In the Supreme Court of the United StatesIn the Supreme Court of the United StatesIn the Supreme Court of the United StatesIn the Supreme Court of the United StatesIn the Supreme Court of the United States

RAVALLI COUNTY REPUBLICANCENTRAL COMMITTEE, et al.,

Petitioners,

v.

COREY STAPLETON, MONTANASECRETARY OF STATE, et al.,

Respondents.

On Petition for Writ of Certiorari to theUnited States Court of Appeals for the Ninth Circuit

BRIEF IN OPPOSITION

Timothy C. FoxMontana Attorney GeneralDale SchowengerdtSolicitor General Counsel of RecordJ. Stuart SegrestAssistant Attorney GeneralMONTANA DEPARTMENT OF JUSTICE

215 N. Sanders St.Helena, MT 59601DaleS@mt.gov(406) 444-2026

Counsel for Respondents

Becker Gallagher · Cincinnati, OH · Washington, D.C. · 800.890.5001

NO. 16-806

i

QUESTIONS PRESENTED

Did the district court err in requiring Petitioners tosubmit evidence to support their allegation thatMontana’s open primary severely burdens their rightsto freely associate because of substantial cross-overvoting by nonmembers?

ii

TABLE OF CONTENTS

QUESTIONS PRESENTED . . . . . . . . . . . . . . . . . . . i

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . iv

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . 3

REASONS FOR DENYING THE PETITION . . . . . 8

I. This Case Is A Poor Vehicle To Decide theQuestion Presented. . . . . . . . . . . . . . . . . . . . . 8

A. No Court Has Yet Resolved the State’sContention That the Committees LackStanding. . . . . . . . . . . . . . . . . . . . . . . . . . . 8

B. No Court Has Yet Resolved Whether theCounty Committees Mooted Their CaseBy Voluntarily Dismissing It WithPrejudice. . . . . . . . . . . . . . . . . . . . . . . . . . 13

C. The Question Presented Does Not AllowResolution of this Case. . . . . . . . . . . . . . . 14

D. The Ninth Circuit Never Considered theMerits of the County Committees’ Case. 16

II. There Is No Conflict Among the Circuits. . . 18

III. The Court of Appeals’ Decision in DemocraticParty of Hawaii v. Nago Is Correct. . . . . . . . 21

A. This Court’s Cases Require Evidence ToShow the Extent of the Burden onAssociational Rights. . . . . . . . . . . . . . . . . 21

B. La Follette Is Not To the Contrary. . . . . 23

iii

C. The County Committees Present NoEvidence of Forced Association. . . . . . . . 24

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

APPENDIX

Appendix 1 Order in the United States DistrictCourt for the District of MontanaHelena Division(March 11, 2016) . . . . . . . . . . . . . App. 1

iv

TABLE OF AUTHORITIES

CASES

Adarand Constructors, Inc. v. Mineta, 534 U.S. 103 (per curium) . . . . . . . . . . . . . . . . . . 9

Anderson v. Celebrezze, 460 U.S. 780 (1983) . . . . . . . . . . . . . . . . . . . . . . 22

Arizona Libertarian Party v. Bayless, 351 F.3d 1277 (9th Cir. 2003) . . . . . . . . . . . . . . . 5

Arizonans for Official English v. Arizona, 520 U.S. 43 (1997) . . . . . . . . . . . . . . . . . . . . . . . 10

Bender v. Williamsport Area Sch. Dist., 475 U.S. 534 (1986) . . . . . . . . . . . . . . . . . . . . . . 10

California Democratic Party v. Jones, 530 U.S. 567 (2000) . . . . . . . . . . . . . . 3, 21, 22, 25

Clingman v. Beaver, 544 U.S. 581 (2005) . . . . . . . . . . . . . . . . 22, 23, 25

Concha v. London, 62 F.3d 1493 (9th Cir. 1995) . . . . . . . . . . 7, 13, 14

Democratic Party of Hawaii v. Nago, 833 F.3d 1119 (9th Cir. 2016) . . . . . . . . . . passim

Democratic Party of United States v. Wisconsin exrel. La Follette, 450 U.S. 107 (1981) . . . . . . . . . . . . . . . . 23, 24, 25

Diamond v. Charles, 476 U.S. 54 (1986) . . . . . . . . . . . . . . . . . . . . . . . 11

