Intervenor Alaskans for Better Elections, Inc

Scott M. Kendall Alaska Bar No. 0405019 J ahna M. Lindemuth Alaska Bar No. 9711068 Samuel G. Gottstein Alaska Bar No. 1511099 FILED in the Tri~! Courts Holmes Weddle & Barcott, P.C. State of Alaska Third ;.)1stnct 701 West 8th Avenue, Ste. 700 Anchorage, AK 99501 .APR U 2 202"1 Phone: 907.274.0666 Clerk of the Trial courts Fax: 907.277.4657 By______Deputy

Attorneys for Intervenor Alaskans for Better Elections, Inc.

IN THE SUPERJOR COURT FOR THE STATE OF ALASKA

THIRD JUDICIAL DISTRICT AT ANCHORAGE

SCOTT A. KOHLHAAS, THE ALASKAN INDEPENDENCE PARTY, ROBERT M. BIRD, AND KENNETH P. JACOBUS,

Plaintiffs, V.

STATE OF ALASKA; STATE OF ALASKA: DIVISION OF ELECTIONS; Case No. 3AN-20-09532 CI LIEUTENANT GOVERNOR KEVIN MEYER, in his official capacity as Supervisor of Elections; and GAIL FENUMIAI, in her official capacity of Director of the Division of Elections

Defendants. ALASKANS FOR BETTER ELECTIONS, INC. Intervenor.

61NTERVENOR ALASKANS FOR BETTER ELECTIONS' MOTION FOR SUMMARY JUDGMENT

Intervenor Alaskans for Better Elections, Inc.'s Motion for Summary Judgment Scott A. Kohlhaas, et al. v. State of Alaska, et. al., Case No. 3AN-20-09532 CI Page 1 of 39 I. INTRODUCTION After voters approved an election reform initiative in November 2020, Plaintiffs

Scott A. Kohlhaas, the Alaskan Independence Party, Robert M. Bird, and Kenneth P.

Jacobus ( collectively "Plaintiffs") filed this facial challenge seeking to invalidate the entirety of the popularly-enacted law. 1 Through this law, the public adopted comprehensive reforms to give voters and individual candidates more choices in elections, and to ensure that the candidates with the most support - regardless of party affiliation ( or lack thereof) - would represent Alaskans.

Contrary to Plaintiffs' assertions, neither the United States nor Alaska Constitution gives political parties the power to compel the State of Alaska to run primary elections for the purpose of selecting their parties' nominees. Moreover, under Alaska's new primary system, political parties will remain free to conduct their own nomination processes and other internal affairs however they see fit.

The United States and Alaska Constitutions do not prohibit the type of nonpartisan primary chosen by the people of Alaska. Nor do they prohibit voters from expressing more precise preferences through ranked-choice voting in general elections. And

Plaintiffs are wrong about how to apply a severability analysis. Because voters enacted a constitutionally-sound election reform initiative, this court should enter summary

Although Plaintiffs confusingly challenge only portions of the initiative, they style their complaint as a facial challenge to the entire measure and specifically request its invalidation as relief.

Intervenor Alaskans for Better Elections, Inc.'s Motion for Summary Judgment Scott A. Kohlhaas, et al. v. State of Alaska, et. al., Case No. 3AN-20-09532 CI Page 2 of39 judgment against Plaintiffs and in favor of Defendant State of Alaska and Intervenor

Alaskans for Better Elections, Inc. on all claims.

II. FACTUAL BACKGROUND

A. Alaskans For Better Elections Drafts And Submits A Comprehensive Election Reform Initiative.

A nonpartisan group of Alaskans formed Alaskans for Better Elections, Inc.

("ABE") in 2019 to file a comprehensive election reform ballot initiative. 2 ABE filed its initiative on July 3, 2019, which was later designated "19AKBE" by the State. 3

Although 19AKBE proposed several revisions to Alaska's election statutes, 4 the

State and ABE "agree[ d] that the initiative would make three substantive changes to

Alaska election law: (1) replacing the party primary system with [atop four] ... nonpartisan primary; (2) establishing ranked-choice voting [("RCV")] in the general election; and (3) mandating new disclosure and disclaimer requirements to existing campaign finance laws." 5

Each of these three "logically related" election refonns sought to increase

"transparency, participation, access, and choice" in Alaska's statewide election

2 See Meyer v. Alaskans for Better Elections, 465 P.3d 477,490 (Alaska 2020). 3 See id. 4 See generally Alaska's Better Elections Initiative [hereinafter 19AKBE] (Appendix A). 5 Meyer, 465 P.3d at 498; see also id. (characterizing 19AKBE's initiative title as being "extremely detailed").

Intervenor Alaskans for Better Elections, Inc.'s Motion for Summary Judgment Scott A. Kohlhaas, et al. v. State of Alaska, et. al., Case No. 3AN-20-09532 CI Page 3 of 39 process.6 The first of 19AKBE's proposed election refonns - a top four nonpartisan primary - allows all Alaskans to vote on the same primary ballot regardless of a voter's affiliation with a political party. 7 The new system differs from Alaska's previous "semi-closed" primary election system where voters had to choose between one of two ballots to vote on, and one of those ballots was available only to registered Republican, nonpartisan, or undeclared voters. 8 Neither of the ballots included all of the candidates. 19AKBE's top four nonpartisan primary instead places all candidates on a single ballot, giving all voters the option of choosing their preferred candidate in each race regardless of the candidate's or the voter's party affiliations. 9 From the voters' perspective, this means they will have a range of choices that they never had under Alaska's partisan two-ballot primary regime: they can now vote for a Republican in one race, and for a Democrat ( or other party candidate) in another race. Rather than be artificially hindered in their choices under the two-ballot system, primary voters can now just choose their favorite candidate in every race.

When those primary votes are tabulated, the four candidates receiving the greatest number of votes in each race, without regard to party affiliation, then

6 Id. at 498-99; see also 19AKBE at 1-2 (Appendix A). 7 AS 15.15.025; AS 15.25.060; see 19AKBE at 8 (Appendix A). 8 See State v. Alaska Democratic Party, 426 P.3d 901, 904-06 (Alaska 2018). 9 AS 15.15.025; see 19AKBE at 8 (Appendix A).

Intervenor Alaskans for Better Elections, lnc.'s Motion for Summary Judgment Scott A. Kohlhaas, et al. v. State of Alaska, et. al., Case No. 3AN-20-09532 CI Page 4 of39 proceed to the general election ballot. 10 Ancillary related changes include:

(1) removing barriers for third-party candidates to appear on the primary ballot; 11

(2) allowing primary voters to express a preference on a joint ticket for governor and lieutenant governor; 12 and (3) adding clear disclaimers explaining that a candidate's expressed party affiliation does not mean the party has endorsed that candidate. 13

The second of 19AKBE's proposed election reforms adopts RCV for Alaska's general elections. 14 Alaska's prior system allowed voters to express a single candidate preference in each general election race, and whichever candidate obtained the greatest number of votes was declared the winner. That system - often termed

"first past the post" or plurality voting - can result in candidates winning with far less than a majority, and sometimes only a small plurality of the vote. Under that system, a candidate could win even though he or she is actually opposed by the

10 AS 15.25.010; AS 15.25.100; see 19AKBE at 14-16 (Appendix A). 11 See 19AKBE at 18-19 (removing the requirement that a minority-party candidate must first obtain signatures of at least 1% of qualified voters based on the number of prior general election votes) (Appendix A); see also Alaska Democratic Party, 426 P.3d at 904-05 ("A candidate not representing a political party may appear on the general election ballot by submitting a petition with a sufficient number of qualified voters' signatures." (citing former AS 15.25.140; fonner AS 15.25.190; former AS 15.25.160; former AS 15.25.170)). 12 AS 15.15.030(5); AS 15.25.030(a)(16)-(17); see 19AKBE at 8, 15 (Appendix A). 13 AS 15.15.030(14)-(15); AS 15.25.010; AS 15.58.020(a)(13); AS 15.58.020(c); see 19AKBE at 8-9, 14, 22-24 (Appendix A). 14 See Meyer, 465 P.3d at 498; see also AS 15.15.350(c) ("All general elections shall be conducted by ranked-choice voting.").

