Washington State Republican Party v. Washington State Grange

• Decision Date: 19 January 2012
• Docket Number: 11–35125.,Nos. 11–35122,11–35124,s. 11–35122
• Citation: 2012 Daily Journal D.A.R. 743,676 F.3d 784,12 Cal. Daily Op. Serv. 758
• Parties: WASHINGTON STATE REPUBLICAN PARTY, Steve Neighbors; Marcy Collins; William Michael Young; Diane Tebelius, Bertabelle Hubka; Mike Gaston, Plaintiffs,Libertarian Party of Washington State; Ruth Bennett, J.S. Mills, Intervenor–Plaintiffs,andWashington State Democratic Central Committee, Intervenor–Plaintiff–Appellant, v. WASHINGTON STATE GRANGE; Sam Reed, Secretary of State; State of Washington; Rob McKenna, Intervenor–Defendants–Appellees.Washington State Republican Party, Plaintiff–Appellant,andWashington State Democratic Central Committee; Libertarian Party of Washington State; Ruth Bennett; J.S. Mills, Intervenor–Plaintiffs, v. Washington State Grange; State of Washington; Rob McKenna; Sam Reed, Secretary of State, Intervenor–Defendants–Appellees.Washington State Republican Party, Plaintiff,Washington State Democratic Central Committee, Intervenor–Plaintiff,andLibertarian Party of Washington State; Ruth Bennett; J.S. Mills, Intervenor–Plaintiffs–Appellants, v. Washington State Grange; State of Washington; Rob McKenna; Sam Reed, Secretary of State, Intervenor–Defendants–Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

12 Cal. Daily Op. Serv. 758

2012 Daily Journal D.A.R. 743

676 F.3d 784

WASHINGTON STATE REPUBLICAN PARTY, Steve Neighbors; Marcy Collins; William Michael Young; Diane Tebelius, Bertabelle Hubka; Mike Gaston, Plaintiffs,Libertarian Party of Washington State; Ruth Bennett, J.S. Mills, Intervenor–Plaintiffs,andWashington State Democratic Central Committee, Intervenor–Plaintiff–Appellant,

v.WASHINGTON STATE GRANGE; Sam Reed, Secretary of State; State of Washington; Rob McKenna, Intervenor–Defendants–Appellees.Washington State Republican Party, Plaintiff–Appellant,andWashington State Democratic Central Committee; Libertarian Party of Washington State; Ruth Bennett; J.S. Mills, Intervenor–Plaintiffs,

v.Washington State Grange; State of Washington; Rob McKenna; Sam Reed, Secretary of State, Intervenor–Defendants–Appellees.Washington State Republican Party, Plaintiff,Washington State Democratic Central Committee, Intervenor–Plaintiff,andLibertarian Party of Washington State; Ruth Bennett; J.S. Mills, Intervenor–Plaintiffs–Appellants,

v.Washington State Grange; State of Washington; Rob McKenna; Sam Reed, Secretary of State, Intervenor–Defendants–Appellees.

Nos. 11–35122

11–35124

11–35125.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Nov. 29, 2011.Filed Jan. 19, 2012.

David T. McDonald (argued for all appellants), Emily D. Throop, Peter A. Talevich and Jennifer S. Addis, K & L Gates LLP, Seattle, WA, for appellant Washington State Democratic Central Committee.

John J. White, Jr., and Kevin B. Hansen, Livengood, Fitzgerald & Alskog, PLLC, Kirkland, WA, for appellant Washington State Republican Party.

Orrin Leigh Grover, Woodburn, OR, for appellants Libertarian Party of Washington State, Ruth Bennett and John S. Mills.Robert M. McKenna, Attorney General; James K. Pharris, Jeffrey T. Even (argued) and Allyson Zipp, Deputy Solicitors General, Olympia, WA, for appellees State of Washington, Rob McKenna and Sam Reed.Thomas F. Ahearne (argued) and Kathryn Carder McCoy, Foster Pepper PLLC, Seattle, WA, for appellee Washington State Grange.Appeal from the United States District Court for the Western District of Washington, John C. Coughenour, District Judge, Presiding. D.C. No. 2:05–cv–00927–JCC.Before: D.W. NELSON, RAYMOND C. FISHER and MILAN D. SMITH, JR., Circuit Judges.

OPINION

FISHER, Circuit Judge:

We address whether the State of Washington has designed its election ballots in a manner that eliminates the risk of widespread voter confusion, a question left unresolved in Washington State Grange v. Washington State Republican Party (“ Grange ”), 552 U.S. 442, 128 S.Ct. 1184, 170 L.Ed.2d 151 (2008). We hold that the state has done so. The ballots, and related informational materials, inform voters that, although each candidate for partisan office may specify a political party that he or she prefers, a candidate's preference does not imply that the candidate is nominated or endorsed by the party, or that the party approves of or associates with that candidate. Given the design of the ballot, and in the absence of evidence of actual voter confusion, we hold that Washington's top two primary system, as implemented by the state, does not violate the First Amendment associational rights of the state's political parties, the appellants here. We also affirm the district court's dismissal of the plaintiffs' ballot access and trademark claims. We reverse the district court's order granting the state's request for reimbursement of attorney's fees paid in accordance with a 2006 stipulation.

