Scott A. Kohlhaas, The Alaskan Independence Party, Robert M. Bird, and Kenneth P. Jacobus v. State of Alaska, Division of Elections Lieutenant Governor Kevin Meyer, in an Official Capacity and Director Gail Fenumiai, in an Official Capacity and Alaskans for Better Elections, Inc. ( 2022 )

Notice: This opinion is subject to correction before publication in the PACIFIC REPORTER.
Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,
303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email
corrections@akcourts.gov.
THE SUPREME COURT OF THE STATE OF ALASKA
SCOTT A. KOHLHAAS, THE )
ALASKAN INDEPENDENCE PARTY, ) Supreme Court No. S-18210
ROBERT M. BIRD, and KENNETH P. )
JACOBUS, ) Superior Court No. 3AN-20-09532 CI
)
Appellants, ) OPINION
)
v. ) No. 7629 – October 21, 2022
)
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. )
)
Appeal from the Superior Court of the State of Alaska, Third
Judicial District, Anchorage, Gregory Miller, Judge.
Appearances: 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.
BORGHESAN, Justice.
I. INTRODUCTION
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
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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.
II. FACTS AND PROCEEDINGS
A. Facts
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.
1
Johnson v. City of New York, 9 N.E.2d 30, 38 (N.Y. 1937).
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1. Changes to the primary election
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
2
Former AS 15.25.010 (2020) (amended Feb. 28, 2021); see also former
AS 15.25.030 (2020) (amended Feb. 28, 2021) (listing requirements for political party
members declaring candidacy in primary election).
3
See AS 15.10.105(a).
4
See former AS 15.25.014 (2020) (repealed Feb. 28, 2021).
5
State v. Alaska Democratic Party, 426 P.3d 901 (Alaska 2018) (upholding
superior court overturning “party affiliation rule,” effectively permitting political parties
to determine who may participate as candidates in primary elections).
6
Former AS 15.25.060 (2020) (repealed and reenacted Feb. 28, 2021); see
also former AS 15.15.060 (2020) (amended Feb. 28, 2021).
7
Former AS 15.25.100 (2020) (repealed and reenacted Feb. 28, 2021).
8
Former AS 15.25.140 et seq. (2020) (repealed Feb. 28, 2021);
AS 15.05.010.
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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
9
Former AS 15.25.180(a) (2020) (repealed Feb. 28, 2021).
10
Former AS 15.25.180(a)(17) (2020) (repealed Feb. 28, 2021).
11
E.g., STATE OF ALASKA, OFFICIAL ELECTION PAMPHLET 106 (2020)
(statement by former U.S. Senator Mark Begich and former Alaska Governor Sean
Parnell in opposition to Initiative 2).
12
See AS 15.25.030(a)(5).
13
AS 15.25.010.
14
AS 15.25.030; AS 15.25.060.
15
AS 15.25.030(a)(16)-(17).
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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
2. Changes to the general election
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
16
AS 15.15.025; AS 15.25.060; AS 15.15.230. While the general election
uses ranked-choice voting under Initiative 2, the primary election still uses single-choice
voting. AS 15.15.350(c); AS 15.15.025.
17
AS 15.15.030(14); AS 15.25.060.
18
AS 15.25.100(a).
19
See former AS 15.25.100 (2020) (repealed and reenacted Feb. 28, 2021);
former AS 15.15.350 (2020) (amended Feb. 28, 2021); former AS 15.15.360 (2020)
(amended Feb. 28, 2021).
20
See Angela Sbano, How Should Alaskans Choose?: The Debate Over
Ranked Choice Voting, 37 ALASKA L. REV. 295, 296 n.3 (2020).
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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
21
See AS 15.15.350(c)-(e); AS 15.15.360(a)(1).
22
AS 15.15.350(d).
23
Id.24
Id.25
AS 15.15.350(d)(2).
26
Id.; AS 15.15.350(g)(2).
27
AS 15.15.350(d).
28
AS 15.15.030(5).
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party affiliation.29 The general election ballot must also include a mechanism for voters
to write in a candidate for each office.30
B. Proceedings
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
29
AS 15.15.030(14); AS 15.15.060(e).
30
AS 15.15.030(5). For a write-in vote to be counted, the named candidate
must have filed a letter of intent to run as a write-in candidate with the Division of
Elections. AS 15.25.105.
31
U.S. Const. amend. I (“Congress shall make no law respecting an
establishment of religion, or prohibiting the free exercise thereof; or abridging the
freedom of speech, or of the press; or the right of the people peaceably to assemble, and
to petition the Government for a redress of grievances.”); Alaska Const. art. I, § 5
(“Every person may freely speak, write, and publish on all subjects, being responsible
(continued...)
-8- 7629
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 candidate for governor “receiving the
greatest number of votes” is victorious.33
Kohlhaas, the State, and Alaskans for Better Elections filed cross-motions
for summary judgment in April 2021. The superior court held oral argument in July
2021 and, shortly afterward, granted summary judgment in favor of the State and
Alaskans for Better Elections. The court rejected Kohlhaas’s argument that the new
primary system abridged the political parties’ freedom of association. The court also
rejected Kohlhaas’s arguments about electing the governor and lieutenant governor,
noting that Kohlhaas failed to meaningfully explain how Initiative 2 violated the
pertinent constitutional provisions. And the court rejected Kohlhaas’s arguments that
ranked-choice voting was unconstitutional because it was too confusing or gave some
voters more opportunity to vote than others.
Kohlhaas appealed. We agreed to hear the appeal on an expedited schedule
so that prospective candidates and the Division of Elections would know the rules
31
(...continued)
for the abuse of that right.”).
32
Alaska Const. art. III, § 8 (“The lieutenant governor shall be nominated in
the manner provided by law for nominating candidates for other elective offices. In the
general election the votes cast for a candidate for governor shall be considered as cast
also for the candidate for lieutenant governor running jointly with him. The candidate
whose name appears on the ballot jointly with that of the successful candidate for
governor shall be elected lieutenant governor.”).
33
Alaska Const. art. III, § 3.
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governing the upcoming 2022 elections sufficiently far in advance to prepare. After
briefing by the parties and amici curiae,34 we heard argument on January 18, 2022 and
issued an order the following day affirming the superior court’s grant of summary
judgment to the State and to Alaskans for Better Elections.
III. STANDARDS OF REVIEW
We review summary judgment rulings and questions of constitutional and
statutory interpretation, including the constitutionality of a statute, de novo.35 We give
no deference to the superior court’s decision and instead “adopt the ‘rule of law that is
most persuasive in light of precedent, reason, and policy.’ ”36
Kohlhaas bears the burden to establish a constitutional violation: “A
presumption of constitutionality applies, and doubts are resolved in favor of
constitutionality.”37 “[W]hen constitutional issues are raised, this court has a duty to
construe a statute, where reasonable, to avoid dangers of unconstitutionality. Rather than
34
Arguing in favor of Kohlhaas were amici curiae Mead Treadwell and Dick
Randolph. Treadwell was Alaska’s lieutenant governor from 2011 to 2015 and ran in
the Republican primary for governor in 2018. Randolph was an Alaska state
representative from 1971-75 and 1979-83 and was the Libertarian Party’s gubernatorial
candidate in 1982. Amicus briefs supporting the State and intervenors were filed by
nonprofits RepresentUs and FairVote and by Alaska Constitutional Convention delegate
Victor Fischer and legal scholars Richard H. Pildes and G. Michael Parsons. We thank
all amici curiae for their helpful briefing in this case.
35
Wielechowski v. State, 403 P.3d 1141, 1146 (Alaska 2017) (quoting State
v. Ketchikan Gateway Borough, 366 P.3d 86, 90 (Alaska 2016)).
36
Id. (quoting Ketchikan Gateway Borough, 366 P.3d at 90).
37
State v. Planned Parenthood of the Great Nw., 436 P.3d 984, 992 (Alaska
2019) (quoting State, Dep’t of Revenue v. Andrade, 23 P.3d 58, 71 (Alaska 2001)).
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strike a statute down, we will employ a narrowing construction, if one is reasonably
possible.”38
When this lawsuit was filed, the new elections procedures enacted by
Initiative 2 had not been used in any election. Kohlhaas’s suit is therefore a facial
challenge to these procedures.39 “We uphold a statute against a facial constitutional
challenge if despite . . . occasional problems it might create in its application to specific
cases, [it] has a plainly legitimate sweep.”40
IV. DISCUSSION
A. Initiative 2 Does Not Violate Political Parties’ Associational Rights.
The Alaska Constitution “inherently guarantees the rights of people, and
political parties, to associate together to achieve their political goals.”41 Kohlhaas’s
overlapping arguments about these associational rights can be distilled to two: (1) by
replacing party primary elections with an open nonpartisan primary election, Initiative 2
harms parties’ abilities to choose their nominees; and (2) by allowing candidates to
display their party affiliations on the ballot, Initiative 2 forces political parties to
38
State v. ACLU of Alaska, 204 P.3d 364, 373 (Alaska 2009).
39
See Ass’n of Vill. Council Presidents Reg’l Hous. Auth. v. Mael, 507 P.3d
963, 982 (Alaska 2022) (“ ‘An as-applied [constitutional] challenge requires evaluation
of the facts of the particular case in which the challenge arises,’ while a facial challenge
means ‘that there is no set of circumstances under which the statute can be applied
consistent with the requirements of the constitution.’ ” (alteration in original) (footnote
omitted) (first quoting Dapo v. State, Off. of Child.’s Servs., 454 P.3d 171, 180 (Alaska
2019), then quoting ACLU of Alaska, 204 P.3d at 372)).
40
Planned Parenthood of the Great Nw., 436 P.3d at 991-92 (alterations in
original) (quoting State v. Planned Parenthood, 171 P.3d 577, 581 (Alaska 2007)).
41
State v. Alaska Democratic Party, 426 P.3d 901, 906 (Alaska 2018)
(emphasis in original).
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associate with candidates they may not want to be associated with and permits candidates
to lie about their genuine association with the party.
To determine whether election laws place an unconstitutional burden on
associational rights, we apply a four-step test described in State, Division of Elections v.
Green Party of Alaska:
When an election law is challenged the court must first
determine whether the claimant has in fact asserted a
constitutionally protected right. If so we must then assess
“the character and magnitude of the asserted injury to the
rights.” Next we weigh “the precise interests put forward by
the State as justifications for the burden imposed by its rule.”
