FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ALASKA INDEPENDENCE PARTY; 

LINDA WINKELMAN; ALASKA

LIBERTARIAN PARTY, INC.; SCOTT

KOHLHAAS, No. 07-35186

Plaintiffs-Appellants, D.C. No.  v. CV-06-00040-TMB

STATE OF ALASKA, Division of OPINION

Elections; LOREN LEMAN

Lieutenant Governor,

Defendants-Appellees. 

Appeal from the United States District Court

for the District of Alaska

Timothy M. Burgess, District Judge, Presiding

Argued and Submitted

August 7, 2008—Anchorage, Alaska

Filed October 6, 2008

Before: Dorothy W. Nelson, A. Wallace Tashima and

Raymond C. Fisher, Circuit Judges.

Opinion by Judge Fisher

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COUNSEL

Kenneth P. Jacobus, Anchorage, Alaska, for the plaintiffsappellants. 

Michael A. Barnhill (argued), Senior Assistant Attorney General, and Talis J. Colberg, Attorney General, Juneau, Alaska,

for the defendants-appellees. 

OPINION

FISHER, Circuit Judge: 

Alaska requires political parties to nominate candidates for

the state’s general election ballot in a state-run primary, in

which any registered member of a political party may seek the

party’s nomination. Nominees are then chosen by the vote of

party-affiliated voters and any other voters whom the parties

choose to let participate. The Alaska Independence Party

(“AIP”) and the Alaska Libertarian Party (“ALP”) contend

that these laws burden their associational rights in violation of

the First Amendment because they force them to associate

with candidates who, they claim, are not members of their

party or are not ideologically compatible with the party. We

hold that Alaska’s primary system is justified by compelling

state interests and is therefore facially constitutional. 

I. Factual and Procedural Background

Alaska has a mandatory direct primary system, in which all

candidates for elective state and national office who appear on

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the state’s general election ballot are “nominated in a primary

election by direct vote of the people.” Alaska Stat.

§ 15.25.010. Alaska allows each political party to choose who

among the electorate may vote in its primary. Under Alaska’s

default rule, a party’s nominee is selected by voters affiliated

with that political party, as well as voters who are not affiliated with any party. Id. Such a primary is conventionally

referred to as a “limited open primary” or “partially closed

primary.” See State v. Green Party of Alaska, 118 P.3d 1054,

1057-58 (Alaska 2005). A party may opt out of these default

provisions, however, by restricting its ballot to affiliated voters only, thereby holding a “closed primary,” or expanding its

ballot to even those voters who are registered with other political parties, an “open primary.” See Alaska Stat.

§§ 15.25.010, 15.25.014(a); see also Green Party, 118 P.3d at

1057-58 (explaining the operation of Alaska’s mandatory

direct primary system). Parties that have opted to hold an

open primary may choose to combine their candidates on a

single ballot. See Green Party, 118 P.3d at 1070. In recent

elections, both the AIP and ALP elected to hold open primaries and have their candidates appear on a combined ballot,

which listed AIP and ALP candidates together with candidates from the Democratic and Green parties. 

Given the considerable freedom that Alaska law provides

to political parties to determine who may vote to select their

nominee, the AIP and ALP unsurprisingly do not argue here

that the Alaska primary forces them to associate with any

unaffiliated or undesired voters. Rather, they argue that Alaska’s laws run afoul of the First Amendment because they

force parties to associate with undesired candidates who

appear on the primary ballot and seek their parties’ nominations. Alaska allows “[a] member of a political party who

seeks to become a candidate of the party in the primary election” to appear on the party’s primary ballot, provided the

candidate swears a declaration of candidacy with the state and

meets the state’s qualifications for office. Alaska Stat.

§ 15.25.030(a). As is relevant here, one of those qualifications

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is that the candidate must be “registered to vote as a member

of the political party whose nomination is being sought.” Id.

§ 15.25.030(a)(16). Such party affiliation occurs when a candidate registers as a voter with Alaska’s voter registration

agency, id. § 15.07.050, but the parties themselves do not

exercise control over who may affiliate with the party in this

way. If the state receives a complaint concerning any candidate’s eligibility for a particular office, the state director of

elections must verify and make a determination of the candidate’s eligibility within 30 days. Id. § 15.25.042. 

