CASE NO UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

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1 Case: , 02/12/2016, ID: , DktEntry: 27, Page 1 of 14 CASE NO UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT RAVALLI COUNTY REPUBLICAN CENTRAL COMMITTEE, GALLATIN COUNTY REPUBLICAN CENTRAL COMMITTEE, SANDERS COUNTY REPUBLICAN CENTRAL COMMITTEE, DAWSON COUNTY REPUBLICAN CENTRAL COMMITTEE, RICHLAND COUNTY REPUBLICAN CENTRAL COMMITTEE, CARBON COUNTY REPUBLICAN CENTRAL COMMITTEE, FLATHEAD COUNTY REPUBLICAN CENTRAL COMMITTEE, MADISON COUNTY REPUBLICAN CENTRAL COMMITTEE, BIG HORN COUNTY REPUBLICAN CENTRAL COMMITTEE, MONTANA REPUBLICAN PARTY, Plaintiffs-Appellants, v. LINDA McCULLOCH, in her capacity as Montana s Secretary of State, et al., Defendants-Appellees. On Appeal from an Order Denying a Preliminary Injunction Motion United States District Court for the District of Montana Case No. CV H-BMM The Honorable Brian Morris, Presiding Matthew G. Monforton URGENT MOTION UNDER CIRCUIT RULE 27-3(b) APPELLANTS REPLY BRIEF RELIEF NEEDED PRIOR TO MARCH 14, 2016 MONFORTON LAW OFFICES, PLLC James E. Brown THE JAMES BROWN LAW OFFICE, PLLC 32 Kelly Court 30 S. Ewing St., Suite 100 Bozeman, Montana Helena, Montana Telephone: (406) Telephone: (406) Facsimile: (406) Facsimile: (406) Attorney for the Republican County Central Committee Plaintiffs-Appellants Attorney for Plaintiff-Appellant Montana Republican Party

2 Case: , 02/12/2016, ID: , DktEntry: 27, Page 2 of 14 TABLE OF CONTENTS TABLE OF AUTHORITIES... iii ARGUMENT... 1 I. LA FOLLETTE IS FATAL TO THE STATE S CASE... 1 II VOTERS DO NOT ASSOCIATE WITH THE REPUBLICAN PARTY BY ANONYMOUSLY CASTING REPUBLICAN PRIMARY BALLOTS... 5 III INJUNCTIVE RELIEF IS WARRANTED BY MONTANA S IMPENDING JUNE 2016 PRIMARY ELECTION... 8 CONCLUSION ii

3 Case: , 02/12/2016, ID: , DktEntry: 27, Page 3 of 14 TABLE OF AUTHORITIES Arizona Libertarian Party v. Bayless, 351 F.3d 1277 (9th Cir. 2003) Bay Area Addiction Research and Treatment v. City of Antioch, 179 F.3d 725 (9th Cir. 1999) California Democratic Party v. Jones, 530 U.S. 567 (2000)... passim California Democratic Party v. Jones, 169 F.3d 646 (9th Cir. 1999) Clingman v. Beaver, 544 U.S. 581 (2005) Democratic Party of the United States v. Wisconsin ex rel. La Follette, 450 U.S. 107 (1981)... passim Democratic Party of Washington State v. Reed, 343 F.3d 1198 (9th Cir. 2003) Miller v. Brown, 462 F.3d 312 (4th Cir. 2006)... 4 Purcell v. Gonzalez, 549 U.S. 1 (2006)... 9 Southwest Voter Registration Educ. Project v. Shelley, 344 F.3d 914 (9th Cir. 2003)... 9 Tashjian v. Republican Party of Conn., 479 U.S. 208 (1986)... 3 Timmons v. Twin Cities Area New Party, 520 U.S. 351 (1997)... 3 Washington State Grange v. Washington State Republican Party, 552 U.S. 442 (2008)... 3, 5 iii

