Opposition Brief — Republican Party of Alaska v. O'Callaghan

~ Suprem Couit, U.S

(9 ea 2) ED

ee JUL 5 199%

No. 95-1962

CLERK

In The

Supreme Court of the United States

October Term, 1995

2

REPUBLICAN PARTY OF ALASKA,

Petitioner,

MIKE O’CALLAGHAN, JED WHITTAKER, ROBERT

GIGLER, ALASKAN VOTERS FOR AN OPEN PRIMARY,

AND STATE OF ALASKA, LIEUTENANT GOVERNOR

JACK COGHILL, in his official capacity

as Lieutenant Governor,

Respondents.

+

On Petition For Writ Of Certiorari

To The Supreme Court Of Alaska

°

BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

¢

James L. BALDWIN

Counsel of Record

James L. BALDWIN

Assistant Attorney General

P.O. Box 110300

Juneau, Alaska 99811-0300

(907) 465-3600

Counsel for State of Alaska

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

OR CALL COLLECT (402) 342-2831

QUESTIONS PRESENT®r?#:

(1) Whether the Alaska Supreme ‘‘ourt correctly

decided tha’ the State of Alaska’s blanket primary

imposes a degree of interference with the Republican

Party of Alaska’s (hereinafter “RPA”) First Amendment

right of political association that is nondiscriminatory,

minor, and justified by the State’s interests in encourag-

ing voter participation and choice, and ensuring that

elected officials are responsive to their constituencies.

(2) Whether the Alaska Supreme Court correctly

decided that the RPA’s interests in preventing raiding by

other political parties and nominating candidates whe are

more directly under the control of the party were not

substantial enough to counterbalance interests of the state

served by a blanket primary system.

TABLE OF CONTENTS

Page

CRIBS EMIING PRO EIG Lo cc ites edciatanecurweaees i

TABLE GP AUT RECARE ol obo ko ae cise ed Kikswawus ii

STATEMENT OF FACTS AND PROCEEDINGS..... 1

REASONS FOR DENYING THE WRIT............. 3

[.. THE DECISION OF THE ALASKA

SUPREME COURT DOES NOT CONFLICT

WITH PRIOR DECISIONS OF THIS COURT

II. THE DECISION OF THE SUPREME COURT

OF ALASKA DOES NOT CONFLICT WITH

THE PRIOR DECISIONS OF THE UNITED

STATES DISTRICT COURT OF ALASKA... 9

fil. THE WRIT SHOULD NOT BE GRANTED

BECAUSE THE RECORD IS INSUFFICIENT

TO PERMIY DECISION OF THE RPA’S

CONSTITUTIONAL CLAIMS.............. 10

[V. THE COURT SHOULD DENY THE WRIT

BECAUSE THE RPA INTENDS TO PRI-

VATELY NOMINATE CANDIDATES AND

FURTHER MULTIPLY THE LITIGATION

PERTAINING TO THIS MATTER .......... 13

CONCLUSION 0 iccand ssw kekocrtebet ae ees 15

ana

IPR NR ronment meneame

TABLE OF AUTHORITIES

FEDERAL CASES

American Party of Texas v. White, 415 U.S. 767

EE Pie esa echoes Gti yt i oless exeah on kpeees apeeh ss 4

Anderson v. Celebrezze, 460 U.S. 780 (1983).......... 6

Anderson v. Growe, 546 F. Supp. 482 (D. Minn.

RRR ae CRRA STARK Ob REO se REN ER Sa ioe“ henawes 4

Burdick v. Takushi, 504 U.S. 428 (1992)............. 3, 6

Civil Service Commission v. National Association

of Letter Carriers, 413 U.S. 548 (1973).............. 4

Democratic Party v. Wisconsin ex rel. LaFollette,

a Ue ED oc aes SSE Ns Soi Keke les 4

Gilliard v. Missippi, 464 U.S. 867 (1983)............. 13

Kusper v. Pontikes, 414 U.S. 51 (1973) ...............5

McCray v. New York, 461 U.S. 961 (1983)........... 13

Nader v. Schaffer, 429 U.S. 989 (1976), aff'g 417 F.

Supp. 837 (D. Conn. 1976).........-ccecssceveecees 5

Rosario v. Rockefeller, 410 U.S. 752 (1973)............ 5

Tashjian v. Republican Party of Connecticut, 479

me OM RMS oe eae 6, 8, 11

STATE CASES

O’Callaghan v. Coghill, 888 P.2d 1302 (Alaska

SR cs a Si nc kec Seabird ware bo SEUSS CRO eee Pay Pee}

O’Callaghan v. Coghill, 914 P.2d 1250 (Alaska

ES Re ope erry Ta ee Par se eet passim

iv

TABLE OF AUTHORITIES —- Continued

DockeTep CASES

Doyle v. Alaska, Case No. A90-248 CIV (D. Alaska

a) Se Penryn ped eee aT Pee

Zawacki v. Alaska, Case No. A92-414 CIV (D.

Padme TOPE os boos kes Kwik ceo) beet ees

FEDERAL STATUTES

42 U.S.C.A. 1973c (Law Co-op. 1994 Supp. 1996)

STATE STATUTES

Alaska Stat. $ -T3.25,010 ties » tans bod icketdvasss

Alaska Stat. § 15.25.060 (1988) .............0.e0.

MISCELLANEOUS

Stevens, Some Thoughts on Judicial Restraint, 66

Judicature 177 (1982)

*“*voeo ew #e eee eevee eeevneeeee eee eee

f

{

sia

STATEMENT OF FACTS AND PROCEEDINGS

Respondent State of Alaska (hereinafter “the State”)

adopts and incorporates by reference the statement of

facts and proceedings contained in the Order and Mem-

orandum Opinion of the Alaska Supreme Court in O’Cal-

laghan v. Coghill, reported at 888 P.2d 1302, 1303 (Alaska

1995), as supplemented by the final opinion in the case,

reported at 914 P.2d 1250, 1252-1254 (Alaska 1996).

The State will address certain conclusions offered by

the RPA in its statement of facts and proceedings. While

it is true that the RPA or other parties were not afforded a

trial to develop a factual record, the court took judicial

notice of registration statistics and election returns pre-

sented in briefs of the parties. See 914 P.2d at 1256. The

court addressed the necessity of a remand to develop a

factual record as follows:

We do not believe that fact finding is necessary

or appropriate in this case. The issues are issues

of law; the interests advanced in support of and

in opposition to the blanket primary are not

especially amenable to courtroom proof and

such proof is not, in any case, required.

Id. at 1261 n.16.

The RPA makes a point of the State’s change in

position concerning the validity of the blanket primary.

The RPA contends that “The First Amendment right of

the RPA to free political association fell victim to the

politics of the moment.” RPA Pet. at 6 n.5. Governor

Knowles, a Democrat, succeeded Walter J. Hickel, Alaska

Independence Party, as governor barely two months

before the Alaska Supreme Court called for supplemental

briefing on the validity of the blanket primary.