Intervenor Alaskans for Better Elections, Inc.'s Motion for Summary Judgment Scott A. Kohlhaas, et al. v. State of Alaska, et. al., Case No. 3AN-20-09532 CI Page 5 of39 majority ofvoters. 15 In contrast, 19AKBE's RCV system gives voters the opportunity to rank candidates in order of choice from one to four. 16 If a candidate receives a majority from the first-choice votes (fifty percent plus one vote), then that candidate wins immediately, just as in the prior system. 17 But ifno candidate receives a majority of first choices, the candidate with the fewest first choice votes is eliminated, and voters who ranked that eliminated candidate first have their vote assigned to their second choice candidate. 18 This process continues until a candidate is elected with a majority of voters' support. 19 This system gives general election voters greater choice and ensures that winning candidates receive a majority of the tabulated votes. RCV also empowers general election voters to express themselves

15 See 2020 General Election, Election Summary Report, Official Results, https://www.elections.alaska.gov/results/20GENR/data/sovc/ElectionSummaryRepor tRPT24.pdf (published Nov. 30, 2020) [hereinafter 2020 General Election Results] (showing winning candidates without majority support in Senate District N, and House Districts 23, 27, and 28). 16 AS 15.15.350; AS 15.15.360; see 19AKBE at 9-10 (Appendix A). In other words, RCV simply asks voters to count to four. See Rob Richie et al., Instant Runoffs: A Cheaper, Fairer, Better Way to Conduct Elections, 89.1 NAT'L CIVIC REV. 95, 105 (Spring 2000) ("Consider asking a small child about her favorite ice cream. Chocolate, she might say. And what if there is no chocolate[,] you ask. Then she will have strawberry. And ifthere is no strawberry, she will settle with vanilla. The child just ranked three candidates: chocolate, strawberry, vanilla. That is all there is to [RCV]."). 17 AS 15.15.350(d); see 19AKBE at 9-10 (Appendix A). 18 AS 15.15.350(d)(2); see 19AKBE at 9-10 (Appendix A). 19 AS 15.15.350; see 19AKBE at 9-10 (Appendix A).

Intervenor Alaskans for Better Elections, Inc.'s Motion for Summary Judgment Scott A. Kohlhaas, et al. v. State of Alaska, et. al., Case No. 3AN-20-09532 CI Page 6 of 39 more fully on the ballot by minimizing the need for strategic voting and the "spoiler effect. "20

Finally, although not directly challenged by Plaintiffs, 19AKBE also adds campaign finance disclosure requirements and increases transparency to combat

"Dark Money," which is the practice of passing contributions through intermediaries to avoid public reporting of the true source of campaign donations. 21 19AKBE's

Dark Money provisions require: (1) reporting campaign contributions of $2,000 or more to an independent expenditure group within 24 hours; 22 (2) disclosing whether a majority of a campaign group's funding originates from outside Alaska in all communications; 23 and (3) identifying the true source of a campaign contribution. 24

Dark Money has become more prevalent since the United States Supreme Court's

2010 Citizens United decision, 25 and 19AKBE's Dark Money provisions help ensure

20 The "spoiler effect" is when a third or fourth candidate in a race receives too small of a vote share to win, but enough votes that if that candidate had not been in the race, it might have led to a different outcome. 21 See 19AKBE at 3-8 (Appendix A); see also AS 15.13.400(5) (defining "dark money"). 22 AS 15.13.040(r); see 19AKBE at 3-4 (Appendix A). An independent expenditure group supports or opposes a candidate for elective office without being subject to limits on the campaign contributions it receives. See AS 15.13 .400(11) ( defining "independent expenditure"). Independent expenditure groups cannot contribute to, or directly coordinate with, a candidate's campaign. AS 15.13.400(11). 23 AS 15.13.090(g); see 19AKBE at 5 (Appendix A). 24 AS 15.13.400(19); see 19AKBE at 7-8 (Appendix A). 25 See generally Citizens United v. Fed. Election Comm 'n, 558 U.S. 310 (2010).

Intervenor Alaskans for Better Elections, Inc.'s Motion for Summary Judgment Scott A. Kohlhaas, et al. v. State of Alaska, et. al., Case No. 3AN-20-09532 CI Page 7 of39 "that voters have adequate and accurate information about who is paying for campaign communications to influence their vote." 26

B. Ballot Measure 2 Is Certified And Placed On The 2020 General Election Ballot.

The State denied ABE's request to obtain signature booklets to place 19AKBE on the ballot on August 29, 2019, claiming that the proposed initiative violated the single subject rule. 27 But ABE filed a lawsuit and succeeded in challenging that determination, both before the superior court and the Alaska Supreme Court. 28 After ABE gathered and submitted the required number of voter signatures, 29 the Division placed 19AKBE on the general election ballot in November 2020 as Ballot Measure 2. The State's proposed

30 ballot summary - which is required by law and serves "to enable voters to reach

26 See Meyer, 465 P.3d at 499 (citation omitted). 27 See id. at 490 & n.121. The single-subject or one-subject rule - which applies equally to statutes enacted by the legislature and citizens through the initiative process - requires legislation and initiatives to "embrace some one general subject; and by this is meant, merely, that all matters ... should fall under some one general idea, be so connected or related to each other, either logically or in popular understanding, as to be parts of, or germane to, one general subject." Id. at 484 (alteration in original) (quoting Gellert v. State, 522 P.2d 1120, 1123 (Alaska 1974)); see also Croft v. Parnell, 236 P.3d 369, 372-73 (Alaska 2010) (articulating the scope of the single-subject rule). 28 See Meyer, 465 P.3d at 479, 499. 29 See State of Alaska, Division of Elections, Petition Summary Report, https:/ /www .elections.alaska.gov/petitions/19 AKBE/19 AKBE PetSumReportFINAL. pdf (Feb. 28, 2020) (showing over 7,500 more signatures were submitted than was necessary for 19AKBE to be placed on the ballot). 30 The ballot summary states, in full:

Intervenor Alaskans for Better Elections, Inc.'s Motion for Summary Judgment Scott A. Kohlhaas, et al. v. State of Alaska, et. al., Case No. 3AN-20-09532 CI Page 8 of 39 31 informed and intelligent decisions on how to cast their ballots" for the initiative - was never challenged. 32

This act would get rid of the party primary system, and political parties would no longer select their candidates to appear on the general election ballot. Instead, this act would create an open nonpartisan primary where all candidates would appear on one ballot. Candidates could choose to have a political party preference listed next to their name or be listed as "undeclared" or "nonpartisan." The four candidates with the most votes in the primary election would have their names placed on the general election ballot. This act would establish ranked-choice voting for the general election. Voters would have the option to "rank" candidates in order of choice. Voters would rank their first choice candidate as "l ", second choice candidate as "2", and so on. Voters "1" choice would be counted first. If no candidate received a majority after counting the first-ranked votes, then the candidate with the least amount of" 1" votes would be removed from counting. Those ballots that ranked the removed candidate as "l" would then be counted for the voters' "2" ranked candidate. This process would repeat until one candidate received a majority of the remaining votes. If voters still want to choose only one candidate, they can. This act would also require additional disclosures for contributions to independent expenditure groups and relating to the sources of contributions. It would also require a disclaimer on paid electronic communications by independent expenditure groups funded by a majority of out of state money. Should this initiative become law? 19AKBE Ballot Summary (Appendix B). 31 State v. Vote Yes for Alaska's Fair Share, 478 P.3d 679, 687 (Alaska 2021) (quotingAlaskansforEfficientGov't, Inc. v. State, 52P.3d 732,735 (Alaska2002)); see AS 15.45.180 (outlining ballot summary requirements). 32 AS 15.45.240 ("Any person aggrieved by a determination made by the lieutenant governor under AS 15.45.010-15.45.220 may bring an action in the superior court to have the determination reviewed within 30 days of the date on which notice of the determination was given."); see also Vote Yes for Alaska's Fair Share, 478 P.3d at 682-86 (explaining the process used by the proponents of Ballot

Intervenor Alaskans for Better Elections, Inc.'s Motion for Summary Judgment Scott A. Kohlhaas, et al. v. State of Alaska, et. al., Case No. 3AN-20-09532 CI Page 9 of39 C. Ballot Measure 2 Is Enacted By Voters, And Plaintiffs File This Facial Challenge To Invalidate The Entire Initiative.

Alaskans approved Ballot Measure 2 in an election with record tumout, 33 which the State certified on November 30, 2020. 34 Plaintiffs filed this suit the next day, seeking to invalidate the entirety of the newly-enacted initiative. 35

Ballot Measure 2's provisions went into effect on February 28, 2021. 36 But

19AKBE's provisions (both for election processes and campaign finance) have not been fully implemented yet, and Plaintiffs therefore cannot raise any challenge to its application because no such application has occurred.

Measure 1 on the 2020 general election ballot to challenge the State's ballot summary). 33 See generally 2020 General Election Results (showing that 60.67% of registered voters cast ballots). 34 The final vote certified by the State was 174,032 votes in favor of Ballot Measure 2, and 170,251 votes against. See 2020 General Election Results at 25. Ballot Measure 2's passage was also confirmed by a post-election audited hand count of the results. See Ballot Measure No. 2 - 19AKBE, Audit Status Report, https://www.elections.alaska.gov/results/20GENR/data/sovc/2020BallotMeasure2Au dit.pdf (Dec. 10, 2020) (showing 173,929 votes in favor, and 170,183 votes in opposition). 35 Plaintiffs' Complaint for Declaratory, Injunctive and Other Relief (Dec. 1, 2020); see also Alaska Const. art. XI, § 6 ("If a majority of the votes cast on the proposition favor its adoption, the initiated measure is enacted."). 36 Alaska Const. art. XI, § 6 ("An initiated law becomes effective ninety days after certification .... ").