Finally, we judge the fit between the challenged legislation
and the state’s interests in order to determine “the extent to
which those interests make it necessary to burden the
plaintiff's rights.”[42]
The test is flexible: “[A]s the burden on constitutionally protected rights becomes more
severe, the government interest must be more compelling and the fit between the
challenged legislation and the state’s interest must be closer.”43 “[S]ubstantial burdens
require compelling interests narrowly tailored to minimally infringe on the right; modest
or minimal burdens require only that the law is reasonable, non-discriminatory, and
advances ‘important regulatory interests.’ ”44 “Alaska’s constitution is more protective
42
118 P.3d 1054, 1061 (Alaska 2005) (footnotes omitted) (quoting
O’Callaghan v. State, 914 P.2d 1250, 1254 (Alaska 1996)).
43
Id.44
Alaska Democratic Party, 426 P.3d at 909 (quoting O’Callaghan, 914 P.2d
at 1254).
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of rights and liberties than is the United States Constitution,” so a law that passes muster
under the U.S. Constitution may not pass muster under Alaska’s.45
Critical to this analysis are three prior elections cases: our decisions in
Green Party and State v. Alaska Democratic Party46 and the U.S. Supreme Court’s
decision in Washington State Grange v. Washington State Republican Party.47
Green Party concerned an Alaska law requiring each political party to have
a separate primary election ballot on which only that party’s candidates could appear;
voters were required to choose just one party’s ballot.48 This law effectively restricted
voters to participating in a single party’s primary for all elective offices.49 When the
Green Party and Republican Moderate Party asked to share a ballot listing both parties’
candidates, the State refused.50
Applying the test described above, we recognized that a party’s “right to
determine who may participate in selecting its candidates — and, if the political party so
desires, to seek the input and participation of a broad spectrum of voters — is of central
importance to the right of political association.”51 Therefore we held that “political
45
Green Party, 118 P.3d at 1060-61.
46
426 P.3d 901.
47
552 U.S. 442 (2008).
48
118 P.3d at 1058.
49
Id.
50
Id.
51
Id. at 1064; see also id. at 1061 n.37 (articulating “right of consenting
political parties to determine who may participate in their primaries”).
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parties have a constitutionally protected associational interest in opening their ballots to
voters who would otherwise vote in the primaries of their own political parties.”52
Next we concluded that a party’s right to determine who may participate
in its primary was substantially burdened by the rule against combined ballots.53
Because voters were limited to a single primary ballot, political parties were unable to
“appeal to voters who are unwilling to limit their primary choices to the relatively narrow
ideological agenda advanced by any single political party.”54 The law “prevent[ed] the
political parties themselves from determining who will be allowed to participate” in
choosing a nominee, a substantial burden on the parties’ associational rights.55 Finally,
combining the last two steps of the test, we found that most of the State’s “generalized
interests” were too abstract when weighed against the substantial abridgment of
associational rights, and that the remaining interests were not closely related to the rule
against combined ballots.56 We held that the law’s burden on parties’ associational rights
was unconstitutional.57
52
Id. at 1061.
53
Id. at 1065.
54
Id.
55
Id.
56
Id. at 1066-69. The interests put forward to justify the rule were: holding
primary elections, complying with U.S. Supreme Court precedent, avoiding ballot
overcrowding, requiring a showing of community support from political parties,
strengthening parties, preserving political stability, encouraging the two-party system,
avoiding voter confusion, and holding orderly and efficient elections. Id. at 1066.
57
Id. at 1070.
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Alaska Democratic Party, decided thirteen years after Green Party,
involved a similar restriction on political party primaries.58 The Alaska Democratic Party
amended its bylaws to permit registered independent voters to run as candidates in its
primary, but state law allowed a candidate to run in a party’s primary only if the
candidate was registered to vote with that party.59 The party challenged this law as a
violation of its associational rights.60
Applying the Green Party test, we struck down this party-affiliation rule.61
First, we concluded that the Democratic Party had asserted a constitutional right “to
choose its general election nominees” regardless of party registration.62 At the second
step, we held that the party affiliation rule substantially burdened political parties’
associational rights because, like the combined-ballot ban in Green Party, it precluded
the parties from “appeal[ing] to voters who are unwilling to limit their primary choices
to the relatively narrow ideological agenda advanced by any single political party.”63
And again combining the third and fourth steps, we concluded that the State’s asserted
interests were either not advanced by the law or that the law was not narrowly tailored
to achieve those interests.64
58
426 P.3d 901 (Alaska 2018).
59
Id. at 905-06.
60
Id. at 906.
61
Id. at 907.
62
Id. at 908-09.
63
Id. at 909-10 (quoting State, Div. of Elections v. Green Party of Alaska, 118
P.3d 1054, 1061 (Alaska 2005)).
64
Id. at 911-15. The State’s asserted interests were: (1) ensuring sufficient
(continued...)
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The U.S. Supreme Court’s decision in Washington State Grange concerned
a facial challenge to a Washington voter initiative enacting a primary election process
similar to Initiative 2: an open primary in which the top two candidates advanced to the
general election regardless of party affiliation.65 The election regulations there, like
Initiative 2, provided that the primary did not select political parties’ nominees but
instead narrowed the number of candidates who would proceed to the general election.66
The political parties challenging the law argued that the initiative “allow[ed] primary
voters who are unaffiliated with a party to choose the party’s nominee” because
candidates progressing to the general election “[would] become the de facto nominees
of the parties they prefer, thereby violating the parties’ right to choose their own standard
bearers.”67 The Court rejected this argument because the primary established by
Washington’s initiative “[did] not, by its terms, choose parties’ nominees.”68 Noting that
“[t]he law never refer[red] to the candidates as nominees of any party, nor . . .treat[ed]
64
(...continued)
public support for political parties; (2) ensuring sufficient public support for political
candidates; (3) preventing voter confusion; and (4) promoting political stability. Id. at
911.
65
552 U.S. 442, 447-48 (2008).
66
Compare id. at 453 (“[T]he primary ‘does not serve to determine the
nominees of a political party but serves to winnow the number of candidates to a final
list of two for the general election.’ ” (quoting WASH. ADMIN. CODE § 434-262-012
(emergency regulation )), with AS 15.25.010 (“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.”).
67
Wash. State Grange, 552 U.S. at 452-53.
68
Id. at 453.
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them as such,” the Court determined that “[t]he essence of nomination — the choice of
a party representative — d[id] not occur under” the law.69 The Court explained that
“[w]hether parties nominate their own candidates outside the state-run primary is simply
irrelevant” and that, with the repeal of Washington’s prior laws governing party
nominations, parties could nominate candidates “by whatever mechanismthey choose.”70
Similar to Alaska’s Initiative 2, the Washington initiative required
candidates to designate on the ballot a “party preference.”71 The parties argued that
allowing candidates to state a party preference on the ballot amounted to an
unconstitutional forced association because voters would assume these candidates were
the designated parties’ nominees.72 The Court dismissed this argument as “sheer
speculation” that “depend[s] . . . on the possibility that voters will be confused as to the
meaning of the party-preference designation.”73 Describing ways in which election
administrators and political parties could reduce the risk of voter confusion — such as
placing a disclaimer on the ballot or educating the public about the meaning of a
candidate’s stated party preference — the Court concluded that mere speculation about
voter confusion was not enough to sustain a facial challenge to the law.74
69
Id.70
Id.71
Id. at 444, 453 n.7.
72
Id. at 454.
73
Id.74
Id. at 456-57 (“Each of their arguments rests on factual assumptions about
voter confusion, and each fails for the same reason: In the absence of evidence, we
cannot assume that Washington’s voters will be misled.”).
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We consider the arguments made by Kohlhaas and the Treadwell and
Randolph amici (“Treadwell amici”) in light of these precedents.
1. Kohlhaas has asserted a constitutionally protected right.
The first step of the test is to determine whether Kohlhaas has asserted a
constitutionally protected right. Kohlhaas argues that Initiative 2’s nonpartisan primary
affects parties’ rights “to determine who may participate in choosing their candidates”
and to actually choose the party’s nominees. The Treadwell amici focus on the latter
right but frame it differently, arguing that by allowing candidates to list their party
registration on the ballot, Initiative 2 forces parties “to accept non-members as their
representatives running under their banners.” In other words, the Treadwell amici argue,
political parties have a right against forced association that Initiative 2 burdens. The
State concedes that Kohlhaas’s claim “arguably” meets the first step of this Court’s
balancing test. Alaskans for Better Elections does not concede this point, arguing that
Kohlhaas seeks to “invent a new state constitutional right allowing parties to designate
their preferred candidates on the ballot.”
Kohlhaas and the Treadwell amici have asserted constitutionally protected
rights. A political party’s “right to determine who may participate in selecting its
candidates — and, if the political party so desires, to seek the input and participation of
a broad spectrum of voters — is of central importance to the right of political
association.”75 So too is a political party’s right to choose its standard bearer.76 The flip
75
State, Div. of Elections v. Green Party of Alaska, 118 P.3d 1054, 1064
(Alaska 2005).
76
See Wash. State Grange, 552 U.S. at 453 (describing “the special place the
First Amendment reserves for, and the special protection it accords, the process by which
a political party ‘select[s] a standard bearer who best represents the party’s ideologies
and preferences’ ” (quoting Cal. Democratic Party v. Jones, 530 U.S. 567, 575 (2000)));
(continued...)
-18- 7629
side of a party’s right to choose a standard bearer is the right not to be forced to accept
a candidate the party does not want.77 Kohlhaas and the Treadwell amici invoke these
rights. Whether Initiative 2 actually burdens those rights, and if so to what degree, are
different questions addressed at the second stage of the Green Party test.
2. Initiative 2 places a minimal burden on political parties’
associational rights.
i. The nonpartisan open primary does not burden a party’s
ability to choose its standard bearer.
Kohlhaas contends that Initiative 2’s nonpartisan primary burdens parties’
associational rights because it diminishes their control over the primary election.78 But
76
(...continued)
State v. Alaska Democratic Party, 426 P.3d 901, 909 (Alaska 2018) (describing political
party’s “associational right to choose its general election nominees”). Our description
of the constitutional right implicated in Alaska Democratic Party should be understood
within the context of the electoral system in which the case was decided. See former
AS 15.25.100 (2020) (repealed and reenacted Feb. 28, 2021). Within that system, which
advanced the winner of each political party’s primary to the general election, we decided
that the Alaska Constitution protects a political party’s right to choose its general election
nominee, Alaska Democratic Party, 426 P.3d at 909, akin to the U.S. Supreme Court’s
ruling that the First Amendment protects a party’s right to choose its “standard bearer.”
