Washington State Republican Party v. Washington

• Decision Date: 22 August 2006
• Docket Number: No. 05-35774.,No. 05-35780.,05-35774.,05-35780.
• Citation: 460 F.3d 1108
• Parties: WASHINGTON STATE REPUBLICAN PARTY; Diane Tebelius; Bertabelle Hubka; Steve Neighbors; Mike Gaston; Marcy Collins; Michael Young, Plaintiffs-Appellees, and Washington State Democratic Central Committee; Paul Berendt; Libertarian Party of Washington State; Ruth Bennett; J.S. Mills, Plaintiffs-Intervenors-Appellees, v. State of WASHINGTON; Rob McKenna, Attorney General; Sam Reed, Secretary of State; Washington State Grange, Defendants-Intervenors-Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

460 F.3d 1108

WASHINGTON STATE REPUBLICAN PARTY; Diane Tebelius; Bertabelle Hubka; Steve Neighbors; Mike Gaston; Marcy Collins; Michael Young, Plaintiffs-Appellees, and Washington State Democratic Central Committee; Paul Berendt; Libertarian Party of Washington State; Ruth Bennett; J.S. Mills, Plaintiffs-Intervenors-Appellees, v. State of WASHINGTON; Rob McKenna, Attorney General; Sam Reed, Secretary of State; Washington State Grange, Defendants-Intervenors-Appellants.

No. 05-35774.

No. 05-35780.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted February 6, 2006.

Filed August 22, 2006.

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Rob McKenna, Maureen A. Hart, Jeffrey T. Even and James K. Pharris (argued), Office of the Washington Attorney General, Olympia, WA, for the State of Washington (defendant-intervenor-appellant).

Thomas F. Ahearne (argued), Ramsey Ramerman and Rodrick J. Dembowski, Foster Pepper & Shefelman PLLC, Seattle, WA, for the Washington State Grange (defendant-intervenor-appellant).

John J. White, Jr. (argued) and Kevin B. Hansen, Livengood, Fitzgerald & Alskog, Kirkland, WA, for the Washington State Republican Party (plaintiff-appellee).

David T. McDonald (argued) and Jay Carlson, Preston Gates & Ellis, LLP, Seattle, WA, for the Washington State Democratic Central Committee (plaintiff-intervenor-appellee).

Richard Shepard (argued), Shepard Law Office, Inc., Tacoma, WA, for the Libertarian Party of Washington State (plaintiff-intervenor-appellee).

Appeal from the United States District Court for the Western District of Washington; Thomas S. Zilly, District Judge, Presiding. D.C. No. CV-05-00927-TSZ.

Before D.W. NELSON, PAMELA ANN RYMER and RAYMOND C. FISHER, Circuit Judges.

FISHER, Circuit Judge.

For the second time in three years, political parties in Washington State are challenging the constitutionality of their state's partisan primary system, which was enacted as a result of the passage of Initiative 872 in the November 2004 state general election. In 2003, we concluded that Washington's previous "blanket" primary system was unconstitutional because it was "materially indistinguishable from the California scheme held to violate the constitutional right of free association in Jones." Democratic Party of Wash. v. Reed, 343 F.3d 1198, 1203 (9th Cir.2003) (relying on Cal. Democratic Party v. Jones, 530 U.S. 567, 120 S.Ct. 2402, 147 L.Ed.2d 502 (2000)).

There are differences between Washington's pre-Reed blanket primary and the "modified" blanket primary being challenged in this case, and we are mindful that Initiative 872 reflects the political will of a majority of Washington voters. Nonetheless, although attempting to craft a primary system that does not unconstitutionally burden political parties' right of association under the First and Fourteenth Amendments, Initiative 872 fails to do so. Rather, the Initiative retains a partisan primary, in which each candidate may self-identify with a particular party regardless of that party's willingness to be associated with that candidate. The State of Washington and Initiative 872's sponsor the Washington State Grange (the Grange),¹ have not identified any compelling state interests — apart from those the Supreme Court rejected in Jones — that would justify the Initiative's severe burden on the political parties' associational rights; nor is Initiative 872's modified blanket primary narrowly tailored. We cannot sever the unconstitutional provisions from Initiative 872 because "it cannot reasonably be believed that" Washington voters would have passed Initiative 872 without its unconstitutional provisions. McGowan v. State, 148 Wash.2d 278, 60 P.3d 67, 75 (2002). Accordingly, we hold that Washington's modified blanket primary as enacted by Initiative 872 is unconstitutional and affirm the district court's permanent injunction against the implementation of the Initiative.

