except for president
and vice president . . . must be nominated at primaries held
under this chapter.” Wash. Rev. Code § 29A.52.116; see also
Wash. Rev. Code § 29A.52.111. The State of Washington
argues that Wash. Rev. Code § 29A.52.116 is “clearly
inconsistent with the system established under 1-872, and
should be regarded as obsolete.” See State Response, docket
no. 65, at 19 n.16. This provision could not have been expressly
repealed by Initiative 872 because it was enacted after the filing
of Initiative 872. Plaintiffs rely on Wash. Rev. Code
§ 29A.52.116 as support for their argument that Initiative 872
is a “nominating” primary. This argument is unpersuasive
because that statute had not even been enacted when the
Initiative was filed. However, for the reasons stated in this
opinion the Court concludes that Wash. Rev. Code § 29A.52.116
1s not 1n conflict with the Initiative.

64a

in Jones'® All Plaintiffs suggest the change of
“nominating” to “winnowing” is a change without a
difference. The Democratic Party argues that
Initiative 872 engages in “wcrd-play,” attempting to
transform the constitutionality of Washington's
nominating procedure by avoiding the word
“nominate.” See Democratic Party Opening Br.,
docket no. 55, at 15.'7 The Democratic Party argues
that “tinker[ing] with the wording of the definition of
‘primary to avoid using the word ‘nominating’ ” does
not alter the substance of the primary as a
nominating procedure. Id.

All Plaintiffs urge the Court to conclude that
the primary under Initiative 872 is a “nominating”
primary, because it results in the selection of
political party nominees, and because the State and
County Auditors, acting pursuant to state law,
permit no nomination process other than by the
primary.

'6 In its amicus curiae brief before the Supreme Court in
Jones, the State described “the winnowing of candidates for the
general election” as the only “aspect of party associational —
activities affected by the blanket primary.” Brief of the States
of Washington & Alaska as Amici Curiae in Support of
Respondents, 2000 W'_ 340240 at * \0.

17 “Nominate” means “[t]o propose by name as a
candidate, especially for election." The American Heritage
Dictionary of the English Language (4th ed.2000). “Winnow’
means “{t]o rid of undesirable parts,” or “[t)o separate the good
from the bad.” Id.

65a

2. Political Party Function

“{A] basic function of a political party is to
select the candidates for public office to be offered to
the voters at general elections.” Clingman, 125
S. Ct. at 2042 (O'Connor, J., concurring) (quoting
Kusper v. Pontikes, 414 U.S. 51, 58, 94S. Ct. 303, 38
L. Ed. 2d 260 (1973)). Polit zal parties are entitled to
First Amendment protections for any process which
chooses the party's nominee. See Jones, 530 U.S. at
575, 120 S. Ct. 2402. The party’s “nominee” has also
been referred to as the political party's “own
candidate,” id. (quoting Tashjian, 479 U.S. at 235-36,
107 S. Ct. 544 (Scalia, J., dissenting)), “standard
bearer,” Timmons v. Twin Cities Area New Party,
520 U.S. 351, 359, 117 S. Ct. 1364, 137 L. Ed. 2d 589
(1997), “choice,” id. at 372, 117 S. Ct. 1364 (Stevens,
J., dissenting), “ambassador to the _ general
electorate,” Jones, 530 U.S. at 575, 120 S. Ct. 2402,
and the “standard bearer who best represents the
party's ideologies and preferences.” Eu v. San
Francisco County Democratic Cent. Comm., 489 US.
214, 224, 109 S. Ct. 1013, 103 L. Ed. 2d 271 (1989)
(internal quotations omitted).

The State contends that by Initiative 872, the
. State completely decoupled the process for deciding
which candidates appear on the general election
ballot from any party’s nominating process. See
State Response, docket no. 65, at 17. The State
argues that the political parties remain free to select
their own nominees, and to advocate on their behalf
in the “qualifying” primary. See id. Alternatively
stated, the State argues that when forced to choose
between (1) preserving voter choice: and (2) using
primaries to nominate party candidates, voters

66a

chose to preserve voter choice. However, this
misapprehends the choice available to voters after
Jones and Reed. A political party does not have a
constitutional right to have its candidate on the
general election ballot; however, it does have a
constitutional right to nominate its “standard
bearer.” Timmons, 520 U.S. at 359, 117 S. Ct. 1364.
The position advocated by the State transforms the
party’s right to “noniinate” into a right to endorse.
The Supreme Court rejected a similar argument with
regard to California's Proposition 198: “{t]he ability
of the party leadership to endorse a candidate is
simply no substitute for the party members’ ability to
choose their own nominee.” Jones, 530 U.S. at 580,
120 S. Ct. 2402. To relegate the members of a
political party to a role of mere support for their
preferred “standard bearer,” would deny a party its
role in selecting its represertative. Party members
associational right to choose the “standard bearer” of
the party cannot be so infringed, nor can the ability
to nominate a party's chosen candidate be so easily
disposed of.

