Democratic Party of Washington State v. Reed
| Decision Date | 15 September 2003 |
| Docket Number | No. 02-35428.,No. 02-35424.,No. 02-35422.,02-35422.,02-35424.,02-35428. |
| Citation | 343 F.3d 1198 |
| Parties | DEMOCRATIC PARTY OF WASHINGTON STATE; Paul Berendt; James Apa; Helen Carlstrom; Vivian Caver; Charlotte Coker; Edward Cote; Ted Highley; Sally Kapphahn; Karen Marchioro; David Mcdonald, Joseph Nilsson; David Peterson; Margarita Prentice; Karen Price; Marilyn Sayan; John Thompson; Ya-Yue Van, Plaintiffs-Appellants, Washington State Grange; Terry Hunt; Jane Hodde, Intervenors-Appellees, and Republican State Committee of Washington, Jeff Kent; Lindsey Echelbarger; Libertarian Party of Washington; Washington State Grange; Terry Hunt; Jane Hodde; Christopher Vance; Dione Ludlow; John Mills; Freedom Socialist Party; Green Party of Washington; Chris Caputo; Donald Crawford; Erne Lewis, Intervenor, v. Sam REED, Secretary of State of the State of Washington, Defendant-Appellee. Democratic Party of Washington State; Paul Berendt; James Apa; Helen Carlstrom; Vivian Caver; Charlotte Coker; Edward Cote; Ted Highley; Sally Kapphahn; Karen Marchioro; David Mcdonald, Joseph Nilsson; David Peterson; Margarita Prentice; Karen Price; Marilyn Sayan; John Thompson; Ya-Yue Van, Plaintiffs, Jeff Kent, Libertarian Party of Washington; Washington State Grange; Terry Hunt; Jane Hodde; Dione Ludlow; John Mills; Freedom Socialist Party; Green Party of Washington; Chris Caputo; Donald Crawford; Erne Lewis, Intervenor, and Republican State Committee of Washington, Jeff Kent; Lindsey Echelbarger; Libertarian Party of Washington; Washington State Grange; Terry Hunt; Jane Hodde; Christopher Vance; Dione Ludlow; John Mills; Freedom Socialist Party; Green Party of Washington; Chris Caputo; Donald Crawford; Erne Lewis; Democratic Party of Washington State Christopher Vance; Lindsey Echelbarger; Diane Tebelius, Intervenors-Appellants, Washington State Grange; Terry Hunt; Jane Hodde, Intervenors-Appellees, v. Sam Reed, Secretary of State of the State of Washington, Defendant-Appellee. Democratic Party of Washington State; Paul Berendt; James Apa; Helen Carlstrom; Vivian Caver; Charlotte Coker; Edward Cote; Ted Highley; Sally Kapphahn; Karen Marchioro; David Mcdonald, Joseph Nilsson; David Peterson; Margarita Prentice; Karen Price; Marilyn Sayan; John Thompson; Ya-Yue Van, Plaintiffs, Opinion Christopher Vance; Republican State Committee of Washington, Jeff Kent; Lindsey Echelbarger; Dione Ludlow; Freedom Socialist Party; Green Party of Washington; Diane Tebelius, Intervenors, and Democratic Party of Washington State Reed Libertarian Party of Washington State; John Mills; Chris Caputo; Donald Crawford; Erne Lewis, Intervenors-Appellants, Washington State Grange; Terry Hunt; Jane Hodde, Intervenors-Appellees, v. Sam Reed, Secretary of State of the State of Washington, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Ninth Circuit |
David T. McDonald (argued and briefed), James A. Goeke (briefed), Jonathan H. Harrison (briefed), Preston, Gates & Ellis, LLP, Seattle, Washington, for appellants Democratic Party of Washington State, et al.
John J. White Jr., (argued and briefed) and Kevin B. Hansen (briefed), Livengood, Carter, Tjossem, Fitzgerald & Alskog, PLLC, Kirkland, Washington, for appellants Republican State Committee of Washington, et al.
Richard Shepard, Shepard Law Office, Tacoma, Washington, for appellants Libertarian Party of Washington State, et al.
James K. Pharris (argued and briefed), Senior Assistant Attorney General, Olympia, Washington, and Jeffrey T. Even (briefed), Assistant Attorney General, Olympia, Washington, for appellee Sam Reed.
James M. Johnson, Olympia, Washington, for appellees Washington State Grange, et al.
