Washington State Grange v. Washington State Republican Party

• Decision Date: 18 March 2008
• Docket Number: 06–730.,Nos. 06–713,s. 06–713
• Citation: 08 Cal. Daily Op. Serv. 2995,76 USLW 4127,2008 Daily Journal D.A.R. 3677,21 Fla. L. Weekly Fed. S 109,552 U.S. 442,128 S.Ct. 1184,170 L.Ed.2d 151
• Parties: WASHINGTON STATE GRANGE, Petitioner, v. WASHINGTON STATE REPUBLICAN PARTY et al.Washington, et al., Petitioners, v. Washington State Republican Party, et al.
• Court: U.S. Supreme Court

08 Cal. Daily Op. Serv. 2995

128 S.Ct. 1184

170 L.Ed.2d 151

2008 Daily Journal D.A.R. 3677

21 Fla. L. Weekly Fed. S 109

552 U.S. 442

76 USLW 4127

WASHINGTON STATE GRANGE, Petitioner,

v.WASHINGTON STATE REPUBLICAN PARTY et al.Washington, et al., Petitioners,

v.Washington State Republican Party, et al.

Nos. 06–713

06–730.

Supreme Court of the United States

Argued Oct. 1, 2007.Decided March 18, 2008.

Syllabus ^*

After the Ninth Circuit invalidated Washington's blanket primary system on the ground that it was nearly identical to the California system struck down in California Democratic Party v. Jones, 530 U.S. 567, 120 S.Ct. 2402, 147 L.Ed.2d 502, state voters passed an initiative (I–872), providing that candidates must be identified on the primary ballot by their self-designated party preference; that voters may vote for any candidate; and that the two top votegetters for each office, regardless of party preference, advance to the general election. Respondent political parties claim that the new law, on its face, violates a party's associational rights by usurping its right to nominate its own candidates and by forcing it to associate with candidates it does not endorse. The District Court granted respondents summary judgment, enjoining I–872's implementation. The Ninth Circuit affirmed.

Held: I–872 is facially constitutional. Pp. 1190 – 1196.

(a) Facial challenges, which require a showing that a law is unconstitutional in all of its applications, are disfavored: They often rest on speculation; they run contrary to the fundamental principle of judicial restraint that courts should neither “ ‘anticipate a question of constitutional law in advance of the necessity of deciding it’ ” nor “ ‘formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied,’ ” Ashwander v. TVA, 297 U.S. 288, 56 S.Ct. 466, 483, 80 L.Ed. 688; and they threaten to short circuit the democratic process by preventing laws embodying the will of the people from being implemented consistent with the Constitution. Pp. 1190 – 1191.

(b) If I–872 severely burdens associational rights, it is subject to strict scrutiny and will be upheld only if it is “narrowly tailored to serve a compelling state interest,” Clingman v. Beaver, 544 U.S. 581, 586, 125 S.Ct. 2029, 161 L.Ed.2d 920. Contrary to petitioners' argument, this Court's presumption in Jones—that a nonpartisan blanket primary where the top two votegetters proceed to the general election regardless of party would be a less restrictive alternative to California's system because it would not nominate candidates—is not dispositive here. There, the Court had no occasion to determine whether a primary system that indicates each candidate's party preference on the ballot, in effect, chooses the parties' nominees. Respondents' arguments that I–872 imposes a severe burden are flawed. They claim that the law is unconstitutional under Jones because it allows primary voters unaffiliated with a party to choose the party's nominee, thus violating the party's right to choose its own standard bearer. Unlike California's primary, however, the I–872 primary does not, by its terms, choose the parties' nominees. The choice of a party representative does not occur under I–872. The two top primary candidates proceed to the general election regardless of their party preferences. Whether the parties nominate their own candidate outside the state-run primary is irrelevant. Respondents counter that voters will assume that candidates on the general election ballot are their preferred nominees; and that even if voters do not make that assumption, they will at least assume that the parties associate with, and approve of, the nominees. However, those claims depend not on any facial requirement of I–872, but on the possibility that voters will be confused as to the meaning of the party-preference designation. This is sheer speculation. Even if voters could possibly misinterpret the designations, I–872 cannot be struck down in a facial challenge based on the mere possibility of voter confusion. The State could implement I–872 in a variety of ways, e.g., through ballot design, that would eliminate any real threat of confusion. And without the specter of widespread voter confusion, respondents' forced association and compelled speech arguments fall flat. Pp. 1191 – 1195.

(c) Because I–872 does not severely burden respondents, the State need not assert a compelling interest. Its interest in providing voters with relevant information about the candidates on the ballot is easily sufficient to sustain the provision. P. 1195.

