1 (Slip Opinion) OCTOBER TERM, 2007

Syllabus

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.


## SUPREME COURT OF THE UNITED STATES

Syllabus

WASHINGTON STATE GRANGE v . WASHINGTON
STATE REPUBLICAN PARTY ET AL

.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE NINTH CIRCUIT

No. 06–713. Argued October 1, 2007—Decided March 18, 2008*

After the Ninth Circuit invalidated Washington’s blanket primary sys

tem on the ground that it was nearly identical to the California sys

tem struck down in California Democratic Party v. Jones , 530 U. S. 567, state voters passed an initiative (I–872), providing that candi

dates must be identified on th e primary ballot by their selfdesignated party preference; that voters may vote for any candidate; and that the two top votegetters fo r each office, regardless of party preference, advance to the general el ection. Respondent political par

ties claim that the new law, on it s face, violates a party’s associa

tional rights by usurping its right to nominate its own candidates and by forcing it to associate with cand idates it does not endorse. The District Court granted respondents summary judgment, enjoining I– 872’s implementation. The Ninth Circuit affirmed.

Held: I–872 is facially constitutional. Pp. 6–16. (a) Facial challenges, which require a showing that a law is uncon

stitutional in all of its applications , are disfavored: They often rest on speculation; they run contrary to the fundamental pr inciple of judi

cial restraint that courts should neither “ ‘anticipate a question of constitutional law in advance of the necessity of deciding it’ ” nor
“ ‘formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied,’ ” Ashwander v. TVA , 297
U. S. 288, 483; and they threaten to shortcircuit the democratic proc

ess by preventing laws embodying th e will of the people from being

——————

* Together with No. 06–730, Washington et al. v. Washington State Republican Party et al., also on certiorari to the same court.2 WASHINGTON STATE GRANGE v. WASHINGTON STATE
REPUBLICAN PARTY
Syllabus

implemented consistent with the Constitution. Pp. 6–8.

(b) If I–872 severely burdens associational rights, it is subject to strict scrutiny and will be upheld on ly if it is “narrowly tailored to serve a compelling state interest,” Clingman v. Beaver , 544 U. S. 581,

586. Contrary to petitioners’ argument, this Court’s presumption in
Jones— that a nonpartisan blanket primary where the top two votegetters proceed to the general election regardless of party would be a less restrictive alternative to California’s system because it would not nominate candidates—is not dispositive here. There, the
Court had no occasion to determin e whether a primar y system that indicates each candidate’s party pref erence on the ballot, in effect, chooses the parties’ nominees. Re spondents’ arguments that I–872 imposes a severe burden are flawed. They claim that the law is un

constitutional under Jones because it allows primary voters unaffili

ated with a party to choose the pa rty’s nominee, thus violating the party’s right to choose its own stan dard bearer. Unlike California’s primary, however, the I–872 primary does not, by its terms, choose the parties’ nominees. The choice of a party representative does not occur under I–872. The two top pr imary candidates proceed to the general election regardless of thei r party preferences. Whether the parties nominate their own candid ate outside the state-run primary is irrelevant. Respondents counter that voters will assume that can

didates on the general election ba llot are their preferred nominees; and that even if voters do not make that assumption, they will at least assume that the parties a ssociate with, and approve of, the nominees. However, those claims depend not on any facial require

ment of I–872, but on the possibility that voters will be confused as to the meaning of the party-preference designation. This is sheer specu

lation. Even if voters could possi bly misinterpret the designations, I– 872 cannot be struck down in a facial challenge based on the mere possibility of voter confusion. The State could implement I–872 in a variety of ways, e.g., through ballot design, that would eliminate any real threat of confusion. And without the specter of widespread voter confusion, respondents’ forced association and compelled speech ar

guments fall flat. Pp. 8–15.

(c) Because I–872 does not severely burden respondents, the State need not assert a compelling interest. Its interest in providing voters
with relevant information about the candidates on the ballot is easily
sufficient to sustain th e provision. P. 15.

460 F. 3d 1108, reversed.

T HOMAS

, J., delivered the opinion of the Court, in which R OBERTS

, C. J., and S TEVENS , S OUTER , G INSBURG , B REYER , and A LITO

, JJ., joined.

R OBERTS

, C. J., filed a concurring opinion, in which A LITO

, J., joined.
S CALIA

, J., filed a dissenting opinion, in which K ENNEDY

, J., joined._________________

_________________ 1 Cite as: 552 U. S. ____ (2008)

Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Wash

ington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.


## SUPREME COURT OF THE UNITED STATES

Nos. 06–713 and 06–730

WASHINGTON STATE GRANGE, PETITIONER

06–713 v.

WASHINGTON STATE REPUBLICAN PARTY, ET AL

.

WASHINGTON, ET AL ., PETITIONERS

06–730 v.

WASHINGTON STATE REPUBLICAN PARTY, ET AL

.

ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT

[March 18, 2008]

J USTICE T HOMAS delivered the opinion of the Court.
In 2004, voters in the State of Washington passed an initiative changing the State’ s primary election system. The People’s Choice Initiative of 2004, or Initiative 872 (I– 872), provides that candidates for office shall be identified on the ballot by their self-designated “party preference”; that voters may vote for any candidate; and that the top two votegetters for each office, regardless of party prefer

ence, advance to the general election. The Court of Ap

peals for the Ninth Circuit held I–872 facially invalid as imposing an unconstitutional burden on state political parties’ First Amendment rights. Because I–872 does not on its face impose a severe burden on political parties’ associational rights, and because respondents’ arguments to the contrary rest on factual assumptions about voter
confusion that can be evaluated only in the context of an2 WASHINGTON STATE GRANGE v. WASHINGTON STATE
REPUBLICAN PARTY
Opinion of the Court

as-applied challenge, we reverse.

I
For most of the past century, Washington voters se

lected nominees for state and local offices using a blanket primary. 1 From 1935 until 2003, the State used a blanket primary that placed candidates from all parties on one ballot and allowed voters to select a candidate from any party. See 1935 Wash. Laws, ch. §§1–5, pp. 60–64. Under this system, the candidate who won a plurality of votes within each major party became that party’s nominee in the general election. See 2003 Wash. Laws, §919, p. 775. California used a nearly identical primary in its own
elections until our decision in California Democratic Party

v. Jones , 530 U. S. 567 (2000). In Jones , four political parties challenged California’ s blanket primary, arguing that it unconstitutionally burdened their associational rights by forcing them to asso ciate with voters who did not share their beliefs. We agreed and struck down the blan

ket primary as inconsistent with the First Amendment. In so doing, we emphasized the importance of the nomination process as “ ‘the crucial juncture at which the appeal to common principles may be translated into concerted ac

tion, and hence to political power in the community.’ ” Id., at 575 (quoting Tashjian v. Republican Party of Conn. , 479
U. S. 208, 216 (1986)). We observed that a party’s right to exclude is central to its freedom of association, and is never “more important than in the process of selecting its nominee.” 530 U. S., at 575. California’s blanket primary,