In the opinion ordering supplemental briefing, the

court observed:

[T]he State’s contention that the blanket primary

statute is clearly unconstitutional under Tash-

jian, 479 U.S. 208, 107 S.Ct. 544, is incorrect.

888 P.2d at 1304-05. Based on the erroneous assumption of

clear invalidity, representatives of the Hickel administra-

tion entered into a stipulation with the RPA which ulti-

mately led to the dismissal of Zawacki v. Alaska, Case No.

A92-414 CIV (D. Alaska 1992) (reproduced at 888 P.2d at

1303) [hereinafter “the Zawacki stipulation”]. The State

and the RPA agreed that the director of elections would

adopt regulations imposing a partially closed primary

favored by the RPA for the 1992 and 1994 primary elec-

tions. This mistake of law was material to the State’s

decision to agree to implement a partially closed primary.

Even though the question of the blanket primary has

been a partisan issue in Alaska, there is widespread sup-

port for it among members of all political parties and

unaffiliated voters. See 914 P.2d at 1255-56. The State

determined to accept the responsibility of defending the

validity of an enactment of the state legislature. It was a

combination of the Alaska Supreme Court's insistence on

a proper determination of the validity of a statute and a

change in administrations that lead to the state’s realign-

ment in the case, rather than “politics of the moment.”!

Finally, the RPA alleges in its statement of fact and

proceedings that the majority opinion “placed the burden

of proof on the RPA to show a substantial burden to its

associational rights.” Pet. 7. (citation omitted). The

Alaska Supreme Court applied the standard of review

mandated in Burdick v. Takushi, 504 U.S. 428, 432-34

(1992). See 914 P.2d at 1253-54. In applying this standard

the court weighed the interests propounded by the par-

ties. The court found the interests of the RPA to be minor

compared to the interests advanced by the state.

+

REASONS FOR DENYING THE WRIT

I. THE DECISION OF THE ALASKA SUPREME

COURT DOES NOT CONFLICT WITH PRIOR

DECISIONS OF THIS COURT.

At the heart of this case is a claim by the RPA that it

is being compelled by state law to associate with certain

persons that do not share common political philosophies.

The forced association allegedly occurs when the party

nominates candidates for national and state offices.

Under the prior decisions of this Court, the State must

1 The assertion of partisan political motivation made by the

RPA has not been limited to the State in this case. The record

will show that the RPA moved to disqualify all justices of the

Alaska Supreme Court, contending that the members of the

court were acting according to a partisan political agenda. The

court denied the motion.

demonstrate a substantial interest in its regulation of the

activities of political parties. F «wever, the demonstration

required is less than that required for the regulation of

other groups whose rights of association are not so

imbued with governmental action. This deference rests

on two established legal premises. First, states enjoy

broad power to regulate political parties within their

jurisdiction. See American Party of Texas v. White, 415 U.S.

767, 781 (1974) (“It is too plain for argument . . . that the

State . . . may insist that intra-party competition be set-

tled before the general election by primary election or by

party convention.”). Second, “[nJeither the right to associ-

ate nor the right to participate in political activities is

absolute.” Civil Serv. Comm'n v. National Ass’n of Letter

Carriers, 413 U.S. 548, 567 (1973).

Perhaps out of respect for the foregoing legal prem-

ises, no federal court has directly ruled on the validity of

an open primary. A national political party attempted to

test the validity of the Wisconsin open primary in Demo-

cratic Party v.. Wisconsin ex rel. LaFollette, 450 U.S. 107

(1981). The decision in that case was limited because the

Court avoided deciding whether the State of Wisconsin

may hold an open primary in favor of deciding whether

the results of the primary could be binding on the

national party. See id. at 120-21. In a similar vein, the

United States District Court for Minnesota refused to

enjoin Minnesota’s open primary. See Anderson v. Growe,

546 F. Supp. 482, 486 (D. Minn. 1982).

Decisions of the Court have focused on the validity

of state statutes that prevent voters from one political

party from voting for candidates of another political

yen ones:

ih a

party. These statutes have been upheld if the restriction is

fair and reasonable.? A prior case of the Court suggests

that a voter does not have a federal constitutional right to

vote in a party primary when she or he is not a party

member, where a statute precludes the voter from doing

so. However, these decisions are not concerned with the

situation presented here. In Alaska, the state legislature

has considered the history and particular needs of eligi-

ble voters and has decided to implement a process for the

nomination of candidates “by direct vote of the people.”

Alaska Stat. § 15.25.010 (1988). Names of candidates are

placed on the primary election ballot in groups seeking a

particular office “without regard to party affiliation.” Id.

§ 15.25.060 (Supp. 1995).

In the decision below, the Alaska Supreme Court

applied the appropriate standard for resolving First

Amendment claims developed in prior decisions of this

Court.4 The RPA argues that the manner in which the

2 See, e.g. Kusper v. Pontikes, 414 U.S. 51, 56-61 (1973)

(striking down statute that prevented person from voting in

primary if person had voted in another party’s primary in past

23 months); Rosario v. Rockefeller, 410 U.S. 752, 760-62 (1973)

(upholding statute requiring voters to register affiliation with

party 30 days before general election in order to vote in next

party primary).

3 See Nader v. Schaffer, 429 U.S. 989 (1976) (mem.), aff’g 417 F.

Supp. 837 (D. Conn. 1976).

4 This Court explained the standard of review as follows

A court considering a challenge to a state election law

must weigh “the character and magnitude of the

asserted injury to the rights protected by the First and

Fourteenth Amendments that the plaintiff seeks to

vindicate” against “the precise interests put forward

standard was applied conflicts with prior decisions of

this Court. The true nature of these claims was captured

when the Court observed:

Constitutional challenges to specific provisions

of a State’s election laws . . . cannot be resolved

by any “litmus-paper test” that will separate

valid from invalid restrictions.

Anderson v. Celebrezze, 460 U.S. 780, 789 (1983), quoted in

Tashjian v. Republican Party of Connecticut, 479 U.S. 208,

213 (1986). The Alaska Supreme Court weighed the inter-

ests of the parties without benefit of a standard test for

resolving the alleged violation of the rights of association

of the RPA. The Alaska Supreme Court carefully articu-

lated the interests of the State and the RPA and consis-

tently applied the prior decisions of this Court in

reaching its decision.

The RPA prefers a primary where voters registered as

Republicans, voters claiming no party affiliation, and

voters registered as nonpartisans would be permitted to

nominate Republican candidates. A voter with a registra-

tion showing an affiliation with another recognized polit-

ical party could not participate in the Republican

primary. An affiliated voter choosing to participate in the

Republican primary could change his or her registration

by the State as justifications for the burden imposed

by its rule,” taking into consideration “the extent to

which those interests make it necessary to burden the

plaintiff’s rights.”

Burdick, 504 U.S. at 434, quoted in O'Callaghan, 914 P.2d at 1254.

et ae ee

ne eT

RENO ot me one

up to and inciuding the day of election but could only

participate in that primary.°

The RPA’s preference is motivated by two interests.

