SCOTT A. KOHLHAAS, THE ALASKAN INDEPENDENCE PARTY, ROBERT M. BIRD, and KENNETH P. JACOBUS v. STATE OF ALASKA, OFFICE OF LIEUTENANT GOVERNOR, DIVISION OF ELECTIONS, and LIEUTENANT GOVERNOR KEVIN MEYER and DIRECTOR GAIL FENUMIAI, in their official capacities
Supreme Court No. S-18210
THE SUPREME COURT OF THE STATE OF ALASKA
October 21, 2022
No. 7629
BORGHESAN, Justice.
Superior Court No. 3AN-20-09532 CI
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.
Appellants,
v.
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 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.
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 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
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 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
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 rounds.21 The Division “shall initially tabulate each validly cast ballot as one vote” for the highest-ranked candidate on that ballot.22 If after this tabulation one candidate has more than half of the votes, voting is complete and that candidate is declared the winner.23 If no candidate has more than half of the votes, the candidate with the fewest votes is eliminated.24 Each ballot initially counted for the eliminated candidate is reassigned to that voter‘s second choice marked on the ballot.25 If the ballot does not rank a second-choice candidate, it is considered “inactive” and is not counted in further rounds of tabulation.26 The process repeats until only two candidates remain, when the “tabulation is complete” and the candidate “with the greatest number of votes is elected.”27
Like the primary election ballot, the general election ballot displays each candidate‘s political party affiliation or designation as undeclared or nonpartisan.28 The general election ballot and each polling place must include the same disclaimer about party affiliation.29 The general election ballot must also include a mechanism for voters to write in a candidate for each office.30
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
The plaintiffs (referred to collectively as “Kohlhaas” in this opinion) argued that Initiative 2 violated speech rights under the United States and Alaska Constitutions by weakening political parties’ ability to select candidates for the general election and by allowing candidates to identify their party affiliation on the ballot without regard to whether the party had nominated or endorsed them.31 Kohlhaas argued that Initiative 2‘s approach to pairing candidates for governor and lieutenant governor in the primary election violated the provision of the Alaska Constitution for electing the lieutenant governor.32 And he argued that Initiative 2‘s adoption of ranked-choice voting for the general election unconstitutionally burdened the right to vote and violated the provision of the Alaska Constitution providing that the 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 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
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 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 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
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 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
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
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
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] 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 mechanism they 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
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 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.
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 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
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
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 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 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
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 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.
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 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 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
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 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
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 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 governor and lieutenant governor to run together on both the primary and general election ballots.128
“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 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 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
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 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 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
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.
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
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
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 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.
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.”
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 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
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 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
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. 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 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” —
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 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 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 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 “prescribe[] by law” the “[m]ethods of voting” to be used.196
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 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
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 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 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.