——————

1 The term “blanket primary” refers to a system in which “any person, regardless of party affiliation, may vote for a party’s nominee.” Cali

fornia Democratic Party v. Jones , 530 U. S. 567, 576, n. 6 (2000). A blanket primary is distinct from an “open primary,” in which a person may vote for any party’s nominees, but must choose among that party’s nominees for all offices, ibid. , and the more traditional “closed primary” in which “only persons who are member s of the political party . . . can vote on its nominee,” id. , at 570.3 Cite as: 552 U. S. ____ (2008)

Opinion of the Court

we concluded, severely burdened the parties’ freedom of
association because it forced them to allow nonmembers to participate in selecting the parties’ nominees. That the parties retained the right to endorse their preferred can

didates did not render the burden any less severe, as “[t]here is simply no substitu te for a party’s selecting its
own candidates.” Id., at 581.
Because California’s blanket primary severely burdened the parties’ associational rights, we subjected it to strict scrutiny, carefully examining each of the state interests offered by California in support of its primary system. We rejected as illegitimate three of the asserted interests: “producing elected officials who better represent the elec

torate,” “expanding candidate debate beyond the scope of partisan concerns,” and ensuring “the right to an effective vote” by allowing nonmembers of a party to vote in the majority party’s primary in “ ‘safe’ ” districts. Id., at 582–

584. We concluded that the remaining interests— promoting fairness, affording voters greater choice, in

creasing voter participation, and protecting privacy—were not compelling on the facts of the case. Even if they were, the partisan California primary was not narrowly tailored to further those interests because a nonpartisan blanket primary, in which the top two votegetters advance to the general election regardless of party affiliation, would accomplish each of those interests without burdening the parties’ associational rights. Id., at 585–586. The nonpar

tisan blanket primary had “all the characteristics of the partisan blanket primary, save the constitutionally crucial one: Primary voters [were] not choosing a party’s nomi

nee.” Ibid

. After our decision in Jones , the Court of Appeals for the
Ninth Circuit struck down Wa shington’s primary as “ma

terially indistinguishable from the California scheme.” Democratic Party of Washington State v. Reed , 343 F. 3d4 WASHINGTON STATE GRANGE v. WASHINGTON STATE
REPUBLICAN PARTY
Opinion of the Court

1198, 1203 (2003). The Washington State Grange 2 promptly proposed I–872 as a replacement. 3 It passed with nearly 60% of the vote and became effective in De

cember 2004. Under I–872, all elections for “partisan offices” 4 are conducted in two stages: a primary and a general election. To participate in the primary, a candidate must file a “declaration of candidacy” form, on which he declares his “major or minor party preference, or independent status.” Wash. Rev. Code §29A.24.030 (Supp. 2005). Each candi

date and his party preference (or independent status) is in turn designated on the primary election ballot. A political party cannot prevent a candidate who is unaffiliated with, or even repugnant to, the party from designating it as his party of preference. See Wash. Admin. Code §434–215– 015 (2005). In the primary election, voters may select “any candidate listed on the ballot, regardless of the party preference of the candidates or the voter.” §434–262–012.

——————

2 The Washington State Grange is a fraternal, social, and civic or

ganization chartered by the National Grange in 1889. Although origi

nally formed to represent the interest s of farmers, the organization has advocated a variety of goals, including women’s suffrage, rural electrifi

cation, protection of water resources, and universal telephone service. The State Grange also supported the Washington constitutional amendment establishing initiative s and referendums and sponsored the 1934 blanket primary initiative.

3 Respondents make much of the fa ct that the promoters of I–872 presented it to Washington voters as a way to preserve the primary system in place from 1935 to 2003. But our task is not to judge I–872 based on its promoters’ assertions abo ut its similarity, or lack thereof, to the unconstitutional primary; we must evaluate the constitutionality of I–872 on its own terms. Whether the language of I–872 was pur

posely drafted to survive a Jones -type constitutional challenge is irrelevant to whether it has successfully done so.

4 “ ‘Partisan office’ means a public office for which a candidate may indicate a political party preference on his or her declaration of candi

dacy and have that preference a ppear on the primary and general election ballot in conjunction with hi s or her name.” Wash. Rev. Code §29A.04.110 (Supp. 2005).5 Cite as: 552 U. S. ____ (2008)

Opinion of the Court

The candidates with the highest and second-highest vote totals advance to the ge neral election, regardless of their party preferences. Ibid. Thus, the general election may pit two candidates with the same party preference against one another. 5 Each candidate’s party preference is listed on the general election ballot, and may not be changed between the primary and general elections. See §434–230–040. Immediately after the State enacted regulations to implement I–872, the Washington State Republican Party filed suit against a number of county auditors challenging the law on its face. The party contended that the new system violates its associational rights by usurping its right to nominate its own candidates and by forcing it to
associate with candidates it does not endorse. The Wash

ington State Democratic Central Committee and Libertar

ian Party of Washington State joined the suit as plaintiffs. The Washington State Grange joined as a defendant, and the State of Washington was substituted for the county
auditors as defendant. The United States District Court for the Western District of Washington granted the politi

cal parties’ motions for summary judgment and enjoined the implementation of I–872. See Washington State Re

publican Party v. Logan , 377 F. Supp. 2d 907, 932 (2005). The Court of Appeals affirmed. 460 F. 3d 1108, 1125 (CA9 2006). It held that the I–872 primary severely bur

dens the political parties’ asso ciational rights because the party-preference designation on the ballot creates a risk that primary winners will be perceived as the parties’ nominees and produces an “impression of associatio[n]” between a candidate and his party of preference even

——————

5 This is not a hypothetical outcome. The Court of Appeals observed that, had the 1996 gubernatorial primary been conducted under the I– 872 system, two Democratic candidates and no Republican candidate would have advanced from the primar y to the general election. See 460

F. 3d 1108, 1114, n. 8 (CA9 2006).6 WASHINGTON STATE GRANGE v. WASHINGTON STATE
REPUBLICAN PARTY
Opinion of the Court

when the party does not associate, or wish to be associ

ated, with the candidate. Id., at 1119. The Court of Ap

peals noted a “constitutionally significant distinction between ballots and other vehicles for political expres

sion,” reasoning that the risk of perceived association is particularly acute when ballots include party labels be

cause such labels are typically used to designate candi

dates’ views on issues of public concern. Id., at 1121. And it determined that the State’s interests underlying I–872 were not sufficiently compellin g to justify the severe bur

den on the parties’ association. Concluding that the provi

sions of I–872 providing for the party-preference designa

tion on the ballot were not severable, the court struck down I–872 in its entirety. We granted certiorari, 549 U. S. ___ (2007), to determine whether I–872, on its face, violates the political parties’ associational rights.