Timmons v. Twin Cities Area New Party, 520 U.S. 351, 359 (1997) (“[T]he New Party,
and not someone else, has the right to select the New Party’s ‘standard bearer.’ ”). We
did not hold, as the question was not presented, that a political party has a right to have
the nominee of its choice actually advance to the general election regardless of how the
primary election is structured. Kohlhaas and the Treadwell amici do not assert that a
political party has such a right.
77
See Wash. State Grange, 552 U.S. at 452-55 (recognizing parties’ right
against being compelled to associate with candidates they do not endorse but concluding
that Washington election regulations did not compel association).
78
Kohlhaas also argues that Initiative 2 “harms the right of a minor political
party to exist at all.” To be designated as a political party under Alaska law, a party must
(continued...)
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political parties do not have a right to control the State’s primary elections. They have
a right to associate in order to nominate preferred candidates, but as Washington State
Grange makes clear and even Kohlhaas concedes, political parties do not have a right
to a State-run nominating process.79
Initiative 2’s nonpartisan open primary places no burden on political
parties’ associational rights precisely because it decouples the State’s election system
from political parties’ process of selecting their standard bearers. In Alaska Democratic
Party and Green Party we struck down laws that restricted a political party’s right to
choose its standard bearer and to determine who could participate in making that
choice.80 Initiative 2 is the polar opposite of these laws: it places no restrictions on how
political parties go about choosing their standard bearers. Previously, political parties
were forced to hold a primary election under rules passed by the legislature and
78
(...continued)
have a number of registered voters equal to at least 3% of total votes cast for governor
in the previous general election (or U.S. senator if no gubernatorial race was held,
followed by U.S. representative if no senatorial race was held). AS 15.80.010(27).
Before Initiative 2, groups could also achieve party status if their nominated candidate
received at least 3% of the total votes cast in the election. Former AS 15.80.010(27)
(2020) (amended Feb. 28, 2021). Removing the latter option, Kohlhaas argues,
“eliminated the only reasonable method of qualifying a party in Alaska” because the
registered-voters threshold is too high for a minor party to meet. Because Kohlhaas
raises this argument — which would seem to require significant factual development —
for the first time on appeal, it is waived and we do not consider it. See Beach v.
Handforth-Kome, 314 P.3d 53, 57 n.10 (Alaska 2013).
79
552 U.S. at 453. Kohlhaas conceded this point before the superior court,
too, agreeing that “there is no legal requirement that the State pay for primary elections
to select party candidates.”
80
Alaska Democratic Party, 426 P.3d at 907; Green Party, 118 P.3d at 1064­
65.
-20- 7629
administered by the Division of Elections.81 Now they can select their preferred
candidate through whatever mechanism they desire and are under no obligation to allow
participation by voters they do not want. If a political party would like to choose the
candidate that best represents its platform by primary election, caucus, or straw poll, it
is entirely free to do so.82 The party can then throw whatever support it can muster
behind that candidate’s election bid. The parties’ nomination process stands apart from
the primary election, which serves merely to winnow the field of candidates to a
manageable number for the general election.
In this way Initiative 2 is much like the law at issue in Washington State
Grange.83 The U.S. Supreme Court rejected the argument that this kind of primary
system violated political parties’ associational rights by making the victorious primary
81
Former AS 15.25.010 (2020) (amended Feb. 28, 2021).
82
Kohlhaas argues that parties cannot afford to run their own primary
elections and will be forced to resort to nominating candidates in “ ‘smoke-filled’
rooms.” But Kohlhaas does not explain how this is any more than a policy
consideration. Kohlhaas also argues that Initiative 2 infringes on the Alaskan
Independence Party’s rules, which “provide that their candidates are to be selected by
Party convention,” and that the Independence Party “does not desire the election
mandated by [Initiative] 2.” He also argues that the Republican Party bylaws provide for
a separate primary election. But Initiative 2 is compatible with party rules: under the
law, parties may select nominees by whatever mechanism they wish.
83
Compare Wash. State Grange, 552 U.S. at 453 (upholding Washington
primary election that “does not serve to determine the nominees of a political party but
serves to winnow the number of candidates to a final list of two for the general election”
(quoting WASH. ADMIN. CODE § 434-262-012 (emergency regulation))), with
AS 15.25.010 (“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.”).
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candidates “the de facto nominees of the parties they prefer.”84 Instead, the Court
explained, “[t]he essence of nomination — the choice of a party representative — does
not occur under [the law].”85 The same is true for Initiative 2.
The Treadwell amici correctly note that the Alaska Constitution is more
protective of rights than the U.S. Constitution and argue that we should not follow
Washington State Grange. They argue we should scrutinize the constitutional burden
more closely. But looking more closely cannot reveal something that does not exist.
Because Initiative 2 takes the State out of the party nominating process entirely, it places
no burden on political parties’ right to choose a standard bearer or on their right to
determine who can participate in making that choice.86
ii. Kohlhaas fails to show that displaying candidates’ party
registration on the ballot forces unwanted association
upon political parties.
Kohlhaas insists that allowing candidates to designate a party on the ballot
violates political parties’ associational rights because it “force[s] the political parties to
accept those candidates that they may or may not want . . . and allows the candidates to
identify themselves (truthfully or falsely) or hide their beliefs.” Kohlhaas also faults
Initiative 2 for not allowing the parties to indicate their nominees on the ballot.87 These
84
Wash. State Grange, 552 U.S. at 452-53.
85
Id. at 453.
86
Kohlhaas argues that Initiative 2 “prevent[s] public participation.” Yet
nothing in the Initiative prevents a political party from holding its own primary election
or nominating convention and opening it to whatever members of the public it desires.
And all registered voters may participate in the State-run nonpartisan primary.
AS 15.15.025; see also AS 15.05.010.
87
Despite making this argument on appeal, Kohlhaas conceded to the superior
(continued...)
-22- 7629
rules, Kohlhaas argues, will result in forced association: Voters, seeing on the ballot that
a candidate is registered with a particular political party, will believe that the party
supports that candidate and that the candidate supports that party’s platform.
Kohlhaas’s assertion that a candidate can lie about party affiliation on the
ballot is incorrect. A candidate may appear on the ballot as affiliated with a political
party only if that candidate truly has registered with the Division of Elections as affiliated
with that party.88 The ballot and polling places must include a disclaimer explaining that
these designations mean “only that the candidate is registered as affiliated with the
political party.”89 A candidate who is registered with one party can choose to be
designated as nonpartisan or undeclared, but may not be listed on the ballot as registered
with another party.90 Candidates not registered with a political party may be designated
only as nonpartisan or undeclared.91 Thus, candidates cannot lie about being affiliated
with a particular party.
Theoretically, a candidate could register with a political party whose beliefs
that candidate did not share to “usurp[] the party label as an election tactic,” as Kohlhaas
puts it. A candidate’s registration with a party certainly suggests that the candidate
supports at least some of the party’s platform. But that is not what the ballot says; it
presents only the fact that the candidate has registered as affiliated with the party. The
ballot does not suggest that the party endorses the candidate. To the contrary, the ballot
87
(...continued)
court that political parties do not have the right to identify their nominees on the ballot.
88
AS 15.25.030(a)(5); AS 15.15.030(5).
89
AS 15.15.030(14); AS 15.15.060(e).
90
See AS 15.15.030(5).
91
Id.-23- 7629
expressly disclaims any such endorsement.92 And parties can warn voters about Trojan
horse candidates — those who might run under a party’s banner but do not share the
party’s values.93
Just as the U.S. Supreme Court emphasized in Washington State Grange
its “faith in the ability of individual voters to inform themselves about campaign
issues,”94 we have also recognized that Alaska voters are not easily fooled.95 Kohlhaas’s
claim of associational harm presupposes that Alaskans will assume that a candidate’s
statement of affiliation with a party means that the party endorses or approves of that
candidate. But most people know that in politics, as in most areas of life, affection is not
always a two-way street. To reinforce that point, Alaska’s ballots and polling places
must include a disclaimer that a candidate’s statement of party affiliation is not a
92
AS 15.15.030(14).
93
As Alaskans for Better Elections points out, under the pre-Initiative 2
system candidates’ party affiliation was printed after their names on the ballot. Former
AS 15.15.030(5) (2020) (amended Feb. 28, 2021). Thus candidates have always been
able to register with a political party whose beliefs they do not share as a tactic to win
elections. Initiative 2 changes nothing in that regard.
94
Wash. State Grange, 552 U.S. 442, 454 (2008) (quoting Tashjian v.
Republican Party of Conn., 479 U.S. 208, 220 (1986)).
95
State v. Alaska Democratic Party, 426 P.3d 901, 913 (Alaska 2018)
(holding that concerns about voter confusion from descriptors like “nonpartisan” or
“undeclared” “underestimate . . . Alaska voters’ common sense”); State of Alaska, Div.
of Elections v. Green Party of Alaska, 118 P.3d 1054, 1068 (Alaska 2005) (“[W]e see
no basis for predicting that Alaska voters might be incapable of understanding combined
ballots. . . . We are . . . confident that Alaska voters would have little trouble
understanding and choosing between combined ballots.”).
-24- 7629
statement of approval or endorsement by the party.96 With this safeguard, and with our
confidence in Alaska voters’ common sense, we cannot presume that voters will
misinterpret a candidate’s statement of party affiliation as a party’s seal of approval.97
And Kohlhaas has not presented any evidence to suggest they will.
The Treadwell amici again urge us not to follow Washington State Grange
because the Alaska Constitution is more protective of political parties’ associational
interests than the federal constitution.98 They argue that “[i]t is a substantial burden to
force a party to see its brand associated with someone who is not a member.”
The key question when analyzing this claim of forced association is, as
Chief Justice John Roberts reasoned in his concurrence in Washington State Grange,
“whether voters perceive the candidate and the party to be associated.”99 “Voter
perceptions matter,” he explained, “and if voters do not actually believe the parties and
the candidates are tied together, it is hard to see how the parties’ associational rights are
adversely implicated.”100 There is no question that display of party affiliation on the
ballot is significant because of “the effect it has on voter impressions.”101 But “[i]f the
ballot [were] designed in such a manner that no reasonable voter would believe that the
96
AS 15.15.030(14); AS 15.15.060(e).