4 Case: , 02/12/2016, ID: , DktEntry: 27, Page 4 of 14 The Montana Republican Party 1 submits the following reply to the State s Response Brief: ARGUMENT I. LA FOLLETTE IS FATAL TO THE STATE S CASE Forcing a political party into an open primary in which non-party members can select the party s nominees constitutes a substantial intrusion into the associational freedom of party members. Democratic Party of the United States v. Wisconsin ex rel. La Follette, 450 U.S. 107, 126 (1981). The Supreme Court has subsequently made clear that La Follette applies to party nominations for any public office: the state-imposed burden at issue in La Follette was the intrusion by those with adverse political principles upon the selection of the party s nominee (in that case its presidential nominee). California Democratic Party v. Jones, 530 U.S. 567, 576 n.7. (2000). It has also made clear that this substantial intrusion does not depend upon proof of crossover voting. La Follette, 450 U.S. at 124 n.27. La Follette is fatal to the State s defense because the State cannot explain why the First Amendment prohibits forced association in an open primary for presidential nominations, but not for nominations for other federal and state offices. In both cases, forced association in open primaries substantially burdens a 1 Appellants Montana Republican Party its county central committees shall be referred to collectively as the Montana Republican Party or the Party.

5 Case: , 02/12/2016, ID: , DktEntry: 27, Page 5 of 14 party s First Amendment associational rights as a matter of law. The state tries to distinguish La Follette because, in that case, a state attempted to control a national party s presidential nomination process. DktEntry 26-1, pp The Supreme Court, however, expressly rejected this argument when California authorities advanced it in Jones: Of course La Follette involved the burden a state regulation imposed on a national party, but that factor affected only the weight of the State s interest, and had no bearing upon the existence vel non of a party s First Amendment right to exclude. Jones, 530 U.S. at 576, n.7, citing La Follette, 450 U.S. at 126. Like the District Court, the State quotes dicta in La Follette suggesting that increasing voter participation might be a compelling interest justifying an open primary. DktEntry 26-1, p. 8., quoting La Follette, 450 U.S. at 121. The Supreme Court, however, has subsequently held that increasing voter participation in primary elections is not a compelling state interest and, even if it was, nonpartisan primaries could advance that interest without burdening parties associational rights. Washington State Grange v. Washington State Republican Party, 552 U.S. 442, 446 (2008), citing Jones, 530 U.S. at The State cites Timmons v. Twin Cities Area New Party, 520 U.S. 351 (1997), DktEntry 26-1, pp. 9 n.4, 10, 18, but that case undermines the State s 2

6 Case: , 02/12/2016, ID: , DktEntry: 27, Page 6 of 14 position. Timmons involved a challenge by a minor party to Minnesota s ban on fusion ballots, i.e., ballots in which the name of a candidate appears for more than one political party. In upholding the ban, the Court noted that parties have the right to select a standard bearer but not an absolute right to have that person appear on the ballot. Id. at 359. A fusion ban did not severely burden parties because it reduce[d] the universe of potential candidates who may appear on the ballot as the party s nominee only by ruling out those few individuals who have already agreed to be another party s candidate. Id. at 363. Notably, the Court distinguished Timmons from cases involving the regulation of political parties internal affairs and core associational activities, including Tashjian v. Republican Party of Conn., 479 U.S. 208 (1986). Id. at 360 (emphasis added). Unlike the anti-fusion law at issue in Timmons, the primary election systems at issue in Tashjian, as well as in La Follette, obstructed a core associational activity: the selection of party standard bearers. They therefore imposed a severe burden on political parties as a matter of law. Montana s primary system also regulates core associational activities. La Follette therefore controls. The Fourth Circuit has followed this reasoning. Miller v. Brown, 462 F.3d 312, 319 (4th Cir. 2006). The State attempts to distinguish Miller because that case involved a challenge to the plaintiffs standing. DktEntry 26-1, p. 10. Miller 3

7 Case: , 02/12/2016, ID: , DktEntry: 27, Page 7 of 14 also addressed ripeness, however, and its characterization of the burden imposed by open primaries as legal rather than factual was a key part of its holding. The plaintiffs case in Miller was ripe because the only issue in the case is whether Virginia s open primary law violates the plaintiffs First Amendment rights to freely associate, which presents a purely legal question. Id. (emphasis added). The State relies heavily on Arizona Libertarian Party v. Bayless, 351 F.3d 1277, 1282 (9th Cir. 2003) but does not explain why that case, which involved Arizona s semi-closed primary, is on point in analyzing Montana s open primary. By contrast, the Fourth Circuit s decision in Miller and, more importantly, the Supreme Court s decision in La Follette, involve open primaries. For this Court to follow Bayless, as the State insists, would not only run contrary to La Follette but also create an circuit split with the Fourth Circuit. In any event, the State s reliance on Bayless is misplaced. That decision has several problems - like the fact that its analysis of Jones has been overruled sub silencio. Subsequent to Bayless, the Supreme Court held that a blanket primary severely burdened the parties freedom of association because it forced them to allow nonmembers to participate in selecting the parties nominees. Washington State Grange, 552 U.S. at (emphasis added). Thus, California s blanket primary violated political parties constitutional rights simply by allowing 4