460 F.3d 1108, reversed.

THOMAS, J., delivered the opinion of the Court, in which ROBERTS, C. J., and STEVENS, SOUTER, GINSBURG, BREYER, and ALITO, JJ., joined. ROBERTS, C. J., filed a concurring opinion, in which ALITO, J., joined. SCALIA, J., filed a dissenting opinion, in which KENNEDY, J., joined.

Robert M. McKenna, for petitioners.

Thomas Fitzgerald Ahearne, Counsel of Record, Kathryn Carder, Emanuel Jacobowitz, Ramsey Ramerman, Foster Pepper PLLC, Seattle, WA, for Petitioner.

Richard Shepard, Shepard Law Office, P.L.L.C., Tacoma, Washington, for Respondent Libertarian Party of Washington.John J. White, Jr., Counsel of Record, Kevin B. Hansen, Livengood, Fitzgerald & Alskog, PLLC, Kirkland, WA, for Respondents Washington State Republican Party, Christopher Vance, Bertabelle Hubka, Steve Neighbors, Brent Boger, Marcy Collins, Michael Young, Diane Tebelius, and Mike Gaston.David T. McDonald, Counsel of Record, John P. Krill, Jr., Matthew J. Segal, Jay Carlson, Alex Wagner, Kirkpatrick & Lockhart, Preston Gates Ellis LLP, Seattle, WA, for Respondent Washington State Democratic Central Committee.Justice THOMAS delivered the opinion of the Court.

In 2004, voters in the State of Washington passed an initiative changing the State's primary election system. The People's Choice Initiative of 2004, or Initiative 872 (I–872), provides that candidates for office shall be identified on the ballot by their self-designated “party preference”; that voters may vote for any candidate; and that the top two votegetters for each office, regardless of party preference, advance to the general election. The Court of Appeals for the Ninth Circuit held I–872 facially invalid as imposing an unconstitutional burden on state political parties' First Amendment rights. Because I–872 does not on its face impose a severe burden on political parties' associational rights, and because respondents' arguments to the contrary rest on factual assumptions about voter confusion that can be evaluated only in the context of an as-applied challenge, we reverse.

I

For most of the past century, Washington voters selected nominees for state and local offices using a blanket primary.¹ From 1935 until 2003, the State used a blanket primary that placed candidates from all parties on one ballot and allowed voters to select a candidate from any party. See 1935 Wash. Laws, ch. §§ 1–5, pp. 60–64. Under this system, the candidate who won a plurality of votes within each major party became that party's nominee in the general election. See 2003 Wash. Laws, § 919, p. 775.

California used a nearly identical primary in its own elections until our decision in California Democratic Party v. Jones, 530 U.S. 567, 120 S.Ct. 2402, 147 L.Ed.2d 502 (2000). In Jones, four political parties challenged California's blanket primary, arguing that it unconstitutionally burdened their associational rights by forcing them to associate with voters who did not share their beliefs. We agreed and struck down the blanket primary as inconsistent with the First Amendment. In so doing, we emphasized the importance of the nomination process as “ ‘the crucial juncture at which the appeal to common principles may be translated into concerted action, and hence to political power in the community.’ ” Id., at 575, 120 S.Ct. 2402 (quoting Tashjian v. Republican Party of Conn., 479 U.S. 208, 216, 107 S.Ct. 544, 93 L.Ed.2d 514 (1986)). We observed that a party's right to exclude is central to its freedom of association, and is never “more important than in the process of selecting its nominee.” 530 U.S., at 575, 120 S.Ct. 2402. California's blanket primary, we concluded, severely burdened the parties' freedom of association because it forced them to allow nonmembers to participate in selecting the parties' nominees. That the parties retained the right to endorse their preferred candidates did not render the burden any less severe, as “[t]here is simply no substitute for a party's selecting its own candidates.” Id., at 581, 120 S.Ct. 2402.

Because California's blanket primary severely burdened the parties' associational rights, we subjected it to strict scrutiny, carefully examining each of the state interests offered by California in support of its primary system. We rejected as illegitimate three of the asserted interests: “producing elected officials who better represent the electorate,” “expanding candidate debate beyond the scope of partisan concerns,” and ensuring “the right to an effective vote” by allowing nonmembers of a party to vote in the majority party's primary in “ ‘safe’ ” districts. Id., at 582–584, 120 S.Ct. 2402. We concluded that the remaining interests—promoting fairness, affording voters greater choice, increasing voter participation, and protecting privacy—were not compelling on the facts of the case. Even if they were, the partisan California primary was not narrowly tailored to further those interests because a nonpartisan blanket primary, in which the top two votegetters advance to the general election regardless of party affiliation, would accomplish each of those interests without burdening the parties' associational rights. Id., at 585–586, 120 S.Ct. 2402. The nonpartisan blanket primary had “all the characteristics of the partisan blanket primary, save the constitutionally crucial one: Primary voters [...