“There is simply no substitute for a party's
selecting its own candidates.” Jones, 530 U.S. at
581, 120 S. Ct. 2402.

3. Selection by Voters at Large

The State of Washington and the Grange also
argue that “[t]he candidates who appear on the
general election ballot are selected by the voters at
large, not by the parties or by the voters as party
members,” and therefore the candidates are not the
parties’ nominees. See S:ate Response, docket
no. 65, at 19 (emphasis omitted). The Grange

67a

argues that Initiative 872 allows candidates to
disclose the political party that the candidate
prefers, and that unlike the blanket primary
invalidated in Reed, Initiative 872 “does not require
or force any political party to do anything.” See
Grange Response, docket no. 70, at 32 (emphasis
omitted). These arguments have already been
rejected by the Ninth Circuit in Reed, 343 F.3d at
1204 (“As for the State of Washington’s argument
that the party nominees chosen at blanket primaries
‘are the nominees not of the parties but of the
electorate,’ that is the problem with the system, not a
defense of it.”). That conclusion is equally applicable
here. The fact that voters at large will select the
party's candidate indicates the Initiative 872
primary serves a nominating function. The major
political parties may not be deprived of their rights
simply because the primary system “does not require
or force [the parties] to do anything.”

It is similarly unhelpful to rename the
nominating primary a “qualifying” primary. The
Court must necessarily look beyond the
characterization of the Initiative by its backers.
Where the primary system under Initiative 872
selects from a slate of party candidates to advance
two candidates to the general election, the system
has the legal effect of “nominating” the party
representatives in the partisan election.

4. Political “Preference” of Party
Candidates

The State argues that “[s]ince party affiliation
plays no role in determining which candidates
advance to the general election, the primary

68a

established by [Initiative 872] cannot in any way be
regarded as determining party nominees,” and that a
statement of “party preference” does not imply
nomination, endorsement, or support of any political
party. See State Response, docket no. 65, at 19-20.
The Grange also argues that any statement of party
preference by a candidate is absolutely protected by
the First Amendment. These arguments also must
fail. Party affiliation undeniably plays a role in
determining the candidate voters will select, whether
it is characterized as “affiliation” or “preference.”
Tashjian, 479 U.S. at 220, 107 S. Ct. 544. Party
labels provide a shorthand designation of the views
of party candidates on matters of public concern and
play a role in the exercise of voting rights. /d.
Candidates identified with their “preferred” party
designation will “carry [the party] standard in the
general election.” See Republican Opening Brief,
docket no. 49, at 7. Any attempt to distinguish a
“preferred” party from an “affiliated” party is
unavailing in light of Washington law. See Wash.
Rev. Code § 29A.24.030 (“Included on the standard
form shall be . . . [flor partisan offices only, a place
for the candidate to indicate his or her major or
minor party preference, or independent status’):
Wash. Rev. Code § 29A.52 311 (County Auditors
required to publish notice of the election with “the
proper party designation” of each candidate); Wash
Rev. Code § 29A.52.112(3) (Candidate expressing a
political party “preference” will have that preference
“shown after the name of the candidate on the
primary and general election ballots.”); see also
Pharris Decl., docket no. 66, Ex. A (2004 Voters’
Pamphlet at 11) (“The primary ballot [under

69a

Initiative 872] would include . . . major party and
minor party candidates and independents.”).

The association of a candidate with a
particular party may be the single most effective way
to communicate to voters what the candidate
represents. See Rosen v. Brown, 970 F.2d 169, 172
(6th Cir. 1992) (“[P]arty candidates are afforded a
‘voting cue’ on the ballot in the form of a party label
which research indicates is the most important
determinant of voting behavior. Many voters do not
know who the candidates are or who they will vote
for until they enter the voting booth.”).