First, the party wants to pr vent raiding by voters who

are affiliated with other political parties. According to the

RPA, raiders participate in another party’s primary for

the sole purpose of nominating a weak candidate to

enhance the chances of election to office of a candidate of

the raider’s party.© Second, the party argues that its form

of primary will produce elected representatives who are

accountable to the principles and platform of the RPA.

The Alaska Supreme Court, after examining the compet-

ing interests of the parties, found that the interests

advanced by the RPA were minor when compared to the

state’s interests of promoting voter participation and bal-

lot secrecy, and forestalling government by political

machine.

The court found merit in the State’s argument that

raiding could not be a major concern if the party was

willing to admit approximately 184,000 unaffiliated

5 The Alaska Supreme Court characterized this form of

primary as “partially closed” because

the primary is not a classic closed primary in that

unaffiliated voters are allowed to participate, yet it

does not meet the definition of an open primary, since

it is not open to all registered voters.

914 P.2d at 1255.

6 The record and petition contains only anecdotal evidence

of raiding presented in the briefs of the RPA. Nonetheless, the

Alaska Supreme Court acknowledged that this interest in

preventing raiding was a legitimate concern, “even though its

effects may be exaggerated.” 914 P.2d at 1261.

voters to participate along with the 78,212 Republicans to

nominate party candidates. See 914 P.2d at 1256, 1261.7

Independent voters cou'<d participate in the Republican

primary for the same reaso; as a raider from another

party. A statute requiring participation in a blanket pri-

mary along with voters affiliated with other political

parties imposes a limited burden on the political associa-

tion considered desirable by the RPA.®

The RPA’s desire to make candidates accountable to it

is in direct conflict with the state interest underlying the

blanket primary, which is to make the candidates directly

accountable to the voters. However, the party is not with-

out a remedy. These conflicting state and party interests

can be resolved by the state legislature.? If the party

wants to change the law, it need not solely rely on the

courts to accomplish its goal.

” These figures refer to the registrations applicable to the

1994 primary and were used in the final opinion issued by the

Alaska Supreme Court. See 914 P.2d at 1256. The RPA refers to

more recent statistics in its petition. The State believes the

number of registrations by party used by the RPA in the petition

are accurate.

® The majority in Tashjian rejected Connecticut’s argument

that a Republican Party primary election closed to voters

affiliated with other political parties was justified in the interest

of preventing raiding by non-Republican voters. Under the

Connecticut statute, as in Alaska, a voter was allowed to

register as a Republican up to primary election day. Given those

registration opportunities, the Court reasoned that the need to

prevent raiding was simply “not implicated.” Tashjian, 479 U.S.

at 219.

® While this dispute was pending below, both Houses of the

Alaska State Legislature were organized by legislators affiliated

with the RPA.

I PRI cr me

De — meen

Based on the foregoing analysis of tne prior decisions

of this Court, the decision below does not present a

conflict that would warrant granting the Writ.

Il. THE DECISION OF THE SUPREME COURT OF

ALASKA DOES NOT CONFLICT WITH THE

PRIOR DECISIONS OF THE UNITED STATES

DISTRICT COURT OF ALASKA.

The RPA contends that the decision of the Alaska

Supreme Court in this case conflicts with a decision of the

United States District Court for the District of Alaska. Of

the two cases which considered the validity of the RPA

partially closed primary, both were dismissed in the pre-

liminary injunction stage, prior to development of an

evidentiary record, and without a decision on the merits.

In 1990, the RPA sought to compel the State to imple- .

ment a partially closed primary. Doyle v. Alaska, No.

A90-248 CIV (D. Alaska 1990). The Republican Party

sought a preliminary injunction to prevent the State from

enforcing Alaska Stat. § 15.25.060 (1988), the statute

requiring a blanket primary ballot, and to compel the

State instead to conduct the primary in accordance with

the RPA rule. U.S. District Judge Holland concluded from

a review of the case law that he was foreclosed from

ruling on whether the party’s rule was constitutionally .

protected because the rule had not yet been precleared by

the Department of Justice under Section 5 of the Voting

Rights Act of 1965, 42 U.S.C.A. § 1973c (Law Co-op. 1994

Supp. 1996), and was not yet in effect. Doyle, (Order, July

16, 1990) (attached to this brief as appendix 1).

10

In 1992, the RPA again filed suit in the United States

District Court for the District of Alaska, seeking declara-

tory judgment and injunctive relief compelling the State

to conduct the August, 1992 primary election as a par-

tially closed primary. Zawacki v. Alaska, Case No. A92-414

CIV (D. Alaska 1992). However, before the court could

announce a decision on the merits, the parties stipulated

to implement a partially closed primary by the adoption

of administrative regulations. The court approved the

stipulation and subsequently dismissed the case without

prejudice. It was the Zawacki stipulation that the Alaska

Supreme Court determined was not sufficient authority

to support a finding of invalidity of the blanket primary

statute or to authorize the adoption of regulations that

conflict with a statute.

The Writ should not be granted because there is not a

conflict between decisions of the Supreme Court of

Alaska and the United States District Court for Alaska.

Ill. THE WRIT SHOULD NOT BE GRANTED

BECAUSE THE RECORD IS INSUFFICIENT TO

PERMIT DECISION OF THE RPA’S CONSTITU-

TIONAL CLAIMS.

The basic question of the validity of the underlying

blanket primary statute was not addressed until the case

was on appeal. In the Superior Court of the State of

Alaska, the State defended administrative regulations

adopted to implement a separate Republican primary.

These regulations were adopted under the assumption

that the blanket primary statute was clearly invalid to the

extent that it allowed voters affiliated with other political

11

parties to vote for Republican candidates. For this reason,

the State did not make a record below in support of the

interests it might have in preserving the blanket primary.

The defender of the blanket primary was Michael O’Cal-

laghan, a pro se litigant.

Mr. O'Callaghan is not an attorney and, the limited

record that exists in this case, will show that he demon-

strated a lack of knowledge of court procedure in initiat-

ing the case, seeking a default judgment, and later

seeking, a summary judgment. O’Callaghan did not pur-

sue discovery and did not present to the Superior Court

any evidence concerning the State’s legitimate interests in

conducting blanket primaries that would be relevant to

the balancing of interests required under prior decisions

of the Court.

The Alaska Supreme Court ruled that the Zawacki

stipulation was invalid to the extent that it purported to

resolve the issue whether the Alaska statute requiring a

blanket primary was unconstitutional. 888 P.2d at 1304.

The court also explained that “the State’s contention that

the blanket primary statute is clearly unconstitutional

under Tashjian . . . is incorrect.” Id. at 1305. The court

found significant differences in that Connecticut case -

particularly the fact that the Connecticut statute invali-

dated in Tashjian prevented the RPA from opening its

statutory separate primary to independent voters, while

the Alaska statute requires a single blanket primary open

to all voters. Given the importance of the issue, which the

court said was not “adequately briefed by the parties,”

the court ordered supplemental briefing and invited

other interested parties to participate in that briefing as

intervenors or amici curiae. Id. at 1305-6.