II
Respondents object to I–872 not in the context of an actual election, but in a facial challenge. Under United
States v. Salerno , 481 U. S. 739 (1987), a plaintiff can only succeed in a facial challenge by “establish[ing] that no set
of circumstances exists under which the Act would be valid,” i.e. , that the law is unconstitutional in all of its applications. Id., at 745. While some Members of the
Court have criticized the Salerno formulation, all agree that a facial challenge must fail where the statute has a

“ ‘plainly legitimate sweep.’ ” Washington v. Glucksberg

, 521 U. S. 702, 739–740, and n. 7 (1997) (S TEVENS

, J., concurring in judgments). Washington’s primary system survives under either standard, as we explain below. 6 In

——————

6 Our cases recognize a second type of facial challenge in the First
Amendment context under which a la w may be overturned as imper

missibly overbroad because a “substantial number” of its applications are unconstitutional, “ ‘judged in relation to th e statute’s plainly legiti

-7 Cite as: 552 U. S. ____ (2008)

Opinion of the Court

determining whether a law is facially invalid, we must be careful not to go beyond the statute’s facial requirements and speculate about “hypothetical” or “imaginary” cases.
See United States v. Raines , 362 U. S. 17, 22 (1960) (“The delicate power of pronouncing an Act of Congress uncon

stitutional is not to be exe rcised with reference to hypo

thetical cases thus imagined”). The State has had no opportunity to implement I–872, and its courts have had
no occasion to construe the law in the context of actual disputes arising from the electoral context, or to accord the law a limiting construction to avoid constitutional ques

tions. Cf. Yazoo & Mississippi Valley R. Co. v. Jackson Vinegar Co. , 226 U. S. 217, 220 (1912) (“How the state court may apply [a statute] to other cases, whether its general words may be treated as more or less restrained, and how far parts of it may be sustained if others fail are matters upon which we need not speculate now”). Exercis

ing judicial restraint in a facial challenge “frees the Court not only from unnecessary pronouncement on constitu

tional issues, but also from premature interpretations of statutes in areas where their constitutional application might be cloudy.” Raines

, supra, at 22. Facial challenges are disfavored for several reasons. Claims of facial invalidity often rest on speculation. As a consequence, they raise the risk of “premature interpreta

tion of statutes on the basis of factually barebones re

cords.” Sabri v. United States , 541 U. S. 600, 609 (2004) (internal quotation marks and brackets omitted). Facial challenges also run contrary to the fundamental principle of judicial restraint that courts should neither “ ‘anticipate

—————— mate sweep.’ ” New York v. Ferber , 458 U. S. 747, 769–771 (1982) (quoting Broadrick v. Oklahoma , 413 U. S. 601, 615 (1973)). We generally do not apply the “ ‘strong medicine’ ” of overbreadth analysis where the parties fail to describe th e instances of arguable overbreadth
of the contested law. See New York State Club Assn., Inc. v. City of
New York , 487 U. S. 1, 14 (1988).8 WASHINGTON STATE GRANGE v. WASHINGTON STATE
REPUBLICAN PARTY
Opinion of the Court

a question of constitutional law in advance of the necessity of deciding it’ ” nor “ ‘formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied.’ ” Ashwander v. TVA , 297 U. S. 288, 347 (1936) (Brandeis, J., concurring) (quoting Liverpool, New York & Philadelphia S. S. Co. v. Commissioners of Emi

gration , 113 U. S. 33, 39 (1885)). Finally, facial challenges threaten to short circuit the democratic process by pre

venting laws embodying the will of the people from being implemented in a manner consistent with the Constitu

tion. We must keep in mind that “ ‘[a] ruling of unconsti

tutionality frustrates the intent of the elected representa

tives of the people.’ ” Ayotte v. Planned Parenthood of Northern New Eng. , 546 U. S. 320, 329 (2006) (quoting Regan v. Time, Inc. , 468 U. S. 641, 652 (1984) (plurality opinion)). It is with these principles in view that we turn to the merits of respondents’ facial challenge to I–872.

A
The States possess a “ ‘broad power to prescribe the “Times, Places and Manner of holding Elections for Sena

tors and Representatives,” Art. I, §4, cl. 1, which power is matched by state control over the election process for state
offices.’ ” Clingman v. Beaver , 544 U. S. 581, 586 (2005) (quoting Tashjian , 479 U. S., at 217); Timmons v. Twin Cities Area New Party , 520 U. S. 351, 358 (1997) (same). This power is not absolute, but is “subject to the limitation that [it] may not be exercised in a way that violates . . . specific provisions of the Constitution.” Williams v. Rhodes , 393 U. S. 23, 29 (1968). In particular, the State
has the “ ‘responsibility to observe the limits established by the First Amendment rights of the State’s citizens,’ ” including the freedom of political association. Eu v. San Francisco County Democratic Central Comm. , 489 U. S. 214, 222 (1989) (quoting Tashjian

, supra , at 217). Election regulations that impose a severe burden on9 Cite as: 552 U. S. ____ (2008)

Opinion of the Court

associational rights are subje ct to strict scrutiny, and we uphold them only if they are “narrowly tailored to serve a compelling state interest.” Clingman

, supra , at 586; see
also Rhodes

, supra , at 31 (“ ‘only a compelling state inter

est in the regulation of a subject within the State’s consti

tutional power to regulate can justify limiting First
Amendment freedoms’ ” (quoting NAACP v. Button , 371
U. S. 415, 438 (1963))). If a statute imposes only modest burdens, however, then “the State’s important regulatory interests are generally suffici ent to justify reasonable, nondiscriminatory restrictions” on election procedures.
Anderson v. Celebrezze , 460 U. S. 780, 788 (1983). “Ac

cordingly, we have repeatedly upheld reasonable, politi

cally neutral regulations that have the effect of channeling expressive activity at the polls.” Burdick v. Takushi , 504
U. S. 428, 438 (1992). The parties do not dispute these general principles; rather, they disagree about whether I–872 severely bur

dens respondents’ associational rights. That disagreement begins with Jones . Petitioners argue that the I–872 pri

mary is indistinguishable from the alternative Jones suggested would be constitutional. In Jones we noted thata nonpartisan blanket primary, where the top two votegetters proceed to the general election regardless of their party, was a less restrictive alternative to California’s system because such a primary does not nominate candi

dates. 530 U. S., at 585–586 (The nonpartisan blanket primary “has all the characteristics of the partisan blanket primary, save the constitutionally crucial one: Primary voters are not choosing a party’s nominee”). Petitioners are correct that we assumed that the nonpartisan primary
we described in Jones would be constitutional. But that is not dispositive here because we had no occasion in Jones to determine whether a primary system that indicates each candidate’s party preference on the ballot, in effect, chooses the parties’ nominees.10 WASHINGTON STATE GRANGE v. WASHINGTON STATE
REPUBLICAN PARTY
Opinion of the Court

That question is now squarely before us. Respondents argue that I–872 is unconstitutional under Jones because
it has the same “constitutio nally crucial” infirmity that doomed California’s blanket pr imary: it allows primary voters who are unaffiliated with a party to choose the party’s nominee. Respondents claim that candidates who progress to the general election under I–872 will become
the de facto nominees of the parties they prefer, therebyviolating the parties’ right to choose their own standardbearers, see Timmons