Intervenor Alaskans for Better Elections, lnc.'s Motion for Summmy Judgment Scott A. Kohlhaas, et al. v. State of Alaska, et. al., Case No. 3AN-20-09532 CI Page 10 of39 III. ARGUMENT

Plaintiffs ask this court to overturn the will of a majority of Alaska voters and to invalidate an election reform before it is even implemented. Plaintiffs' facial challenge to

Ballot Measure 2 fails for two primary reasons.

First, the nonpartisan primary system established by Ballot Measure 2 is constitutional under both the United States and Alaska Constitutions. As the United

States Supreme Court made clear in Washington State Grange v. Washington State

Republican Party, 37 nonpartisan primary systems do not unconstitutionally burden the associational rights of political parties on their face because they do not interfere with the internal affairs of parties. To the contrary, political parties remain free to conduct their own nomination processes however they see fit under Alaska's new primary system.

And neither the United States nor Alaska Constitution grants political parties the right to compel the State to run primary elections for the purpose of making party endorsements.

Second, the RCV system established by Ballot Measure 2 is constitutional under both the

United States and Alaska Constitutions. RCV has a long history in American politics and has been upheld repeatedly by courts against claims virtually identical to Plaintiffs'.

Because none of Plaintiffs' constitutional arguments have merit, this court should accordingly grant ABE' s motion for summary judgment.

37 552 U.S. 442 (2008).

Intervenor Alaskans for Better Elections, lnc.'s Motion for Summary Judgment Scott A. Kohlhaas, et al. v. State of Alaska, et. al., Case No. 3AN-20-09532 CI Page 11 of 39 ----

A. Summary Judgment Standards.

Summary judgment is appropriate "where 'there is no genuine issue as to any material fact' and 'the moving party is entitled to judgment as a matter of law.' "38

Plaintiffs, as the "party raising a constitutional challenge to a statute[,] bear[] the burden of demonstrating the constitutional violation. A presumption of constitutionality applies, and doubts are resolved in favor of constitutionality." 39 Additionally, "[a] holding of facial unconstitutionality generally means that there is no set of circumstances under which the statute can be applied consistent with the requirements of the constitution. "40

Finally, "a party seeking[, as Plaintiffs seek here,] to invalidate a statute in whole rather than in part bears the burden of demonstrating the unconstitutionality of the entire act."41

38 Christensen v. Alaska Sales & Serv., Inc., 335 P.3d 514, 517 (Alaska 2014) (quoting Alaska R. Civ. P. 56(c)). 39 State v. Planned Parenthood of the Great Nw., 436 P.3d 984, 992 (Alaska 2019) (quoting State, Dep't of Revenue v. Andrade, 23 P.3d 58, 71 (Alaska 2001)); see also Planned Parenthood of the Great Nw. v. State, 375 P.3d 1122, 1133 (Alaska 2016) ("[A] challenge to a statute 'must overcome a presumption of constitutionality.'" (quoting State v. Schmidt, 323 P.3d 647,655 (Alaska 2014))). 40 State v. ACLU of Alaska, 204 P.3d 364, 372 (Alaska 2009) (citing State, Dep 't of Revenue, Child Support Enf't Div. v. Beans, 965 P.2d 725, 728 (Alaska 1998)); see also Alaskans for a Common Language, Inc. v. Kritz, 170 P.3d 183,214 (Alaska 2007) ("When we consider the facial invalidity of a statute, we require the party seeking to invalidate the statute to bear the burden of demonstrating the necessity of invalidation." (citing Andrade, 23 P.3d at 71)); see also Washington State Grange, 552 U.S. at 449. 41 Alaskans for a Common Language, 170 P.3d at 214 (citing Lynden Transp., Inc. v. State, 532 P.2d 700, 711-12 (Alaska 1975)).

Intervenor Alaskans for Better Elections, Inc.'s Motion for Summary Judgment Scott A. Kohlhaas, et al. v. State of Alaska, et. al., Case No. 3AN-20-09532 CI Page 12 of 39 B. Alaska's Nonpartisan Primary System Is Constitutional.

The top four nonpartisan primary system enacted under Ballot Measure 2 does not violate the United States or Alaska Constitutions. Federal and Alaska state courts use the

same general framework for evaluating whether an election law unconstitutionally

infringes on the rights of political parties under the First and Fourteenth Amendments of the United States Constitution and Article I, Section 5 of the Alaska Constitution. A

court evaluating such a challenge "must first determine whether the claimant has in fact

asserted a constitutionally protected right." 42 If so, then 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 plaintiffs rights. "[43J

Importantly, "when a state election law provision imposes only 'reasonable, nondiscriminatory restrictions' upon the First and Fourteenth Amendment rights

42 State, Div. of Elections v. Green Party of Alaska, 118 P.3d 1054, 1061 (Alaska 2005); see also Burdick v. Takushi, 504 U.S. 428, 433 (1994). 43 Burdick, 504 U.S. at 434 (quoting Anderson v. Celebrezze, 460 U.S. 780, 789 (1983)) (citing Tashjian v. Republican Party of Connecticut, 479 U.S. 208, 213-14 (1986)); see Green Party of Alaska, 118 P.3d at 1061 (using a similar framework to evaluate challenges to state election laws under both the First and Fourteenth Amendments of the U.S. Constitution and Article I, Section 5 of the Alaska Constitution); see also State v. Alaska Democratic Party, 426 P.3d 901, 907 (Alaska 2018) (same).

Intervenor Alaskans for Better Elections, Inc.'s Motion for Summary Judgment Scott A. Kohlhaas, et al. v. State of Alaska, et. al., Case No. JAN-20-09532 CI Page 13 of 39 of voters, 'the State's important regulatory interests are generally sufficient to justify' the restrictions. "44

This standard for evaluating election laws is deliberately "flexible" because

"[ e]lection laws will invariably impose some burden upon individual voters" 45 and their "right to associate with others for political ends." 46 "[A]s a practical matter," however, "there must be a substantial regulation of elections if they are to be fair

and honest and if some sort of order, rather than chaos, is to accompany the

democratic processes." 47

Additionally, Plaintiffs have an even higher hurdle here because they are

challenging Ballot Measure 2 on its face. As the United States and Alaska Supreme

Courts have made clear, facial challenges "can only succeed [if the plaintiff] ...

'establish[ es] 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." 48 Such facial challenges are

44 Burdick, 504 U.S. at 434 (quoting Anderson, 460 U.S. at 788). 45 Id. at 433-34. 46 Id. at 433 ( quoting Anderson, 460 U.S. at 788). 47 Storer v. Brown, 415 U.S. 724, 730 (1974); see also Burdick, 504 U.S. at 433 ("Common sense, as well as constitutional law, compels the conclusion that government must play an active role in structuring elections[.]"). 48 Washington State Grange, 552 U.S. at 449 (emphasis in original) (quoting United States v. Salerno, 481 U.S. 739, 745 (1987)); see ACLU of Alaska~ 204 P.3d at 372 (citing Beans, 965 P.2d at 728); see also Planned Parenthood of the Great Nw. v. State, 375 P.3d 1122, 1133 (Alaska 2016) ("When a statute's constitutionality is facially challenged, we will uphold the statute even if it might occasionally create constitutional problems in its application, as long as it 'has a plainly legitimate

Intervenor Alaskans for Better Elections, Inc.'s Motion for Summary Judgment Scott A. Kohlhaas, et al. v. State of Alaska, et. al., Case No. 3AN-20-09532 CI Page 14 of 39 "disfavored," because they "risk ... 'premature interpretation of statutes on the basis of factually barebones records' "49 and "run contrary to the fundamental principle of judicial restraint. "50 They also "threaten to short circuit the democratic process by preventing laws embodying the will of the people from being implemented in a manner consistent with the Constitution." 51

The Alaska Supreme Court has also emphasized that courts have "a duty to construe a statute, where reasonable, to avoid dangers of unconstitutionality," 52 and this is "particularly so" in the context of "a facial challenge. "53 Plaintiffs have not met this heavy burden to prevail in their facial challenge.

sweep.'" (quoting State v. Planned Parenthood of Alaska, 171 P.3d 577, 581 (Alaska 2007))). 49 Washington State Grange, 552 U.S. at 450 (quoting Sabri v. United States, 541 U.S. 600, 609 (2004)). 50 Id. ("Exercising judicial restraint in a facial challenge 'frees the Court not only from unnecessary pronouncement on constitutional issues, but also from premature interpretations of statutes in areas where their constitutional application might be cloudy.'" (quoting United States v. Raines, 362 U.S. 17, 22 (1960))). 51 Id. at 451. 52 ACLU of Alaska, 204 P.3d at 373 (citing Alaskans for a Common Language, 170 P.3d at 192); see id. ("Rather than strike a statute down, we will employ a narrowing construction, if one is reasonably possible."); see also State v. Planned Parenthood of the Great Nw., 436 P.3d 984, 992 (Alaska 2019) ("A presumption of constitutionality applies, and doubts are resolved in favor of constitutionality." (quoting Andrade, 23 P.3d at 71)). 53 Treacy v. Municipality of Anchorage, 91 P.3d 252, 260 (Alaska 2004).