8 Case: , 02/12/2016, ID: , DktEntry: 27, Page 8 of 14 nonmembers to select party nominees. The Court in Washington State Grange did not in any way suggest that Jones required detailed empirical evidence as a prerequisite for relief. II VOTERS DO NOT ASSOCIATE WITH THE REPUBLICAN PARTY BY ANONYMOUSLY CASTING REPUBLICAN PRIMARY BALLOTS The State argues that [i]nstead of publicly registering their affiliation with the Republican Party, a voter in Montana affiliates with the Party when the voter casts a Republican primary ballot. DktEntry 26-1, p. 13. In other words, open primaries do not injure the associational rights of the Montana Republican Party because every primary voter who secretly chooses a Republican ballot, according to the State, becomes an anonymous, temporary Republican. Neither the Supreme Court nor this Court has ever accepted this reasoning. Clingman v. Beaver, 544 U.S. 581, 589 (2005) (plurality opinion) ( If the concept of freedom of association is extended to a voter s every desire at the ballot box, it ceases to be of any analytic use ); id. ( a voter who is unwilling to disaffiliate from another party to vote in the [Republican Party s] primary forms little association with the [Republican Party] nor the Republican Party with him ); California Democratic Party v. Jones, 169 F.3d 646, 654 n.17 (9th Cir. 1999), rev d on other grounds, 530 U.S. 567 (2000) (describing as a patent fiction the notion that treat[ing] a 5

9 Case: , 02/12/2016, ID: , DktEntry: 27, Page 9 of 14 voter s request for a ballot is tantamount to a declaration of party affiliation ). The State relies on a portion of Justice Powell s dissent in La Follette quoted in footnote 8 of the Jones opinion: the act of voting in the Democratic primary fairly can be described as an act of affiliation with the Democratic Party. DktEntry 26-1, p.13. As Justice Powell noted in the following sentence, however, The real issue in this case is whether the Party has the right to decide that only publicly affiliated voters may participate. La Follette, 460 U.S. at 130 n.2 (emphasis in original). The La Follette majority held that a party has that right as part of its right to identify its members. Id. at The Supreme Court concluded footnote 8 by noting that [t]his case does not require us to determine the constitutionality of open primaries. Jones, 530 U.S. at 577 n.8. Footnote 8 thus provides no aid to the State s case. The State describes Montana s open primary as functionally equivalent to a closed primary. DktEntry 26-1, p. 14. The Supreme Court has expressly rejected this comparison because in closed primaries, even when it is made quite easy for a voter to change his party affiliation the day of the primary, and thus, in some sense, to cross over, at least he must formally become a member of the party. Jones, 530 U.S. at 577 (emphasis in original). Montana s open primary system, by contrast, permits any voter to anonymously select the Party s nominees 6

10 Case: , 02/12/2016, ID: , DktEntry: 27, Page 10 of 14 without formally becoming a member of the party. If voters indeed associate with the Republican Party when selecting the Party s primary election ballot, the Party has a constitutional right to know who they are. La Follette, 450 U.S. at 122 (the First Amendment s right of association necessarily presupposes the freedom to identify the people who constitute the association ). Montana prevents this by failing to record which voters select Republican primary ballots. ER 47. The State claims that the Party certainly could create membership requirements and a membership list, but it has so far chosen not to do so. DktEntry 26-1, p. 16. This is false. The Party has attempted for decades to generate a list of its voters, but cannot create an accurate one. ER 61. As a result, Montana Republicans spend much more of our time trying to improve and update that list that we have rather than trying to turn out our voters and communicate with our voters. ER 54. Contrary to the State s claim, the Party has created membership requirements one, to be exact: members must register as Republicans. ER 76. The La Follette majority held that parties have a right to impose this simple requirement. La Follette, 450 U.S. at The dissenting opinions in Jones and La Follette cited by the State do not diminish this right. 7