, supra , at 359, and altering their messages. They rely on our statement in Jones reaffirm

ing “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.’ ” Jones

, 550 U. S., at 575 (quoting Eu

, supra, at 224). The flaw in this argument is that, unlike the California primary, the I–872 primary does not, by its terms, choose parties’ nominees. The essence of nomination—the choice of a party representative—does not occur under I–872. The law never refers to the candidates as nominees of any party, nor does it treat them as such. To the contrary, the election regulations specifically provide that the 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.” Wash. Admin. Code §434–262–012. The top two candidates from the primary election proceed to th e general election regardless of their party preferences. Whether parties nominate
their own candidates outsid e the state-run primary is simply irrelevant. In fact, parties may now nominate candidates by whatever me chanism they choose because I–872 repealed Washington’s prior regulations governing party nominations. 7

——————

7 It is true that parties may no longer indicate their nominees on the11 Cite as: 552 U. S. ____ (2008)

Opinion of the Court

Respondents counter that, even if the I–872 primary does not actually choose parties’ nominees, it nevertheless burdens their associational rights because voters will
assume that candidates on th e general election ballot are the nominees of their preferred parties. This brings us to the heart of respondents’ case—and to the fatal flaw in their argument. At bottom, respondents’ objection to I–872 is that voters will be confused by candidates’ partypreference designations. Respondents’ arguments are largely variations on this theme. Thus, they argue that even if voters do not assume that candidates on the gen

eral election ballot are the nominees of their parties, they will at least assume that the parties associate with, and approve of, them. This, they say, compels them to associ

ate with candidates they do not endorse, alters the mes

sages they wish to convey, and forces them to engage in counterspeech to disassociate themselves from the candi

dates and their positions on the issues. We reject each of these contentions for the same reason: They all depend, not on any facial requirement of I–872, but on the possibility that voters will be confused as to the meaning of the party-preference designation. But respon

dents’ assertion that voters will misinterpret the partypreference designation is sheer speculation. It “depends upon the belief that voters can be ‘misled’ by party labels. But ‘[o]ur cases reflect a greater faith in the ability of individual voters to inform themselves about campaign

—————— ballot, but that is unexceptionable: The First Amendment does not give political parties a right to have thei r nominees designated as such on
the ballot. See Timmons v. Twin Cities Area New Party , 520 U. S. 351, 362–363 (1997) (“We are unpersuaded, however, by the party’s conten

tion that it has a right to use the ballot itself to send a particularized message, to its candidate and to the voters, about the nature of its support for the candidate”). Parties do not gain such a right simply
because the State affords candidates the opportunity to indicate their party preference on the ballot. “Ba llots serve primarily to elect candi

dates, not as forums for political expression.” Id., at 363.12 WASHINGTON STATE GRANGE v. WASHINGTON STATE
REPUBLICAN PARTY
Opinion of the Court

issues.’ ” Tashjian , 479 U. S., at 220 (quoting Anderson

, 460 U. S., at 797). There is simply no basis to presume that a well-informed electorate will interpret a candidate’s party-preference designation to mean that the candidate is the party’s chosen nominee or representative or that the party associates with or approves of the candidate. See New York State Club Assn., Inc. v. City of New York , 487
U. S. 1, 13–14 (1988) (rejecting a facial challenge to a law regulating club membership and noting that “[w]e could hardly hold otherwise on the record before us, which con

tains no specific evidence on the characteristics of any club covered by the [l]aw”). This strikes us as especially true here, given that it was the voters of Washington them

selves, rather than their elected representatives, who
enacted I–872. Of course, it is possible that voters will misinterpret the candidates’ party-preference de signations as reflecting endorsement by the parties. But these cases involve a facial challenge, and we cannot strike down I–872 on its face based on the mere possibility of voter confusion. See

Yazoo

, 226 U. S.

, at 219 (“[T]his court must deal with the case in hand and not with imaginary ones”); Pullman Co.

v. Knott , 235 U. S. 23, 26 (1914) (A statute “is not to be upset upon hypothetical and unreal possibilities, if it would be good upon the facts as they are”). Because re

spondents brought their suit as a facial challenge, we have no evidentiary record against which to assess their asser

tions that voters will be confused. See Timmons

, 520
U. S.

, at 375–376 (S TEVENS , J., dissenting) (rejecting judgments based on “imaginative theoretical sources of voter confusion” and “entirely hypothetical” outcomes). Indeed, because I–872 has never been implemented, we do
not even have ballots indicati ng how party preference will be displayed. It stands to reason that whether voters will be confused by the party-preference designations will depend in significant part on the form of the ballot. The13 Cite as: 552 U. S. ____ (2008)

Opinion of the Court

Court of Appeals assumed that the ballot would not place
abbreviations like “ ‘D ’ ” and “ ‘R,’ ” or “ ‘Dem.’ ” and “ ‘Rep. ’” after the names of candidates, but would instead “clearly state that a particular candidate ‘prefers’ a particular party.” 460 F. 3d, at 1121, n. 20. It thought that even
such a clear statement did too little to eliminate the risk of
voter confusion. But we see no reason to stop there. As long as we are speculating about the form of the ballot—and we can do no more than speculate in this facial challenge—we must, in fairness to the voters of the State of Washington who enacted I–872 and in deference to the executive and judi

cial officials who are charged with implementing it, ask
whether the ballot could concei vably be printed in such a way as to eliminate the possibility of widespread voter confusion and with it the perceived threat to the First
Amendment. See Ayotte , 546 U. S., at 329 (noting that courts should not nullify more of a state law than neces

sary so as to avoid frustrating the intent of the people and their duly elected representatives); Ward v. Rock Against
Racism , 491 U. S. 781, 795–796 (1989) (“ ‘[I]n evaluating a facial challenge to a state law, a federal court must . . . consider any limiting construction that a state court or enforcement agency has proffered.’ ” (quoting Hoffman

Estates v. Flipside, Hoffman Estates, Inc. , 455 U. S. 489, 494, n. 5 (1982))).
It is not difficult to conceive of such a ballot. For exam

ple, petitioners propose that the actual I–872 ballot could include prominent disclaimers explaining that party pref

erence reflects only the self-designation of the candidate and not an official endorsement by the party. They also suggest that the ballots might note preference in the form of a candidate statement that emphasizes the candidate’s personal determination rather than the party’s acceptance of the candidate, such as “my party preference is the Re

publican Party.” Additionally, the State could decide to14 WASHINGTON STATE GRANGE v. WASHINGTON STATE
REPUBLICAN PARTY
Opinion of the Court

educate the public about the new primary ballots through advertising or explanatory materials mailed to voters along with their ballots. 8 We are satisfied that there are a variety of ways in which the State could implement I–872 that would eliminate any real threat of voter confusion. And without the specter of wi despread voter confusion, respondents’ arguments about forced association 9 and compelled speech 10 fall flat. Our conclusion that these implementations of I–872
would be consistent with the First Amendment is fatal to respondents’ facial challenge. See Schall v. Martin , 467

——————

8 Washington counties have broad au thority to conduct elections en

tirely by mail ballot rather than at in-person polling places. See Wash. Rev. Code §29A.48.010. As a result, over 90% of Washington voters now vote by mail. See Tr. of Oral Arg. 11.