Hollingsworth v. Perry, 133 S. Ct. 2652 (2013) . . . . . . . . . . . . . . . . . . . . 10

v

Izumi Seimitsu Kogyo Kabushiki Kaisha v. U.S.Philips Corp., 510 U.S. 27 (1993) . . . . . . . . . . . . . . . . . . . . . . . 12

Lujan v. Defenders of Wildlife, 504 U.S. 555 (1990) . . . . . . . . . . . . . . . . . . . . . . 10

Miller v. Brown, 462 F.3d 312 (4th Cir. 2006) . . . . . . . . . 18, 19, 20

Miller v. Brown, 503 F.3d 360 (4th Cir. 2007) . . . . . . . . . 18, 19, 20

NCAA v. Smith, 525 U.S. 459 (1999) . . . . . . . . . . . . . . . . . . . . . . . 9

Storer v. Brown, 415 U.S. 724 (1974) . . . . . . . . . . . . . . . . . . . . . . 22

Tashjian v. Republican Party of Connecticut, 479 U.S. 208 (1986) . . . . . . . . . . . . . . . . . . . 22, 23

Timmons v. Twin Cities Area New Party, 520 U.S. 351 (1997) . . . . . . . . . . . . . . . . . . . . . . 22

United States v. Procter & Gamble Co., 356 U.S. 677 (1958) . . . . . . . . . . . . . . . . . . . . . . 13

United States v. Rodriguez, 433 F.3d 411 (4th Cir. 2006) . . . . . . . . . . . . . . . 20

Washington State Grange v. Washington StateRepublican Party, 552 U.S. 442 (2008) . . . . . . . . . . . . . . . . . . . . . . 16

Whitmore v. Arkansas, 495 U.S. 149 (1990) . . . . . . . . . . . . . . . . . . . . . . 11

vi

Zivotofsky v. Clinton, 566 U.S. 189 (2012) . . . . . . . . . . . . . . . . . . . . . . 11

CONSTITUTION

U.S. Const. amend. I . . . . . . . . . . . . . . . . . . . . passim

U.S. Const. amend. XIV . . . . . . . . . . . . . . . . . . . . . 22

STATUTES

Mont. Code Ann. § 13-10-407 . . . . . . . . . . . . . . . . . . 3

Mont. Code Ann. § 13-10-601 . . . . . . . . . . . . . . . . . . 3

Mont. Code Ann. § 13-38-203 . . . . . . . . . . . . . . . . 4, 9

OTHER AUTHORITIES

National Conference of State Legislatures, StatePrimary Election Types (July 21, 2016), athttp://www.ncsl.org/research/elections-and-campaigns/primary-types.aspx# . . . . . . . . . . . . 20

Richard H. Pildes, Why the Center Does Not Hold:The Causes of Hyperpolarized Democracy inAmerica, 99 Calif. L. Rev. 273 (April 2011) . . . 20

1

INTRODUCTION

The Petitioners, several Republican CountyCommittees, claim that Montana’s century-old openprimary severely burdens their rights to freeassociation. They allege that “20-30 percent” of non-Republicans, who they claim are “openly antagonistic”to Republican Party ideals, vote in Republicanprimaries. They argue that the Ninth Circuit erred inrequiring evidence to support that claim, and they askthis Court to grant their petition to determine whetheropen primaries constitute a per se severe burden ontheir associational rights.

The Court should deny the petition. There is nosplit among the circuits on the question that theCounty Committees present. And that should not besurprising. It is axiomatic that when plaintiffs allegethat they are severely burdened because a significantnumber of non-Republicans are raiding Republicanprimaries, they ought to have some evidence that theirallegations are actually true.

But even if the Court believes that the issue needsresolution, this case’s unresolved jurisdictionalquestions and its haphazard procedural history makeit an exceptionally poor vehicle to do so. Montana hastwice questioned the County Committees’ standing tochallenge the open primary because the CountyCommittees play no role in selecting Republicancandidates and have no authority to represent theRepublican Party’s interests. Yet the CountyCommittees have twice avoided judicial review of thatissue. This Court should not be the first court todetermine whether the County Committees have

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standing, especially when they failed to raise it as aquestion presented.

That is not the only open jurisdictional question. The County Committees appealed after theyvoluntarily dismissed their case with prejudicefollowing the district court’s denial of cross-motions forsummary judgment. This Court is currently reviewing,in a different context, whether the Ninth Circuit’sunique rule allowing appeal of a voluntary dismissalwith prejudice renders a case non-justiciable underArticle III. See Microsoft Corporation v. Baker, No. 15-547. Other circuits have held, for good reason, that aplaintiff moots his case by voluntarily dismissing it.Thus, mootness is yet another jurisdictional questionthat this Court will be forced to address should it grantthe petition for certiorari.

