552 U.S. 442 (2008)
In 2004, voters in the State of Washington passed an initiative changing the State’s primary election system.1 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 preference, advance to the general election.2
For most of the past century, Washington voters selected nominees for state and local offices using a blanket primary.3 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.4 Under this system, the candidate who won a plurality of votes within each major party became that party’s nominee in the general election.5 After the decision in California Democratic Party v. Jones, the Court of Appeals for the Ninth Circuit struck down Washington’s primary as materially indistinguishable from the California scheme.6 The Washington State Grange promptly proposed I–872 as a replacement.7 It passed with nearly 60% of the vote and became effective in December 2004.8
Immediately after the State enacted regulations to implement I–872, the Washington State Republican Party filed suit against county auditors challenging the law on its face.9 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.10 The Washington State Democratic Central Committee and Libertarian Party of Washington State joined the suit as plaintiffs.11 The Washington State Grange joined as a defendant, and the State of Washington was substituted for the county auditors as defendant.12 The United States District Court for the Western District of Washington granted the political parties’ motions for summary judgment and enjoined the implementation of I–872.13
The Court of Appeals affirmed the district court judgment.14
Whether I–872 on its face violates the political parties’ associational rights?15
A facial challenge succeeds only by establishing that the law is unconstitutional in all of its applications or lacks a plainly legitimate sweep.16 Election regulations imposing a severe burden on associational rights are subject to strict scrutiny and are upheld only if narrowly tailored to serve a compelling state interest.17 Regulations imposing only modest burdens are sustained if the State's important regulatory interests are sufficient to justify reasonable, nondiscriminatory restrictions.18
No. The I–872 primary does not by its terms choose the parties' nominees.19 The top two votegetters advance to the general election regardless of party preference.20 The regulations expressly state that the primary serves only to winnow candidates rather than determine party nominees.21 Respondents' claims that voters will assume party endorsement or association rest entirely on speculation about voter confusion rather than any facial requirement of the statute.22
The State can implement I–872 through ballot disclaimers, explanatory materials, and public education in ways that eliminate any real threat of widespread confusion.23 Because no severe burden on associational rights is shown on the face of the law, the State's interest in providing voters with relevant candidate information is sufficient to sustain the provision.24
I–872 is facially constitutional.25
Related opinions on this issue
Joined by Justice Alito
Chief Justice Roberts concurred in the judgment.26 He shared the concern that permitting a candidate to identify a party preference may force parties to accept unwanted candidates.27 Voter perceptions determine whether the ballot creates an unconstitutional forced association.28
The State had not yet printed ballots.29 It remained possible to design them so that no reasonable voter would believe the listed candidates are nominees or members of or otherwise associated with the parties they claim to prefer.30 Therefore the facial challenge must fail.
Joined by Justice Kennedy
Justice Scalia dissented.31 He concluded that the law imposes a severe burden on parties' associational rights.32 It permits candidates to claim party preference on the state-printed ballot without any mechanism for the party to disclaim the association or identify its own nominee. This distorts the party's message and hijacks its goodwill at the most critical stage of the electoral process.33
The State offered only a rational-basis interest rather than a compelling one narrowly tailored to the burden.34 Therefore the law is unconstitutional in all applications.35