9 Respondents rely on Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc. , 515 U. S. 557 (1995) (holding that a State may not require a parade to include a group if the parade’s organizer disagrees with the group’s message), and Boy Scouts of

America v. Dale , 530 U. S. 640 (2000) (holding that the Boy Scouts’ freedom of expressive association wa s violated by a state law requiring the organization to admit a homosexu al scoutmaster). In those cases,
actual association threatened to distor t the groups’ intended messages.
We are aware of no case in which the mere impression of association was held to place a severe burden on a group’s First Amendment rights, but we need not decide that question here.

10 Relying on Pacific Gas & Elec. Co. v. Public Util. Comm’n of Cal.

, 475 U. S. 1 (1986) (holding that a state agency may not require a utility company to include a third-party newsletter in its billing envelope), respondents argue that the threat of voter confusion will force them to speak to clarify their positions. Because I–872 does not actually force the parties to speak, however, Pacific Gas & Elec. is inapposite. I–872 does not require the parties to repr oduce another’s speech against their will; nor does it co-opt the parties’ own conduits for speech. Rather, it simply provides a place on the ballot for candidates to designate their party preferences. Facilitation of speech to which a political party may choose to respond does not amount to forcing the political party to speak. Cf. Rumsfeld v. Forum for Academic and Institutional Rights,

Inc

., 547 U. S. 47, 64–65 (2006).15 Cite as: 552 U. S. ____ (2008)

Opinion of the Court

U. S. 253, 264 (1984) (a facial challenge fails where “at least some” constitutional applications exist). Each of their arguments rests on factual assumptions about voter confusion, and each fails for the same reason: In the ab

sence of evidence, we cannot assume that Washington’s
voters will be misled. See Jones

, 530 U. S.

, at 600 (S TEVENS , J., dissenting) (“[A]n empirically debatable assumption . . . is too thin a reed to support a credible First Amendment distinction” between permissible and impermissible burdens on association). That factual determination must await an as-applied challenge. On its face, I–872 does not impose any severe burden on respon

dents’ associational rights.

B
Because we have concluded that I–872 does not severely burden respondents, the State need not assert a compel

ling interest. See Clingman , 544 U. S., at 593 (“When a state electoral provision places no heavy burden on asso

ciational rights, ‘a State’s important regulatory interests will usually be enough to justify reasonable, nondiscrimi

natory restrictions’ ” (quoting Timmons

, 520 U. S.

, at 358)). The State’s asserted interest in providing voters
with relevant information about the candidates on the ballot is easily sufficient to sustain I–872. See Anderson

, 460 U. S.

, at 796 (“There can be no question about the legitimacy of the State’s interest in fostering informed and educated expressions of the popular will in a general election”). 11

——————

11 Respondent Libertarian Party of Washington argues that I–872 is unconstitutional because of its implic ations for ballot access, trademark protection of party names, and campai gn finance. We do not consider the ballot access and trademark arguments as they were not addressed below and are not encompassed by the question on which we granted certiorari: “Does Washington’s primar y election system . . . violate the associational rights of political pa rties because candidates are permit

ted to identify their political party preference on the ballot?” Pet. for16 WASHINGTON STATE GRANGE v. WASHINGTON STATE
REPUBLICAN PARTY
Opinion of the Court

III
Respondents ask this Court to invalidate a popularly enacted election process that has never been carried out. Immediately after implementing regulations were en

acted, respondents obtained a permanent injunction against the enforcement of I–872. The First Amendment does not require this extraordinary and precipitous nullifi

cation of the will of the people. Because I–872 does not on its face provide for the nomination of candidates or compel political parties to associate with or endorse candidates, and because there is no basis in this facial challenge for presuming that candidates’ pa rty-preference designations will confuse voters, I–872 does not on its face severely burden respondents’ associational rights. We accordingly hold that I–872 is facially constitutional. The judgment of the Court of Appeals is reversed.
It is so ordered.

—————— cert. in No. 06–730, p. i. The campaign finance issue also was not
addressed below and is more suitable for consideration on remand._________________

_________________ 1 Cite as: 552 U. S. ____ (2008)

R OBERTS

, C. J., concurring



## SUPREME COURT OF THE UNITED STATES

Nos. 06–713 and 06–730

WASHINGTON STATE GRANGE, PETITIONER

06–713 v.

WASHINGTON STATE REPUBLICAN PARTY, ET AL

.

WASHINGTON, ET AL ., PETITIONERS

06–730 v.

WASHINGTON STATE REPUBLICAN PARTY, ET AL

.

ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT

[March 18, 2008]

C HIEF J USTICE R OBERTS , with whom J USTICE A LITO joins, concurring.

I share J USTICE S CALIA ’s concern that permitting a candidate to identify his political party preference on an official election ballot—regardless of whether the candi

date is endorsed by the party or is even a member—may effectively force parties to a ccept candidates they do not want, amounting to forced association in violation of the
First Amendment. I do think, however, that whether voters perceive the candidate and the party to be associated is relevant to the constitutional inquiry. Our other forced-association cases
indicate as much. In Boy Scouts of America v. Dale , 530
U. S. 640, 653 (2000), we said that Dale’s presence in the Boy Scouts would “force the organization to send a mes

sage . . . [to] the world” that the Scouts approved of homo

sexuality. In other words, accepting Dale would lead
outsiders to believe the Scouts endorsed homosexual conduct. Largely for that reason, we held that the First2 WASHINGTON STATE GRANGE v. WASHINGTON STATE
REPUBLICAN PARTY

R OBERTS

, C. J., concurring

Amendment entitled the Scouts to exclude Dale. Id ., at
659. Similarly, in Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc. , 515 U. S. 557 (1995), we allowed the organizers of Boston’s St. Patrick’s Day Parade to exclude a pro-gay ri ghts float because the float’s presence in the parade might create the impression that the organizers agreed with the float-sponsors’ message.
See id. , at 575–577. Voter perceptions matter, 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. See Rumsfeld v. Forum for Aca

demic and Institutional Rights, Inc. , 547 U. S. 47, 65 (2006) (rejecting law schools’ First Amendment objection to military recruiters on campus because no reasonable person would believe the “law schools agree[d] with any speech by recruiters”). After all, individuals frequently claim to favor this or that political party; these prefer

ences, without more, do not create an unconstitutional
forced association. What makes these cases different, as J USTICE S CALIA explains, is the place where the candidates express their party preferences: on the ballot. See post , at 4 (dissenting opinion) (noting “the special role that a state-printed ballot plays in elections”). And what makes the ballot “special” is precisely the effect it has on voter impressions.
See Cook v. Gralike , 531 U. S. 510, 532 (2001) (Rehnquist,
C. J., concurring in judgment) (“[T]he ballot . . . is the last thing the voter sees before he makes his choice”); Ander

son v. Martin , 375 U. S. 399, 402 (1964) (“[D]irecting the citizen’s attention to the single consideration of race . . . may decisively influence the citizen to cast his ballot along racial lines”). But because respondents brought this challenge before the State of Washington had printed ballots for use under the new primary regime, we have no idea what those3 Cite as: 552 U. S. ____ (2008)