Finally, even if the County Committees couldovercome these jurisdictional hurdles, their questionpresented does not allow resolution of the case. TheCounty Committees ask whether “state-mandated openprimaries, which require members of a political party tojoin with nonmembers when selecting party nominees,severely burden a party’s First Amendmentassociational rights as a matter of law.” (emphasisadded). But the Montana Republican Party does nothave formal membership. The Party’s executivedirector acknowledged that “there is no exact way tobecome a member” of the Montana Republican Party. So even if the Court were to answer the questionpresented in the affirmative, it would not provide reliefto the County Committees. It cannot be assumed that“nonmembers” select the nominees for the RepublicanParty when the Party does not have members in the

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first place. The County Committees would thereforestill be required to present evidence at trial, as thedistrict court held.

The Court should deny the petition for certiorari.

STATEMENT OF THE CASE

1. The people of Montana adopted the open primarysystem, via initiative, in 1912. Pet. App. 19. “Thissystem has governed Montana’s primary elections, withonly slight modifications, for the last century.” Id.

Under Montana law, all major party candidates forelective office, except for the Presidency, must benominated in a primary election. Mont. Code Ann.§§ 13-10-407; -601. Voters in Montana receive acomplete set of party ballots during primary elections.Pet. App. 59. Though they have the right to choosewhich party’s ballot they vote, voters may cast votes ononly one party’s ballot, and must dispose of the otherballot. Id. Voters are thereby “limited to voting forcandidates of that party.” California Democratic Partyv. Jones, 530 U.S. 567, 577 (2000)

Montana voters are not, however, required toregister their political party affiliation in order to votein a primary or general election. Pet. App. 59. Indeed,the Montana Republican Party does not even haveformal membership. CA9 Dkt. 15 at ER 206-10.Montana also does not record which primary ballot aparticular elector chooses. Id. While voters do have toregister to vote, they can register the day of theprimary or general election. Id.

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2. In September 2014, the County Committees filedsuit challenging Montana’s open primary.1 TheCounty Committees are the local arm of the statewideparty. They “make rules for the government of thepolitical party in each county” and “fill all vacancies” inthe county. Mont. Code Ann. § 13-38-203. But theyplay no direct role in selecting the Party’s candidates.

The County Committees challenged the openprimary in two ways. First, they challenged openprimaries as applied to the election of CountyCommittee precinct persons, who serve as the internalleadership of the County Committee. Second, theCounty Committees challenged the open primaries asapplied to all candidates for public office of theMontana Republican Party.

The County Committees alleged that the openprimary violated their associational rights because“many Democrats and independent voters cross-over[sic] to participate in and raid the Republican Party’sprimary elections in Ravalli County and throughoutMontana.” Compl. ¶ 27, Dist. Ct. Doc. 1. Specifically,the County Committees claimed that “[o]n average, 20to 30 percent of voters participating in the RepublicanParty’s primaries are Democrats or other non-Republican voters” that are “openly antagonistic to theideology and principles of the Republican Party.” Id. at ¶¶ 28-29. They argued that cross-over votingconstituted a severe burden on their associational

1 The Ravalli County Republican Central Committee initially filedthis case as the only plaintiff. Additional county committees joinedthereafter. This brief refers to County Committees in the pluralto avoid confusion.

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rights because it resulted in more moderate candidatesbeing elected and caused the Party and its candidatesto alter their message. Id. at ¶¶ 32, 38.

After filing the initial complaint, the CountyCommittees immediately moved for summaryjudgment, “or alternatively for a preliminaryinjunction” as to the first claim regarding countycommittee leadership elections, but not for the secondclaim challenging the open primary as applied to allcandidates. CA9 Dkt. 15 at ER 216-18. The CountyCommittees moved for pre-discovery summaryjudgment only on the first claim because theyrecognized that “evidence” that non-Republicans votedin primary races “is required for challenges to lawsregulating a party’s candidates for public office. . . . notfor challenges to laws regulating a party’s internalleadership.” CA9 Dkt. 15 at ER 214-15 (citing ArizonaLibertarian Party v. Bayless, 351 F.3d 1277, 1282 (9thCir. 2003)) (emphasis in original).