Intervenor Alaskans for Better Elections, Inc.'s Motion for Summary Judgment Scott A. Kohlhaas, et al. v. State of Alaska, et. al., Case No. 3AN-20-09532 Cl Page 15 of 39 i. Alaska's top four nonpartisan primary system does not infringe on the associational rights of political parties under the United States Constitution.

Plaintiffs' constitutional claims against Alaska's top four nonpartisan primary system fail as a matter of law. Most fundamentally, Plaintiffs have failed to "assert[] a constitutionally protected right" that is burdened by the top four nonpartisan primary system.54

Plaintiffs assert that the new primary provisions violate the constitutional right of political parties to freely associate.55 But the right to free association does not grant political parties any special right to make party endorsements via State-run primary elections or to otherwise force Alaska to give parties a platfonn to speak on the ballot.

Although a political party's right to freely associate includes the ability to determine membership, endorse candidates, and select party nominees, 56 that bundle of rights does not include an unfettered ability to create an election system that party members would

54 Green Party of Alaska, 118 P.3d at 1061; see also Burdick, 504 U.S. at 433. 55 See Plaintiffs' Second Amended Complaint for Declaratory, Injunctive and Other Relief, at 5-6 (Mar. 25, 2021) [hereinafter Plaintiffs' Second Amended Complaint]. Because ABE has filed a non-opposition to Plaintiffs' Second Amended Complaint, ABE is comfortable treating Plaintiffs' Second Amended Complaint as being operative. See ABE's Non-Opposition to Second Amended Complaint (Mar. 26, 2021). 56 See Green Party of Alaska, 118 P.3d at 1064 ("[T]he First Amendment protects the rights of voters to band together as parties to pursue political ends." (citing Tashijan v. Republican Party of Connecticut, 479 U.S. 208, 215 (1986))).

Intervenor Alaskans for Better Elections, Inc.'s Motion for Summary Judgment Scott A. Kohlhaas, et al. v. State of Alaska, et. al., Case No. 3AN-20-09532 CI Page 16 of 39 prefer. 57 Indeed, far from giving political parties special constitutional rights, the

Founders deliberately created a constitutional framework designed to restrain the power of political parties. 58

The United States Supreme Court has specifically held that nonpartisan primary systems, like Alaska's, do not unconstitutionally burden the associational rights of political parties on their face because they do not interfere with the internal affairs of parties - and, more specifically, their ability to determine their nomination and endorsement processes. In Washington State Grange, the Court upheld Washington's top two nonpartisan primary system. 59 Under that system, all candidates in the primary are listed on the same ballot, and "[t]he top two candidates from the primary election proceed to the general election regardless of their party preferences." 60 The Court squarely

57 See Timmons v. Twin Cities Area New Party, 520 U.S. 351, 358 (1997) ("[I]t is ... clear that States may, and inevitably must, enact reasonable regulations of parties, elections, and ballots to reduce election- and campaign-related disorder." (citing Burdick, 504 U.S. at 433; Tashjian, 479 U.S. at 217). 58 RICHARDHOFSTADTER, THE IDEAOF A PARTYSYSTEM: THE RISE OF LEGITIMATEOPPOSITION IN THEUNITED STATES, 1780-1840, at 3 (1970) ("If there was one point of political philosophy upon which these men, who differed on so many things, agreed quite readily, it was their common conviction about the baneful effects ofthe spirit of party."); see THEFEDERALISTNO.10 (James Madison) (explaining that one of the purposes of the Constitution was "[t]o secure the public good and private rights against the danger of [political parties], and at the same time to preserve the spirit and the fonn of popular government"); see also HOFSTADTER, supra, at 53 ("[T]he [Founding] Fathers hoped to create not a system of party government under a constitution but rather a constitutional government that would check and control parties."). 59 See Washington State Grange, 552 U.S. at 458-59. 60 Id. at 453.

Intervenor Alaskans for Better Elections, Inc.'s Motion for Summary Judgment Scott A. Kohlhaas, et al. v. State of Alaska, et. al., Case No. JAN-20-09532 Cl Page 17 of39 rejected the claim that this system interfered with political parties' ability to "choose their own standard bearers" and unconstitutionally burdened their associational rights. 61 As the Court explained, Washington's election system "[did] not, by its terms, choose parties' nominees." 62 And nothing in Washington's election regulations prevented political parties from either nominating, supporting, endorsing, or disavowing specific candidates based on the desires of party members. 63 Because Washington's top two primary system no longer dictated anything about the political parties' internal nominating processes, the Court found no associational harm. 64

The Washington State Grange Court also rejected the argument that political parties have a right to compel the State to create an electoral system that enables parties to select and designate their nominees as they see fit. As the Court explained, "[ w ]hether parties nominate their own candidates outside the state-run primary is simply irrelevant"

61 Id.

62 Id. 63 Id. ("In fact, parties may now nominate candidates by whatever mechanism they choose because [the initiative] repealed Washington's prior regulations governing party nominations."). 64 Similarly, the Court found no merit to the argument that Washington's system "burden[ ed the parties'] ... associational rights because voters willassume that candidates on the general election ballot are the nominees of their preferred parties." Id. at 454. The "fatal flaw" in this facial claim was that it was based on "sheer speculation" about voter confusion. Id. The Court concluded it could not "strike down [the law] on its face based on the mere possibility of voter confusion," particularly when it was "not difficult to conceive" of ways to implement the law to avoid any such confusion. Id. at 455-56.

Intervenor Alaskans for Better Elections, Inc.'s Motion for Summary Judgment Scott A. Kohlhaas, et al. v. State of Alaska, et. al., Case No. 3AN-20-09532 CI Page 18 of 39 to the constitutional inquiry. 65 Likewise, "[t]he First Amendment does not give political parties a right to have their nominees designated as such on the ballot." 66 To the contrary, "[b ]allots serve primarily to elect candidates, not as forums for political expression." 67 For these reasons, the Court held that Washington's nonpartisan primary system did not violate the constitutional right to free association. 68 Since Washington

State Grange, other federal and state courts have evaluated similar challenges to nonpa1iisan primary systems and reached the same conclusion. 69

65 Id. at 453. 66 Id. at 453 n.7 (citing Timmons, 520 U.S. at 362-63). 67 Id. (quoting Timmons, 520 U.S. at 363 68 In reaching this conclusion, the Court also emphasized the important and historic role that States (and voters) play in making decisions about how to run their elections. See id. at 458 ("Respondents ask this Court to invalidate a popularly enacted election process that has never been carried out. . . . The First Amendment does not require this extraordinary and precipitous nullification of the will of the people."); see also Burdick, 504 U.S. at 433 ("Common sense, as well as constitutional law, compels the conclusion that government must play an active role in structuring elections[.]"); Storer v. Brown, 415 U.S. 724, 730 (1974) ("[T]here must be a substantial regulation of elections if they are to be fair and honest and if some sort of order, rather than chaos, is to accompany the democratic process."); Johnson v. City of New York, 9 N.E.2d 30, 38 (N.Y. 1937) ("If the people ... want to try [a new] system, make the experiment, and have voted to do so, ... court[ s] should be very slow in determining that the act is unconstitutional, until we can put our finger upon the very provisions of the Constitution which prohibit it."). 69 See, e.g., Washington State Republican Party v. Washington State Grange, 676 F.3d 784 (9th Cir. 2012) (rejecting as-applied associational rights challenge to Washington's top two primary system on remand from the United States Supreme Court); Rubin v. Padilla, 233 Cal. App. 4th 1128 (Cal. Ct. App. 2015) (rejecting associational rights and equal protection challenge brought by three minor parties against California's top two nonpartisan primary system).

Intervenor Alaskans for Better Elections, Inc.'s Motion for Summary Judgment Scott A. Kohlhaas, et al. v. State of Alaska, et. al., Case No. 3AN-20-09532 CI Page 19 of39 ----

Ballot Measure 2 is constitutionally indistinguishable from the top two nonpartisan primary upheld in Washington State Grange. Just like Washington's law, Ballot

Measure 2 does not interfere with political parties' internal nomination processes in any way; parties remain free to "nominate candidates by whatever mechanism they choose. "70

In fact, Ballot Measure 2's provisions make it abundantly clear that State-run primaries are no longer used to select official nominees of political parties. 71 They also explicitly state that a candidate's listed political party affiliation is not the same as a political party's endorsement or nomination, a disclaimer that is now required on every ballot. 72

The only distinguishing feature between Alaska's new primary system and the system at issue in Washington State Grange is that four candidates advance to the general election instead of two. But that is a distinction without a difference; no constitutional right is violated ( or even implicated) by allowing additional candidates to advance to the general election.