R OBERTS

, C. J., concurring

ballots will look like. Petitioners themselves emphasize that the content of the ballots in the pertinent respect is yet to be determined. See Reply Brief for Washington State Grange 2–4, 7–13. If the ballot is designed in such a manner that no rea

sonable voter would believe that the candidates listed
there are nominees or members of, or otherwise associated with, the parties the candidates claimed to “prefer,” the I–872 primary system would likely pass constitutional muster. I cannot say on the present record that it would be impossible for the State to design such a ballot. Assum

ing the ballot is so designed, voters would not regard the listed candidates as “party” candidates, any more than someone saying “I like Campbell’s soup” would be under

stood to be associated with Campbell’s. Voters would understand that the candidate does not speak on the party’s behalf or with the party’s approval. On the other hand, if the ballot merely lists the candidates’ preferred parties next to the candidates’ names, or otherwise fails clearly to convey that the parties and the candidates are not necessarily associated, the I–872 system would not survive a First Amendment challenge.

J USTICE S CALIA complains that “[i]t is hard to know how to respond” to such mistaken views, post , at 6 (dissenting opinion), but he soldiers on nonetheless. He would hold that a party is burdened by a candidate’s statement of preference even if no reasonable voter believes from the ballot that the party and the candidate are associated. I take his point to be that a particular candidate’s “en

dorsement” of a party might al ter the party’s message, and this violates the party’s freedom of association. See post

, at 7 (dissenting opinion). But there is no general right to stop an individual from saying, “I prefer this party,” even if the party would rather he not. Normally, the party protects its message in such a case through responsive speech of its own. What makes4 WASHINGTON STATE GRANGE v. WASHINGTON STATE
REPUBLICAN PARTY

R OBERTS

, C. J., concurring

this case different of course is that the State controls the content of the ballot, which we have never considered a public forum. See Timmons v. Twin Cities Area New Party , 520 U. S. 351, 363 (1997) (ballots are not “forums for political expression”). Neither the candidate nor the party dictates the message conveyed by the ballot. In such a case, it is important to know what the ballot actually says—both about the candidate and about the party’s association with the candidate. It is possible that no reasonable voter in Washington State will regard the listed candidates as members of, or otherwise associated with, the political parties the candidates claim to prefer. Nothing in my analysis requires the parties to produce studies regarding voter perceptions on this score, but I would wait to see what the ballot says before deciding
whether it is unconstitutional. Still, I agree with J USTICE S CALIA that the history of the challenged law suggests the State is not particularly interested in devising ballots that meet these constitu

tional requirements. See post , at 7–8 (dissenting opinion). But this record simply does not allow us to say with cer

tainty that the election system created by I–872 is uncon

stitutional. Accordingly, I agree with the Court that respondents’ present challenge to the law must fail, and I join the Court’s opinion._________________

_________________ 1 Cite as: 552 U. S. ____ (2008)

S CALIA

, J., dissenting



## SUPREME COURT OF THE UNITED STATES

Nos. 06–713 and 06–730

WASHINGTON STATE GRANGE, PETITIONER

06–713 v.

WASHINGTON STATE REPUBLICAN PARTY, ET AL

.

WASHINGTON, ET AL ., PETITIONERS

06–730 v.

WASHINGTON STATE REPUBLICAN PARTY, ET AL

.

ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT

[March 18, 2008]

J USTICE S CALIA

, with whom J USTICE K ENNEDY joins, dissenting.
The electorate’s perception of a political party’s beliefs is colored by its perception of those who support the party; and a party’s defining act is the selection of a candidate and advocacy of that candidate’s election by conferringupon him the party’s endorsement. When the stateprinted ballot for the general election causes a party to be associated with candidates who may not fully (if at all) represent its views, it undermines both these vital aspects of political association. The views of the self-identified party supporter color percept ion of the party’s message, and that self-identification on the ballot, with no space for party repudiation or party iden tification of its own candi

date, impairs the party’s advocacy of its standard bearer. Because Washington has not demonstrated that this severe burden upon parties’ a ssociational rights is nar

rowly tailored to serve a compelling interest—indeed, because it seems to me Washington’s only plausible inter

-2 WASHINGTON STATE GRANGE v. WASHINGTON STATE
REPUBLICAN PARTY

S CALIA

, J., dissenting

est is precisely to reduce the effectiveness of political parties—I would find the law unconstitutional.

I
I begin with the principles on which the Court and I agree. States may not use election regulations to undercut political parties’ freedoms of speech or association. See

U. S. Term Limits, Inc. v. Thornton , 514 U. S. 779, 833– 834 (1995). Thus, when a State regulates political parties as a part of its election process, we consider “the ‘character and magnitude’ ” of the burden imposed on the party’s associational rights and “the extent to which the State’s concerns make the burden necessary.” Timmons v. Twin Cities Area New Party, 520 U. S. 351, 358 (1997). Regula

tions imposing severe burdens must be narrowly tailored to advance a compelling state interest . Ibid. Among the First Amendment rights that political par

ties possess is the right to associate with the persons whom they choose and to refrain from associating with persons whom they reject. Democratic Party of United
States v. Wisconsin ex rel. La Follette , 450 U. S. 107, 122 (1981). Also included is the freedom to choose and pro

mote the “ ‘standard bearer who best represents the party’s ideologies and preferences.’ ” Eu v. San Francisco County Democratic Central Comm., 489 U. S. 214, 224 (1989). When an expressive organization is compelled to associ

ate with a person whose views the group does not accept, the organization’s message is undermined; the organiza

tion is understood to embrace, or at the very least tolerate, the views of the persons linked with them. We therefore held, for example, that a State severely burdened the right of expressive association when it required the Boy Scouts to accept an openly gay scoutmaster. The scoutmaster’s presence “would, at the very least, force the organization to send a message, both to the youth members and the3 Cite as: 552 U. S. ____ (2008)

S CALIA

, J., dissenting

world, that the Boy Scouts a ccepts homosexual conduct as a legitimate form of behavior.” Boy Scouts of America v. Dale , 530 U. S. 640, 653 (2000). A political party’s expressive mission is not simply, or even primarily, to persuade voters of the party’s views. Parties seek principally to promote the election of candi

dates who will implement those views. See, e.g. , Tashjian

v. Republican Party of Conn., 479 U. S. 208, 216 (1986);
Storer v. Brown , 415 U. S. 724, 745 (1974); M. Hershey &

