Kohlhaas v. State, Supreme Court No. S-18210
| Docket Number | Supreme Court No. S-18210 |
| Decision Date | 21 October 2022 |
| Citation | 518 P.3d 1095 |
| Parties | Scott A. KOHLHAAS, The Alaskan Independence Party, Robert M. Bird, and Kenneth P. Jacobus, Appellants, v. STATE of Alaska, Office of Lieutenant Governor, Division of Elections, and Lieutenant Governor Kevin Meyer and Director Gail Fenumiai, in their official capacities, Appellees, and Alaskans for Better Elections, Inc., Intervenor-Appellee. |
| Court | Alaska Supreme Court |
Kenneth P. Jacobus, Kenneth P. Jacobus, P.C., Anchorage, for Appellants.
Laura Fox, Senior Assistant Attorney General, Anchorage, and Treg R. Taylor, Attorney General, Juneau, for Appellees.
Scott M. Kendall, Jahna M. Lindemuth, and Samuel G. Gottstein, Cashion Gilmore & Lindemuth, Anchorage, for Intervenor-Appellee.
Craig W. Richards, Law Offices of Craig Richards, Anchorage, and Daniel R. Suhr, Liberty Justice Center, Chicago, Illinois, for Amici Mead Treadwell and Dick Randolph.
James E. Torgerson, Stoel Rives LLP, Anchorage, T. Clark Weymouth, Hogan Lovells US LLP, Washington, D.C., and Peter Bautz and Elizabeth Femia, Hogan Lovells US LLP, New York, New York, for Amici Victor Fischer, Richard H. Pildes, and Gary Michael Parsons, Jr.
Susan Orlansky and Thomas P. Amodio, Reeves Amodio LLC, Anchorage, and Paul Haughey, Kilpatrick Townsend & Stockton LLC, San Francisco, California, for Amici RepresentUs and FairVote.
Before: Winfree, Chief Justice, Maassen, Carney, Borghesan, and Henderson, Justices.
In 2020 Alaska voters approved, by a slim margin, a ballot initiative that made sweeping changes to Alaska's system of elections. The changes included replacing the system of political party primary elections with a nonpartisan primary election and adopting ranked-choice voting for the general election. A coalition of politically active voters and a political party filed suit, arguing that these changes violate the Alaska Constitution. The superior court ruled otherwise. We considered the appeal on an expedited basis and affirmed the superior court's judgment in a brief order. This opinion explains our reasoning.
Changes to the way elections are run are understandably controversial. No system of elections is perfect, and there are thoughtful policy arguments both for and against the elections system the voters enacted in 2020. It is not our role as a court to weigh these policy arguments or to consider whether changing the elections system was a good idea. Instead we consider whether the voter-enacted changes are permitted by the Alaska Constitution. As the New York Court of Appeals observed over eighty years ago in upholding changes made to New York City's system of elections: "If the people ... want to try the system, make the experiment, and have voted to do so, we as a court should be very slow in determining that the act is unconstitutional, until we can put our finger on the very provisions of the Constitution which prohibit it."1 We conclude that the challengers have not carried their burden to show that the Alaska Constitution prohibits the election system Alaska voters have chosen.
On November 3, 2020 Alaska voters approved a ballot initiative entitled "Alaska's Better Elections Initiative" (referred to here as "Initiative 2"). Initiative 2 made three main changes to Alaska's election laws. It repealed the existing system of party primaries in favor of an open primary for state legislative, state executive, and federal congressional offices, with the top four candidates advancing to the general election. It adopted ranked-choice voting for the general election. And it addressed the use of "dark money" in elections by requiring greater disclosures of political fundraising sources. This case concerns only the open primary and ranked-choice voting, not the campaign finance reforms.