12

After the order for supplemental briefing, the RPA

and a group of voters calling itself Alaskan Voters for An

Open Primary (AVOP) were allowed to intervene as par-

ties. The Alaska Federation of Natives and the Alaska

Independence Party were permitted to participate as

amici. The RPA ultimately argued in its brief that it

should be allowed to develop a factual record to pro-

pound and defend its interests in having a separate and

partially closed primary. The State argued that the blan-

ket primary is valid as a matter of law; the State offered

an alternate argument that a decision of the case would

benefit from a remand to develop a factual record of its

interests in perpetuating the blanket primary.

It is uncontroverted that there is nothing in the

record other than the briefs of the parties to support their

claims. The case was far advanced when the real parties

in interest joined issue on the questions presented for

review. If the Writ is granted, the Court must determine

whether the Alaska Supreme Court properly balanced the

interests of the parties. Without a “litmus paper test” it

will be difficult to resolve the constitutional claims with-

out a detailed record to assist in the effort.

The State does not intend by this argument to detract

from the legal reasoning used by the Alaska Supreme

Court, for it is correct on the law. Rather, “patience in the

judicial resolution of conflicts may sometimes produce

the most desirable results.” Stevens, Some Thoughts on

Judicial Restraint, 66 Judicature 177, 183 (1982). The RPA

predicts litigation from other states that either have open

or blanket primaries on the same questions presented in

this case. RPA Pet. at 19-22. Solutions to the questions

presented could be further developed by the supreme

13

courts of other states before they are resolved by this

court.!0

IV. THE COURT SHOULD DENY THE WRIT

BECAUSE THE RPA INTENDS TO PRIVATELY

NOMINATE CANDIDATES AND FURTHER

MULTIPLY THE LITIGATION PERTAINING TO

THIS MATTER.

The RPA informed the Court that it has started the

process of implementing a private, partially closed pri-

mary using mail-in ballots. RPA Pet. at 22. It claims this

mail-in primary will take place

only if this court does not reverse or stay the

decision of the Supreme Court of Alaska, such

that the 1996 Republican primary election can be

conducted according to RPA rules.

Id. This presumably means that the RPA will undertake

conduct that may make the instant controversy moot, or

raise a question whether it is ripe for review at this time.

The new legal issue would involve the extent to which

the party can nominate candidates by a partially closed

primary process free from state regulation.

10 See, McCray v. New York, 461 U.S. 961, 963 (1983) (Stevens,

J.) (certiorari denied where issue requires “further study” in

lower courts “before it is addressed by this Court”); Gilliard v.

Mississippi, 464 U.S. 867 (1983) (Marshall, J., dissent from denial

of certiorari addressed to “those of my Colleagues who agree

with me [on the merits] but believe that this court should

postpone consideration of the issue until more state supreme

courts and federal circuits have experimented with substantive

and procedural solutions to the problem”).

14

The RPA appears to be pursuing the opt-out strategy

described in the dissenting opinion below. See 914 P.2d at

1268 n.8 (Rabinowitz, J., dissenting). Justice Rabinowitz

acknowledged a point made by amicus Alaska Federation

of Natives that the RPA’s remedy is not to force the State

to operate a primary to its liking but to withdraw from

the state nominating process. The party would then pri-

vately nominate candidates. Contrary to the remedy men-

tioned by Justice Rabinowitz, the RPA intends to pursue

this strategy even before there is a determination of the

validity of the State’s blanket primary statute.

The RPA intends to seek a declaration from the

United States District Court for Alaska whether a private,

partially closed primary may be validly conducted to

nominate Republican candidates for the 1996 general

election. By following this course of action, the dispute

changes from whether the blanket primary is valid to

whether the party may operate independently notwith-

standing a statute that requires recognized political par-

ties to participate in a blanket primary. The RPA is

abandoning the original dispute with the State in favor of

establishing a separate nominating process free from leg-

islative interference.

Pursuit of the opt-out strategy makes a decision in

this case more in the nature of an advisory opinion. The

RPA is embarking on yet another dispute with the State

that must progress through the lower courts and may

ultimately be resolved by means other than an appeal to

this Court. For this additional reason, the Court should

not grant the Writ.

15

CONCLUSION

For the reasons stated in this brief, the Court should

deny the petition for Writ of Certiorari.

Respectfully submitted,

James L. BALDWIN

Counsel of Record

James L. BALDWIN

Assistant Attorney General

P.O. Box 110300

Juneau, Alaska 99811-0300

(907) 465-3600

Counsel for Respondent

State of Alaska

App. 1

APPENDIX I

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ALASKA

ALLEN GRANT DOYLE, )

JR., and the ) No. A90-248 Civil

REPUBLICAN PART OF )

ALASKA, ' (Filed July 10, 1992)

Plaintiffs,

(Preliminary Injunction

bio ) Denied.)

STATE OF ALASKA, et )

al., ;

Defendants. )

The court has under consideration a motion for pre-

liminary injunction, filed June 11, 1990, by plaintiffs Allen

Grant Doyle, Jr., and the Republican Party of Alaska.!

Doyle is state chairman of the Republican Party of Alaska

(“Party”). The motion seeks an order restraining and

enjoining the several defendants from conducting the

Party’s August 28, 1990, primary in any manner other

than as provided by Article XIV of the Party’s rules,

which was adopted in March of 1990 at the party’s state-

wide convention. As part of the desired injunctive relief,

plaintiffs additionally request the court to restrain and

enjoin defendants from enforcing, in the Party’s August

! This action was originally filed in Fairbanks on June 11,

1990, and assigned to District Judge Kleinfeld. Judge Kleinfeld

subsequently recused himself, and the case was transferred to

Anchorage on June 22, 1990.

App. 2

primary, two state statutes: As 15.25.060 (requiring a sin-

gle primary election ballot containing the names of all

candidates for each office, grouped by office, without

regard to party affiliation) and AS 15.07.070(c) and (d)

(which defendants interpret to require that voters desig-

nate their party affiliation, or non-affiliation, at least

thirty days prior to the primary).

Defendants include the State of Alaska; the State’s

Division of Elections (“DOE”); David Koivuniemi, the

director of the DOE; and Lieutenant Governor Stephen

McAlpine, in his official capacity as supervisor of elec-

tions. Defendants oppose plaintiffs’ motion. A joint

amicus curiae brief has been filed by the Alaska Federation

of Natives and the Alaska Democratic Party. The amici

also oppose plaintiffs’ motion for provisional relief.

Additionally, plaintiffs filed a motion on July 6, 1990,

requesting the court to enter an order directing the State

of Alaska to make certain submissions to the Voting Sec-

tion, Civil Rights Division of the Department of Justice,

Washington, D.C., (hereinafter referred to as “Voting Sec-

tion”), pursuant to section 5 of the Voting Rights Act of

1965. On July 9, 1990, defendants filed an opposition to

plaintiffs’ motion for an order directing submission.