P. Beck, Party Politics in America 13 (10th ed. 2003). That is achieved in large part by marking candidates with the party’s seal of approval. Parties devote substantial resources to making their names trusted symbols of cer

tain approaches to governance. See, e.g. , App. 239 (Decla

ration of Democratic Committee Chair Paul J. Berendt); J. Aldrich, Why Parties? 48–49 (1995). They then encourage voters to cast their votes for the candidates that carry the party name. Parties’ efforts to support candidates by marking them with the party trademark, so to speak, have been successful enough to make the party name, in the words of one commentator, “the most important resource that the party possesses.” Cain, Party Autonomy and Two-Party Electoral Competition, 149 U. Pa. L. Rev. 793, 804 (2001). And all evidence suggests party labels are indeed a central consideration for most voters. See, e.g. , id. , at 804, n. 34; Rahn, The Role of Partisan Stereotypes in Information Processing About Political Candidates, 37 Am. J. Pol. Sci. 472 (1993); Klein & Baum, Ballot Informa

tion and Voting Decisions in Judicial Elections, 54 Pol. Research Q. 709 (2001).

II
A
The State of Washington need not like, and need not favor, political parties. It is entirely free to decline run

ning primaries for the selection of party nominees and to4 WASHINGTON STATE GRANGE v. WASHINGTON STATE
REPUBLICAN PARTY

S CALIA

, J., dissenting

hold nonpartisan general elections in which party labels have no place on the ballot. See California Democratic Party v. Jones , 530 U. S. 567, 585–586 (2000). Parties
would then be left to their own devices in both selecting and publicizing their candidates. But Washington has done more than merely declin e to make its electoral ma

chinery available for party bu ilding. Recognizing that parties draw support for their candidates by giving them the party imprimatur, Washington seeks to reduce the effectiveness of that endorsement by allowing any candi

date to use the ballot for drawing upon the goodwill that a party has developed, while preventing the party from using the ballot to reject the claimed association or to identify the genuine candidate of its choice. This does not merely place the ballot off limits for party building; it makes the ballot an instrument by which party building is impeded, permitting unrebutted associations that the party itself does not approve. These cases cannot be decided without taking account of the special role that a state- printed ballot plays in elec

tions. The ballot comes into play “at the most crucial stage in the electoral process— the instant before the vote
is cast.” Anderson v. Martin , 375 U. S. 399, 402 (1964). It is the only document that all voters are guaranteed to see, and it is “the last thing the voter sees before he makes his choice,” Cook v. Gralike, 531 U. S. 510, 532 (2001) (Rehnquist, C. J., concurring in judgment). Thus, we have held that a State cannot elevate a particular issue to prominence by making it the only issue for which the ballot sets forth the candidates’ positions. Id., at 525–526 (opinion of the Court). And we held unconstitutional California’s election system, which listed as the party’s candidate on the general election ballot the candidate selected in a state-run “blanket primary” in which all
citizens could determine who would be the party’s nomi

nee. Jones, 530 U. S., at 586. It was not enough to sus

-5 Cite as: 552 U. S. ____ (2008)

S CALIA

, J., dissenting

tain the law that the party remained free to select its preferred candidate through another process, and could denounce or campaign against the candidate carrying the party’s name on the general election ballot. Forced asso

ciation with the party on the general election ballot was
fatal. Id., at 575–577. The Court makes much of the fact that the party names shown on the Washington ballot may be billed as mere statements of candidate “preference.” See ante, at 11–14. To be sure, the party is not itself forced to display favor for someone it does not wish to associate with, as the Boy Scouts were arguably forced to do by employing the homo

sexual scoutmaster in Dale , and as the political parties were arguably forced to do by lending their ballotendorsement as party nominee in Jones. But thrusting an unwelcome, self-proclaimed association upon the party on
the election ballot itself is am ply destructive of the party’s associational rights. An individual’s endorsement of a party shapes the voter’s view of what the party stands for, no less than the party’s endorsement of an individual shapes the voter’s view of what the individual stands for. That is why party nominees are often asked (and regularly agree) to repudiate the support of persons regarded as racial extremists. On Washington’s ballot, such repudia

tion is impossible. And because the ballot is the only document voters are guaranteed to see, and the last thing they see before casting thei r vote, there is “no means of replying” that “would be equally effective with the
voter.” Cook, supra, at 532 (Rehnquist, C. J., concurring in judgment). Not only is the party’s message distorted, but its good

will is hijacked. There can be no dispute that candidate acquisition of party labels on Washington’s ballot—even if billed as self-identification—is a means of garnering the support of those who trust and agree with the party. The “I prefer the D’s” and “I prefer the R’s” will not be on the6 WASHINGTON STATE GRANGE v. WASHINGTON STATE
REPUBLICAN PARTY

S CALIA

, J., dissenting

ballot for esthetic reasons; th ey are designed to link can

didates to unwilling parties (or at least parties who are unable to express their revulsion) and to encourage voters to cast their ballots based in part on the trust they place in the party’s name and the party’s philosophy. These harms will be present no matter how Washington’s law is imple

mented. There is therefore “no set of circumstances” under which Washington’s law would not severely burden political parties, see United States v. Salerno , 481 U. S. 739, 745 (1987), and no good reason to wait until Wash

ington has undermined its political parties to declare that
it is forbidden to do so.

B

T HE C HIEF J USTICE would wait to see if the law is im

plemented in a manner that no more harms political parties than allowing a person to state that he “ ‘like[s] Campbell’s soup’ ” would harm the Campbell Soup Com

pany. See ante , at 3 (concurring opinion). It is hard to know how to respond. First and most fundamentally, there is simply no comparison between statements of “preference” for an expressive association and statements of “preference” for soup. The robust First Amendment freedom to associate belongs on ly to groups “engage[d] in ‘expressive association,’ ” Dale , 530 U. S., at 648. The Campbell Soup Company does not exist to promote a message, and “there is only minimal constitutional protection of the freedom of commercial association,”
Roberts v. United States Jaycees , 468 U. S. 609, 634 (1984) (O’Connor, J., concurring in part and concurring in judgment). Second, I assuredly do not share T HE C HIEF J USTICE ’s view that the First Amendment will be satisfied so long as the ballot “is designed in such a manner that no reason

able voter would believe that the candidates listed there are nominees or members of, or otherwise associated with,7 Cite as: 552 U. S. ____ (2008)