97
Cf. Alaska Democratic Party, 426 P.3d at 913 (“We are confident the
Division of Elections will be able to design a ballot that voters can understand. . . . The
ballot could include prominent disclaimers explaining that a candidate’s party affiliation
denotes only the candidate’s voter registration and nothing more.”).
98
Id. at 909.
99
552 U.S. at 459 (Roberts, C.J., concurring) (emphasis in original).
100
Id. at 460.
101
Id.-25- 7629
candidates listed there are nominees or members of, or otherwise associated with, the
parties the candidates claimed to ‘prefer,’ . . . [Washington’s] primary system would
likely pass constitutional muster.”102 “Voters would understand that the candidate does
not speak on the party’s behalf or with the party’s approval.”103 Chief Justice Roberts
concluded that the facial challenge to the law failed because the challengers had not
shown it was impossible to design a ballot that would avoid misleading voters.104
Kohlhaas and the Treadwell amici fall short in similar fashion here. True,
the Alaska Constitution is more protective of associational rights than the federal
constitution. But a party arguing that an election law violates the Alaska Constitution
must still show that the law burdens these rights. Kohlhaas and the Treadwell amici
presented no evidence that displaying candidates’ party registration on the ballot creates
a meaningful risk of confusing voters. And unless voters will be tricked into perceiving
an association that does not exist, there is scant burden on a party’s associational rights.
3. Initiative 2’s nonpartisan open primary advances important
regulatory interests.
Having determined that Initiative 2 places only a minor burden on parties’
associational rights, we now examine the fit between the legislation and the interest it is
said to advance. Because all “[e]lection laws will invariably impose some burden upon
102
Id.103
Id. at 461.
104
Id. at 460-61.
-26- 7629
individual voters,”105 “states must be granted some leeway.”106 “[M]odest or minimal
burdens require only that the law is reasonable, non-discriminatory, and advances
‘important regulatory interests.’ ”107
The ballot for Initiative 2 described the intent behind the open primary:
It is in the public interest of Alaska to adopt a primary
election system that is open and nonpartisan, which will
generate more qualified and competitive candidates for
elected office, boost voter turnout, better reflect the will of
the electorate, reward cooperation, and reduce partisanship
among elected officials.[108]
The State asserts that allowing candidates to designate their party registrations provides
voters with relevant information about the candidates they are choosing between.
Kohlhaas dismisses these interests as “just words and the speculation of the persons who
wrote the initiative.”
We have held similar interests important and legitimate in the primary
election context. In O’Callaghan v. State we upheld Alaska’s previous “blanket
primary” system against a challenge based on political parties’ associational rights.109
In the blanket primary, candidates from all parties were listed on a single ballot that was
105
O’Callaghan v. State, 914 P.2d 1250, 1253 (Alaska 1996) (quoting Burdick
v. Takushi, 504 U.S. 428, 433-34 (1992)).
106
State, Div. of Elections v. Green Party of Alaska, 118 P.3d 1054, 1059
(Alaska 2005); see also Wash. State Grange, 552 U.S. at 452 (“[W]e have repeatedly
upheld reasonable, politically neutral regulations that have the effect of channeling
expressive activity at the polls.” (quoting Burdick, 504 U.S. at 438)).
107
State v. Alaska Democratic Party, 426 P.3d 901, 909 (Alaska 2018)
(quoting O’Callaghan, 914 P.2d at 1254).
108
Alaska Ballot Initiative 2, § 1(4) (2020) (statement of findings and intent).
109
914 P.2d at 1263.
-27- 7629
given to all primary voters.110 A voter could cast a single vote for any party’s candidate,
regardless of that voter’s own party registration.111 The top vote recipient for each party
was the party’s nominee for the general election.112 After determining that the blanket
primary placed only a modest burden on political parties’ associational rights, we
decided that the system was justified by the “legitimate and important” interests of
encouraging voter turnout, maximizing voters’ choices of candidates, and ensuring
elected officials are representative of their constituencies.113
The U.S. Supreme Court later ruled in California Democratic Party v.
Jones that California’s similar blanket primary system was unconstitutional.114 The
Court ruled that the blanket primary placed a severe burden on parties’ associational
rights and therefore had to be narrowly tailored to advance compelling governmental
interests.115 The Court explained that two of the interests put forward to justify the law
110
Id. at 1255.
111
Id.
112
For purposes of our analysis, the key difference between a blanket primary
system, like the one Alaska used to use, and the open nonpartisan primary system
adopted by Initiative 2, is that the former system chooses the parties’ nominees for office,
while the latter system does not. See Wash. State Grange v. Wash. State Republican
Party, 552 U.S. 451, 453 (2008) (distinguishing California’s blanket primary struck
down in California Democratic Party v. Jones, 530 U.S. 567 (2000) from Washington’s
nonpartisan open primary by pointing out that under the latter system “[t]he essence of
nomination — the choice of a party representative — does not occur”).
113
O’Callaghan, 914 P.2d at 1261-63.
114
530 U.S. 567 (2000).
115
Id. at 581-82 (explaining that California’s blanket primary “forces [parties]
to adulterate their candidate-selection process . . . by opening it up to persons wholly
unaffiliated with the party,” with the “likely outcome . . . of changing the parties’
(continued...)
-28- 7629
— “producing elected officials who better represent the electorate and expanding
candidate debate beyond the scope of partisan concerns” — were not legitimate at all.116
Instead the Court characterized them as “simply circumlocution for producing nominees
and nominee positions other than those the parties would choose if left to their own
devices,” “nothing more than a stark repudiation of freedom of political association.”117
Other asserted interests — including affording voters greater choice and increasing voter
participation — were not similarly suspect, but the Court concluded they were not
compelling in the context of the case and did not justify the blanket primary’s severe
burden on associational rights.118
Jones calls into question the legitimacy of some, but not all, of the interests
put forward to justify Initiative 2’s nonpartisan open primary.119 Although the Court
115
(...continued)
message,” concluding there was “no heavier burden on a political party’s associational
freedom”).
116
Id. at 582.
117
Id.118
Id. at 584-85.
119
We question whether the Supreme Court’s view that the goal of producing
elected officials with wider support among the electorate is an illegitimate goal and a
“stark repudiation of freedom of political association” holds true when the primary
system is entirely decoupled from a political party’s process of choosing its own
nominees. Under the blanket primary system struck down by the Court, the primary
election determined each party’s nominee for the general election. Id. at 570. The
governmental objective of changing the type of candidate that would become the party’s
nominee was therefore antithetical to the party’s ability to make that choice itself. But
Initiative 2’s nonpartisan primary election process does not determine political parties’
nominees. Within this context, structuring the primary election process so that
advancing candidates better represent the entire electorate — i.e. are more acceptable to
(continued...)
-29- 7629
concluded that increasing voter turnout and voters’ choice of candidates could not
support a severe burden on associational rights, its holding does not undermine our
conclusion in O’Callaghan that these interests are important and legitimate. These
interests may still justify a modest burden on associational rights. And the Supreme
Court concluded that displaying candidates’ party registration on the ballot is justified
by the important goal of providing relevant information to voters.120
In lieu of trying to show that Initiative 2 fails to advance these interests,
Kohlhaas makes a series of irrelevant arguments. First, he argues that Initiative 2’s
sponsors specifically intended to abolish the party primary system. But that intent is
simply the means to the ends described above and does not negate the legitimacy of those
goals. And as explained above, decoupling the primary election from the parties’ own
nominating process does not burden parties’ associational rights.121
Second, he argues that the campaign supporting Initiative 2 focused on the
supposedly more-popular dark money disclosure provision and the law nonetheless
passed by a narrow margin. To the extent he is arguing that it was improper to combine
119
(...continued)
more voters — seems entirely legitimate. Cf. id. at 572 (“[I]n order to avoid burdening
the general election ballot with frivolous candidacies, a State may require parties to
demonstrate ‘a significant modicum of support’ before allowing their candidates a place
on that ballot.” (quoting Jenness v. Fortson, 403 U.S. 431, 442 (1971))). In fact,
ensuring that an election produces a winner most acceptable to the electorate is a basic
premise of democracy. Because the parties do not address the issues raised by Jones, and
because Initiative 2’s nonpartisan open primary is supported by other important
regulatory interests, we need not conclusively decide this point.
120
Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442, 458
(2008).
121
Cf. id. at 453 (“Whether parties nominate their own candidates outside the
state-run primary is simply irrelevant.”).
-30- 7629
these election reforms in a single ballot initiative, we rejected that argument in Meyer v.
Alaskans for Better Elections, holding that Initiative 2 did not violate the Alaska
Constitution’s requirement that all non-appropriation bills “be confined to one
subject.”122 To the extent he is arguing that Initiative 2’s changes to the primary and
general elections would not have passed without being combined with campaign finance
reforms, that is irrelevant to the constitutionality of those changes.
Kohlhaas’s third argument is equally irrelevant: that a top-four nonpartisan
primary is not used anywhere else and that “Alaska should not be used as an
experiment.” That is a policy argument, not a legal one.
Finally, he argues that similar initiatives were rejected for the ballot in
North Dakota and Arkansas. These cases are not on point because those ballot initiatives
were rejected for procedural reasons, not because of the substance of those laws.123
Neither Kohlhaas nor the Treadwell amici seriously argue that the
nonpartisan primary does not advance to at least some degree the interests put forward
to justify it.124 In a state where most voters identify as undeclared or nonpartisan,125 it is
122
465 P.3d 477, 482, 499 (Alaska 2020) (applying Alaska Const. art. II,
§ 13).
123
Haugen v. Jaeger, 948 N.W.2d 1, 3-4 (N.D. 2020) (holding petition did not
comply with the state constitutional requirement that it contain the measure’s full text);
Ark. Voters First v. Thurston, No. CV-20-454, 2020 WL 5056585, at *1-2 (Ark.
Aug. 27, 2020) (holding that law’s supporters failed to verify that their paid canvassers
had passed criminal background checks as required by law).
124
The Treadwell amici argue only that the nonpartisan primary places a
severe burden on associational rights and fails strict scrutiny; they do not argue that, if
the burden on associational rights is only minor, the law is nonetheless unconstitutional.
125
E.g., STATE OF ALASKA DIV. OF ELECTIONS, Number of Registered Voters
by Party Within Precinct, (Sept. 3, 2020) https://www.elections.alaska.gov/statistics/
(continued...)