Both the AIP and ALP are governed by party constitutions

and internal bylaws that define party membership, specify

criteria for a party candidate’s eligibility for public office and

define various means by which the parties endorse or nominate party candidates, some of which they suggest significantly conflict with state law. AIP bylaws state that party

membership is “limited to all residents of Alaska who have

registered to vote with the State Department of Elections and

selected the Alaskan Independence Party as their political

affiliation of preference.” AIP bylaws also state that those

who file for public office as a candidate of the AIP “shall be

registered members of the [AIP] at the time of filing.” ALP

bylaws do not appear to define party membership, but they do

state that “[a]ll candidates for nomination, election or

endorsement . . . shall be ALP members.” Both the AIP and

ALP have provisions in their bylaws that allow them to

endorse candidates for office at their conventions and decline

to endorse candidates with whom they do not agree. Both AIP

and ALP bylaws acknowledge that the state has imposed a

mandatory primary as the means for selecting nominees,

although both parties’ bylaws also provide, in the alternative,

for nominations by convention to the extent permitted by state

law.1

1AIP bylaws provide for nomination by convention “[i]n any election

for public office where the Alaska Independence Party is authorized by

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The AIP and ALP (“Appellants”) brought this suit under 42

U.S.C. § 1983, alleging that Alaska’s primary system violates

their right to free speech and association and seeking declaratory and injunctive relief under the First Amendment and the

Alaska Constitution.2 Appellants requested a declaratory judgment “that political parties themselves, and not the State of

Alaska, have the right to determine how their candidates to

appear on Alaska election ballots are to be selected, and that

the State of Alaska must allow a political party to select its

candidates for the general election ballot in a manner acceptable to the political party,” and sought a permanent injunction

against Alaska’s election laws. Alaska moved to dismiss and

Appellants cross-moved for summary judgment. The district

court construed the state’s motion to dismiss as a motion for

summary judgment, which, after adducing evidence and

obtaining further briefing, it granted for the state. We review

the district court’s decision on cross-motions for summary

judgment de novo. Pocatello Educ. Ass’n v. Heideman, 504

F.3d 1053, 1056 (9th Cir. 2007), cert. granted sub nom.,

Ysursa v. Pocatello Educ. Ass’n, 128 S. Ct. 1762 (Mar. 31,

2008) (No. 07-869). We have jurisdiction under 28 U.S.C.

§ 1291, and we affirm. 

II. Analysis

[1] “A political party has a First Amendment right to limit

its membership as it wishes, and to choose a candidateselection process that will in its view produce the nominee

law to nominate a candidate.” ALP bylaws more colorfully denounce the

state-run primaries as “a waste of taxpayers’ money, [that] serve only as

free advertising for candidates,” but state that “until that happy day when

government-sponsored primaries are abolished, and we may nominate all

our candidates at our own convention, we recognize the hard realities and

expediencies of politics, and consent to have Libertarian candidates for

elective public office appear on a primary ballot. . . .” 

2Appellants do not argue on appeal that the state-run primary violates

the Alaska Constitution. 

ALASKA INDEPENDENCE PARTY v. ALASKA 14183
who best represents its political platform.” N.Y. Bd. of Elections v. Lopez Torres, 128 S. Ct. 791, 797 (2008). As the

Supreme Court has noted, however, “[t]hese rights are circumscribed . . . when the State gives the party a role in the

election process,” such as “by giving certain parties the right

to have their candidates appear with party endorsement on the

general-election ballot.” Id. at 797-98. Where, as here, the

state assumes this role, “then also the State acquires a legitimate governmental interest in assuring the fairness of the

party’s nominating process, enabling it to prescribe what that

process must be.” Id. at 798. The validity of such an election

law “depends on the severity of the burden it imposes on the

exercise of constitutional rights and the strength of the state

interests it serves.” Nader v. Brewer, 531 F.3d 1028, 1034

(9th Cir. 2008). The question before us is whether Alaska has

a sufficiently compelling interest in its state-run mandatory

primary justifying the burden on Appellants’ associational

rights. We hold that it does. 

“[I]n considering a constitutional challenge to an election

law, a court must weigh ‘the character and magnitude of the

asserted injury to the rights protected by the First and Fourteenth Amendments’ against ‘the precise interests put forward

by the State as justifications for the burden imposed by its

rule.’ ” Id. (quoting Anderson v. Celebrezze, 460 U.S. 780,

789 (1983)). The Supreme Court has held that “the severity

of the burden the election law imposes on the plaintiff’s rights

dictates the level of scrutiny applied by the court.” Id. Specifically, “an election regulation that imposes a severe burden is

subject to strict scrutiny and will be upheld only if it is narrowly tailored to serve a compelling state interest,” whereas

regulations that impose lesser burdens will be upheld as long

as they are justified by “a state’s ‘important regulatory interests.’ ” Id. at 1035 (quoting and citing Burdick v. Takushi, 504

U.S. 428, 434 (1992)); see also Clingman v. Beaver, 544 U.S.