But shortly after the County Committees filed theirmotion on the first claim regarding the election of itsinternal leadership, the Montana Legislature mootedthe issue by amending the law concerning the electionof local precinct persons. That left only the secondgeneral claim against the open primary as applied toall Republican candidates. Because that claim was notspecific to the County Committees, Montana filed amotion to dismiss arguing that the County Committeeslacked standing to raise claims on behalf of theMontana Republican Party. CA9 Dkt. 15 at ER 142.The Montana Republican Party then joined the caseand mooted the motion to dismiss.

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As discovery progressed, the County Committeesand their expert recognized the need for evidence tosupport their claim of cross-over voting and raiding.For example, the County Committees’ expertacknowledged that a survey analyzing potential cross-over voting “is a necessary tool to measure [theelectorate’s] behavior.” CA9 No. 15-35967, Dkt. 17 atER 366 (emphasis added). The County Committeeslater acknowledged that survey data represents the“most accurate measure of crossover voting inMontana.” Resp. App. 3.

After discovery concluded, the parties filed cross-motions for summary judgment. Despite theiradmissions that they needed evidence to support theirclaim that “20-30 percent” of voters in Republicanelections are non-Republicans, the County Committeessubmitted no Montana-specific survey data to supportthe claim.2 Thus, the district court found that it “hasno method to measure the burden, if any, thatMontana’s open primary system imposes on Plaintiffswithout proof that such a burden exists.” Pet. App. 44.Because it found that this issue constituted a disputedissue of material fact, it denied both parties’ motionsfor summary judgment. Pet. App. 46.

2 The County Committees’ only “evidence” was a statement fromthe leader of a teacher’s union encouraging voters in Republicancounties to vote for the Republican that best represented theirinterests. Pet. 4. But this was not evidence of raiding or cross-over voting. The union had endorsed several Republicancandidates and presumably has many Republican members. Inany event, the district court recognized that this lone anecdote wasunaccompanied by any actual evidence supporting the CountyCommittees’ claim that non-Republican voters were crossing overto vote in Republican primaries. Pet. App. 45.

7

3. The County Committees simultaneously soughta preliminary injunction, which the district court alsodenied. They moved the Ninth Circuit for a staypending appeal, arguing, as they do here, that the openprimary constitutes a severe burden on theirassociational rights, without the need for evidence.After the Ninth Circuit denied the motion, theypetitioned Justice Kennedy for an injunction pendingappeal, which Justice Kennedy referred to the fullCourt. This Court denied the motion. 577 U.S. __(March 23, 2016) (No. 15A911).

The County Committees, acknowledging that theyneeded additional evidence to support their claims inthe upcoming trial, asked the District Court to reopendiscovery for an additional nine months so they couldperform a voter survey during the 2016 primary. Resp.App. 2, 4. The court, noting the discovery deadline hadpassed five months earlier, denied the motion. Resp.App. 4-5. The County Committees then moved todismiss their claim with prejudice, after the MontanaRepublican Party moved to dismiss its claim withoutprejudice. CA9 Dkt. 9-2 at ER 153. The District Courtgranted both motions. Pet. App. 17; CA9 Dkt. 9-2 at ER153. Based on this voluntary dismissal, and thepassage of the 2016 primary, the Ninth Circuitdismissed the preliminary injunction appeal as moot.CA9 No. 15-35967, Dkt. 43 (July 22, 2016).

4. Despite having voluntarily dismissed their case,the County Committees, without the MontanaRepublican Party, then appealed the denial of theirsummary judgment motion, CA9 Dkt. 1 (Oct. 27, 2016),under a unique Ninth Circuit procedural exception,Concha v. London, 62 F.3d 1493, 1508 (9th Cir. 1995).

8

Montana moved to dismiss the appeal for lack ofstanding because the County Committees, alone, werenot the real party in interest and could claim noparticularized, personal injury. CA9 Dkt. 5 (Oct. 27,2016). Montana also argued that the CountyCommittees waived their rights of appeal byvoluntarily dismissing the case. Id. After the NinthCircuit issued Democratic Party of Hawaii v. Nago, 833F.3d 1119 (9th Cir. 2016), Pet. App. 1-12, the CountyCommittees moved for an initial hearing en banc,which the Ninth Circuit denied. CA9 Dkt. 22 (Oct. 27,2016).

