Joseph E. VOGLER, and Alaskan Independence Party, Appellants, v. Terry MILLER, Lieutenant Governor of the State of Alaska, Appellee.
No. 6959.
Supreme Court of Alaska.
March 4, 1983.
Id. at 610. Justice Miller, in a concurring opinion, observed that “to contend that out-of-State catalog sales have no local connection is to ignore business reality.” Id. at 617. In J.C. Penney, the local retail outlets accepted returns of mail order purchases and performed repairs on broken or defective mail order merchandise. The West Virginia stores advertised in the local media,13 provided customers with catalogs, and acted as a showcase for products available by direct mail. Id.
We find it to have been within the state‘s power to tax Sears’ gross receipts for the years of 1976 and 1977, including direct mail order sales. The judgment of the superior court granting Sears a refund, costs and attorney‘s fees is REVERSED.
Joseph W. Sheehan, Fairbanks, for appellants.
David T. LeBlond, Asst. Atty. Gen., Anchorage, Wilson L. Condon, Atty. Gen., Juneau, for appellee.
Before BURKE, C.J., and RABINOWITZ, MATTHEWS and COMPTON, JJ.
OPINION
MATTHEWS, Justice.
In Vogler v. Miller, 651 P.2d 1 (Alaska 1982) we held that it is unconstitutional for the state to require independents and small party candidates to submit petitions carrying signatures equal in number to at least 3% of the votes cast in the preceding general election in order to obtain a place on the gubernatorial ballot. That opinion was issued on an expedited basis in light of the then pressing need to print ballots. We now address the issue left undecided there: whether the eligibility of a party to nominate a candidate for governor through a primary election may constitutionally be conditioned on that party‘s receipt of 10% of the votes cast in the preceding gubernatorial election.
The relevant facts and proceedings in this case were recited in our earlier opinion, and hence need only be briefly summarized here. Joseph Vogler was the gubernatorial candidate of the Alaskan Independence Party (hereinafter AIP) in the November, 1982 general elections. As previously stated, Mr. Vogler was placed on the ballot in that election through a decision by this court holding the 3% petition requirement of
II
In our first opinion in this case, we observed that restrictions on ballot access implicate the fundamental rights of potential candidates and voters alike. We stated that the rights thus implicated are the right to vote and the right to associate freely in the pursuit of political beliefs, the infringement of which renders illusory even the most basic of other fundamental rights. Id. (quoting Williams v. Rhodes, 393 U.S. 23, 30-31, 89 S.Ct. 5, 10-11, 21 L.Ed.2d 24, 31 (1968)). Because “[c]ompetition in ideas and governmental policies is at the core of our electoral process and of [freedom of speech],” we held that the free speech guarantees of
It is clear that the state must bear the same burdens in justifying the restrictions it has imposed on a political party‘s eligibility to nominate a candidate through a primary election. The 10% definitional requirement of
Further, there are consequences of failing to achieve “political party” status which disadvantage small parties and their candidates and thereby result in burdens on fundamental political rights even where access to the general election ballot is not unduly restricted.
First, a party‘s ability to nominate a candidate in a primary election has importance wholly apart from merely serving as a means of qualifying for the general election ballot. This is because primaries have considerable political value to those parties and candidates entitled to participate in them. Theodore H. White has appraised the importance of the primary election as follows:
Primaries had already thus become, by 1972, one of the great drive engines of American politics—for a primary is a deed. All else in politics, except money, is words—comment, rhetoric, analysis, polls. But a primary is a fact. There is a hardness to such a fact, especially if the victory is a contested one. With the light of such an event, a candidate can compel attention, build votes, change minds. It is the underdog‘s classic route to power in America.
T. White, The Making of the President 1972 at 71 (1973). While political organizations allowed to participate in Alaska‘s primaries receive intense media coverage of their platforms and candidates, the small party that must instead seek a place on the ballot through the petition process goes relatively unnoticed.