The Grange’s characterization of ballot labels
of “party preference” as a permissible exercise of ffee
speech must also fail. An individual has no right to
associate with a political party that is an “unwilling
partner.” See Duke v. Cleland, 954 F.2d 1526, 1530
(llth Cir. 1992), cert. denied, 502 U.S. 1086, 112
S. Ct. 1152, 117 L. Ed. 2d 279 (1992). This is not an
infringement on the candidate's rights because the
political party has a right “to identify the people who
constitute the association and to limit the association
to those people only.” /d. at 1531 (internal
quotations omitted). Free speech rights of a
candidate “do not trump the [political party's] right
to identify its membership based on_ political
beliefs ....” Duke v. Massey, 87 F.3d 1226, 1232-33
(11th Cir. 1996). A candidate's free speech right to
express a “preference” for a political party does not
extend to disrupting the party’s First Amendment
associational rights. See generally Storer v. Brown,
415 U.S. 724, 736, 94 S. Ct. 1274, 39 L. Ed. 2d 714
(1974) (upholding California statute designed to
protect the parties and party system against the

70a

disorganizing effect of independent candidacies
launched by unsuccessful putative party nominees).

5. The Jones Dicta: “Nonpartisan
Blanket Primary”

The Court in Jones suggested in dicta that a
“nonpartisan blanket primary” could protect
important state interests and voter choice, with “all
the characteristics of the partisan blanket primary,
save the constitutionally crucial one: Primary voters
are not choosing a party’s nominee.” Jones, 530 U.S.
at 585-86, 120 S. Ct. 2402.

The State and the Grange rely heavily on the
following statement from Jones:

[California] could protect [its interests]
by resorting to a nonpartisan blanket
primary. Generally speaking, under
such a system, the State determines
what qualifications it requires for a
candidate to have a place on the
primary ballot-which may include
nomination by established parties and
voter-petition requirements for
independent candidates. Each voter,
regardless of party affiliation, may then
vote for any candidate and the top two
vote getters (or however many the State
prescribes) then move on to the general
election. This system has all the
characteristics of the partisan blanket
primary, save the _ constitutionally
crucial one: Primary voters are not
choosing a party's nominee. Under a
nonpartisan blanket primary, a State

Tila

may ensure more choice, greater
participation, increased “privacy,” and a
sense of “fairness’-all without severely
burdening a political party’s First
Amendment right of association.

Jones, 530 U.S. at 585-86, 120 S. Ct. 2402.
According to the Grange, which sponsored Initiative
872, it “specifically drafted Initiative 872 to conform
to [the Supreme Court ruling in Jones,]” and its
description of a nonpartisan blanket primary. See
White Decl., docket no.8, Ex. 4 (“Advantages of a
Qualifying Primary for Washington State’).

The Court gives great weight to the Jones
Court’s suggestion in analyzing the constitutionality
of Initiative 872. However, a careful analysis of
Jones and this “suggestion” indicates that it cannot
save Initiative 872 from its demise.

Initiative 872 does not’ establish a
“nonpartisan blanket primary.” Primary voters are
choosing a party’s nominee. Initiative 872 burdens
the rights of the political parties to choose their own
nominee by compelling the parties to accept any
candidate who declares a “preference” for the party,
and allowing unaffiliated voters to participate in the
selection of the party's candidate.

Plaintiffs’ claim that Initiative 872 “denies
party adherents the opportunity to nominate their
party's candidate free of the risk of being swamped
by voters wWose preference is for the other party,” see
Reed, 343 F.3d at 1204, is well grounded. Jones
allows little room for “outside” involvement in
“intraparty” competition. See Jones, 530 U.S. at
572, 120 S. Ct. 2402. This is confirmed by Justice

72a

Stevens dissenting opinion. See id. at 598, n. 8, 120
S. Ct. 2402 (“It is arguable that, under the Court's
reasoning combined with Tashjian, the only
nominating options open for the States to choose
without party consent are (1) to not have primary
elections; or (2) to have what the Court calls a
‘nonpartisan blanket primary’ . . . in. which
candidates previously nominated by the various
political parties and independent candidates
compete.”) (Stevens, J., dissenting).

6. Initiative 872 Nominates
Candidates

In all constitutionally relevant respects,
Initiative 872 is identical to the blanket primary
invalidated in Reed: (1) Initiative 872 allows
candidates to designate a party preference when
filing for office, without participation or consent of
the party;'® (2) requires that political party
candidates be nominated in Washington's primary;
(3) identifies candidates on the primary ballot with
party preference; (4) allows voters to vote for any
candidate for any office without regard to party
preference; (5) allows the use of an _ open,
consolidated primary ballot that is not limited by
political party and allows crossover voting; and
(6) advances candidates to the general election based
on open, “blanket” voting.