A telephonic status conference was held on July 9,

1990. Counsel for plaintiffs, defendants, and amici partici-

pated, as well as an attorney from the Voting Section. The

court heard oral argument on Thursday, July 12, 1990. For

the reasons outlined hereinbelow, plaintiffs’ motion for

preliminary injunction and motion for an order directing

the state to submit matters to the Department of Justice

are denied.

App. 3

Jurisdiction

The motion for preliminary injunction raises federal

constitutional issues, as well as certain matters cogniza-

ble under the Voting Rights Act of 1965 (as amended), 42

U.S.C. §§ 1971-1974 (1981). Additionally, plaintiffs have

moved for an order requiring defendants to submit mat-

ters to the Voting Section in accordance with regulations

promulgated by the Department of Justice pursuant to

the Voting Rights Act. Jurisdiction is, as a general propo-

sition, appropriate under 28 U.S.C. § 1331.

Background

Since 1967, statewide primaries in Alaska have been

conducted as “blanket, open” primaries, with respect to

the nomination of candidates for elective statewide and

federal political offices. AS 15.25.010, et. seq. Primary

candidates are listed on a single ballot, grouped together

by office sought rather than party affiliation. AS

15.25.060. Primary voters are not restricted to voting for

candidates who correspond with the individual voter’s

political party affiliation (or lack thereof). By statute,

voters are not eligible to vote in a primary unless they

have registered to vote at least thirty days in advance of

the scheduled date for a primary. AS 15.07.070. A voter

wishing to change his or her existing registration must

also do so at least thirty days in advance. AS 15.07.060

lists the information required for registration, but does

not include a requirement that a registrant's party affilia-

tion be declared. However, by administ-ative interpreta-

tion, the State has determined that a registrant must

App. 4

declare party affiliation (or lack thereof) thirty days in

advance of an election as part of the registration process.

The Party held its statewide convention in March of

1990. Shortly before the convention began, a delegate to

the convention informed Linda Edgeworth, a key staff

member at the DOE, that the Party was likely to adopt a

rule change regarding the 1990 primary. On March 31,

1990, the convention adopted a party rule directly affect-

ing the manner in which the Party’s primary, which is

scheduled to be held on August 28, 1990, would be con-

ducted. The newly adopted rule, Article XIV, provides as

follows:?

Only registered Republicans, registered

independents, and those who state no prefer-

ence of party affiliation shall be allowed to vote

in the Republican primary election for Gover-

nor, Lieutenant Governor, U.S. Senator, U.S.

Representative, and members of the State Legis-

lature.

The party clearly desired that its new rule be imple-

mented by defendants in time for the August 1990 pri-

mary. A copy of the rule was hand-carried to Linda

Edgeworth’s office on April 2, 1990. Lieutenant Governor

McAlpine’s office was notified telephonically on April 9,

11, 12, and 16 regarding the newly adopted rule. On April

20, 1990, the Party wrote a letter to McAlpine’s office. The

full text of the new rule was set forth in the letter, and the

? Although the rule is silent on the subject, the Party

intended that any voter might change his designated party

affiliation at the polls on the day of the primary election and

thereby qualify to vote in the Republican primary.

ea

Ne 2 renee mm ett on a

App. 5

Party requested McAlpine to revise the voting procedures

for the August 1990 primary to properly implement the

new rule change. The Lieutenant Governor’s office

received the letter on April 27. Defendant Koivuniemi

received a telefaxed copy of the same letter on April 25,

1990, and James Baldwin of the state Attorney General's

Office also received a copy in late April. By letter dated

May 5, 1990, Ken Jacobus advised Stephen McAlpine of

certain case law authority upon which the Party relied in

adopting the new rule. A copy of Jacobus’ May 5 letter

was also sent to defendant Koivuniemi.

After this initial flurry of activity, the Party waited

for the outcome of the Alaska Democratic Party conven-

tion, held in Nome in mid-May. The Party apparently

expected that the Democrats would adopt a similar rule

change, but they did not.

After the Democratic convention, the Party began a

series of earnest contracts with defendants to ensure that

defendants would and could implement the rule change

in time for the August primary. These contracts have been

extensively briefed by the parties and the court only

summarizes them herein.

On May 24, 1990, a telephone conference was held by

defendant Koivuniemi. Participants included Ken and

Cheri Jacobus, counsel for the State, and key State elec-

tion officials. Among other things, Koivuniemi expressed

concern regarding the State’s ability to properly imple-

ment the new rule, given the short time remaining before

the primary. He opined that the rule was ambiguously

App. 6

worded and requested clarification on the Party’s pro-

posal that voters be permitted to change their party regis-

tration as late as the day of polling. There was also

discussion regarding the manner in which absentee bal-

lots would have to be handled if the rule were imple-

mented for the August 1990 primary. On May 28, 1990,

Kenneth Jacobus, Party counsel, sent a follow-up letter to

Koivuniemi addressing the aforementioned concerns.

A second telephone conference was held by

Koivuniemi on June 5, 1990, with essentially the same

participants as before. Again, the discussion centered on

several specific logistical problems (preparation of pri-

mary ballots, mailing of absentee ballots, and so forth)

that the State felt must be resolved in order to properly

implement the new rule.* During this telephone confer-

ence, the Party learned that it needed to “preclear” its

rule change with the Voting Section. Nothing was

resolved in the second telephone conference. The State

firmly maintained that it would apply the thirty-day reg-

istration requirement with respect to changes of party

affiliation in conjunction with implementing the new

rule, and generally reiterated its belief that insufficient

time remained for implementation. The Party then made _

a submission to the Voting Section, to which the State

formally objected by its letter to the Department of Jus-

tice dated June 15, 1990, and in a follow-up letter dated

3 The extensive regulatory changes that the State believes

necessary to implement the rule change for the August primary

are thoroughly documented in the two affidavits of Linda

Edgeworth filed in this action.

App. 7

June 25, 1990. The instant action was filed on June 11,

1990.

Applicability of the Voting Rights Act

The primary purpose of the Voting Rights Act (“Act”)

is to extend the protection of the fifteenth amendment to

members of racial and language minorities, to prevent

discrimination in the form of denial or abridgement of

the right to vote. State of South Carolina v. Katzenbach, 383

U.S. 301, (1966). Of particular concern are voting quali-

/ fications, prerequisites, standards, practices, or pro-

| cedures which might have a racially discriminatory effect.

; Section 5 of the Act requires that any jurisdiction “cov-

ered” by the Act may not enforce any change pertaining

to the manner in which elections are conducted without

obtaining a declaratory judgment from the District Court

for the District of Columbia that the proposed change is

not discriminatory within the meaning of the Act. 42

U.S.C. § 1973c. Alternatively, a covered jurisdiction may

Satisfy the requirements of Section 5 by submitting the

proposed change, along with certain supporting docu-

ments, to the Attorney General of the United States for

“preclearance”. See generally, 28 C.E.R. § 51 (1990); see also,

Allen v. State Board of Elections, 393 U.S. 544, 549-50 (1969).