In contrast with Alaska's new primary system and the one at issue in Washington

State Grange, the system at issue in California Democratic Party v. Jones is easily

70 Washington State Grange, 552 U.S. at 453. 71 See AS 15.15.030(14)-(15); AS 15.25.010; AS 15.58.020(a)(13); AS 15.58.020(c); see also 19AKBE at 8-9, 14, 22-24 (Appendix A). 72 AS 15.15.030(14) (requiring elections officials to include a notice on the ballot that states: "A candidate's designated affiliation does not imply that the candidate is nominated or endorsed by the political party or group or that the party or group approves of or associates with that candidate[.]"); AS 15.15.030(15) (same).

Intervenor Alaskans for Better Elections, Inc.'s Motion for Summary Judgment Scott A. Kohlhaas, et al. v. State of Alaska, et. al., Case No. JAN-20-09532 CI Page 20 of39 distinguished. 73 There, the United States Supreme Court evaluated California's fonner

"blanket" primary system, in which voters directly chose each party's nominees, contrary to the plaintiff parties' wishes. Under that system, voters could vote for any candidate, regardless of the candidate's partisan affiliation, and the candidate who received the most votes within each political party would advance to the general election as that party's nominee. 74 The Jones Court held that such a system violated the associational rights of political parties, because it interfered with the parties' ability to determine who would select the parties' own nominees. 75

In reaching this conclusion, however, the Jones Court explicitly stated that a nonpartisan primary system, such as a top two or top four primary system, would be constitutional. As the Court explained, in nonpartisan primary systems "[p ]rimary voters are not choosing a party's nominee. "76 Instead, "[ eJach voter, regardless of party affiliation, may ... vote for any candidate, and the top two vote getters ( or however many the State prescribes) then move on to the general election." 77 Under such a system, "a

State may ensure more choice, greater participation, increased 'privacy,' and a sense of

73 530 U.S. 567 (2000). 74 Id. at 570. 75 Id. at 577, 581-82. 76 Id. at 586. 77 Id. at 585.

Intervenor Alaskans for Better Elections, Inc.'s Motion for Summary Judgment Scott A. Kohl/was, et al. v. State of Alaska, et. al., Case No. 3AN-20-09532 CI Page 21 of 39 'fairness' - all without severely burdening a political party's First Amendment right of association. "78

Thus, United States Supreme Court case law makes it clear that Ballot Measure

2 's top four primary provisions do not violate the associational rights of political parties under the United States Constitution. 79

ii. Alaska's top four nonpartisan primary system does not violate the Alaska Constitution.

Alaska's top four nonpartisan primary system likewise does not infringe the rights of political parties to freely associate under Article I, Section 5 of the Alaska

Constitution. 80 There is no reason to think that the Alaska Supreme Court would analyze the constitutionality of this law under the Alaska Constitution differently than under the

United States Constitution. As noted earlier, in evaluating whether election laws unconstitutionally abridge the associational rights of political parties under this provision, the Alaska Supreme Court generally uses the same test that federal courts use to evaluate

78 Id. at 586. 79 The Court's rulings in Tashjian v. Republican Party of Connecticut, 479 U.S. 208 (1986) and Eu v. San Francisco County Democratic Central Committee, 489 U.S. 214 (1989) do not suggest otherwise. Unlike the laws at issue in those cases, Ballot Measure 2 does not regulate any party's internal processes for selecting candidates or their ability to endorse candidates in party primaries. 80 Alaska Const. art. I, § 5 ("Every person may freely speak, write, and publish on all subjects, being responsible for the abuse of that right.").

Intervenor Alaskans for Better Elections, lnc.'s Motion for Summary Judgment Scott A. Kohlhaas, et al. v. State of Alaska, et. al., Case No. 3AN-20-09532 CI Page 22 of39 analogous First Amendment claims. 81 And although "the Alaska Constitution is more protective of political parties' associational interests than ... the federal constitution" in some contexts, 82 those greater protections do not apply here.

The Alaska Supreme Court has interpreted the Alaska Constitution to be more protective only with respect to the rights of political parties to determine their own internal processes for nominating candidates; specifically, the Court has given political parties the latitude to determine who selects their nominees, 83 and who may appear as a candidate for nomination. 84 As discussed above, because Alaska's top four nonpartisan primary in no way interferes with political parties' internal processes for selecting their nominees, the greater protection offered by the Alaska Constitution in other contexts is inapplicable here. Moreover, Plaintiffs can offer no Alaska precedent to suggest that political parties can compel the State to hold party nominations through State-run primary elections. There is no such precedent. Ballot Measure 2 is constitutional under the

Alaska Constitution for the same reasons it is constitutional under the federal constitution.

81 See State v. Alaska Democratic Party, 426 P.3d 901, 907, 909-10 (Alaska 2018); State, Div. of Elections v. Green Party of Alaska, 118 P.3d 1054, 1061 (Alaska 2005). 82 Alaska Democratic Party, 426 P.3d at 909 (citing Vogler v. Miller, 651 P.2d 1, 3 (Alaska 1982)). 83 Green Party of Alaska, 118 P.3d at 1060-61. 84 Alaska Democratic Party, 426 P.3d at 909-10.

Intervenor Alaskans for Better Elections, Inc.'s Motion for Summaiy Judgment Scott A. Kohlhaas, et al. v. State of Alaska, et. al., Case No. 3AN-20-09532 CI Page 23 of39 Importantly, the Alaska Constitution also explicitly acknowledges the "inherent" political power of the people. 85 Voters supported and adopted Ballot Measure 2's move away from the old primary election system dominated by the two major political parties.

Alaska's top four nonpartisan primary system has many advantages, including: (1) giving primary voters the ability to express their actual preferences in more races; (2) equalizing candidates' access to primary election ballots; (3) allowing multiple candidates with the same political party affiliation to advance to the general election if that is the voters' will;

(4) creating additional incentives for higher voter turnout during the primaries; and

( 5) measuring overall support for candidates based on the entire electorate rather than the preferences of a few voters in a smaller political subset, especially in Alaska where a majority of voters do not identify with either of the two major political parties.

Additionally, Alaskans will now be able to vote in the primary for candidates from different parties for different offices, something the prior primary system made impossible because it forced each voter to choose between only one of two ballots. 86

85 Alaska Const. art. I, § 2 ("All political power is inherent in the people. All government originates with the people, is founded upon their will only, and is instituted solely for the good of the people as a whole."). 86 Alaska's local governments generally already run their own elections on a nonpartisan basis. For example, Anchorage runs its mayoral election through a nonpartisan process where all of the candidates appear on a single, initial ballot. Then, the top-two vote getters appear against one another in a run off. See Anchorage Municipal Charter, art. XI, § l l .02(b ).

Intervenor Alaskans for Better Elections, Inc.'s Motion for Summary Judgment Scott A. Kohlhaas, et al. v. State of Alaska, et. al., Case No. JAN-20-09532 CI Page 24 of39 These benefits enhance the power of individual voters while creating additional paths to the ballot for candidates who are not members of either major party. 87

In sum, Plaintiffs' facial challenge to Alaska's nonpartisan primary system fails at the outset because this system does not burden "a constitutionally protected right. "88 This court should reject the Plaintiffs' claims and grant Intervenor ABE's motion for summary judgment.

C. Alaska's Ranked-Choice Voting System For Statewide General Elections Does Not Violate The Alaska Or United States Constitutions.

Plaintiffs claim that Ballot Measure 2's RCV provisions also violate the Alaska and United States Constitutions by interfering with political parties' associational rights and "withhold[ing] political power from the people." 89 But Plaintiffs provide no explanation or support for these generalized claims. Instead, Plaintiffs allege primarily that Ballot Measure 2's RCV provisions are unconstitutional because they violate the principle of "one person, one vote." 90 Plaintiffs also appear to complain about RCV's

87 In fact, Ballot Measure 2's provisions will make it just as likely, if not easier, for minority party candidates to reach the general election ballot. That is one of the many reasons why the Alaska Libertarian Party endorsed Ballot Measure 2. See Yes on 2 for Better Elections, Supporters (last accessed Mar. 2, 2021), https://alaskansforbetterelections.com/supporters/ ("The Alaska Libertarian Party stands firmly behind the Alaskans for Better Elections Ballot Initiative."). 88 Green Party of Alaska, 118 P.3d at 1061; see also Burdick v. Takushi, 504 U.S. 428, 433 (1992). 89 Plaintiffs' Second Amended Complaint at 5. 90 Plaintiffs' Second Amended Complaint at 6.

Intervenor Alaskans for Better Elections, Inc.'s Motion for Summary Judgment Scott A. Kohlhaas, et al. v. State of Alaska, et. al., Case No. 3AN-20-09532 CI Page 25 of39 specific tabulation mechanics. 91 In so doing, Plaintiffs ignore RCV's long history in

American politics and the mountain of precedent affirming its constitutionality.