-31- 7629
certainly plausible that allowing any person to run in the primary election and appeal to
the entire spectrum of registered voters — not just to voters of a specific party — will
encourage more candidates to run and boost voter turnout. Kohlhaas and the Treadwell
amici have not presented any evidence showing otherwise. They therefore have failed
to meet their burden in this facial challenge to show that the nonpartisan primary lacks
a “plainly legitimate sweep.”126
B. Initiative 2’s Nonpartisan Open Primary Does Not Violate The Alaska
Constitution’s Provision For Electing The Lieutenant Governor.
Kohlhaas argues that Initiative 2 violates article III, section 8 of the Alaska
Constitution, which provides:
The lieutenant governor shall be nominated in the manner
provided by law for nominating candidates for other elective
offices. In the general election the votes cast for a candidate
for governor shall be considered as cast also for the candidate
for lieutenant governor running jointly with him. The
candidate whose name appears on the ballot jointly with that
of the successful candidate for governor shall be elected
lieutenant governor.
Kohlhaas seems to misread Initiative 2 to preclude governor and lieutenant governor
candidates from running together.127 To the contrary, the law requires candidates for
125
(...continued)
2020/SEP/VOTERS%20BY%20PARTY%20AND%20PRECINCT.htm(showing 57.7%
of registered voters as nonpartisan or undeclared).
126
State v. Planned Parenthood of the Great Nw., 436 P.3d 984, 991-92
(Alaska 2019).
127
He argues: “The joint candidacy required for the Constitution for the
general election cannot be created under Proposition 2. Two candidates running as a
team in the primary election is not authorized or mandated under Proposition 2.”
-32- 7629
governor and lieutenant governor to run together on both the primary and general
election ballots.128
The Treadwell amici make a different argument. They argue that because
article III, section 8 requires lieutenant governor candidates to be “nominated in the
manner provided by law for nominating candidates for other elective offices,” lieutenant
governor candidates must “run[] solo in a partisan primary on the same basis as
candidates for other offices” before being paired with the gubernatorial candidate of the
same political party on the general election ballot. According to this theory, Initiative 2,
which pairs the governor and lieutenant governor candidates on a primary ballot, is
unconstitutional.
“Our analysis of a constitutional provision begins with, and remains
grounded in, the words of the provision itself.”129 “We are not vested with the authority
to add missing terms or hypothesize differently worded provisions . . . to reach a
particular result.”130 “We instead ‘look to the plain meaning and purpose of the provision
and the intent of the framers.’ ”131 This includes “the Delegates’ debates and statements
128
See AS 15.25.030(a)(16)-(17) (requiring governor and lieutenant governor
candidates to list their running mate when filing for candidacy); AS 15.15.030(5)
(mandating that “[t]he lieutenant governor and the governor shall be included under the
same section” on the general election ballot); AS 15.25.060 (providing the same for the
primary election ballot).
129
Wielechowski v. State, 403 P.3d 1141, 1146 (Alaska 2017) (quoting Hickel
v. Cowper, 874 P.2d 922, 927 (Alaska 1994)).
130
Id. (alteration in original) (quoting Hickel, 874 P.2d at 927-28).
131
Id. (quoting Hickel, 874 P.2d at 926).
-33- 7629
in interpreting the constitution”132 as well as “the historical context, including events
preceding ratification.”133 “Because of our concern for interpreting the constitution as
the people ratified it, we generally are reluctant to construe abstrusely any constitutional
term that has a plain ordinary meaning,” and we give provisions “a reasonable and
practical interpretation in accordance with common sense.”134
Neither text nor history supports the argument that the constitution requires
candidates for lieutenant governor to run solo in a partisan primary election. Article III,
section 8 does not use the term “primary.” The language it does use to describe
nomination of candidates for lieutenant governor — “nominated in the manner provided
by law” for other candidates — is broad enough to include other processes, such as party
convention or gathering signatures. The proceedings of the constitutional convention
confirm the lack of specificity: one delegate to the constitutional convention noted “it
would probably be very unwise” to adopt a reference to party primaries in the lieutenant
governor provision because “[t]here might not always be a primary” if the legislature
changed the law to allow nominating conventions.135 The language of article III, section
8 was deliberately left broad so that, in the words of one delegate, “the [lieutenant
governor] would run as provided by law for all other candidates, and if they ever
132
Forrer v. State, 471 P.3d 569, 587 (Alaska 2020).
133
Wielechowski, 403 P.3d at 1147 (quoting State v. Ketchikan Gateway
Borough, 366 P.3d 86, 90 (Alaska 2016)).
134
Id. at 1146 (quoting Hickel, 874 P.2d at 926).
135
3 Proceedings of the Alaska Constitutional Convention (PACC) 2044-45
(Jan. 13, 1956) (statement of Del. Victor Rivers).
-34- 7629
abolished the system of primary election and went back to the convention system, [the]
language would still be broad enough to make it flexible.”136
Yet the kernel of the Treadwell amici’s argument — that Initiative 2’s
nominating process for the lieutenant governor is constitutionally suspect because it is
not exactly the same as the nominating process for other candidates — is not so easily
dismissed. The key inquiry is just how precisely the manner of nominating the lieutenant
governor must match the manner in which other candidates for elective office are
nominated.
The constitutional text does not clearly answer this question. The phrase
“in the manner” could reasonably be read to mean that lieutenant governor candidates
must be nominated in exactly the same manner, but “exactly the same” is not the only
common-sense reading of “in the manner.” The constitutional text does not tell us
whether the delegates intended that lieutenant governor candidates be elected in exactly
the same manner or in the same general manner, with some flexibility to facilitate pairing
with a compatible gubernatorial candidate on the general election ballot.
The constitutional history of article III, section 8 does not offer crystal-clear
guidance either. What the history does suggest is that the delegates adopted a
compromise provision — balancing the desire for a lieutenant governor to be
meaningfully vetted by the voting public with the desire to ensure political compatibility
with the governor — that was flexible enough to accommodate future changes the
legislature (or the people) might make to the election system.
Article III, section 8 originated with a proposal from the delegates’
Committee on the Executive Branch that did not mention how the lieutenant governor
— originally called the secretary of state — was to be nominated, providing only for
136
3 PACC 2140 (Jan. 14, 1956) (statement of Del. Ralph Rivers).
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election “at the same time and for the same term as the governor.”137 A ballot cast for a
gubernatorial candidate was to be treated as a ballot cast for the secretary of state
candidate “shown on the ballot as running jointly with” the gubernatorial candidate.138
The proposal did not specify how this pairing was to be achieved. A delegate who
served on the Committee on the Executive Branch explained that the system was
designed to ensure that the secretary of state “would come from the same political party
which the governor came from, so, in the manner in which the President and Vice
President is elected, we selected the joint ballot type of thing.”139
The delegates debated the proposal over two days and initially approved
an amendment abolishing the proposal entirely — removing the secretary of state
entirely from the constitution, leaving the matter to the legislature — before
reconsidering.140 Delegate Victor Rivers, who served on the Committee on the Executive
Branch and presented the original proposal, ultimately offered an amendment “to
effectuate the ideas submitted and discussed in Committee and on th[e] floor” during the
137
See Constitutional Convention Committee Proposal No. 10/a, § 6 (Jan. 12,
1956) (“There shall be a secretary of state, who shall have the same qualifications as the
governor. He shall be elected at the same time and for the same term as the governor,
and the election procedure prescribed by law shall provide that the electors, in casting
their vote for governor shall also be deemed to be casting their vote for the candidate for
secretary of state shown on the ballot as running jointly with the respective candidate for
governor. The candidate for secretary of state who runs jointly with the successful
candidate for governor shall be elected secretary of state.”).
138
Id.
139
3 PACC 1985 (Jan. 13, 1956) (statement of Del. Victor Rivers).
140
Id. atPACC 2089-93; 3 PACC 2128, 2143 (Jan. 14, 1956).
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two-day debate.141 This amendment was approved by a voice vote without any
additional debate, becoming article III, section 8.142
It is clear from the convention history that the delegates wanted to
guarantee that the governor and secretary of state would not work at cross-purposes,
aiming to ensure they hailed from the same political party (and, ideally, the same faction
of that party).143 And although some delegates wanted the governor to appoint the
secretary of state to maximize the strength of the executive,144 those delegates were
outnumbered, with most preferring that the secretary of state be elected in some way.145
141
3 PACC 2144 (Jan. 14, 1956).
142
Id. at 2145; see Alaska Const. art. III, § 8 (amended 1970) (“The lieutenant
governor shall be nominated in the manner provided by law for nominating candidates
for other elective offices. In the general election the votes cast for a candidate for
governor shall be considered as cast also for the candidate for lieutenant governor
running jointly with him. The candidate whose name appears on the ballot jointly with
that of the successful candidate for governor shall be elected lieutenant governor.”).
143
See, e.g., 3 PACC 1985-86 (Jan. 13, 1956) (statement of Del. Victor Rivers)
(“In order to enforce and bulwark the strong executive, it was felt that we should provide
some means by which [the secretary of state] would come from the same political party
which the governor came from . . . .”); id. at 2081 (statement of Del. John Boswell)
(arguing that “[t]he important thing . . . here” is that the governor and secretary of state
be from the same political party); id. at 2087-89 (defeating amendment that would have
elected governor and secretary of state separately, with Delegate John McNees noting
it could result in election of candidates opposed to one another).
144
Id. at 2007 (statement of Del. Seaborn Buckalew) (questioning whether the
state “would get a better secretary of state if the governor was allowed to appoint the
secretary of state subject to approval by the senate”); id. at 2070 (statement of Del. John
Hellenthal) (arguing delegates should “just let our governor hire someone to help him
and fire him when he does not want him”).
145
Id. at 2007 (statement of Del. Victor Rivers) (explaining it would be a
(continued...)
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Because the delegates did not adopt the original proposal resembling the
vice-presidential model and instead chose to require the lieutenant governor to be
nominated in the manner of other elected officials, one can infer that the delegates
wanted voters to have more power to choose a lieutenant governor than they have to
choose the vice president under the federal constitution. If this was in fact the delegates’
intent, Initiative 2 fulfills it.
Initiative 2 gives voters more power to choose lieutenant governor
candidates by giving voters a say earlier in the process and by increasing the number of
candidates to choose from. In the presidential election, a voter who votes for a
successful candidate in the primary may be disappointed with that candidate’s
subsequent choice of vice president, but because of the limited options at the general
election the voter is largely stuck with whomever the preferred presidential candidate has
chosen. Under Initiative 2, Alaska voters will not be stuck with an unpleasant surprise.