The United States Supreme Court has consistently con-

strued Section 5 to have the broadest possible scope.

Perkins v. Matthews, 400 U.S. 379, 387 (1971). This has

resulted in jurisdictions routinely submitting a plethora

of proposed election changes to the Attorney General,

some of which are very minor in nature. See, 28 C.ER.

§ 51.12. While most of the submissions are provided by

States, political parties are subject to Section 5 of the Act

a

See oo ee ee ed See ees

App. 8

and its preclearance requirements. 28 C.F.R. § 51.7 pro-

vides in part:

Certain activities of political parties are sub-

ject to the preclearance requirement of Section 5.

A change affecting voting effected by a political

party is subject to the preclearance requirement:

(a) If the change relates to a public electoral

function of the party and (b) if the party is

acting under authority explicitly or implicitly

granted by a covered jurisdiction or political

subunit subject to the preclearance requirement

of section 5..... Changes with respect to the

conduct of primary elections at which party

nominees . . . are chosen are subject to the

preclearance requirement of section 5... .

Submissions are made to the Voting Section. Under

pertinent regulatory guidelines, the Attorney General has

sixty days in which to review a submitted election

change. 28 C.F.R. § 51.9. However, if a submitting juris-

diction materially supplements its original submission,

then a new sixty-day period of consideration may go into

effect. 28 C.F.R. § 51.30. If the Voting Section objects to the

proposed change, the submitting party may request

reconsideration. This, too, results in a new sixty-day

period for review by the Voting Section. 28 C.F.R. § 51.45.

In this case, it is agreed that Alaska is a “covered”

jurisdiction (see, 28 C.F.R. § 55 Appendix) and that the

Party’s new rule is subject to the preclearance require-

ment of Section 5 of the Act. Pursuant to 28 C.F.R. § 51.7,

the Party made its submission on June 7, 1990 and

requested expedited consideration. The party subse-

quently learned that defendants would also have to sub-

mit any new regulations and guidelines developed to

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App. 9

implement the Party rule. See, 28 C.F.R. § 51.22. After

contacting counsel for the Voting Section, the Party

learned that the Voting Section would concurrently con-

sider defendants’ proposed implementation guidelines,

notwithstanding that defendants are not required to sub-

mit such guidelines until the Party’s rule had already

been precleared. Counsel for the Voting Section suggested

to defendants that they prepare a submission for concur-

rent consideration. Plaintiffs filed a motion on July 6,

1990, requesting the court to order defendants to make

their submission immediately. In the telephonic status

conference held July 9, 1990, defendants averred that they

have been working diligently to prepare the submission,

and that it should be sent to the Voting Section, by

express mail, on July 13, 1990. This was confirmed at oral

argument on July 12, 1990.

In the July 9 status conference, counsel for the Voting

Section indicated that the Voting Section had received

several supplementations from the Party, the latest hav-

ing been received that day. The court was also advised

that the Voting Section would likely consider the latest

supplementation to be a “material” one, such that a new

sixty-day review period had begun to run; that the Voting

Section viewed the Party rule as presenting a fairly sub-

stantive change which would require thorough review;

and that it intended to obtain additional input from inter-

ested parties, particularly the Native voters in Alaska.

Thus, plaintiffs seek provisional relief from this court

prior to any preclearance decision by the Voting Section.

The parties are in agreement that the rule change cannot

be validly employed in an election without preclearance

from the Voting Section. The court’s research shows this

App. 10

to be correct. See, e.g., 28 C.F.R. § 51.1, 51.10. The Supreme

Court has consistently so held. See, Connor v. Waller, 421

U.S. 656 (1975) (per curiam) (changes not precleared pur-

suant to Section 5 are “not effective as law”); Georgia v.

United States, 411 U.S. 526, 538 (1973) (election laws are

“frozen” until declaratory judgment or preclearance is

obtained); City of Rome v. United States, 446 U.S. 156,

160-61, reh’g denied, 447 U.S. 916 (1980) (preclearance

required); McDaniel v. Sanchez, 452 U.S. 130, 137 (1981)

(laws not effective without preclearance).

The Party would have the court enter a prospective

order enforcing the new rule for a Republican primary

conditioned upon Voting Section clearance of the rule. To

grant such an order, the court must necessarily evaluate

the Party’s alleged constitutional rights which, if estab-

lished, would support implementation of the rule. In

voting rights cases, it has been held that it is error for a

court to adjudicate such constitutional claims until the

Voting Section acts on the proposed change in voting

rules.4 This court concludes that it is presently foreclosed

4 See, e.g., McDaniel v. Sanchez, 452 U.S. 130, 146 (1981)

(quoting Wise v. Lipscomb, 437 U.S. 535, 542 (1978)); United States

v. Board of Supervisors, 429 U.S. 642, 646-47 (1977); and Connor v.

Waller, 421 U.S. 656 (1975) (per curiam). Cf. Terrazas v. Clements,

537 F. Supp. 514 (N.D. Tex. 1982), wherein plaintiffs raised

constitutional challenges both to the existing Texas voter

apportionment scheme and to a new apportionment plan

adopted by the state. The three-judge court struck down the

existing scheme, but held that it could not adjudicate the

constitutionality of the new plan which had failed to obtain

Department of Justice preclearance. However, the court retained

jurisdiction in order to fashion an emergency apportionment

plan for upcoming statewide elections, and the plan was

Wie Nearest hd Ne ba RS oo ie Se A a er Rea eee Rc ok ee

App. 11

from ruling upon whether the Party’s rule is constitu-

tionally protected until the rule becomes operative and

effective by virtue of Voting Section review and approval.

To act sooner would amount to the court rendering an

advisory decision in violation of article III, section 2, of

the United States Constitution.

Preliminary Injunction Analysis

The foregoing discussion disposes of plaintiffs’

motion for preliminary injunction and, indeed, suggests

that plaintiffs; complaint is subject to dismissal on the

theory that there is not presently any justiciable case or

controversy. For the sake of completeness, and in order

that the court’s entire analysis of plaintiffs’ motion may

be available for possible appellate review, the following

additional discussion of the matters before the court are

included.

In a straightforward fashion, plaintiffs seek to have

: the court order the defendants to place the new Republi-

can primary rule into effect. They claim that their deci-

sion to alter the primary is fully supported by

constitutional case law construing the first amendment

rights of association enjoyed by state political parties.

Plaintiffs principally rely on the holdings in Tashjian v.

Republican Party of Connecticut, 479 U.S. 208 (1986); and

San Francisco County Democratic Central Committee v. Eu,

ordered without preclearance. Id. at 525-526 n.14 (citing Conner

v. Waller, 421 U.S. at 656-57 (inability to adjudicate

constitutional claims regarding new plans does not divest

district court of jurisdiction to order a temporary plan)).