Alaska and Ballot Measure 2 are not unique in implementing RCV. 92 Today,

RCV is used by all voters in some elections in two states - Maine 93 and soon Alaska - and by some voters, mostly military and overseas voters, in five states. 94 Four more states - Colorado, Massachusetts, New Mexico, and Virginia-have local option rules, authorizing local jurisdictions to adopt RCV. 95 Finally, voters in cities and counties

91 Plaintiffs' Second Amended Complaint at 6. 92 See Johnson v. City of New York, 9 N.E.2d 30, 38 (N.Y. 1937) ("We cannot say ... that [RCV] is a mere dream or speculation. It has been used and found to work."); see also Kevin Reyes, Note, Redistricting or Rethinking? Why Proportional Representation May Be a Better Solution than California's Independent Redistricting Commission, 20 S. CAL. INTERDISC.L.J. 655, 672-76 (2011) (reviewing the historical use ofRCV in American cities). 93 See Me. Stat. tit. 21-a, § 723-A; see also Kan. Att. Gen. Op. No. 2020-8, 2020 WL 3027702 (June 1, 2020) (determining that the Kansas Constitution "does not prohibit the use of ranked-choice voting"). 94 See Ala. Code§ 17-13-8.1; Ark. Code Ann. § 7-5-406; La. Stat. Ann. § 18:1306(A)(4); tit. 1, part 10, ch. 4 Miss. Code R. § 4.3(A), (B); S.C. Code Ann. § 7-15-650; see also IO Ill. Comp. Stat.§ 5/16-5.0l(c) (authorizing municipalities to use RCV for military and overseas voters in any election). 95 See Colo. Rev. Stat.§§ 1-7-1001-1004; Mass. Gen. Laws ch. 43, §§ 93, 96; N.M. Code R. § l.10.14.8(F); Va. Code Ann.§ 15.2-705.1.

Intervenor Alaskans for Better Elections, Inc.'s Motion for Summary Judgment Scott A. Kohlhaas, et al. v. State of Alaska, et. al., Case No. JAN-20-09532 CI Page 26 of39 across ten states use RCV, 96 and more will begin using it within the next few years. 97 All told, millions of Americans regularly rely on RCV to exercise their right to vote and participate fully in American democracy.

Courts have routinely upheld RCV systems as constitutional. 98 For example, in

Dudum v. Arntz, the Ninth Circuit held that San Francisco's use ofRCV did not violate the First or Fourteenth Amendments of the United States Constitution. 99 As the Ninth

Circuit explained, RCV simply does not offend the "one person, one vote" requirement:

96 See, e.g., Arden, Del., Charter§ 7(a); Basalt, Colo. Home Rule Charter art. II, § 2.8; Benton, Cnty., Or., Charter ch. VII, § 25(1); Cambridge, Mass., Plan E Charter,§ 112; Las Cruces, N.M., Municipal Code§ 8-15; Minneapolis, Minn., Charter art. III,§ 3.l(b) and Minneapolis, Minn., Code tit. 8.5 §§ 167.20-.70; Oakland, Cal., Charter art. XI,§ 1105; Portland, Me., Charter art. II,§ 3; Takoma Park, Md., Charter art. VI,.§ 606(b); United States v. City of Eastpointe, 2019 WL 2647355 (E.D. Mich. 2019) (approving RCV as a remedy for violation of§ 2 of the Voting Rights Act). 97 See, e.g., Albany, Cal., Code ch. 7; Amherst, Mass., Home Rule Charter art. 10, § 10.10; Bloomington, Minn., Charter§ 4.07; Boulder, Colo, Ballot Measure 2E (Nov. 4, 2020), https://bouldercolorado.gov/newsroom/city-of-boulder-november- 2020-election-results; Easthampton, Mass., Home Rule Charter art. 7, §§ 7-1.1-.2; New York, N.Y., Charter, ch. 46, § 1057-g. 98 See, e.g., Dudum v. Arntz, 640 F.3d 1098 (9th Cir. 2011) (upholding San Francisco's use ofRCV in elections for several city offices); Baber v. Dunlap, 349 F. Supp. 3d 68 (D. Me. 2018) (affinning the constitutionality ofRCV for electing federal congressional officials); Campbell v. Bd. of Educ., 310 F. Supp. 94 (E.D.N.Y. 1970) (upholding New York City's use ofRCV in school board elections); Minn. Voters All. v. City of Minneapolis, 766 N.W.2d 683 (Minn. 2009) (concluding that RCV does not violate the state constitution); McSweeney v. City of Cambridge, 665 N.E.2d 11, 15 (Mass. 1996) (upholding RCV in at-large city council elections); Reutener v. City of Cleveland, 141 N.E. 27, 33-34 (Ohio 1923) (concluding that RCV does not violate the state constitution); Orpen v. Watson, 93 A. 853, 855 (N.J. 1915) (same). 99 See 640 F.3d at 1117.

Intervenor Alaskans for Better Elections, Inc.'s Motion for Summary Judgment Scott A. Kohlhaas, et al. v. State of Alaska, et. al., Case No. 3AN-20-09532 CI Page 27 of39 [A]ll voters participating in a[n RCV] election are afforded a single and equal opportunity to express their preferences for ... candidates; voters can use all [of their ranking] preferences, or fewer if they choose. Most notably, once the polls close and calculations begin, no new votes are cast . . . . The ballots . . . are the initial inputs; the sequence of calculations mandated by [RCV] is used to arrive at a single output one winning candidate. The series of calculations required . . . to produce the winning candidate are simply steps of a single tabulation, not separate rounds of voting. [lOOJ

The Ninth Circuit similarly rejected a claim that the "exhausted" ballots in an RCV voting system somehow made it unconstitutional, explaining that" '[e]xhausted' ballots are not disregarded in tabulating election results"; they just "represent votes for losing candidates." 101 Other federal courts have also affinned the constitutionality ofRCV. 102

State courts have agreed with the Ninth Circuit's reasoning, upholding RCV against both state and federal constitutional challenges. For example, the Minnesota

Supreme Court concluded that RCV does not lead to an unequal weighting of some votes or the dilution of others since "[ e]very voter has the same opportunity to rank candidates when she casts her ballot, and in each round every voter's vote carries the same value." 103

100 Id. at 1107 (emphasis in original); see also id. at 1112 ("[T]he option to rank multiple preferences is not the same as providing additional votes, or more heavily weighted votes, relative to other votes cast." ( emphasis in original)). 101 Id. at 1111; see also Mcsweeney, 665 N.E.2d at 14 ("[I]t is no more accurate to say that [exhausted] ballots are not counted than to say that the ballots designating a losing candidate in a two-person, winner-take-all race are not counted."). 102 See Baber, 349 F. Supp. 3d at 76-78; Campbell, 310 F. Supp. at 102-04. 103 Minn. Voters All., 766 N.W.2d at 693; see also Stephenson v. Ann Arbor Bd. of Canvassers, No. 75-10166 AW (Mich. Cir. Ct. 1975) (upholding RCV because "[a]ll voters ... possess[] the same rights that is, the right to, or right not to, select and list their preferences in numerical order"); Johnson, 9 N.E.2d at 35 ("[RCV]

Intervenor Alaskans for Better Elections, Inc.'s Motion for Summary Judgment Scott A. Kohl/was, et al. v. State of Alaska, et. al., Case No. 3AN-20-09532 CI Page 28 of39 The Massachusetts Supreme Court likewise recognized that RCV, "far from seeking to infringe on each citizen's equal franchise, seeks more accurately to reflect voter sentiment ... 'by giving [the voter] an opportunity to express more than one preference among candidates.' This purpose is not a derogation from the principle of equality but an attempt to reflect it with more exquisite accuracy." 104

RCV also promotes additional principles of representative democracy. First, RCV is more majoritarian than plurality voting. Where plurality voting "privileges candidates with a robust and organized core of support, even if they are strongly disapproved ofby most of the electorate," 105 RCV - because it requires a candidate to receive more than fifty percent of all ranked votes to win - "ordinarily will result in the election of a candidate with more widespread support." 106 Second, RCV leaves "[v]oters ... more free to vote their true preferences, because they face less of a threat of having their votes treats all electors alike, and does not prevent a man from voting for the candidate of his choice."); Reutener, 141 N.E. at 33 (under RCV, every voter "has exactly the same voting power and right as every other elector"). 104 McSweeney, 665 N.E.2d at 15 (alterations in original) (citations omitted) (quoting Moore v. Election Comm 'rs of Cambridge, 35 N.E.2d 222, 239 (Mass. 1941)). 105 Dudum, 640 F.3d at 1103 (citations omitted). 106 Id. at 1104 (citations omitted); see also Orpen, 93 A. at 855 ("[RCV's] manifest purpose ... is to ascertain the preferences of a majority of all the voters participating in any such election and to give effect to that preference[.]"). Cf Andrew Douglas, The Effect of Fair Representation Voting on 2013 Cambridge, Massachusetts Municipal Elections, FairVote Research Report, at 10-11, https://fairvote.app.box.com/v/fair-rep-cambridge-effects (Feb. 2014) (showing that in 2013, "93 % of Cambridge voters were able to ... elect one of their top three choices").