S CALIA

, J., dissenting

the parties the candidates claimed to ‘prefer.’ ” Ante , at 3. To begin with, it seems to me quite impossible for the ballot to satisfy a reasonable voter that the candidate is not “associated with” the party for which he has expressed a preference. He has associated himself with the party by his very expression of a prefer ence—and that indeed is the whole purpose of allowing the preference to be expressed.
If all T HE C HIEF J USTICE means by “associated with” is that the candidate “does not speak on the party’s behalf or with the party’s approval,” ibid. , none of my analysis in this opinion relies upon that misperception, nor upon the misperception that the cand idate is a member or the nominee of the party. Avoiding those misperceptions is far from enough. Is it enough to say on the ballot that a notorious and despised racist who says that the party is his choice does not speak with the party’s approval? Surely not. His unrebutted a ssociation of that party with his views distorts the image of the party nonetheless. And the fact that the candidate who expresses a “preference” for one or another party is shown not to be the nominee of that party does not deprive him of the boost from the party’s reputation which the party wishes to confer only
on its nominee. T HE C HIEF J USTICE claims that “the content of the ballots in the pe rtinent respect is yet to be determined,” ibid. I disagree. We know all we need to know about the form of ballot. When pressed, Washing

ton’s Attorney General assured us at oral argument that
the ballot will not say whether the party for whom the candidate expresses a preference claims or disavows him. (Of course it will not, for that would enable the party expression that it is the very object of this legislation to impair.) And finally, while T HE C HIEF J USTICE earlier expresses his awareness that the special character of the ballot is what makes these cases different, ante , at 2, his Camp

bell’s Soup example seems to forget that. If we must8 WASHINGTON STATE GRANGE v. WASHINGTON STATE
REPUBLICAN PARTY

S CALIA

, J., dissenting

speak in terms of soup, Washington’s law is like a law thatencourages Oscar the Grouch (Sesame Street’s famed badtaste resident of a garbage can) to state a “preference” for Campbell’s at every point of sale, while barring the soup company from disavowing his endorsement, or indeed using its name at all, in those same crucial locations. Reserving the most critical communications forum for statements of “preference” by a potentially distasteful speaker alters public perceptions of the entity that is “preferred”; and when this privileged connection under

mines not a company’s ability to identify and promote soup but an expressive association’s ability to identify and promote its message and its standard bearer, the State treads on the constitutionally protected freedom of
association. The majority opinion and T HE C HIEF J USTICE ’s concur

rence also endorse a wait-and-see approach on the grounds that it is not yet evident how the law will affect voter perception of the political parties. But contrary to the Court’s suggestion, it is not incumbent on the political parties to adduce “evidence,” ante , at 15, that forced asso

ciation affects their ability to advocate for their candidates and their causes. We have never put expressive groups to this perhaps-impossible task. Rather, we accept their own assessments of the matter. The very cases on which T HE C HIEF J USTICE relies for a wait-and-see approach, ante , at 1–2, establish as much. In Dale , for example, we did not require the Boy Scouts to prove that forced acceptance of the openly homosexual scoutmaster would distort their message. See 530 U. S., at 653 (citing La Follette , 450
U. S., at 123–124). Nor in Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc. , 515 U. S. 557 (1995), did we require the organizers of the St. Patrick’s Day Parade to demonstrate that including a gay contin

gent in the parade would distort their message. See id., at
577. Nor in Jones, 530 U. S. 567, did we require the politi

-9 Cite as: 552 U. S. ____ (2008)

S CALIA

, J., dissenting

cal parties to demonstrate eith er that voters would incor

rectly perceive the “nominee” labels on the ballot to be the products of party elections or that the labels would change voter perceptions of the party. It does not take a study to establish that when statements of party connection are
the sole information listed next to candidate names on the ballot, those statements will affect voters’ perceptions of what the candidate stands for, what the party stands for, and whom they should elect.

III
Since I conclude that Washington’s law imposes a severe burden on political parties’ associational rights, I would uphold the law only if it we re “narrowly tailored” to ad

vance “a compelling state interest.” Timmons , 520 U. S., at 358. Neither the Court’s opinion nor the State’s sub

mission claims that Washington’s law passes such scru

tiny. The State argues only that it “has a rational basis” for “providing voters with a modicum of relevant informa

tion about the candidates,” Brief for Petitioners in No. 06– 730, pp. 48–49. This is the only interest the Court’s opin

ion identifies as well. Ante, at 15.
But “rational basis” is the least demanding of our tests;
it is the same test that allo ws individuals to be taxed at different rates because they are in different businesses.
See Allied Stores of Ohio, Inc. v. Bowers , 358 U. S. 522, 526–527 (1959). It falls far, far short of establishing the compelling state interest that the First Amendment re

quires. And to tell the truth, here even the existence of a rational basis is questionable. Allowing candidates to identify themselves with particular parties on the ballot displays the State’s view that adherence to party philoso

phy is “an important—perhaps paramount—consideration
in the citizen’s choice.” Anderson, 375 U. S., at 402. If that is so, however, it seems to me irrational not to allow the party to disclaim that self-association, or to identify its10 WASHINGTON STATE GRANGE v. WASHINGTON STATE
REPUBLICAN PARTY

S CALIA

, J., dissenting

own endorsed candidate. It is no mystery what is going on here. There is no state interest behind this law except the Washington Legisla

ture’s dislike for bright-colors partisanship, and its desire to blunt the ability of politic al parties with noncentrist
views to endorse and advocate their own candidates. That was the purpose of the Washington system that this en

actment was adopted to replace—a system indistinguish

able from the one we invalidated in Jones , which required parties to allow nonmembers to join in the selection of the
candidates shown as their nominees on the election ballot. (The system was held unconstitutional in Democratic Party of Washington State v. Reed , 343 F. 3d 1198 (CA9 2003).) And it is the obvious purpose of Washington legis

lation enacted after this law, which requires political parties to repeat a candidate’s self-declared party “prefer

ence” in electioneering communications concerning the candidate—even if the purpose of the communication is to criticize the candidate and to disavow any con

nection between him and the party. Wash. Rev. Code §42.17.510(1) (2006); see also Wash. Admin. Code §390– 18–020 (2007). Even if I were to assume, however, that Washington has a legitimate interest in tellin g voters on the ballot (above all other things) that a candidate says he favors a particu

lar political party; and even if I were further to assume (per impossibile) that that interest was a compelling one; Washington would still have to “narrowly tailor” its law to protect that interest with minimal intrusion upon the parties’ associational rights. There has been no attempt to do that here. Washington could, for example, have per

mitted parties to disclaim on the general-election ballot the asserted association or to designate on the ballot their
true nominees. The course the State has chosen makes sense only as an effort to use its monopoly power over the ballot to undermine the expressive activities of the politi

-11 Cite as: 552 U. S. ____ (2008)

S CALIA

, J., dissenting

cal parties.

* * *
The right to associate for the election of candidates is fundamental to the operation of our political system, and state action impairing that association bears a heavy burden of justification. Washington’s electoral system permits individuals to appropriate the parties’ trade

marks, so to speak, at the most crucial stage of election, thereby distorting the parties’ messages and impairing
their endorsement of candidates . The State’s justification for this (to convey a “modicum of relevant information”) is not only weak but undeserving of credence. We have here a system which, like the one it replaced, does not merely refuse to assist, but positively impairs, the legitimate role of political parties. I dissent from the Court’s conclusion that the Constitution permits this sabotage.