581, 592 (2005) (“[N]ot every electoral law that burdens associational rights is subject to strict scrutiny; . . . [i]nstead, . . .

strict scrutiny is appropriate only if the burden is severe.”).

14184 ALASKA INDEPENDENCE PARTY v. ALASKA
We need not decide in this case which level of scrutiny is

appropriate, however, because we hold that Alaska’s mandatory primary election law withstands even the more rigorous

scrutiny. 

A. Alaska’s Mandatory Direct Partisan Primary

[2] Although Appellants’ argument is a bit muddled, they

first contend that Alaska’s state-run primary violates their

associational rights either by compelling them to nominate

their candidates by primary election instead of convention, or

by failing to allow them to “exclude candidates that do not

support the principles and philosophies of the parties from

their primary elections, and not have these candidates forced

on them by state law.” However framed, Appellants’ argument at its core is an attack on the mandatory direct primary

itself. Like most states, Alaska implemented its direct primary

during the Progressive Era, seeking to remove party nominating decisions from the infamous “smoke-filled rooms” and

place them instead in the hands of a party’s rank-and-file,

thereby destroying “ ‘the corrupt alliance’ between wealthy

special interests and the political machine.” See Lightfoot v.

Eu, 964 F.2d 865, 872 (9th Cir. 1992) (quoting Richard Hofstadter, The Age of Reform 257 (1955)). Alaska agrees that the

purpose of Alaska’s mandatory direct primary is to provide a

neutral mechanism for resolving party nominating decisions

that reduces the role of party leadership and gives ultimate

authority to party voters. This advances the state’s interest in

limiting opportunities for fraud and corruption by preventing

party leadership from controlling nominating decisions, while

promoting democratic decisionmaking. The state’s goals

would clearly be impeded if party leaders could either opt out

of the primary altogether or interfere with the democratic process by exercising veto power over the candidates that might

seek the nomination. 

[3] These benefits of mandatory direct primaries are the

reason why “[n]early every State in the Nation now mandates

ALASKA INDEPENDENCE PARTY v. ALASKA 14185
that political parties select their candidates for national or

statewide office by means of primary elections.” See Clingman, 544 U.S. at 599 (O’Connor, J., concurring). Although

the Supreme Court has never entertained a direct challenge to

a state’s use of a closed mandatory direct primary or an open

primary that is selected by the party itself, it has numerous

times stated that it is “too plain for argument” that “a State

may require parties to use the primary format for selecting

their nominees, in order to assure that intraparty competition

is resolved in a democratic fashion.” Cal. Democratic Party

v. Jones, 530 U.S. 567, 572 (2000) (quoting Am. Party of Tex.

v. White, 415 U.S. 767, 781 (1974); see Lopez Torres, 128

S. Ct. at 798. As the Court has noted, “[a] primary is not hostile to intraparty feuds; rather it is an ideal forum in which to

resolve them.” Eu v. S.F. County Democratic Cent. Comm.,

489 U.S. 214, 227 (1989). We have also agreed that “the

State’s interest in enhancing the democratic character of the

election process overrides whatever interest the Party has in

designing its own rules for nominating candidates,” such as its

desire to nominate through party-run convention. Lightfoot,

964 F.2d at 873; see Tashjian v. Republican Party of Conn.,

479 U.S. 208, 237 (1986) (Scalia, J., dissenting) (noting that

“[a state] may lawfully require that significant elements of the

democratic election process be democratic — whether the

Party wants that or not”). 

Appellants nonetheless argue that even if they may constitutionally be compelled to participate in the primary, Alaska’s

primary impermissibly burdens their associational rights

because Alaska does not allow the party to exclude from the

ballot those candidates the party finds objectionable. For this

argument, Appellants rely on our decision in Washington

State Republican Party v. Washington, 460 F.3d 1108 (9th

Cir. 2006), rev’d by Washington State Grange v. Washington

State Republican Party, 128 S. Ct. 1184 (2008). Appellants,

however, misunderstand the burden on associational rights at

issue in Washington State, which involved a constitutional

challenge to a mandatory blanket primary. See 460 F.3d at

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1113. The Supreme Court has held that blanket primaries, in

which all candidates are combined on a single ballot and may

be voted upon by voters affiliated with any party, violate a

party’s associational right to have its nominee chosen by

members of its own party. See Jones, 530 U.S. at 577 (holding that a blanket primary “forces political parties to associate

with — to have their nominees, and hence their positions,

determined by — those who, at best, have refused to affiliate

with the party, and, at worst, have expressly affiliated with a

rival”). Because blanket primaries violate political parties’

First Amendment rights, they may not constitutionally be

used to “choos[e] a party’s nominee.” Id. at 586. The

Supreme Court has suggested, however, that blanket primaries may be a permissible way for the voters to choose, on a

nonpartisan basis, the candidates who will appear on a general election ballot. Id. at 585-86. 