I. Background

To understand the flaw in Initiative 872's partisan primary system, it is helpful to review the nature and structure of the primary process in general. A political primary is often thought of as a "meeting of the registered voters of a political party for the purpose of nominating candidates . . ."; and a common definition of a primary election is a "preliminary election in which voters nominate party candidates for office." American Heritage College Dictionary 1086 (3d ed.2000). The Supreme Court has characterized a candidate nominated in a primary as the party's "standard bearer," Timmons v. Twin Cities Area New Party, 520 U.S. 351, 359, 117 S.Ct. 1364, 137 L.Ed.2d 589 (1997), or "ambassador to the general electorate in winning it over to the party's views," Jones, 530 U.S. at 575, 120 S.Ct. 2402. In states that have adopted a "closed" primary system, each party (or traditionally at least each of the two major parties) selects its nominees who are to appear on the general election ballot as that party's candidates for particular offices. This type of primary is referred to as "closed" because only voters who formally associate themselves with a party in some fashion in advance of the primary may vote in that party's primary and thereby select the party's nominee. See Jones, 530 U.S. at 577, 120 S.Ct. 2402; see also Alexander J. Bott, Handbook of United States Election Laws and Practices: Political Rights 21, 43, 139 (1990).

Although many states employ a closed primary, other alternative primary systems have been and continue to be used in some states. One such alternative used to be the "blanket" primary, until the California version was held unconstitutional in Jones. In contrast to closed primaries where each party's nominee is selected by voters pre-affiliated with that party who vote only in that party's primary, a blanket primary system uses a common primary ballot shared by all candidates for particular elective offices. All voters, regardless of their own political party affiliations (if any), could — until Jones — vote for any candidate appearing on the blanket primary ballot regardless of that candidate's designated political party affiliation.² The candidate who received the greatest number of votes in relation to other candidates with the same party affiliation would become that party's nominee who would advance to the general election ballot. For example, each of the Democratic and Republican candidates with the greatest number of votes in the blanket primary would appear as the only candidate identified with that particular party designation on the general ballot. See Jones, 530 U.S. at 570, 120 S.Ct. 2402. The Supreme Court, however, held that California's blanket primary violated the state political parties' right of association under the First and Fourteenth Amendments, because allowing nonparty members to vote for party candidates forced a party's members to associate with voters who were members of rival parties in the selection of that party's nominee for the general election. See id. at 577, 120 S.Ct. 2402.

Invoking Jones, the political parties in Washington challenged the blanket primary that had operated in that state since 1935. See Reed, 343 F.3d at 1201. Like the California primary, the Washington primary at issue in Reed advanced each of the top primary election vote-getters within the same party to the general election ballot. See id.³ We held Washington's blanket primary unconstitutional in 2003 because it was "materially indistinguishable from the California scheme" that the Supreme Court invalidated in Jones. Id. at 1203.⁴

In the aftermath of Reed, two parallel efforts ensued to create a replacement primary system — one undertaken by the Washington state legislature and the other a ballot initiative sponsored by the Grange. In January 2004, the Grange filed the text of what was to become Initiative 872 on the November 2004 Washington ballot with the Washington Secretary of State. Initiative 872 made a number of changes to Washington's previous blanket primary system; but significantly, it retained the partisan nature of the primary. As the official voters' pamphlet explaining Initiative 872 stated, the Initiative "concerns elections for partisan offices" and "would change the system used for conducting primaries and general elections for partisan offices." (Emphasis added.)⁵

Two of the most important proposed changes were: (1) the redefinition of "partisan office" as "a public office for which a candidate may indicate a political party preference";⁶ and (2) the adoption of a "top two" rule whereby the two candidates with the greatest number of votes in the primary advance to the general election regardless of their expressed party preference. Under the Initiative 872 primary system, therefore, those candidates expressing a particular party "preference" would be self-identified only;⁷ and the winner of the largest number of votes among candidates with the same party preference would no longer be guaranteed a place on the general election ballot — an entitlement limited to the two top vote getters overall. Indeed, two candidates with the same party preference could be the only candidates for a particular office appearing on the general election ballot.⁸

In March 2004, the Washington legislature adopted two alternative primary systems, subject to the outcome of the vote on Initiative 872 in the November 2004 general election. As its first choice, the legislature adopted a "top two" primary system similar, though not identical, to the one the Grange proposed in Initiative 872.⁹ As a precaution in case the anticipated legal challenges to the "top two" system proved successful, the legislature also adopted a "backup" primary system — the so called "Montana" primary — which is essentially a type of open primary.¹⁰

Governor Gary Locke vetoed the "top two" primary system in April 2004, so the "Montana" primary became Washington's primary system for the fall 2004 elections. Nevertheless,...