The Cool Moose Party v. State of RI

• Decision Date: 05 March 1999
• Docket Number: 98-1875,Nos. 98-1874,s. 98-1874
• Citation: 183 F.3d 80
• Parties: (1st Cir. 1999) THE COOL MOOSE PARTY, ET AL., Plaintiffs, Appellants, v. STATE OF RHODE ISLAND, ET AL., Defendants, Appellees. Heard
• Court: U.S. Court of Appeals — First Circuit

Page 80

183 F.3d 80 (1st Cir. 1999)

THE COOL MOOSE PARTY, ET AL., Plaintiffs, Appellants, v. STATE OF RHODE ISLAND, ET AL., Defendants, Appellees.

Nos. 98-1874, 98-1875

United States Court of Appeals for the First Circuit

Heard March 5, 1999.

Decided August 25, 1999.

APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND

Robert J. Healey, Jr., Esq. for The Cool Moose Party and for himself, individually.

Thomas A. Palombo, Special Assistant Attorney General and Katherine A. Merolla, with whom Robert E. Craven was on brief for the State of Rhode Island, the Secretary of State for the State of Rhode Island, and The Rhode Island Board of Elections.

Before Stahl, Circuit Judge, Magill,^* Senior Circuit Judge, and Lipez, Circuit Judge.

LIPEZ, Circuit Judge.

In September 1996, the Cool Moose Party ("CMP"), a Rhode Island political party, and Robert J. Healey, Jr. individually and in his capacity as CMP's chairperson (referred to collectively herein as "CMP"), filed suit in federal district court pursuant to 42 U.S.C. § 1983 seeking declaratory and injunctive relief from various provisions of Rhode Island's primary election laws, R.I. Gen. Laws §§ 17-15-1 to 17-15-44. After the parties filed cross-motions for summary judgment on a stipulated record, the district court ruled, inter alia, that R.I. Gen. Laws § 17-15-6, which requires political parties to select their nominees by means of primary election, is constitutional; and that R.I. Gen. Laws § 17-15-24, which prohibits members of one political party from voting in another party's primary, is unconstitutional to the extent that it prohibits such voters from participating in a party primary when the bylaws of that party would permit such participation. Both parties now appeal the adverse judgments against them. We affirm.

The Questions Presented

We note at the outset that CMP's challenges to Rhode Island's primary election statutes both in the district court and on appeal contain ambiguities which limit our ability to address its contentions and restrict the scope of our analysis. As the district court observed, CMP's pleadings and arguments "are difficult to decipher and do not clearly state the precise nature of the constitutional violations alleged." Cool Moose Party v. Rhode Island, 6 F. Supp. 2d 116, 119 (D.R.I. 1998). Notwithstanding this lack of clarity, the district court identified five issues that appeared to be raised by CMP, see id., two of which are appealed here:¹

(1) Whether R.I. Gen. Laws § 17-15-6, which requires political parties to select their nominees by means of primary elections, violates CMP members' right to freedom of association by preventing them from selecting candidates at a caucus open only to CMP members.

(2) Whether R.I. Gen. Laws § 17-15-24, which prohibits members of one political party from voting in another party's primary, violates the plaintiffs' right to freedom of association because it prevents CMP from allowing members of other parties to participate in the selection of CMP candidates.

Id. On appeal the parties apparently agree with the district court's characterization of the issues presented, and we proceed accordingly. We review a district court's grant of summary judgment de novo. See Lennon v. Rubin, 166 F.3d 6, 8 (1st Cir. 1999).

The Constitutional Background

The freedom to associate with others for the advancement of political beliefs and ideas is a form of "orderly group activity" protected by the First and Fourteenth Amendments, and "[t]he right to associate with the political party of one's choice is an integral part of this basic constitutional freedom." Kusper v. Pontikes, 414 U.S. 51, 56-57 (1973); see Tashjian v. Republican Party of Conn., 479 U.S. 208, 214 (1986); Elrod v. Burns, 427 U.S. 347, 356 (1976); NAACP v. Alabama ex. rel. Patterson, 357 U.S. 449, 460 (1958). Those associational rights, however, "are necessarily subject to qualification if elections are to be run fairly and effectively." Munro v. Socialist Workers Party, 479 U.S. 189, 193 (1986); see Timmons v. Twin Cities Area New Party, 117 S. Ct. 1364, 1369-70 (1997); Storer v. Brown, 415 U.S. 724, 730 (1974). Thus, states may enact laws that are necessary to ensure the integrity, fairness, and honesty of the election process, see Eu v. San Francisco County Democratic Cent. Comm., 489 U.S. 214, 231 (1989), even though such laws may abridge a party's associational rights by interfering with its internal affairs or its ability to garner support and members, see, e.g., Dunn v. Blumstein, 405 U.S. 300, 343-44 (1972) (residence requirement); Oregon v. Mitchell, 400 U.S. 112, 118 (1970) (age minimum); Kramer v. Union Free Sch. Dist. No. 15, 395 U.S. 621, 625 (1969) (citizenship requirement).