The blanket primary challenged in Washington State sought

to comply with Jones by presenting candidates without party

affiliations, thereby creating an ostensibly nonpartisan primary, yet allowed candidates to indicate a “political party

preference” without expressly having or running for the

party’s nomination. See 460 F.3d at 1114. The question the

Supreme Court faced in Washington State was whether a nonpartisan blanket primary “that indicates each candidate’s preference on the ballot, in effect, chooses the parties’ nominees,”

which would seemingly be impermissible under Jones. 128

S. Ct. at 1192. The Court held that although “it is possible that

voters will misinterpret the candidates’ party-preference designations as reflecting endorsement by the parties,” it could

not resolve this question without an “evidentiary record

against which to assess their assertions that voters will be confused.” Id. at 1193-94. The Court therefore held that First

Amendment challenges to primary ballots that turn on “the

possibility that voters will be confused as to the meaning of

the party-preference designation” must be brought only

through an as-applied, not a facial, challenge. See id. at 1193.

ALASKA INDEPENDENCE PARTY v. ALASKA 14187
Alaska’s self-selected closed, open or partially closed primary system does not resemble the one at issue in Washington

State, because it is not a blanket primary and therefore does

not present the risk that — if used to choose a party’s nominee

— the nominee will be chosen by voters with whom the party

prefers not to associate. The Alaska primary is even more

respectful of a party’s associational rights than is constitutionally required, because it allows parties to decide whether they

want to allow nonparty members to participate, as both the

AIP and ALP have elected to do. Cf. Clingman, 544 U.S. at

592-93 (holding that a state law forbidding parties from inviting members of other parties to participate in their primary

places “no heavy burden” on parties’ associational rights).

Contrary to Appellants’ argument here, there seems little risk

that voters will mistake the candidates running in a partisan

primary — where the very purpose, unlike in a nonpartisan

blanket primary, is to allow party voters to choose the party’s

nominee — to be the party’s nominee. Further, even to the

extent such voter confusion might be possible, the Supreme

Court has made clear that First Amendment challenges that

rest on the risk of voter confusion must be brought only on an

as-applied basis. See Wash. State, 128 S. Ct. at 1195.3

[4] The potential burden that Alaska’s type of primary

places on parties’ associational rights is therefore quite different from the one posed by the nonpartisan blanket primary at

issue in Washington State. Appellants’ argument, when distilled to its essence, is that a partisan ballot open only to those

voters chosen by the party itself, nonetheless burdens parties’

associational rights because a candidate may seek the party’s

nomination against the wishes of the party’s leadership. Such

3Although Appellants make a late-hour attempt to argue that their lawsuit was, in fact, an as-applied challenge to Alaska’s primary ballots from

2004 and 2006, neither the relief they sought in their complaint nor the

arguments they made to the district court were consonant with an asapplied challenge. We therefore reject Appellants’ attempt during oral

argument to refashion their suit in light of the Supreme Court’s holding

in Washington State. 

14188 ALASKA INDEPENDENCE PARTY v. ALASKA
a primary undoubtedly intrudes on the party’s associational

rights, because it limits the party’s ability to “choose a

candidate-selection process that will in its view produce the

nominee who best represents its political platform.” Lopez

Torres, 128 S. Ct. at 797. The AIP and ALP would prefer to

present primary voters with a limited set of pre-approved candidates, whereas Alaska law permits any registered affiliate of

the party to run in the primary. The burden on the parties’

rights, therefore, is the conflict between the party’s wish to

enforce greater top-down control and the state’s mandate that

rank-and-file party voters have the opportunity to consider

and vote for any affiliated party member who seeks the nomination. 