The voter knows in the primary election precisely who the gubernatorial candidate has
chosen as a running mate. And because Initiative 2 does not limit the number of primary
candidates, a voter is likelier to find more than a single gubernatorial candidate
compatible with the voter’s beliefs. The voter can therefore give weight to the choice
of lieutenant governor candidate in the primary election, when the voter’s options are not
so limited. Although Initiative 2 does not give voters quite as much power to directly
choose a lieutenant governor candidate as the prior system of partisan primaries did, it
still gives voters more choice than the federal system.
145
(...continued)
“disadvantage” if the governor’s successor never faced an election and that the
committee believed that “the people wanted an expression in the matter of just more than
one individual”); 3 PACC 2135 (Jan. 14, 1956) (statement of Chair William Egan)
(explaining he was “opposed to having the man who would be next in line in succession
to the governorship not actually elected in some manner by the people of the new state”).
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The Treadwell amici argue that by pairing the governor and lieutenant
governor candidates in the primary election, Initiative 2 creates a “buddy system” that
delegates to the constitutional convention derided. This argument mischaracterizes the
terms of the debate. Most of the delegates who used the term “buddy” or “flunky” were
opposed to having the secretary of state elected at all.146 They believed the governor
should have the power to appoint the secretary of state for the sake of efficiency and
competence.147 These delegates feared that requiring the secretary of state to be elected
in tandem with the governor would yield lieutenant governor candidates chosen for more
political considerations than for ability or compatibility with the governor.148 Those
delegates lost the debate — the constitution requires the lieutenant governor to be elected
together with the governor. Thus to the extent Initiative 2 adopts a “buddy” system, it
is a system that the majority of delegates approved.
The previous system of partisan primaries that the Treadwell amici favor
is no more faithful to the policies behind article III, section 8 than Initiative 2. A system
in which candidates for lieutenant governor run solo in a party primary, as they did
before Initiative 2, does give voters the power to nominate candidates for lieutenant
governor independently of their preference for governor. But that virtue comes at the
expense of the delegates’ other priority: ensuring compatibility between governor and
146
See 3 PACC 2081, 2089 (Jan. 13, 1956) (statement of Del. Seaborn
Buckalew); id. at 2070 (statement of Del. John Hellenthal); 3 PACC 2128-29 (Jan. 14,
1956) (same).
147
See 3 PACC 2067 (Jan. 13, 1956) (statement of Del. Seaborn Buckalew);
id. at 2070 (statement of Del. John Hellenthal); 3 PACC 2142 (Jan. 14, 1956) (statement
of Del. Seaborn Buckalew).
148
See 3 PACC 2004, 2067 (Jan. 13, 1956) (statements of Del. Seaborn
Buckalew); id. at 2070 (statement of Del. John Hellenthal).
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lieutenant governor. There is no guarantee that nominees of the same party, elected
separately, will be ideologically or temperamentally compatible. Initiative 2’s system
of pairing candidates for governor and lieutenant governor in the primary election is far
more likely to achieve that result. In short, although Initiative 2 effects a different
balance between the delegates’ conflicting goals of compatibility and independent
electoral legitimacy than a partisan primary, neither system is inherently more faithful
to the delegates’ goals.
Also important to the delegates was to craft a provision that would allow
the legislature flexibility in structuring elections. Delegate Victor Rivers, responsible for
both the original and final proposals, stated:
[I]t would probably be very unwise to pinpoint in the
constitutional section here a method of conducting elections
such as set up that the primary shall do this or that. There
might not always be a primary. There might be some time
when nominating conventions will be reverted to as they are
in some states.[149]
The responsibility “to make a fair and just manner of nominating” governor and secretary
of state candidates, he added, should be “left up to the legislature.”150 Delegate Thomas
Harris, who also served on the Committee on the Executive, explained that its members
were concerned primarily with the line of gubernatorial succession and had “not set any
definite rules of how [governor and secretary of state candidates] are to be tied up on the
ticket. That is to be done later on by the legislature.”151 And Delegate Ralph Rivers,
describing the amendment that would become article III, section 8, stated that “[t]he
149
Id. at 2044-45 (statement of Del. Victor Rivers).
150
Id. at 2045.
151
Id. at 2070-71 (statement of Del. Thomas Harris).
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secretary of state would run as provided by law for all other candidates, and if they ever
abolished the system of primary election and went back to the convention system, [the]
language would still be broad enough to make it flexible.”152
This history — revealing delegates’ competing goals of compatibility and
independent electoral legitimacy and their desire to adopt a flexible framework — does
not favor interpreting article III, section 8 to mean that the lieutenant governor must be
nominated in the exact same manner as other elected officials. Such a strict reading
would mean that a compromise provision governing a single office restricts the
legislature’s flexibility to design the elections process for all other elected state officials.
Article III, section 8 requires the lieutenant governor to appear jointly with the governor
on the general election ballot. Yet the Treadwell amici’s strict reading allows no
flexibility to accomplish that command. For example, prior to the enactment of
Initiative 2 Alaska law permitted candidates to reach the general election ballot by
collecting a sufficient number of signatures from registered voters.153 To accommodate
the need to pair lieutenant governor and governor candidates for the general election, the
law required lieutenant governor and governor candidates to petition for signatures as
a joint ticket, while all other candidates petitioned solo.154 If Treadwell amici are correct
that article III, section 8 requires the lieutenant governor to be nominated in exactly the
same manner as all other candidates, then this system (which was the law in Alaska for
152
3 PACC 2140 (Jan. 14, 1956) (statement of Del. Ralph Rivers).
153
Ch. 83, §§ 5.51-.56, SLA 1960.
154
See former AS 15.25.180(a)(17) (2020) (repealed Feb. 28, 2021) (requiring
only gubernatorial candidates to list the name of their running mate on nominating
petition).
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almost 60 years) cannot be used for any elective office. We doubt that the delegates
intended the tail to wag the dog in this way.
Furthermore, the Treadwell amici’s interpretation raises constitutional
concerns. If the Treadwell amici are correct that the only permissible way under article
III, section 8 to pair lieutenant governor and governor candidates for the general election
is for these candidates to seek nomination solo through a party primary (or convention),
then political parties offer the only route to the general election. Yet the U.S. Supreme
Court has signaled that election laws cannot make political parties the sole gatekeepers
of elected office.155 “[T]he primary values protected by the First Amendment . . . are
served when election campaigns are not monopolized by the existing political parties.”156
The Treadwell amici’s interpretation of article III, section 8, entails precisely this kind
of constitutionally suspect monopoly.
Considering the constitution’s text, the convention proceedings, legislative
practice, and the constitutional concerns with the Treadwell amici’s argument, we
conclude that the Alaska Constitution does not require the nomination process for the
lieutenant governor to be exactly the same as that for every other elected official.
Because Initiative 2 requires candidates for lieutenant governor to seek election through
a nonpartisan primary like all other state elected officials, it satisfies the constitutional
command that candidates for lieutenant governor be nominated “in the manner provided
by law for nominating candidates for other elected offices.”
155
See Anderson v. Celebrezze, 460 U.S. 780, 794, 805-06 (1983) (invalidating
law prescribing early filing deadline for independent presidential candidates because it
“discriminate[d] against those candidates and — of particular importance — against
those voters whose political preferences lie outside the existing political parties”).
156
Id. at 794.
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C. Initiative 2’s Ranked-Choice Voting Provisions Do Not Violate The
Alaska Constitution’s Provision For Electing The Governor.
Article III, section 3 of the Alaska Constitution provides: “The governor
shall be chosen by the qualified voters of the State at a general election. The candidate
receiving the greatest number of votes shall be governor.” Kohlhaas and the Treadwell
amici argue that Initiative 2’s system of ranked-choice voting conflicts with this
constitutional command because it requires a candidate for governor to obtain a majority
of votes, not merely the greatest number of votes, to win the general election. This
argument rests on two false premises: first, that Initiative 2 requires a winning candidate
to receive a majority of votes; and second, that Initiative 2 entails multiple rounds of
voting akin to a series of runoff elections and therefore denies victory to the candidate
who wins the greatest number of votes in the first round of voting.
1. Initiative 2 does not require a candidate to receive a majority of
votes in order to win the general election.
Kohlhaas’s starting point is correct: the constitution does not require a
candidate for governor to receive a majority of votes in order to win the election. Instead
the candidate wins by receiving “the greatest number of votes” — meaning a candidate
can win with a plurality of votes.157
The record of the constitutional proceedings confirms this straightforward
interpretation of the text.158 The delegates knew that most states used plurality systems
so that elections would have a winner even if no candidate received a majority of
157
See Plurality, BLACK’S LAW DICTIONARY (11th ed. 2019) (defining
“plurality” as “[t]he greatest number (esp. of votes), regardless of whether it is a
majority, simple, or absolute”).
158
See Wielechowski v. State, 403 P.3d 1141, 1146 (Alaska 2017) (explaining
that we “look to the . . . purpose of the provision and the intent of the framers” in
interpreting the Alaska Constitution).
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votes.159 The initial proposal, nearly identical to the current version, provided: “The
governor shall be elected by the qualified voters of this state. The person receiving the
greatest number of votes shall be the governor . . . .”160 During debate on the provision,
Delegate George Sundborg suggested the second sentence was redundant and proposed
its deletion.161 Delegate Katherine Nordale objected, explaining that “if you leave this
to the legislature they could say that the candidate receiving a majority of the votes cast”
is the winner, and “it is conceivable that there may be three tickets in the field for
governor.”162 Delegate Frank Barr agreed with Nordale, explaining that while some
states require a majority and others require “the highest number of votes” to elect a
governor, “in case there are more than two candidates that complicates the question” and
the language Sundborg proposed deleting “solves it right here.”163 Sundborg’s proposal
to remove the second sentence was defeated by voice vote.164 The delegates adopted a
plurality requirement to avoid the experience of states with constitutions requiring a
candidate to receive a majority of votes cast, which often saw elections with no winner
when more than two candidates were on the ballot.165
159
2 ALASKA STATEHOOD COMM., CONSTITUTIONAL STUDIES, ch. IV, at 4
(1955).
160
Constitutional Convention Committee Proposal No. 10/a, § 3 (Jan. 12,
1956).