Because’ Initiative 872 constitutes a

'8 The parties disagree as to whether minor party
candidates are nominated through the nominating process
described in Wash. Rev. Code §§ 29A.20.110 through
29A.20.201. See Section VI.C, infra. The parties also disagree as
to the applicability of Initiative 872 to minor parties.

73a

nominating process, the Court must address the
question of Plaintiffs’ associational rights, and the
extent of the burden imposed on those rights by
Initiative 872.'9

B. Does Initiative 872 violate the First
Amendment by compelling a _ political
party to associate with unaffiliated
voters and members of other political
parties in the selection of its nominees?

Plaintiffs argue Initiative 872 imposes an

'° The political parties argue in the alternative that if
Initiative 872 is not a nominating primary, it would be
unconstitutional for violation of the parties’ First Amendment
associational right to select candidates for public office. It is
well settled that political parties have a constitutionally
protected right to nominate their candidates for partisan office.
See Jones, 530 U.S. at 575, 120 S. Ct. 2402; Clingman, 125
S. Ct. at 2042 (O'Connor, J., concurring) (a basic function of a
pohtical party 1s to select candidates to be offered to voters in
general elections); Eu, 489 U.S. at 224, 109 S. Ct. 1013 (party
entitled to select the “standard bearer who best represents the
party's ideologies and preferences.’).

First Amendment associational rights are no less
protected where the State effects a primary system that
eliminates the party's nght to nominate its own candidates. In
such a circumstance, the affected political party is entitled to
hold a caucus or convention to nominate its candidates for
partisan office. Similarly, the party is entitled to prevent non-
affilated candidates from expressing a party preference or
affiliation on the primary or general election ballot. The choice
of party ~>munee is “the crucial juncture at which the appeal to
comm:* » exciples may be translated into concerted action. and
hence » “© “ical power in the community.” Jones, 530 US. at
575, lo» » Ot. 2402 (internal quotation marks and citation
omitted). The State cannot deprive political parties of their
right to choose the candidate of their choice.

74a

unconstitutional burden on the political parties’ First
Amendment associational rights by (1) interfering
with the parties’ right to determine the limits of
voter association in the selection of the party
candidates; and (2) impcsing forced political
association with any candidate who may self-
designate a party “preference,” which will be
displayed on the ballot.?°

1. Candidate Selection

The freedom to join together in furtherance of
common political beliefs “necessarily presupposes the
freedom to identify the people who constitute the
association,” Tashjian, 479 U.S. at 214, 107 S. Ct.
544, and “the right not to associate” with individuals
who do not share common beliefs. Jones, 530 U.S. at
574, 120 S. Ct. 2402.

Freedom of association would prove an
empty guarantee if associations could
not limit control over their decisions to
those who share the interests and
persuasions that underlie the
association's being.
Id. at 574-75, 120 S. Ct. 2402. “[A] basic function of
a political party is to select the candidates for public
office to be offered to the voters at general elections.”

2° The State of Washington admits that “if the Court
found .. . a [non-party] candidate's option to express a political
party preference .. . sufficient to render the ‘top two’ primary a
party nomination system, that would indeed trigger a need to
respect the associational interests cf the political parties” See
State Response, docket no. 65, at 25. However, the State
contends that it would not necessarily follow that Initiative 872
is unconstitutionZ® Id. at 25 n. 19; see also Section VII, infra.

75a

Clingman, 125 S. Ct. at 2042 (O'Connor, J.,
concurring) (internal quotations omitted). First
Amendment associational rights in this context allow
the party to select the “standard bearer who best
represents the party's ideologies and preferences.”
Eu, 489 U.S. at 224, 109 S. Ct. 1013.

Initiative 872 nominates political party
candidates for office, and allows voters to choose any
candidate, regardless of political affiliation.
Initiative 872 therefore impermissibly “denies party
adherents the opportunity to nominate their party's
candidate free of the risk of being swamped by voters
whose preference is for the other party.” Reed, 343
F.3d at 1204. “In no area is the political association's
sight to exclude more important than in the process
of selecting its nominee.” Jones, 530 U.S. at 575,
120 S. Ct. 2402.

Where a statutory scheme imposes a severe
burden on core First Amendment rights, the scheme
must be found unconstitutional unless the State
affirmatively demonstrates that the scheme is
narrowly tailored to advance a compelling state
interest. Reed, 343 F.3d at 1204. The St

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0510%3A06. Public record. Not legal advice.