I. Background

In 2003, this court invalidated Washington's blanket primary as a violation of political parties' First Amendment freedom of association. See Democratic Party of Wash. State v. Reed, 343 F.3d 1198, 1201 (9th Cir.2003). In response to that decision, the Washington State Grange proposed the People's Choice Initiative of 2004, or Initiative 872 (I–872), as a replacement. See Grange, 552 U.S. at 446–47, 128 S.Ct. 1184. The initiative passed with nearly 60 percent of the vote and became effective in December 2004. See id. at 447, 128 S.Ct. 1184.

I–872 created a “top two” primary, in which the primary serves as a means of winnowing the candidates to two rather than selecting party nominees. “Under I–872, all elections for ‘partisan offices' are conducted in two stages: a primary and a general election.” Id. (footnote omitted).¹ “To participate in the primary, a candidate must file a ‘declaration of candidacy’ form, on which he declares his ‘major or minor party preference, or independent status.’ ” Id. (quoting former Wash. Rev.Code § 29A.24.030, superseded in part by Wash. Rev.Code § 29A.24.031). “Each candidate and his party preference (or independent status) is in turn designated on the primary election ballot,” and “[a] political party cannot prevent a candidate who is unaffiliated with, or even repugnant to, the party from designating it as his party of preference.” Id. (citing former Wash. Admin. Code § 434–215–015). “In the primary election, voters may select ‘any candidate listed on the ballot, regardless of the party preference of the candidates or the voter.’ ” Id. (quoting former Wash. Admin. Code § 434–262–012). “The candidates with the highest and second-highest vote totals advance to the general election, regardless of their party preferences.” Id. at 447–48, 128 S.Ct. 1184. “Each candidate's party preference is listed on the general election ballot, and may not be changed between the primary and general elections.” Id. at 448, 128 S.Ct. 1184 (citing former Wash. Admin. Code § 434–230–040).

In May 2005, the Washington State Republican Party filed suit against the state, challenging I–872 on its face. See id. “The party contended that the new system violates its associational rights by usurping its right to nominate its own candidates and by forcing it to associate with candidates it does not endorse.” Id. The Washington State Democratic Central Committee and Libertarian Party of Washington State joined the suit as plaintiffs, and the Washington State Grange joined as a defendant. See id. The district court granted the plaintiffs' motions for summary judgment and enjoined the implementation of I–872, see Wash. State Republican Party v. Logan, 377 F.Supp.2d 907, 932 (W.D.Wash.2005), and this court affirmed, see Wash. State Republican Party v. Washington, 460 F.3d 1108, 1125 (9th Cir.2006). In a separate order, we also awarded attorney's fees on appeal to the plaintiffs and against the state under 42 U.S.C. § 1988.

The Supreme Court reversed. The Court began by reciting the general principle that “[e]lection regulations that impose a severe burden on associational rights are subject to strict scrutiny,” and will be upheld “only if they are ‘narrowly tailored to serve a compelling state interest.’ ” Grange, 552 U.S. at 451, 128 S.Ct. 1184 (quoting Clingman v. Beaver, 544 U.S. 581, 586, 125 S.Ct. 2029, 161 L.Ed.2d 920 (2005)). “If a statute imposes only modest burdens, however, then ‘the State's important regulatory interests are generally sufficient to justify reasonable, nondiscriminatory restrictions' on election procedures.” Id. at 452, 128 S.Ct. 1184 (quoting Anderson v. Celebrezze, 460 U.S. 780, 788, 103 S.Ct. 1564, 75 L.Ed.2d 547 (1983)).

The Court next determined that I–872 did not on its face severely burden the plaintiffs' associational rights. First, the Court rejected the plaintiffs' argument that I–872 allows primary voters who are unaffiliated with a party to choose the party's nominees. See id. at 452–53, 128 S.Ct. 1184. The flaw in the parties' argument was that “the I–872 primary does not, by its terms, choose parties' nominees”—the parties are free to “nominate their own candidates outside the state-run primary ... by whatever mechanism they choose.” Id. at 453, 128 S.Ct. 1184.

Second, and relevant here, the Court considered the plaintiffs' argument that I–872 “burdens their associational rights because voters will assume that candidates on the general election ballot are the nominees of their preferred parties.” Id. at 454, 128 S.Ct. 1184.² Rejecting this argument, the Court said there was “no basis to presume that a well-informed electorate w [ould] interpret a candidate's party-preference designation to mean that the candidate is the party's chosen nominee or representative or that the party associates with or approves of the candidate.” Id. The Court recognized that it was “ possible that voters w[ould] misinterpret the candidates' party-preference designations as reflecting endorsement by the parties. But these cases involve a facial challenge, and we cannot strike down I–872 on its face based on the mere possibility of voter confusion.” Id. at 455, 128 S.Ct. 1184.

Because the Court was considering a facial challenge, the question was “whether the ballot could conceivably be printed in such a way as to eliminate the possibility of widespread voter confusion and with it the perceived threat to the First Amendment.” Id. at 456, 128 S.Ct. 1184. The Court said it was “not difficult to conceive of such a ballot.” Id.

For example, petitioners propose that the actual I–872 ballot could include prominent disclaimers explaining that party preference reflects only the self-designation of the candidate and not an official endorsement by the party. They also suggest that the ballots might note preference in the form of a candidate statement that emphasizes the candidate's personal determination rather than the party's acceptance of the candidate, such as “my party preference is the Republican Party.” Additionally, the State could decide to educate the public about the new primary ballots through advertising or explanatory materials mailed to voters along with their ballots. We are satisfied that there are a variety of ways in which the State could implement I–872 that would eliminate any real threat of voter confusion. And without the specter of widespread voter confusion, responde...