Appeal from the United States District Court for the Western District of Washington; Franklin D. Burgess, District Judge, Presiding. D.C. No. CV-00-05419-FDB.
Before: Andrew J. KLEINFELD, and M. Margaret McKEOWN, Circuit Judges, and Charles R. BREYER,* District Judge.
The State of Washington conducts a "blanket" primary, in which voters choose candidates without being restricted to candidates of any particular party. The Democratic, Republican and Libertarian Parties all challenged the law, claiming that it unconstitutionally restrains their supporters' freedom of association. They are correct.
We recognize that Washington voters are long accustomed to a blanket primary and acknowledge that this form of primary has gained a certain popularity among many of the voters. Nonetheless, these reasons cannot withstand the constitutional challenge presented here. The legal landscape has changed, and our decision is compelled by the Supreme Court's landmark decision in California Democratic Party v. Jones.1
Washington's "blanket primary" system was first established in 1935. Except for presidential primaries, "all properly registered voters may vote 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."2 All the candidates from all parties are listed on the ballot, along with a party designation or "independent" designation.3 To get onto the general election ballot, a candidate has to get 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.4
Thus the voter gets a ballot listing all candidates of all parties and votes freely among them, as opposed to getting an exclusively Democratic or Republican or other limited ballot. And the voter can choose candidates from some parties for some positions, others for other positions, a process known as "ticket-splitting."5
Presidential primaries are different. If a major party so requests, voters requesting a party-specific ballot get a separate ballot listing candidates only of that party.6 Nonaffiliated voters get ballots listing candidates of all parties.7 These different kinds of ballots have to be "readily distinguishable," the results reported separately, and a major party can allocate delegates using the partisan ballots under its own rules.8
In the case before us, the Democratic Party of Washington sued the Secretary of State for a declaratory judgment that the blanket primary was unconstitutional and an injunction enabling the Party to "limit participation" in partisan primaries. The Republican Party successfully moved to intervene as a plaintiff, seeking similar declaratory relief and an injunction likewise requiring the Secretary of State to implement a mechanism to "effectuate the Party's exercise of its right to limit participation in that primary." Numerous individuals joined both complaints as plaintiffs. The Libertarian Party also intervened, likewise seeking a declaratory judgment of unconstitutionality, and an injunction with terms focusing upon its interests as a small party. The Washington State Grange intervened as a defendant, supporting the blanket primary system as is.
Pursuant to stipulation, the 2000 primary was held under the existing statutory system. Though a preliminary injunction would have limited subsequent primaries in accord with the parties' complaint, the district court dissolved the injunction on July 24, 2001. The case then went forward on cross motions for summary judgment. The district court granted the State of Washington's motions to strike the declarations of witnesses put forward by the Democrats and Republicans, and denied the political parties' motions for summary judgment on the ground that they had not demonstrated evidence of a substantial burden to their First Amendment right of association. The district court granted the defendants' motion for summary judgment on the ground that the political parties had failed to meet their burden of proof. The political parties now appeal both the evidentiary rulings and the grant of summary judgment.
We review de novo the district court's grant of summary judgment.9
The Grange argues that we should affirm the judgment on the ground that the constitutional issues are res judicata. The Washington State Supreme Court upheld the blanket primary against challenges by individuals in 193610 and 1980.11 The district court rejected this argument, and so do we. Obviously, res judicata does not apply because none of the plaintiffs were parties or in privity with parties to those cases, and constitutional law has changed materially since then,12 most notably for purposes of this case when Democratic Party v. Jones came down in 2000.
The complexity of the relationship among private, state, and federal regulations of state elections has grown through a long series of decisions beginning with those rejecting the white-only Democratic primaries in the South,13 continuing through to the present day in Bush v. Gore.14 Fortunately, it is no longer necessary to parse this entire body of law, because the Supreme Court recently spoke to the precise problem at issue in this case. California Democratic Party v. Jones15 held unconstitutional a California blanket primary scheme. The case at bar turns on whether the Washington scheme is distinguishable from the California scheme held in Jones to violate the right of free association.
The Secretary of State argues that the district court properly excluded the Democratic and Republican Parties' evidence, and without it, the Parties fail to meet what the Secretary claims is their burden of proof to show that they are harmed.
It is not at all clear that the plaintiffs had any "burden of proof" that they needed to bear. There is no standing or case or controversy issue. This is a facial challenge to a statute burdening the exercise of a First Amendment right. The challenge is brought by those wishing to exercise their rights without the restraints imposed by the statute...
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