Intervenor Alaskans for Better Elections, Inc.'s Motion for Summary Judgment Scott A. Kohlhaas, et al. v. State of Alaska, et. al., Case No. 3AN-20-09532 CI Page 29 of39 entirely 'wasted' on unsuccessful candidates." 107 Opening the door for voters' self expression, in turn, opens the door for more diverse candidates with more diverse views and policy platforms to run for office, 108 and more diverse candidates means greater representation for all Alaskans. Finally, RCV- because it facilitates greater representation -promotes greater voter engagement 109 and confidence in electoral processes and government decisions. 110

107 Dudum, 640 F.3d at 1105 (citations omitted); see also Baber, 349 F. Supp. 3d at 78 ("RCV ... actually encourages First Amendment expression, without discriminating against any given voter." (footnote omitted)). 108 See, e.g., Michael Lewyn, Two Cheers for Instant Runoff Voting, 6 PHOENIX L. REV. 117, 125 (2012) (noting that RCV allows independent and third-party candidates to run and champion their ideas without fear of spoiling the election, while permitting voters to support these candidates without fear of wasting their vote); Andrew Spencer et al., Escaping the Thicket: The Ranked Choice Voting Solution to America's Districting Crisis, 46 CUMB.L. REV. 377, 419-20 (2015) ( discussing RCV' s positive impact on minority candidates, including candidates of color and women). 109 See Haley Smith, Ranked Choice Voting and Participation: Impacts on Deliberative Engagement, FairVote Civility Report #7, at 13, https ://fairvote.app. box. com/v/DeliberativeEngagement (June 2016) ( finding that "people talked about, debated, and engaged with politics more where RCV was present"). 110 See, e.g., Theo Landsman et al., Ranked Choice Voting in 2018: A Mid-Year Report: Analysis of Turnout, Voter Experience, and Election Administration, FairVote, at 6, https://fairvote.app.box.com/s/038bzl5b80dlsc0mcsgtzxvs2yh4sfp7 (July 2018) (reporting that 94% of voters in Santa Fe, New Mexico were satisfied with the RCV voting experience, a rate higher than that of voters statewide); Campbell, 310 F. Supp. at 104 (finding that voters are more likely to support government policies when they know "that a representative for whom he_[or she] has indicated a preference will participate in decision making").

Intervenor Alaskans for Better Elections, Inc.'s Motion for Summary Judgment Scott A. Kohl/was, et al. v. State of Alaska, et. al., Case No. 3AN-20-09532 CI Page 30 of 39 RCV is therefore not only constitutional, but also contributes to positive democratic ideals and outcomes.

D. Ballot Measure 2's Provisions For Electing The Governor And Lieutenant Governor Do Not Violate The Alaska Constitution.

Plaintiffs have recently sought to amend their complaint to add a claim that Ballot

Measure 2' s impact on future elections for governor and lieutenant governor violates the

Alaska Constitution. 111 Although this court has not yet accepted Plaintiffs' latest amended complaint, ABE nevertheless addresses this new claim to explain how it, too, has no merit.

Article III, section 8 of the Alaska Constitution simply states that a candidate for lieutenant governor must "run[] jointly with" "a candidate for governor" in "the general election." 112 Nothing in Ballot Measure 2 conflicts with this requirement because the governor and lieutenant governor must still run jointly in the general election. 113

111 See Plaintiffs' Second Amended Complaint at 8-9. 112 Alaska Const. art. III, § 8 ("The lieutenant governor shall be nominated in the manner provided by law for nominating candidates for other elective offices. In the general election the votes cast for a candidate for governor shall be considered as cast also for the candidate for lieutenant governor running jointly with him. The candidate whose name appears on the ballot jointly with that of the successful candidate for governor shall be elected lieutenant governor."). 113 See AS 15.15.030(5) ("The lieutenant governor and the governor shall be included under the same section."); AS 15.25.lO0(a) ("[C]andidates for lieutenant governor and governor are treated as a single paired unit."). The only somewhat related change caused by Ballot Measure 2 is that the governor and lieutenant governor must now run jointly in the top four nonpartisan primary. AS 15.25.030(a)(l6)-(l 7); see 19AKBE at 15 (Appendix A). Stated

Intervenor Alaskans for Better Elections, Inc.'s Motion for Summary Judgment Scott A. Kohll1aas, et al. v. State of Alaska, et. al., Case No. 3AN-20-09532 CI Page 31 of39 Plaintiffs' claim that Ballot Measure 2 violates this provision of the Alaska Constitution should therefore be rej ected. 114

Plaintiffs' apparent concern with article III, section 3 of the Alaska Constitution is similarly without merit. That provision provides, in full, that: "[t]he governor shall be chosen by the qualified voters of the State at a general election. The candidate receiving the greatest number of votes shall be governor.'' 115 Ballot Measure 2 does not offend either of these constitutional mandates. Under Alaska's new election system, the governor is still "chosen by the qualified voters of the State at a general election," 116 and

"[t]he candidate receiving the greatest number of votes" is still the person who is elected governor. 117

Because Plaintiffs' latest claim against Alaska's new election system lacks merit, this court should reject it and grant Intervenor ABE's motion for summary judgment.

differently, the lieutenant governor is still nominated by voters in the same constitutionally-permissible manner as the governor. See Alaska Const. art. III, § 8. 114 See Plaintiffs' Second Amended Complaint at 8-9. 115 Alaska Const. art. III, § 3. 116 Alaska Const. art. III,§ 3; see AS 15.05.010-.030 (outlining voter qualifications); AS 15.07.010 (allowing qualified voters to vote). 117 Alaska Const. art. III,§ 3; see AS 15.15.350(d) ("If a candidate is highest- ranked on more than one-half of the active ballots, that candidate is elected[.]"); see also AS l 5.15.350(d)(l) ("[T]he candidate with the greatest number of votes is elected[.]" (emphasis added)); AS 15.15.350(d)(2) ("[I]fthe candidate with the fewest votes is defeated, votes cast for the defeated candidate shall cease counting for the defeated candidate and shall be added to the totals of each ballot's next-highest ranked continuing candidate ... , and a new round begins under ( 1) of this subsection."); 19AKBE at 9 (Appendix A).

Intervenor Alaskans for Better Elections, Jnc.'s Motion for Summary Judgment Scott A. Kohlhaas, et al. v. State of Alaska, et. al., Case No. 3AN-20-09532 Cl Page 32 of 39 E. Plaintiffs Do Not Challenge Ballot Measure 2's Dark Money Provisions, Which Are Constitutional.

Plaintiffs' complaint does not allege that Ballot Measure 2's Dark Money provisions are unconstitutional, likely because these provisions are clearly constitutional.

In 2010, in Citizens United v. Federal Election Commission, the United States

Supreme Court held that corporations cannot be limited in spending from their corporate treasuries on election-related ads so long as their spending is done independently of candidates. 118 But at the same time, the Court made it abundantly clear that disclaimer and disclosure requirements are not only constitutional, but can also be particularly helpful when election ads mention candidates shortly before elections, even if the ads do not expressly advocate for the candidates' election or defeat. 119

Ballot Measure 2's Dark Money provisions do not limit free speech in any way; they merely add reasonable disclaimer and disclosure requirements to ensure that the true source of money that pays for campaign speech is made public. Thus, they are

118 558 U.S. 310,365 (2010). 119 Citizens United, 558 U.S. at 366-71; see also id. at 370-71 ("With the advent of the Internet, prompt disclosure of expenditures can provide shareholders and citizens with the information needed to hold corporations and elected officials accountable for their positions and supporters. Shareholders can determine whether their corporation's political speech advances the corporation's interest in making profits, and citizens can see whether elected officials are ' "in the pocket" of so called moneyed interests.' The First Amendment protects political speech; and disclosure permits citizens and shareholders to react to the speech of corporate entities in a proper way. This transparency enables the electorate to make informed decisions and give proper weight to different speakers and messages." ( citations omitted)).

Intervenor Alaskans for Better Elections, Inc.'s Motion for Summary Judgment Scott A. Kohl/was, et al. v. State of Alaska, et. al., Case No. 3AN-20-09532 CI Page 33 of 39 constitutional and can function as intended, even if Plaintiffs were to prevail on any of the other claims they have brought against Ballot Measure 2.

F. If Any Provisions In Ballot Measure 2 Are Found To Be Unconstitutional, They Are Severable.

Although Plaintiffs' complaint does not allege that Ballot Measure 2's Dark

Money provisions are unconstitutional, Plaintiffs' complaint alleges that Ballot

Measure 2' s provisions are inseverable. The Dark Money disclosure provisions, however, operate independently of Ballot Measure 2's other provisions. Although all of

Ballot Measure 2's provisions work to improve self-government in Alaska, the Dark

Money provisions could be fully implemented even if Plaintiffs were to prevail on any of their claims against the new primary system or RCV, which they should not.