161
3 PACC 2065 (Jan. 13, 1956) (statement of Del. George Sundborg).
162
Id. at 2065-66 (statement of Del. Katherine Nordale).
163
Id. at 2066 (statement of Del. Frank Barr).
164
Id.
165
See id. at 2065-66. For example, a congressional seat in Massachusetts
(continued...)
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Where Kohlhaas and the Treadwell amici go wrong is in arguing that
Initiative 2’s system of ranked-choice voting requires a candidate to receive a majority
of votes in order to win. It does not. It is entirely possible for a candidate to win an
election by receiving less than a majority of total votes cast. For example, the Treadwell
amici point to a recent congressional election in Maine conducted with ranked-choice
voting. They maintain that the candidate ultimately declared the victor was in second
place with 45% of the vote after the initial round of counting, but received 50.62% of
votes counted in the final round against his opponent’s 49.38%. This is true, but the
winning candidate received only 49.2% of the total votes cast — winning with slightly
less than a majority, but still the greatest number, of votes cast.166
To understand how a candidate can win without a majority of votes, it is
helpful to revisit how ranked-choice voting works. Under Initiative 2, voters may rank
general election candidates in order of preference.167 The Division of Elections initially
tabulates each ballot as a vote for the highest-ranked candidate; if a candidate has more
than half of these votes, counting is complete and that candidate wins.168 If not, the
candidate with the fewest votes is eliminated, and each ballot that had been counted for
the eliminated candidate is reassigned to the voter’s second-choice candidate on the
165
(...continued)
remained vacant for an entire two-year term because is took 12 elections until one
candidate obtained a majority, and in Vermont it took 10 runoff elections to fill a
congressional seat. See generally Richard H. Pildes & G. Michael Parsons, The Legality
of Ranked-Choice Voting, 109 CAL. L. REV. 1773, 1788-95 (2021) (detailing the history
of majority provisions).
166
See Baber v. Dunlap, 376 F. Supp. 3d 125, 130-31 (D. Me. 2018).
167
See AS 15.15.350(c)-(e); AS 15.15.360(a)(1).
168
AS 15.15.350(d).
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ballot.169 If the ballot does not rank a second-choice candidate, it is considered “inactive”
and is not counted in further tabulations.170 This process repeats until only two
candidates remain, when the candidate “with the greatest number of votes is elected.”171
The flaw in Kohlhaas and the Treadwell amici’s argument is in assuming
that votes for losing candidates are always redirected to successful candidates, so that a
candidate must ultimately receive more than half the total votes cast in order to win. But
they fail to appreciate the fact that voters do not have to select second- or third-choice
candidates, and many may not. When a voter’s first-place candidate is eliminated and
the voter has not ranked a second-place candidate, the ballot is not redirected to another
candidate. Because these votes do not go into the numerator (votes for a successful
candidate) but remain in the denominator (total votes cast), a successful candidate can
win the election with less than half of the total votes cast even though the candidate
receives more than half of the votes counted in the final round of tabulation.
A simple example shows how a candidate can prevail without a majority
of votes. Consider an election with four candidates, in which 100 people vote.
Candidates Alpha, Bravo, Charlie, and Delta receive 30, 25, 25, and 20 first-place votes,
respectively. The last-place candidate, Delta, is eliminated. The twenty ballots initially
counted for Delta are reexamined. Ten of these ballots did not rank a second-choice
candidate, so these ballots are inactive.172 The remaining ten did rank a second-choice
candidate — five for Alpha, and five for Bravo — and are added to those candidates’
totals, resulting in totals of 35, 30, and 25 for Alpha, Bravo, and Charlie respectively.
169
Id.170
AS 15.15.350(d)(2), (g)(2).
171
AS 15.15.350(d).
172
See AS 15.15.350(g)(2).
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Because Charlie is now in last place, Charlie is eliminated.173 Ten of Charlie’s ballots
ranked Alpha next, ten ranked Bravo next, and five did not rank another candidate.
When the votes are tabulated again, the final total is 45 for Alpha, 40 for Bravo, and 15
ballots exhausted. Although Alpha has received a majority of the ballots that are active
(i.e. counted) in the final round (45/85), Alpha has received only a plurality of the total
ballots cast (45/100).174 Therefore a candidate does not need to receive a majority of
votes cast to win a ranked-choice election and can win by receiving merely “the greatest
number of votes,” consistent with the text of article III, section 2.
Finally, it is important to note that Initiative 2’s system of ranked-choice
voting does not contravene the purpose behind article III, section 2: eliminating the risk
of an election with no winner. Except in the rare instance of a tie, ranked-choice voting
will always produce a winning candidate because it does not require a candidate to
surpass a particular vote threshold.
2. Initiative 2 does not deny victory to the candidate receiving the
greatest number of votes.
Kohlhaas and the Treadwell amici make a second argument why they
believe ranked-choice voting violates article III, section 2. They contend that because
the candidate who receives the greatest number of first-choice votes does not
automatically win the election and may ultimately lose after second- and third-choice
votes are tallied, ranked-choice voting unconstitutionally denies victory to the candidate
who received “the greatest number of votes.” They maintain that ranked-choice voting
173
See AS 15.15.350(d).
174
See Dudum v. Arntz, 640 F.3d 1098, 1111 (9th Cir. 2011) (explaining that
under ranked-choice voting “a plurality of the total votes cast can prevail, as the majority
is only of the last stage of calculation, when many candidates have been mathematically
eliminated” (emphasis added)).
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is akin to a series of runoff elections that the delegates implicitly rejected by providing
for election by a plurality of votes.
The Treadwell amici rely heavily on an advisory opinion of the Maine
Supreme Judicial Court, which ruled that the system of ranked-choice voting adopted in
Maine violated that state’s constitution.175 Maine’s system worked similarly to that
adopted in Initiative 2, eliminating the last-place finisher and redistributing ballots
initially counted for that candidate according to voters’ preferences until a candidate
achieved an outright majority or all ballots were exhausted.176 The Maine Supreme
Judicial Court noted that the Maine constitution’s original requirement that a winner
receive a majority of votes was changed to a plurality requirement following a history
of failed elections due to the lack of outright majority.177 Proceeding through the ranked-
choice voting algorithm, the court reasoned, meant that the law “prevent[ed] the
recognition of the winning candidate when the first plurality [wa]s identified” — after
the first-place votes were recorded.178 It explained that “[i]f, after one round of counting,
a candidate obtained a plurality of the votes but not a majority, that candidate would be
declared the winner according to the Maine Constitution . . . . According to the [ranked­
choice voting law], however, that same candidate would not then be declared the
175
Opinion of the Justices, 162 A.3d 188, 211 (Maine 2017).
176
Id. at 204.
177
Id. at 209-11.
178
Id. at 211.
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winner.”179 As a result, the court found the ranked-choice voting law violated Maine’s
constitution.180
But the Maine Supreme Judicial Court did not explain why its constitution
required the election to be called after “one round of counting.”181 If the vote count is
not final after the first round of tabulation, then the candidate in first place after the first
round is not necessarily the candidate “receiving the greatest number of votes.” Instead
that candidate is simply the candidate in the lead before the votes have been fully
counted.
With ranked-choice voting, the vote count is not final after the first round
of tabulation. Maine’s law provided that if there were more than two candidates left
“the last-place candidate [wa]s defeated and a new round [of tabulation] beg[an],”
repeating until two candidates remained and the candidate with the most votes was
declared the winner.182 Similarly, Initiative 2 specifies that the tabulation “continues”
until two or fewer candidates remain and “the candidate with the greatest number of
votes is elected and the tabulation is complete.”183 According to both states’ ranked-
choice voting laws, the vote count is not complete until the final round of tabulation.184
Yet the Maine Supreme Judicial Court treated the result obtained after the first round of
counting as if it were final, without pointing to any text in its constitution that requires
179
Id.
180
Id.
181
See id.
182
Former ME. STAT. tit. 21-A, § 723-A(2) (2017) (amended Sept. 19, 2019).
183
AS 15.15.350(d)(1).
184
See id.; former ME. STAT. tit. 21-A, § 723-A(2) (2017) (amended Sept. 19,
2019).
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votes to be counted in that way or that limits the way a vote can be cast or expressed.185
The court discussed at length the history of the Maine constitution’s plurality provision
and the state’s history of failed elections but did not explain how ranked-choice voting
is any more likely to result in a failed election than single-choice voting.186 The court’s
failure to pinpoint constitutional text, structure, or policies inconsistent with ranked-
choice voting leaves us unconvinced by its analysis.
A more persuasive account of how ranked-choice voting works was
described by the Ninth Circuit Court of Appeals in Dudum v. Arntz.187 That case
concerned San Francisco’s system of restricted instant-runoff voting (“restricted IRV”),
a variant of ranked-choice voting, for certain municipal offices.188 Like Alaska’s
Initiative 2, San Francisco’s law allowed voters to rank candidates by preference.189 The
Ninth Circuit rejected the notion that the tally after the first round of counting — i.e.,
after first-choice votes have been tallied and before second-choice votes are tallied —
was “final” or significant in any way.190
The Ninth Circuit described as “off the mark” the challengers’ argument
(which was similar to the logic of the Maine Supreme Judicial Court) that each round of
185
See Opinion of the Justices, 162 A.3d at 211.
186
See id. at 209-11.
187
640 F.3d 1098 (9th Cir. 2011).
188
Id. at 1100-01. The system was considered “restricted” because the law
permitted limiting voters’ rankings to three candidates if the voting equipment could not
accommodate a greater number. Id. at 1101.
189
Id.190
See id. at 1107.
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vote tabulation is a separate round of voting, so that the system is akin to a series of
runoff elections:
In actuality, all voters participating in a restricted IRV
election are afforded a single and equal opportunity to
express their preferences for three candidates; voters can use
all three preferences, or fewer if they choose. Most notably,
once the polls close and calculations begin, no new votes are
cast. To determine the winner of the election based on that
single set of votes cast, restricted IRV uses an algorithm. The
ballots, each representing three or fewer preferences, are the
initial inputs; the sequence of calculations mandated by
restricted IRV is used to arrive at a single output — one
winning candidate.[191]
The court concluded that “[t]he series of calculations required by the algorithm to
produce the winning candidate are simply steps of a single tabulation, not separate
rounds of voting.”192 It contrasted San Francisco’s system with a true runoff election:
one in which the top candidates from the first ballot advance to a second ballot, which
“involves at least two rounds of voting, or inputs.”193 While a true runoff election
requires voters to head to the polls twice and cast two different ballots, ranked-choice
voting, the court explained, “considers only one round of inputs, i.e., votes.”194
The Ninth Circuit’s explanation that ranked-choice voting entails only a
single round of voting, tabulated with a series of calculations, is more persuasive than
the Maine Supreme Judicial Court’s view that the system involves a series of separate
191
Id. (emphasis in original) (footnote omitted).