11 Case: , 02/12/2016, ID: , DktEntry: 27, Page 11 of 14 III INJUNCTIVE RELIEF IS WARRANTED BY MONTANA S IMPENDING JUNE 2016 PRIMARY ELECTION The State criticizes the Party for its long delay in seeking injunctive relief. DktEntry 26-1, p. 4. In opposing the Party s previous preliminary injunction motion, however, the State argued that the Party filed too early because it would not be harmed until the next regularly scheduled partisan primary election, in early June of 2016, or more than a year and a half from now. Dist. Ct. Doc. 19, p. 16. The District Court accepted this argument and denied the Party s motion in January 2015 because the next primary election in which non-republicans could vote for Republican precinct committeemen will not take place until June 2016 and thus the Party had not demonstrated any impending irreparable harm to Plaintiffs. Dist. Ct. Doc. 40, pp Neither the State nor the District Court seem to believe that there is ever an appropriate time to move for injunctive relief in election-related cases. The Supreme Court and the Ninth Circuit, however, have a different take on this issue. Purcell v. Gonzalez, 549 U.S. 1, 7 (2006) (courts must weigh, in addition to the harms attendant upon issuance or nonissuance of an injunction, considerations specific to election cases ); Southwest Voter Registration Educ. Project v. Shelley, 344 F.3d 914, 919 (9th Cir. 2003) (en banc) (because the public interest is 8

12 Case: , 02/12/2016, ID: , DktEntry: 27, Page 12 of 14 significantly affected by injunctions affecting elections, our law recognizes that election cases are different from ordinary injunction cases ). Montana s primary election is scheduled for June 7, 2016, and ballots for military personnel must be mailed by April 22, Although the Party has demonstrated that it is likely to succeed on the merits, the District Court insists the Party produce Montana-specific empirical data as a prerequisite for relief. ER 36 (discounting the Party s crossover voting data because it is an estimate based on scholarly research, rather than Montana specific data. Plaintiffs will struggle to succeed on the merits without being able to demonstrate that non-republicans in Montana actually vote in the Republican primary ) (emphasis added, citations omitted). The Party s experts have testified, however, that such data must be obtained during a primary election in order to be reliable. ER 86, n.5. The District Court is requiring the Party to obtain evidence that will not be available until the June 2016 primary election in order to enjoin the application of Montana s open primary to the selection of Republican nominees in June In light of this unwarranted, judicially imposed catch-22, relief from this Court is appropriate and necessary. Finally, the State contends that the Party is seeking a mandatory injunction that would disrupt the status quo. DktEntry 26-1, pp An injunction 9

13 Case: , 02/12/2016, ID: , DktEntry: 27, Page 13 of 14 preventing the government from enforcing an unconstitutional statute, however, is prohibitory, not mandatory. See, e.g., Bay Area Addiction Research and Treatment v. City of Antioch, 179 F.3d 725, 732 n.13 (9th Cir. 1999) (injunction to halt city s enforcement of zoning rule excluding drug treatment clinics from residential neighborhoods was prohibitory). The Party is seeking to preserve the status quo. Non-party members have not yet participated in the Party s 2016 nomination process. The Party would like to keep it that way. The State s attempt to recast the Party s requested injunction as mandatory is not persuasive. CONCLUSION For all of the foregoing reasons, the Montana Republican Party respectfully requests this Court enjoin the State from applying Montana s open primary system to the Montana Republican Party during the pendency of this appeal. DATED: February 12, 2016 Respectfully submitted, Monforton Law Offices, PLLC The James Brown Law Office, PLLC By: /s/ Matthew G. Monforton By: /s/ James E. Brown Matthew G. Monforton James E. Brown Attorney for the Republican County Central Committee Plaintiffs-Appellants Attorney for Plaintiff-Appellant Montana Republican Party 10

14 Case: , 02/12/2016, ID: , DktEntry: 27, Page 14 of 14 CERTIFICATE OF SERVICE I hereby certify that I electronically filed the foregoing with the Clerk of the Court for the United States Court of Appeals for the Ninth Circuit by using the appellate CM/ECF system on February 12, I certify that all participants in the case are registered CM/ECF users and that service will be accomplished by the appellate CM/ECF system. DATED: February 12, 2016 Respectfully submitted, Monforton Law Offices, PLLC By: /s/ Matthew G. Monforton Matthew G. Monforton Attorney for the Republican County Central Committee Plaintiffs-Appellants The James Brown Law Office, PLLC By: /s/ James E. Brown James E. Brown Attorney for Plaintiff-Appellant Montana Republican Party 11