Plaintiffs make the remarkable claim that, because the Alaska Supreme Court held in Meyer v. Alaskans for Better Elections that 19AKBE did not violate the single-subject rule, this court cannot sever any portions of Ballot Measure 2 that it might find unconstitutional. But this is simply not how severability works in Alaska. Although

Intervenor ABE has demonstrated that all of Plaintiffs' facial challenges must fail, if this court were to find any portion of Ballot Measure 2 unconstitutional, this court can and should simply sever that portion and preserve the rest of Ballot Measure 2's provisions.

The Alaska Supreme Court in Alaskans for a Common Language, Inc. v. Kritz specifically addressed how courts should apply severability to ballot initiatives. 120 As a

120 See generally 170 P.3d 183 (Alaska 2007).

Intervenor Alaskans for Better Elections, Inc.'s Motion for Summary Judgment Scott A. Kohlhaas, et al. v. State of Alaska, et. al., Case No. 3AN-20-09532 CI Page 34 of39 preliminary matter, the Court held that the same severability analysis that is applied to legislatively-enacted statutes applies to laws enacted through the initiative process. 121

The Court then reiterated its two-part severability test, which asks: "(l) whether 'legal effect can be given' to the severed statute"; 122 and (2) "whether the voters 'intended the provision to stand' in the event that portions of it were struck down." 123 The first part of the test "is a relatively low threshold test that merely requires an enforceable command to implement the law." 124 For the second part of the test, "[t]he key question is whether the portion remaining, once the offending portion of the statute is severed, is independent and complete in itself so that it may be presumed that the [voters] would have enacted the valid parts without the invalid part." 125

The Court in Alaskans for a Common Language ultimately concluded that the initiative easily met the two-part test and that the constitutionally-permissible portions of the ballot initiative should remain. 126 As a threshold matter, the Court explained that the

121 Id. at 210. 122 See id. at 209 (quoting Lynden Transp., Inc. v. State, 532 P.2d 700, 713 (Alaska 1975)). 123 Id. at 212 (quoting Lynden Transp., 532 P.2d at 713). 124 Id. at 212 (citing McAlpine v. Univ. of Alaska, 762 P.2d 81, 94 (Alaska 1988)); see also id. (holding that," 'standing alone, legal effect can be given to' the provisions that remain after severance of an invalid provision" ( quoting Lynden Transp., 532 P.2d at 713)). 125 Id. (alterations in original) (quoting Sonneman v. Hickel, 836 P.2d 936, 941 (Alaska 1992)). 126 Id. at 209-14.

Intervenor Alaskans for Better Elections, Inc.'s Motion for Summary Judgment Scott A. Kohlhaas, et al. v. State of Alaska, et. al., Case No. JAN-20-09532 Cl Page 35 of 39 burden was "on those challenging the statute ... [to show] that the [severability] test is not satisfied by a redaction" of the offending provision. 127 With respect to the two-part test itself, the Court first concluded that the remaining provisions could be given "legal effect" after examining "whether the severed statute requires action or if it is merely a statement of public policy." 128 Second, the Court concluded that voters "did intend [for] the remaining provision to stand in the event that portions of the initiative were struck," primarily because of the initiative's own severability clause. 129 The Court also noted that its "conclusion [was] buoyed by [its] analysis of the overarching purpose of the initiative," which was not disturbed by the elimination of the provision. 130

It is clear that Ballot Measure 2 would satisfy a severability analy~is, just like the initiative at issue in Alaskans for a Common Language. Ballot Measure 2 satisfies the first factor: "whether 'legal effect can be given' to the severed statute." 131 The provisions of Ballot Measure 2 that would remain after a possible severance would meet the "relatively low threshold test" of simply having "an enforceable command to implement the law," 132 because they would be more than mere "statement[s] of public

127 Id. at 210-11 (emphasis in original) (citing Lynden Transp., 532 P.2d at 711- 12). 128 Id. at 211 (citing McAlpine, 762 P.2d at 94). 129 Id. at 212-13. 130 Id. at 213. 131 Id. at 209 (quoting Lynden Transp., 532 P.2d at 713). 132 Id. at 211 (citing McAlpine, 762 P.2d at 94).

Intervenor Alaskans for Better Elections, Inc.'s Motion for Summary Judgment Scott A. Kohlhaas, et al. v. State of Alaska, et. al., Case No. JAN-20-09532 CI Page 36 of39 policy." 133 Each of the provisions discussed above-the new primary system, RCV, and

Dark Money disclosure - could function perfectly well by itself, even if it were the only provision left standing.

As to the second part of the test, Ballot Measure 2 has an explicit severability clause just like the measure at issue in Alaskans for a Common Language, 134 in addition to the general savings clause in Alaska law that favors severability. 135 As explained in

Alaskans for a Common Language, it would be nonsensical to conclude that the voters who approved Ballot Measure 2 - and thus approved its severability clause - would want anything other than for the initiative's provisions to be severable. 136

Furthermore, contrary to Plaintiffs' claim, Meyer v. Alaskans for Better Elections did not somehow overturn precedent and create a new severability test that should be applied only to Ballot Measure 2; the Supreme Court in that case only held that l 9AKBE did not violate the single-subject rule and therefore should appear on the general election

133 Id. (citing McAlpine, 762 P.2d at 94). 134 19AKBE at 25 (Appendix A) ("The provisions of this act are independent and severable. If any provision of this act, or the applicability of any provision to any person or circumstance, shall be held to be invalid by a court of competent jurisdiction, the remainder of the act shall not be affected and shall be given effect to the fullest extent possible."). 135 AS 01.10.030 ("Any law heretofore or hereafter enacted by the Alaska legislature which lacks a severability clause shall be construed as though it contained the clause in the following language: 'If any provision of this Act, or the application thereof to any person or circumstance is held invalid, the remainder of this Act and the application to other persons or circumstances shall not be affected thereby.' "); see also Alaskans for a Common Language, 170 P.3d at 213 n.183. 136 Alaskans for a Common Language, 170 P.3d at 212-13.

Intervenor Alaskans for Better Elections, Inc.'s Motion for Summary Judgment Scott A. Kohlhaas, et al. v. State of Alaska, et. al., Case No. JAN-20-09532 CI Page 37 of 39 ballot. 137 That case had nothing to do with severability, and does not somehow render

Ballot Measure 2's severability clause inoperable or permit a court to throw longstanding severability precedent to the wind.

Plaintiffs' argument would also lead to an absurd outcome. Every law, whether enacted by the legislature or via ballot measure, must obey the single-subject rule. 138

Accordingly, by Plaintiffs' logic, no portion of any law would ever be severable. This argument is bereft of legal or logical support.

In sum, because Ballot Measure 2 easily meets the test for severability, this court should reject the attempt to invalidate the entirety of Ballot Measure 2 in the unlikely event this court finds any singular provision in the election reform initiative unconstitutional.

IV. CONCLUSION

Ballot Measure 2's reasonable and voter-approved election reforms are constitutional and must be given the opportunity to be implemented. Political parties simply do not have a constitutionally-protected right to select nominees through a state run primary election, and ranked-choice voting - which allows for voters to more precisely express their preferences on a single ballot - is constitutional. Because

Plaintiffs' facial challenge to Ballot Measure 2 lacks merit, this court should GRANT

137 465 P.3d 477, 497-99 (Alaska 2020). 138 See id. at 497 (reaffirming that all laws, whether enacted through the initiative or legislative process, must satisfy the single-subject rule).

Intervenor Alaskans for Better Elections, Inc.'s Motion for Summary Judgment Scott A. Kohlhaas, et al. v. State of Alaska, et. al., Case No. JAN-20-09532 Cl Page 38 of 39 Intervenor ABE's motion for summary judgment on all counts and uphold the will of the people.

RESPECTFULLY SUBMITTED at Anchorage, Alaska this 2nd day of April

2021.

HOLMES WEDDLE & BARCOTT, PC Attorneys for Intervenor Alaskans for Better Elections, Inc.

By: sf Scott M Kendall/ Scott M. Kendall Alaska Bar No. 0405019 Jahna M. Lindemuth Alaska Bar No. 9711068 Samuel G. Gottstein Alaska Bar No. 1511099 CERTIFICATE OF SERVICE I hereby certify that on this ) "tday of ,/~(}!'~\ 2021, a true and correct copy of the foregoing was sent to the following via U.S. Mail and e-mail:

Kenneth P. Jacobus, Esq. Kenneth P. Jacobus, P.C. 310 K Street, Ste 200 Anchorage, AK 99501-2064 [email protected]

Margaret Paton-Walsh, Esq. Thomas S. Flynn, Esq. Attorney General's Office 1031 W. 4th Avenue, Suite 200 Anchorage, AK 99501 margaret. [email protected] [email protected] (~ /-----~--- --<~~ '•" Brian Fontaine "----5-··· x:\7349\32585\pldgs\drafts\2021-04-1- motion for summaryjudgment.docx

Intervenor Alaskans for Better Elections, Inc.'s Motion for Summary Judgment Scott A. Kohlhaas, et al. v. State of Alaska, et. al., Case No. 3AN-20-09532 Cl Page 39 of 39