The opinion of the court was delivered by: Honorable B. Lynn Winmill Chief U. S. District Judge
MEMORANDUM DECISION AND ORDER
This case presents the question whether the State of Idaho's use of an open primary system to determine nominees for the general election violates the Idaho Republican Party's First Amendment rights. Because the open primary permits substantial numbers of independent voters, as well as voters associated with other political parties, to "cross over" and participate in the Republican Party's selection of its nominees, the Court concludes that, by mandating such a nomination process, the State violates the Party's constitutionally guaranteed right to freedom of association.
The Idaho Republican Party and its Chairman, Norm Semanko, brought this action against Idaho Secretary of State Ben Ysursa, to challenge the State of Idaho's use of an open primary to select candidates for the general election. Several interested groups have been permitted to intervene, including: (1) a group of Idaho registered voters who do not align themselves with any political party, and who consider themselves independents; (2) the American Independent Movement of Idaho, LLC ("AIM"); and (3) the Committee for a Unified Independent Party, Inc. ("CUIP"). Motion to Intervene, Dkt. 3. Neither the Democratic Party nor the Libertarian Party, both of which have had nominees selected using Idaho's open primary over the last 5 election cycles, have sought leave to intervene in this suit.
The Court conducted a bench trial on October 13-14, 2010. The parties then submitted their post-trial briefs. The Court now issues its final decision.
Current System for Primary Elections in Idaho Current Idaho law requires registration of voters*fn1 for federal, state and county offices, and allows registration and voting on election day. However, Idaho's election laws do not require a declaration of party affiliation to register or vote in primary or general elections. Idaho Code §§ 34-404, 34-408, 34-408A, 34-401-- 34-439 generally, 33-904 (2008).
A "political party" is defined in Idaho's election laws as "an affiliation of [voters] representing a political group under a given name as authorized by law," Idaho Code § 34-109 (2008), and as "an organization of [voters] under a given name." Idaho Code § 34-501(1) (2008). Political parties may qualify for the ballot in any of three ways: (1) having three or more candidates for Federal or State office on the general election ballot;
(2) polling 3% of the vote for governor or presidential electors; or (c) by submitting a petition containing signatures of voters equaling 2% of the votes cast during the most recent presidential election. Idaho Code § 34-501(1)(a)-(c) (2008). Qualified political parties must hold state conventions and have state central committees. Idaho Code § 34-501(2) and § 4-504 (2008). With certain exceptions not relevant here, Idaho law requires that political party general election candidates for federal, state and local office be chosen in the Idaho primary election. Ysursa Aff., Dkt. 26-3, ¶ 5; Idaho Code § 34-703(1) (2008).
Idaho's primary election is an "open primary" system. Although any qualified voter may vote in the primary election without prior registration as a member of a political party, the voter must choose a single political party for which to cast his/her votes in the primary. Thus, a voter may cast his/her primary ballot for candidates of one, and only one, political party in the primary election. The voter's decision as to which political party's primary contest to participate in is made in the privacy of the voting booth and not by declaration to election or party officials. Complaint, Dkt. 1, ¶ 26; Answer, Dkt. 5, ¶ 18; Ysursa Aff., Dkt. 26-3, ¶¶ 8, 10; Idaho Code § 34-2410(1)(d) (2008).
The open primary system is enforced in a number of ways. With respect to paper ballots, the Idaho election law provides that "there shall be a single primary election ballot on which the complete ticket of each political party shall be printed. . . . Each political ticket shall be separated from the others by a perforated line that will enable the [voter] to detach the ticket of the political party voted from those remaining." Idaho Code § 34-904. Thus, Idaho primary election paper ballots are prepared so that all of a political party's candidates are grouped together and physically separated from the candidates of all other political parties on the ballot. Ysursa Aff., Dkt. 26-2, ¶ 10; Idaho Code § 34-904. Voters are allowed to place votes for only one party in the ballot box. Ysursa Aff., Dkt. 26-2, ¶ 10. Ballots tallied by optical scanner or computer punch card readers use programs that do not count ballots which contain votes for candidates from multiple political parties. Ysursa Aff., Dkt. 26-2, ¶ 10; Idaho Code § 34-2410(1)(d)-(h).
Constitutional Limits on the States' Regulation of Election Laws
In our federal system, the state plays a major role in structuring the primary election process. But the process by which a political party selects its nominees for general elections is not a wholly public affair which a state may freely regulate. California Democratic Party v. Jones, 530 U.S. 567, 573-74 (2000). A state must act within constitutional limits when it regulates a political party's internal processes. Id. Among those constitutional limits is the First Amendment right to freedom of association, which protects the freedom to join together in furtherance of common political beliefs. Jones, 530 U.S. at 575 (Internal quotations and citations omitted). This right "necessarily presupposes the freedom to identify the people who constitute the association, and to limit the association to those people only." Id. An important corollary of the right to freely associate is a right not to associate. Id.
This political freedom of association (and right to exclude) is most critically manifested in the political party's process of selecting its nominees. This process "often determines the party's positions on the most significant public policy issues of the day, and even when those positions are predetermined it is the nominee who becomes the party's ambassador to the general electorate in winning it over to the party's views." Id. (Internal citations omitted). For this reason, the Supreme Court consistently "affirm[s] 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." Id. (Internal citation and quotations omitted).
Thus, when a court considers a challenge to state election law, the court must "weigh the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments that the plaintiff seeks to vindicate against the precise interests put forward by the State as justifications for the burden imposed by its rule, taking into consideration the extent to which those interests make it necessary to burden the plaintiff's rights." Burdick v. Takashi, 504 U.S. 428, 434 (1992) (Internal citations and quotations omitted). Under this standard, the rigorousness with which a court inquires into the propriety of a state election law depends upon the extent to which the challenged regulation burdens First and Fourteenth Amendment rights. Id. On the one hand, a state regulation must be narrowly drawn to advance a compelling state interest when First and Fourteenth Amendment rights are subjected to severe restrictions. Id.; see also Washington State Grange v. Washington State Republican, 128 S.Ct. 1184, 1192 (2008). On the other hand, a state's ...