192
Id. Dudum’s “single tabulation” language is somewhat different from the
language of Initiative 2, which notes that “tabulation proceeds in sequential rounds” until
“the tabulation is complete.” AS 15.15.350(d). Functionally, these systems are identical.
193
Dudum, 640 F.3d at 1107 (emphasis in original).
194
Id.-51- 7629
elections. An election result is not “final” under ranked-choice voting while election
officials are still tallying voters’ preferences; they must be tallied completely to
determine which candidates have won, and the count is not complete until each vote has
been given full effect. Once the vote is final, the candidate “receiving the greatest
number of votes” is elected governor. Therefore, the fact that the candidate who receives
the most first-place votes may not ultimately win the election does not violate the Alaska
Constitution.
And there is no question that a ranked-choice vote is a single vote.
Rankings reflect alternative votes, not multiple votes. A vote may start with Candidate
Alpha, then be redirected to Candidate Bravo, and then be redirected again to Candidate
Charlie, but in the end a person’s vote will be tallied for no more than one candidate.
Nothing in the Alaska Constitution prohibits voting in this way. The
constitution does not define or limit the term “vote.” Black’s Law Dictionary defines a
vote as “[t]he expression of one’s preference or opinion in a meeting or election by
ballot, show of hands, or other type of communication.”195 A ranked-choice vote is an
expression of preference that contains more information than a single-choice vote: I
prefer Candidate Alpha best, but if Candidate Alpha cannot win, then I prefer Candidate
Bravo to Candidate Charlie. Because a ranked-choice vote contains more information
than a single-choice vote, it requires a more elaborate calculation to determine the
winner. But it is still a single vote, cast by a single voter, that in the end is counted for
a single candidate.
The delegates to the constitutional convention acknowledged that future
legislatures may change how Alaska holds elections and left it to the legislature to
195
Vote, BLACK’S LAW DICTIONARY (11th ed. 2019).
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“prescribe[] by law” the “[m]ethods of voting” to be used.196 They expressly
contemplated the abolition of partisan primaries and left that choice to the legislature.197
Although the delegates did not appear to contemplate ranked-choice voting, they clearly
believed that the legislature and, by extension, the people, would have broad power to
change the way Alaska’s public officials are elected. The few guardrails they included
196
Alaska Const. art. V, § 3 (“Methods of voting, including absentee voting,
shall be prescribed by law. Secrecy of voting shall be preserved. The procedure for
determining election contests, with right of appeal to the courts, shall be prescribed by
law.”). The Treadwell amici cite a 1961 opinion by Attorney General Ralph Moody for
the idea that the legislature — and by extension voters via the initiative process — is not
constitutionally permitted to undertake fundamental changes to election laws. 1961
FORMAL OP. ATT’Y GEN. 20. Moody was asked whether the legislature could require
candidates in election districts with two or more representatives to seek election to a
designated seat. Id. at 10. Moody drew a distinction between a “method of voting,”
which “concerns the mechanical way in which the voter exercises his choice[, such as]
paper ballots, voting machines, polling places, and the like,” and a “method of election,”
which “has to do with the manner of choosing officials.” Id. at 12. The primary basis
for this distinction was a textual contrast with a Florida constitutional provision
addressing “method[s] of election.” Id. at 11-12. Moody concluded that legislation
requiring candidates to seek election to a designated seat within a district went “beyond
‘methods of voting’ in the sense that term appears to be used” in the Alaska Constitution,
so the legislature had no power to enact the law. Id. at 12-13. Moody did not analyze
the Alaska constitutional convention proceedings, acknowledge that the delegates
contemplated future legislatures eliminating party primaries, or address the legislature’s
creation of a petition system, which was more like a method of election than a method
of voting under his definition. The Attorney General’s opinion does not persuade us that
the delegates, in expressly providing for the legislature to prescribe methods of voting,
intended to preclude the legislature from making changes to the system of elections.
197
See 3 PACC 2044-45 (Jan. 13, 1956) (statement of Del. Victor Rivers
(noting that “[t]here might not always be a primary” and referencing possibility of
returning to nominating conventions); 3 PACC 2140 (Jan. 14, 1956) (statement of Del.
Ralph Rivers) (acknowledging possibility that the legislature could “abolish[] the system
of primary election and [go] back to the convention system”).
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in the constitution do not preclude adopting a way of tabulating votes that allows voters
to provide more input about their preferences.
D. Initiative 2’s System Of Ranked-Choice Voting Does Not
Unconstitutionally Burden The Right To Vote.
Finally, Kohlhaas argues that Initiative 2 “imposes an unconstitutional
burden on the voter’s right to make a knowledgeable choice between candidates.” He
asserts that with ranked-choice voting “the voter votes for his or her favorite choice, but
for the second and later rounds the voter is voting blind.” Kohlhaas takes issue with
voters’ inability to change their preferences in between rounds of tabulation. Although
he does not explicitly say so, Kohlhaas essentially argues that Initiative 2 burdens the
fundamental right to vote.198
We have already noted that election laws, including rules for voter
registration and the time, place, and manner of voting, “will invariably impose some
burden upon individual voters.”199 So long as the burden is modest, important State
regulatory interests are typically sufficient to uphold a reasonable, nondiscriminatory
state election law.200
The burden of ranked-choice voting on the individual right to vote is
minimal, and not appreciably greater than the burden imposed by single-choice voting.
Kohlhaas’s complaint about the difficulty of casting a vote without knowing how others
will vote is not unique to ranked-choice voting. Voters face the same basic problem in
a single-choice voting system whenever there are more than two candidates. In that
198
See Miller v. Treadwell, 245 P.3d 867, 868-69 (Alaska 2010) (describing
fundamental right to vote).
199
O’Callaghan v. State, 914 P.2d 1250, 1253-54 (Alaska 1996) (quoting
Burdick v. Takushi, 504 U.S. 428, 433-34 (1992)).
200
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scenario voters often face a choice between voting for the candidate they prefer most or
voting against the candidate they dislike most. Ranked-choice voting allows a voter to
account somewhat for the uncertainty of others’ behavior by permitting a choice of
second- and third-place candidates.
Kohlhaas also argues that a voter whose ballot is “exhausted” during
tabulation “has no input into the final decision . . . as if the voter did not participate in the
election at all.” But the same could be said of voters who support a third-party candidate
under single-choice voting: a voter who votes for Candidate Charlie when the top two
candidates are Candidates Alpha and Bravo is in essentially the same position. And with
ranked-choice voting, a voter’s ballot will be exhausted only if the voter has elected not
to rank more than one candidate. Moreover, it is not accurate to say that such a voter has
had no input in the outcome of the election. “ ‘[E]xhausted’ ballots are counted in the
election[;] they are simply counted as votes for losing candidates, just as if a voter had
selected a losing candidate in a plurality or runoff election.”201
The minimal burden imposed by ranked-choice voting is justified so long
as it advances important regulatory interests. The following interests were advanced in
support of Initiative 2’s proposal for ranked-choice voting:
A ranked-choice voting system will help ensure that the
values of elected officials more broadly reflect the values of
the electorate, mitigate the likelihood that a candidate who is
disapproved by a majority of voters will get elected,
encourage candidates to appeal to a broader section of the
electorate, allow Alaskans to vote for the candidates that most
accurately reflect their values without risking the election of
those candidates that least accurately reflect their values,
encourage greater third-party and independent participation
201
Dudum v. Arntz, 640 F.3d 1098, 1110 (9th Cir. 2011) (emphasis in
original).
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in elections, and provide a stronger mandate for winning
candidates.[202]
The State’s interests in allowing voters to express more nuanced preferences through
their votes and to elect candidates with strong plurality support are important and
legitimate regulatory interests,203 and Kohlhaas has presented neither evidence nor a
persuasive explanation to disprove the link between these goals and ranked-choice
voting. Kohlhaas therefore failed to meet his burden of proving that the law lacks a
plainly legitimate sweep.
Our conclusion finds support in the opinions of other courts. The Ninth
Circuit in Dudum described the asserted burdens of San Francisco’s ranked-choice
voting system as “largely ephemeral, disappearing upon examination.”204 Accordingly
the court ruled that the system was justified by the city’s “legitimate interests in
providing voters an opportunity to express nuanced voting preferences and electing
candidates with strong plurality support.”205 The Minnesota Supreme Court upheld a
city’s system of ranked-choice voting, reasoning that challengers “failed to establish that
[ranked-choice voting] on its face burdens the right to vote.”206 Even if ranked-choice
voting “could be construed as a burden,” the court reasoned, the burden was so slight as
to be justified by the mere possibility that ranked-choice voting would advance the goals
202
Alaska Ballot Initiative 2, § 1(5) (2020) (statement of findings and intent).
203
Dudum, 640 F.3d at 1116.
204
Id. at 1113.
205
Id. at 1116.
206
Minn. Voters All. v. City of Minneapolis, 766 N.W.2d 683, 697 (Minn.
2009).
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of greater turnout, less divisive campaigns, and greater minority representation.207 And
the federal district court in Maine rejected a claim that an election under ranked-choice
voting unconstitutionally burdened the right to vote, stating tartly that “a search for what
exactly the burden is . . . is not a fruitful exercise.”208
Kohlhaas fails to show that ranked-choice voting unconstitutionally burdens
the right to vote.
V. CONCLUSION
We AFFIRM the superior court’s grant of summary judgment.
207
Id. (“Reducing the costs and inconvenience to voters, candidates, and
taxpayers by holding only one election, increasing voter turnout, encouraging less
divisive campaigns, and fostering greater minority representation in multiple-seat
elections are all legitimate interests for the City to foster. Whether and to what degree
implementation of [ranked-choice voting] will achieve those benefits remains to be seen.
But it is plausible that [ranked-choice voting] may advance one or more of these
interests. In the context of this facial challenge, that possibility is sufficient to justify any
minimal burden imposed by [ranked-choice voting].” (footnote omitted)).
208
Baber v. Dunlap, 376 F. Supp. 3d 125, 145 (D. Me. 2018).
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