Before Initiative 2, Alaska used a system of political party primary elections to determine which candidates for office would advance to the general election.2 The Alaska Division of Elections oversaw and administered these partisan primary elections.3 Each political party determined through its bylaws who was eligible to vote in the party's primary election4 and who was eligible to run as a candidate.5 The Division established polling places and furnished election supplies.6 The winner of each party's primary election for a particular elective office — that party's nominee for the office — advanced to the general election.7
Aspiring candidates had another path to the general election ballot: submitting a nominating petition with the requisite number of signatures from registered voters.8 The nominating petition had to include information about the candidate, including the candidate's name and address and the office for which the candidate was running.9 If the candidate was running for governor, the petition was required to state the name of the lieutenant governor candidate with whom the gubernatorial candidate was running.10
Initiative 2 did away with much of this, abolishing state-run partisan primaries and the nominating petition system. Under the new system — called a "jungle primary" by its opponents11 — the primary election is open to candidates of all parties and those of no party at all.12 "The primary election does not serve to determine the nominee of a political party or political group but serves only to narrow the number of candidates whose names will appear on the ballot at the general election."13
To appear on the primary ballot under Initiative 2 a candidate must file a declaration of candidacy, which must include "the political party or political group with which the candidate is registered as affiliated, or whether the candidate would prefer a nonpartisan or undeclared designation placed after the candidate's name on the ballot."14 Candidates for governor must list the lieutenant governor candidate with whom they are running, and vice versa.15
Each voter receives a single primary ballot and may vote for "any candidate ... without limitations based on the political party or political group affiliation of either the voter or the candidate."16 The ballot includes a disclaimer about party affiliation:
A candidate's designated affiliation does not imply that the candidate is nominated or endorsed by the political party or group or that the party or group approves of or associates with that candidate, but only that the candidate is registered as affiliated with the political party or political group.[17 ]
The four candidates receiving the greatest number of votes in the primary advance to the general election regardless of party affiliation.18
Under the previous general election regime, each voter cast a vote by choosing a single candidate for each office. The total number of votes for each candidate was tallied and the candidate receiving the greatest number of votes was victorious.19
Initiative 2 adopts ranked-choice voting — also called "instant-runoff" voting20 — which permits voters to rank candidates for each office in order of preference and instructs the Division of Elections to tabulate these preferences in a series of rounds.21 The Division "shall initially tabulate each validly cast ballot as one vote" for the highest-ranked candidate on that ballot.22 If after this tabulation one candidate has more than half of the votes, voting is complete and that candidate is declared the winner.23 If no candidate has more than half of the votes, the candidate with the fewest votes is eliminated.24 Each ballot initially counted for the eliminated candidate is reassigned to that voter's second choice marked on the ballot.25 If the ballot does not rank a second-choice candidate, it is considered "inactive" and is not counted in further rounds of tabulation.26 The process repeats until only two candidates remain, when the "tabulation is complete" and the candidate "with the greatest number of votes is elected."27
Like the primary election ballot, the general election ballot displays each candidate's political party affiliation or designation as undeclared or nonpartisan.28 The general election ballot and each polling place must include the same disclaimer about party affiliation.29 The general election ballot must also include a mechanism for voters to write in a candidate for each office.30
A coalition of plaintiffs filed suit in December 2020 to challenge the constitutionality of Initiative 2. The plaintiffs are Scott A. Kohlhaas, who is registered with the Libertarian Party of Alaska and ran as a Libertarian candidate for the Alaska House of Representatives and U.S. Senate; Robert M. Bird, the chair of the Alaskan Independence Party; Kenneth P. Jacobus, a registered Republican voter; and the Alaskan Independence Party, a political party. They named as defendants the State of Alaska, Division of Elections; Lieutenant Governor Kevin Meyer, in his official capacity; and Gail Fenumiai, in her official capacity as Director of the Division of Elections. The group Alaskans for Better Elections, Inc., a sponsor of Initiative 2, intervened in defense.
The plaintiffs (referred to collectively as "Kohlhaas" in this opinion) argued that Initiative 2 violated speech rights under the United States and Alaska Constitutions by weakening political parties’ ability to select candidates for the general election and by allowing candidates to identify their party affiliation on the ballot without regard to whether the party had nominated or endorsed them.31 Kohlhaas argued that Initiative 2's approach to pairing candidates for governor and lieutenant governor in the primary election violated the provision of the Alaska Constitution for electing the lieutenant governor.32 And he argued that Initiative 2's adoption of ranked-choice voting for the general election unconstitutionally burdened the right to vote and violated the provision of the Alaska Constitution providing that the...
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...with the greater number of votes is declared the winner. (Portugal, supra, 530 P.3d at p. 1002; see Kohlhaas v. State (Alaska 2022) 518 P.3d 1095, 1102.) [9] We recognize that where there is complete racial polarization, the protected class may itself need to make up a majority of the distr......