Faced with the inherent tension between a political party's right of association and a state's power to regulate elections, the Supreme Court has endorsed a flexible standard of review applicable to a challenged provision corresponding roughly to the degree to which the provision affects First and Fourteenth Amendment rights:

When deciding whether a state election law violates the First and Fourteenth Amendment associational rights, we weigh the character and magnitude of the burden the State's rule imposes on those rights against the interests the State contends justify that burden, and consider the extent to which the State's concerns make the burden necessary. Regulations imposing severe burdens on plaintiffs' rights must be narrowly tailored and advance a compelling state interest. Lesser burdens, however, trigger less exacting review, and a State's important regulatory interests will usually be enough to justify reasonable, nondiscriminatory restrictions.

Timmons, 117 S. Ct. at 1370 (internal quotation marks and citations omitted); see also Werme v. Merrill, 84 F.3d 479, 483 (1st Cir. 1996).² Under this formulation, "no bright line separates permissible election-related regulation from unconstitutional infringements on First Amendment freedoms." Timmons, 117 S. Ct. at 1370.

The Primary Requirement

CMP contends that R.I. Gen. Laws § 17-15-6, which requires that parties select their nominees by primary election rather than by party convention or caucus, is unconstitutional.³ Although we have considerable difficulty deciphering CMP's argument, CMP on appeal appears to accept the proposition that states may require parties to select their nominees by primary election without violating the parties' First Amendment associational rights.⁴ See, e.g., Reply Br. at 6. Rather, CMP now makes a vague equal protection challenge to the primary requirement, contending that although Rhode Island "may mandate a primary, . . . it must not have disparate outcomes as to major or minor parties." Id. In particular, CMP argues that primary elections have a "disproportionate . . . impact [on small parties] in terms of raiding."⁵ In other words, CMP argues that its small membership could more easily be overcome by a determined group of raiders than could a larger, more established party, and that this "disproportionate impact" renders the primary requirement unconstitutional.

Whatever the merits of CMP's "disparate impact" argument may be, the district court did not address it, and for good reason. There is no indication in the record that CMP, in challenging R.I. Gen. Laws § 17-15-6 before the district court, ever raised its novel "disparate impact" argument with even minimal clarity. Although the confused pleadings below suggest a highly generalized challenge to Rhode Island's semi-closed primary system,⁶ and although CMP's memorandum in support of its motion for summary judgment notes that the small size of the party makes it an easy target for raiders, there is certainly no coherent articulation of the "disparate impact" rationale as a basis for invalidating the statute. To the contrary, the pleadings below suggest that CMP's objection to the primary requirement was based on First Amendment associational rights (in particular, a party's right to decide for itself how its standard bearer will be chosen), not on equal protection concerns. CMP's general challenge was simply insufficient to raise the "disparate impact" challenge in the district court, and the fact that CMP's argument would have required factual development in the trial court makes application of the rule of forfeiture particularly appropriate here. There are no extraordinary circumstances in this case that would cause us to depart from the well-established appellate rule that arguments raised for the first time on appeal will not be considered. See Campos-Orrego v. Rivera, 175 F.3d 89, 95 (1st Cir. 1999); Tele-Communications, Inc. v. Comm'r of Internal Revenue, 104 F.3d 1229, 1232-33 (10th Cir. 1997). The district court's ruling on the mandatory primary requirement will stand.

Rhode Island's Semi-Closed Primary System

The State contends that the district court erred by concluding that R.I. Gen. Laws § 17-15-24, which prohibits voters registered in one party from voting in the primary of another party, is unconstitutional to the extent that it prohibits such voters from voting in the primary of another party whose bylaws would permit their participation.⁷ The district court, relying on Supreme Court authority it considered controlling, ruled that R.I. Gen. Laws § 17-15-24 unconstitutionally prevents CMP from inviting registered voters from other parties to vote in the CMP primary.⁸ See Cool Moose Party, 6 F. Supp.2d at 120-22. On appeal, the State argues that the Supreme Court case on which the district court relied, Tashjian v. Republican Party of Connecticut, 479 U.S. 208 (1986), is distinguishable and that the statute must be upheld in its entirety. While we agree that Tashjian is not on all fours with the case now before us, we nonetheless conclude that the State has failed to offer adequate justifications for R.I. Gen. Laws § 17-15-24's infringement upon the...