App. 12

792 F.2d 802 (9th Cir. 1986), vacated & remanded, 479 U.S.

1024, on remand, 826 F.2d 814 (9th Cir. 1987), affirmed, 489

U.S. 214 (1989). Plaintiffs see two primary benefits result-

ing from the new rule: a decreased opportunity for cross-

over voting (“raiding”), and a chance to strengthen the

Party by nominating and electing Republican candidates

who are more consistent in their party’s ideology.

Defendants acknowledge the rights of association at

issue here, but contend that the State of Alaska has cer-

tain compelling governmental interests which must be

balanced against plaintiffs’ alleged right to alter the pri-

mary. Specifically, defendants aver that the State has a

duty to ensure the integrity and orderliness of elections,

and that insufficient time remains before the August pri-

mary in which to properly implement the Party rule and

still fulfill that duty. Within that duty, defendants express

two major concerns: that the State must shoulder an

unacceptable administrative burden to make all the nec-

essary changes to implement the Republican primary, and

that many voters (particularly rural voters, many of

whom are Native and protected under the Voting Rights

Act) will be confused and possibly disenfranchised due to

the late change in the primary election procedures.

In addition to their Voting Rights Act arguments,

amicus Alaska Federation of Natives expresses two con-

cerns. First, it argues that implementation cannot be

smoothly carried out in the few weeks remaining until

the primary election, which will result in confusion and

disenfranchisement among Native voters who will not be

properly and timely advised of the changes. Secondly, the

Federation contends that Native voters have traditionally

benefitted from being able to employ crossover voting to

App. 13

build political coalitions helpful to Native causes. In a

related vein, the Alaska Democratic Party asserts that it

still welcomes Republican voters crossing over in the

primary.

The Ninth Circuit recently articulated and summa-

rized the pertinent factors which a district court must

consider in deciding whether to grant or deny injunctive

relief. State of Alaska v. Native Village of Venetie, 856 F.2d

1384 (9th Cir. 1988). Those four factors are:

(1) The likelihood of the plaintiff’s success

on the merits;

(2) the threat of irreparable harm to the

plaintiff if the injunction is not imposed;

(3) the relative balance of this harm to the

plaintiff and the harm to the defendant if the

injunction is imposed; and,

(4) the public interest.

Id. at 1388. The court went on to note that the four factors

can really be condensed into two factors: the likelihood of

success on the merits and the relative balance of potential

hardships to the plaintiff, the defendant, and the public.

Id. at 1189. Those two primary factors have been

employed in a test framed in the alternative, though the

alternatives are really to be treated by the district court,

for analytical purposes, as “extremes of a single contin-

uum.” Id., quoting Benda v. Grand Lodge of International

Association of Machinists & Aerospace Workers, 584 F.2d 308,

315 (9th Cir. 1978), cert. dismissed, 441 U.S. 937 (1979). The

alternative test has been framed thusly:

Basically, plaintiffs are entitled to preliminary

injunctive relief if:

ee nn ee ee ee aT

App. 14

1) They demonstrate

e a probable success on the merits, and

e a possibility of irreparable injury;

2) or if they demonstrate

e a fair chance of success on the merits

(i.e., serious questions are raised), and

e the balance of hardships tips sharply in

their favor.

Native Village of Venetie, 856 F.2d at 1389.

Applying the foregoing, the Court will first focus

upon the issue of probable success on the merits. As

discussed above, the court cannot say that plaintiffs will

probably succeed on the merits. At the most, plaintiffs

raise a serious question. The court accepts, and the defen-

dants themselves appear to accept, plaintiffs’ contention

that first amendment rights of free association are sub-

stantially implicated in the rule change which the Party

would put into effect. The United States Supreme Court

has recognized this right in its decision in Tashjian v.

Republican Party of Connecticut, 479 U.S. 208 (1986). As

important as these rights may be, however, there is little

chance of plaintiffs prevailing on the merits of the present

complaint because, as set out above, the Party seeks to

enforce an inchoate rule — that is, a rule raising serious

constitutional questions which this court does not pres-

ently have the power to reach due to the absence of

Voting Rights Act preclearance.

— eee eer

The foregoing appraisal of the Party’s chances of

success on the merits calls into play that portion of the

test for granting or denying preliminary injunctions

PEE ROS NR ae OE AAD ne EM 0 Beata se. tN

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fate

App. 15

which calls upon a plaintiff to demonstrate that the bal-

ance of hardships tips sharply in the plaintiff’s favor. In

this case, the court concludes that the hardships are sub-

stantially in equipoise.

The court’s refusal to order implementation of the

Party’s primary election rule will result in the conduct of

a “blanket” open primary in which registered members of

other political parties can vote in the Republican Party

primary. The court’s decision forces the Republican Party

to associate with those Democrats or Alaska Indepen-

dence Party members who would cross party lines and

vote for a Republican in the upcoming primary election.

The harm is of a nature which is substantially irreparable.

On the other side, defendants and amici argue per-

suasively that rural Alaskans will be disenfranchised

because of the complexity of regulatory changes which

must take place in order to implement the Party’s new

primary rule. While the State of Alaska is blessed with

substantial means of communication between large cities

and most of the very small villages in the state, the court

is convinced, on the basis of defendants’ showing, that

there is inadequate time to formulate the rule changes,

educate the rural election workers, and still provide time

enough for the latter as well as others using public radio,

television, and other means of communication to educate

the public as to the options available to them in the

upcoming primary election under the Party’s new rule.

Especially troubling to the court is the Party’s suggestion

that, under its rule, an individual voter might be entitled

to vote in both the Republican primary and the “other”

primary as well. The possibility of a voter having two

votes (one in each primary) strikes the court as dramatic

App. 16

proof of the complexity (which the court did not initially

perceive) of educating the electorate.

Similarly, the defendants’ approach to structuring

ballots, were the Party’s rule to be implemented, suggests

further complexities. The defendants suggest that the

Republican Party ballot should list all candidates, of

whatever party, such that Republicans could vote for

whomever they wish; and that the “other” primary

should list all candidates except Republican candidates.

The court's initial reaction to this proposed implementa-

tion of the Party’s rule was that it stood the rule on its

head. On further reflection, the court is still of a view that

the State’s suggestion for the ballot structure is disin-

genuous; but the mere fact that it is a plausible approach

to implementation of the rule further underscores the

complexity of conducting simultaneously two or more

primary elections when the rules for all are not the same

and where, as here, a certain amount of crossover voting

is still allowed. Thus the court has concluded that there is

a substantial risk that the defendants will be unable to

adequately instruct the electorate in time for an August

28, 1990, primary election, and that some will be discour-

aged from voting and others will be at best confused, and

at worst misled, despite everyone’s best efforts as regards

exercising their vote. The court views this type of hard-

ship as irreparable also.