[5] We are skeptical that such a conflict imposes a severe

burden on parties’ associational rights. Instead of having its

nominee selected or screened by party leadership, the party’s

nominee is selected democratically by registered party voters

(and any others whom the party chooses to let participate),

from a slate of all qualified, affiliated candidates who seek the

nomination. The burden on parties’ associational rights is further lessened because the Supreme Court has long protected

the party’s First Amendment right to “state[ ] whether a candidate adheres to the tenets of the party or whether party officials believe that the candidate is qualified for the position

sought,” which protects the party’s right to distance itself

from undesired candidates and urge party voters to choose the

nominee who the party feels best represents the party platform. See Eu, 489 U.S. at 223. Appellants do not contend that

they are prohibited by state law from endorsing their preferred

candidate and disavowing undesired candidates. 

[6] Although we therefore believe it unlikely that Alaska’s

primary law imposes a severe burden on Appellants’ associational rights, we ultimately need not decide what level of

scrutiny to apply, because Alaska’s primary election law

withstands even strict scrutiny. See Nader, 531 F.3d at 1035

(holding that “an election regulation that imposes a severe

ALASKA INDEPENDENCE PARTY v. ALASKA 14189
burden is subject to strict scrutiny and will be upheld only if

it is narrowly tailored to serve a compelling state interest”).

We have long recognized that a state’s interest in eliminating

the fraud and corruption that frequently accompanied partyrun nominating conventions is compelling, and that a democratic primary is narrowly tailored to advance these state

interests. See Lightfoot, 964 F.2d at 873 (upholding a state’s

mandatory direct primary under strict scrutiny, because “the

State’s interest in enhancing the democratic character of the

election process overrides whatever interest the Party has in

designing its own rules for nominating candidates,” and “no

measure short of the direct primary would be adequate” to

these goals). Appellants’ challenge to Alaska’s democratic

mandatory direct primary therefore fails. 

B. Alaska’s Party Affiliation Rule

Appellants also make a second argument, which is that

Alaska’s primary election law compels them to associate with

candidates who are not in fact party members or who are not

qualified under party rules to run as party candidates, thereby

also burdening their associational rights. Although Appellants

concede that state law requires all candidates who seek the

nomination to be registered affiliates of the party, see Alaska

Stat. § 15.25.030(a)(16), Appellants nonetheless protest that

such registration “does not confirm ‘party membership,’ ”

because affiliation occurs under state law by the candidate’s

own choice, regardless of whether “that person is a member

or supporter of the party, or whether the political party even

wants that person as a member.” They argue that political parties, as expressive associations, have the right to define their

own membership. See Roberts v. U. S. Jaycees, 468 U.S. 609

(1984). By certifying candidates for office who, the Appellants claim, are not true members of the party or are not qualified to run for office under the party’s bylaws, the state forces

members and candidates unwillingly upon them. 

[7] Appellants provide no support for their argument that

their own party membership and candidacy rules conflict with

14190 ALASKA INDEPENDENCE PARTY v. ALASKA
state law, however. AIP bylaws in fact support the contrary

conclusion, because they define party membership to include

“all residents of Alaska who have registered to vote with the

State Department of Elections and selected the Alaskan Independence Party as their political affiliation of preference.”

These same bylaws permit anyone to run as a candidate of the

AIP so long as that person is a “registered member[ ] of the

[AIP] at the time of filing.” AIP requirements to run for office

are therefore seemingly identical to Alaska’s laws, which

allow a candidate to seek the nomination if he or she is “registered to vote as a member of the political party whose nomination is being sought,” which occurs when the voter

“mark[s] the voter’s choice of party affiliation on the voter

registration application form.” Alaska Stat.

§§ 15.25.030(a)(16), 15.07.050. We also find nothing to the

contrary within ALP bylaws. Because Appellants have provided no citation to the record or support for their claim that

their own bylaws conflict with the state’s definition of party

membership, we hold that this argument is waived. Further,

to the extent Appellants argue that certain specific candidates

for office have been improperly certified by Alaska in the

past, these challenges would be properly brought on an asapplied, not facial, challenge. See Wash. State, 128 S. Ct. at

1191. 

III. Conclusion

There is no question that the state must “proceed with great

caution when it acts in ways that undermine the ability of

individuals” to form and run political parties as they choose.

Lightfoot, 964 F.2d at 873. However, “[t]urning the entire

electoral apparatus over to political parties would pose as

great a threat to the integrity of our system of government as

would the state’s unprincipled meddling in the political process.” Id. Alaska’s mandatory direct primary is justified by

compelling state interests in avoiding fraud and corruption

and promoting democratic decisionmaking, and therefore

ALASKA INDEPENDENCE PARTY v. ALASKA 14191
does not on its face impermissibly burden parties’ associational rights. 

AFFIRMED. 

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