Second, failure to satisfy the 10% requirement hinders a small party candidate‘s ability to raise campaign funds. This financial disadvantage results from
No person or group, including but not limited to all political committees, businesses, corporations, and labor unions, may contribute to or expend more than $1,000 a year on behalf of or in opposition to the competing candidates for each elective office. Political parties and their subdivisions are not subject to the limitation prescribed in this subsection. . . .
Thus, while “political parties,” as defined by
III
The precise question thus presented is whether the 10% definitional requirement contained in
A member of a “political party” may obtain a place on the general election ballot for governor by filing a declaration of candidacy pursuant to
“political party” means a group of organized voters which represents a political program and which nominated a candidate for governor who received at least 10 percent of the total vote cast at the preceding general election for governor.
To justify this 10% requirement, the state claims that there is a valid state interest in promoting a two-party system in order to encourage compromise and political stability, and similarly, that there is a valid state interest in ensuring that public officials are elected by a majority of the voters. Limiting “political party” status to those organizations able to poll 10% of the electorate would presumably further these goals. While such interests have been recognized as valid by the United States Supreme Court, see Bullock v. Carter, 405 U.S. 134, 145, 92 S.Ct. 849, 857, 31 L.Ed.2d 92, 100-01 (1972), the Court has also held that state election laws imposing undue burdens on placing small parties on the ballot may not be justified on these grounds. See Williams v. Rhodes, 393 U.S. at 31-32, 89 S.Ct. at 10-11, 21 L.Ed.2d at 32. Moreover, our prior decision was based partially on the position that, as a matter of policy, it would be undesirable to attempt to compress “[t]he range of political views in our society . . . into the platforms of only two parties.” For these reasons, we hold that the 10% polling requirement may not be justified by these asserted state interests.
The state also asserts that the 10% requirement may be justified by the “important state interest in requiring some preliminary showing of a significant modicum of support before printing the name of a political organization‘s candidate on the ballot—the interest, if no other, in avoiding confusion, deception, and even frustration of the democratic process at the general election.” Quoting Jenness v. Fortson, 403 U.S. 431, 442, 91 S.Ct. 1970, 1976, 29 L.Ed.2d 554, 562-63 (1971). We noted in our prior decision that ensuring a sufficient modicum of support is a legitimate concern. However, the state has not established that this interest could not have been served by a requirement substantially smaller than 10%. A great majority of states place polling requirements of 5% or less on a party‘s eligibility to nominate through a primary election.5 Because the state has offered no
The judgment of the superior court with respect to
RABINOWITZ, Justice, concurring, joined by BURKE, Chief Justice.
I concur with the result reached by the court that the 10% requirement for political party status set forth in
First, the primary statutory provision before the court in this aspect of the appeal is the definition of “political party” as “a group of organized voters which represents a political program and which nominated a candidate for governor who received at least 10 percent of the total vote cast at the preceding general election for governor.”
Second, the court having articulated the constitutional requirement that the state bears the burden of demonstrating that any restriction upon ballot access is justified by compelling state interests, I think it is necessary to apply this test with appropriate rigor. The state‘s burden must be satisfied by a factual showing that conditions in Alaska present a real need for the restriction imposed. In the instant case, for example, the state recites that the ten percent requirement of
I do not join in the court‘s intimation that the state could meet its burden of justifying a lower percentage definition of political party merely by citing the existence of arithmetically similar statutes in the other jurisdictions. Other states are different geographically from Alaska, have different voter populations, are governed by their own unique constitutional guarantees and have statutory patterns of election laws that may vary substantially from that in Alaska. Unexplained numbers cannot be used to inform this court of its constitutional responsibilities.
The rights and privileges afforded to “political parties,” once defined, vary with the interrelationship of election statutes exist-
Notes
Required number of signatures for statewide office. Petitions for the nomination of candidates for the office of governor, lieutenant governor, United States senator and United States representative shall be signed by qualified voters of the state equal in number to at least three percent of the number of votes cast in the preceding general election. Candidates for the office of governor and lieutenant governor shall file jointly.
Freedom of Speech. Every person may freely speak, write, and publish on all subjects, being responsible for the abuse of that right.
Placement of nominees on general election ballot. The director shall place the name of the candidate receiving the highest number of votes for an office by a political party on the general election ballot.