Understandably, neither the Party nor the defendants

have attempted, nor is it likely that they would be able to

quantify in a meaningful fashion the extent of hardship

occasioned by the harm to which the court perceives each

side to be exposed. Given the prospective nature of the

analysis, it is not possible to say how many votes may be

So —

App. 17

cast by Democrats in what should be a Republican rule

primary, nor is it possible to say how many voters may be

disenfranchised because of inadequate opportunity to

construct a new primary election procedure and imple-

ment it. This much the court can say very readily: The

balance of hardships certainly does not tip sharply in the

Party’s favor. In a very rough sense, the amount of harm

to which each is exposed is the same; and, in the absence

of any other proof, the court concludes that the harm to

the Party and to the voters who may be disenfranchised

is roughly equal.

In addition, the public interest has a part in the

balance of hardships which is not addressed by the fore-

going. Native Village of Venetie, 856 F.2d at 1388. In this

case, the court perceives there to be a substantial public

interest in having elections conducted timely and in an

orderly fashion. Coghill v. Boocher, 511 P.2d 1297 (Alaska

1973); Tarrazas v. Clements, 537 F. Supp. 514, 527 (N.D. Tex.

1982).

The Party, on brief and in oral argument, has made

fleeting reference to the possibility of deferring the pri-

mary election in order to afford more time for instruction

to the voters and more time for the Department of Justice

to clear the Party’s new primary election rule. The forego-

ing authorities suggest that such action should not be

taken except for very compelling reasons. The court per-

ceives no compelling reason to disrupt the normal elec-

tion process in this case. It takes no great amount of

imagination, nor is it unduly speculative, for the court to

suggest that a delay in the primary election risks chang-

ing the chemistry of the election itself. It is impossible to

say what changes might occur between August 28, 1990,

App. 18

and some subsequent date to which an election might be

postponed. Inevitably, a change in the election date will

affect the ability or willingness of some voters to partici-

pate in the election. Thus the public interest consider-

ation adds weight on the defendants’ side of the balance

of hardships, not the plaintiffs.

Finally, and not a part of the general calculus for

granting or denying preliminary injunctions, the court

has given some small consideration and weight to the

defendants’ contention that the Party has delayed seeking

to affect the rights which it would have the court order.

Injunctive relief is equitable in nature, and the court has

the discretion to consider whether or not the party seek-

ing injunctive relief has timely moved to protect his or its

interests. In this instance, there is an element of delay on

the part of the Party. The Party might have sought pre-

clearance from the Voting Section of the Department of

Justice immediately upon adopting its rule for a Republi-

can primary election. It did not do so. The Party delayed

more than sixty days between the adoption of its rule and

the presentation of the matter to the Department of Jus-

tice. At the conclusion of oral argument, the court sug-

gested that the Party was accountable for some laches or

delay in pursuing its rights. On further reflection, the

court has come to doubt that the loss of sixty days’ time

for consideration of the Party’s rule by the Department of

Justice has any role in determining, as between the Party

and the defendants, whether a preliminary injunction

should issue. There was no delay on the part of the Party

in its dealings with the defendants, and the Party has

already been saddled with the effect of its delay before

the Justice Department when the court held that it was

App. 19

without power to consider the constitutional aspects of

the Party’s new primary election rule because the Voting

Section had not acted.

For the foregoing reasons, the court would deny a

preliminary injunction even if it had the power to con-

sider the merits of plaintiffs’ complaint.

Plaintiffs have also moved for an order requiring the

State of Alaska to immediately make its submission to the

Department of Justice, Voting Rights Section. This motion

is now in substance moot in light of the fact that the

plaintiffs’ motion for preliminary injunction has been

denied. More generally, the parties now seem in agree-

ment that there is no regulatory requirement that the

State file its procedures with the Department of Justice

until after the Voting Section has acted upon the Party’s

presentation. See 28 C.F.R. § 51.22.

Accordingly, the plaintiffs’ motion with regard to the

State filing with the Department of Justice is denied.

Finally, the Party has suggested that the court must

rule upon certain state law questions which it fears will

be outside the purview of the Justice Department's Voting

Section. Here the Party has reference to disagreements

with the State as to (among other things) whether a

voter's party designation may be changed on the day of

election or whether it must be changed thirty days in

advance. These matters present state law questions which

are not necessarily raised by the motions presently before

the court, and the court declines to offer any opinion on

these issues at this time.

App. 20

DATED at Anchorage, Alaska, this 13th day of July,

1990.

/s/ H. Russel Holland

United States

District Judge

cc: W. Ross (ROSS)

K. Jacobus

AAG-K

J. Rubini (BIRCH)

App. 21

APPENDIX 2

CHARLES E. COLE

ATTORNEY GENERAL

Nancy R. Gordon

Assistant Attorney General

1031 W. 4th Avenue

Suite 200

Anchorage, Alaska 99501

Attorney for Defendants

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ALASKA AT ANCHORAGE

CONSTANCE L. ZAWACKI and

the REPUBLICAN PARTY OF

ALASKA, INC., (Filed

Plaintiffs, Jul. 9, 1992)

: STIPULATION

AND

STATE OF ALASKA; STATE OF APPROVAL

ALASKA DIVISION OF ace i

ELECTIONS; LIEUTENANT Protege

his official capacity of Supervisor

of

Elections; and CHARLOT

THICKSTUN, in her offizial

capacity of Director of Division

of Elections,

Defendants.

)

)

)

)

)

)

)

GOVERNOR JACK COGHILL, in )

)

)

)

)

)

)

)

)

The parties stipulate that in light of the Court’s pre-

liminary conclusion that the Lt. Governor has the author-

ity to promulgate regulations implementing the

App. 22

principles enunciated in Tashjian v. Republican Party of

Connecticut, 479 U.S. 208 (1986), the Lt. Governor will

adopt emergency regulations that:

(1) Provide for two separate ballots for the primary

election, as follows:

(a) A Republican only ballot containing names

of Republican candidates only and available only to

Republican, nonpartisan and undeclared voters, and

(b) a statutory ballot containing candidates of

all other parties and available to all voters.

The parties also stipulate that:

(2) A voter may only select and vote one ballot;

(3) That this case is dismissed by joint agreement of

the parties.

DATED: July 9, 1992 CHARLES E. COLE

ATTORNEY GENERAL

By: /s/ Nancy R. Gordon

Assistant Attorney

General

DATED: July 9, 1992 /s/ Kenneth P. Jacobus

Kenneth P. Jacobus

App. 23

ORDER

IT IS SO APPROVED and this case is hereby dis-

missed without prejudice.

Dated this 10 day of July, 1992 in Anchorage, Alaska.

/s/ James K. Singleton

JAMES K. SINGLETON

U.S. DISTRICT

COURT JUDGE

CC: K. Jacobus

E. Boyko (BOYKO)

D. Clocksin (WAGSTAFF)

K. Morford (JENSEN)

‘ B. Botelho AG-200)

J. Rubini (BIRCH)