The County Committees then moved the NinthCircuit to summarily affirm the district court’s denialof summary judgment. Id., Dkt. 23. The Ninth Circuitsummarily affirmed, without addressing the standingquestion. Id., Dkt. 24. Notwithstanding that theCounty Committees voluntarily dismissed their case,and then sought summary affirmance of the orderdenying them summary judgment, the CountyCommittees then filed a petition for certiorari.

REASONS FOR DENYING THE PETITION

I. This Case Is A Poor Vehicle To Decide theQuestion Presented.

A. No Court Has Yet Resolved the State’sContention That the Committees LackStanding.

Montana has twice challenged the CountyCommittees’ standing to bring claims that are specificto the State Republican Party, but the CountyCommittees have twice avoided judicial review of theissue. This Court “is a court of final review and not

9

first review.” Adarand Constructors, Inc. v. Mineta,534 U.S. 103, 110 (per curium) (internal quotationmarks omitted). Thus, the Court “ordinarily ‘do[es] notdecide in the first instance issues not decided below.’”Id. at 109 (quoting NCAA v. Smith, 525 U.S. 459, 470(1999)). The unresolved, threshold question concerningthe County Committees’ standing makes this case anexceptionally poor vehicle to decide the constitutionalissue presented.

Montana first challenged the County Committees’standing by filing a motion to dismiss the open primaryclaim shortly after the County Committees filed theircase. Montana pointed out that the Committees’complaint alleged wrongs to the Republican Party as awhole, not the individual county committees. TheCounty Committees’ complaint alleged that Montana’sopen primary forced the Party to have its candidatesnominated by the open primary and forced “alterationof the Party’s message.” Compl., ¶¶ 32, 37, Dist. Ct.Doc. 1. The complaint also alleged that the Partyamended its bylaws to state its preference for closedprimaries (id. ¶¶ 24-25), and that the open primaryinjured the Republican Party (id., Section IV “Effects ofMontana’s Open Primary upon the Republican Party”).

The County Committees, however, are notauthorized to represent the interests of the StateRepublican Party and they play no role in selecting theParty’s candidates. Their purpose is simply to makerules for each county’s political party and to fillvacancies. Mont. Code Ann. § 13-38-203. As a localarm of the Party that has no direct role in selecting theParty’s candidates, a county committee lacks therequisite “personal stake” in the outcome of a challenge

10

to Montana’s open primary law. Bender v.Williamsport Area Sch. Dist., 475 U.S. 534, 543-44(1986). The County Committees’ status as a localcomponent of the Montana Republican Party does notpermit them to “step into the shoes” of the Party andtake legal action that “the body itself has declined totake.” Id. at 544; see also Hollingsworth v. Perry, 133S. Ct. 2652, 2663 (2013) (“a litigant must assert his orher own legal rights and interests, and cannot rest aclaim to relief on the legal rights or interests of thirdparties”) (citation omitted). Thus, the CountyCommittees have not shown “‘an invasion of a legallyprotected interest’ that is ‘concrete and particularized’and actual or imminent.” Arizonans for Official Englishv. Arizona, 520 U.S. 43, 64 (1997) (quoting Lujan v.Defenders of Wildlife, 504 U.S. 555, 560 (1990)).

But after Montana filed its motion to dismiss theCounty Committees’ claims for lack of standing, theMontana Republican Party joined the lawsuit as aplaintiff. The Montana Republican Party undoubtedlyhad standing to challenge the open primary, so thedistrict court denied the motion to dismiss as moot,without deciding whether the County Committees hadstanding to make the claims without the Party’sparticipation. D. Ct. Doc. 45.

Montana again challenged the County Committees’standing when the County Committees appealed to theNinth Circuit without the Montana Republican Party,since “[t]he standing Article III requires must be metby persons seeking appellate review, just as it must bemet by persons appearing in courts of first instance.”Arizonans for Official English, 520 U.S. at 64. TheCounty Committees’ “ability to ride ‘piggyback’ on the

11

[Party’s] undoubted standing exists only if the [Party]is in fact an appellant before the Court.” Diamond v.Charles, 476 U.S. 54, 64 (1986). Once the RepublicanParty dropped out of the case, the County Committees’right to appeal was extinguished.

The County Committees once again avoided judicialreview of the issue. Before the Ninth Circuit ruled onthe motion to dismiss, another Ninth Circuit paneldecided the related case, Democratic Party of Hawaii v.Nago, 833 F.3d 1119 (9th Cir. 2016).3 The CountyCommittees argued that Nago controlled their case andwas contrary to their position, so they moved forsummary affirmance of the district court’s decisionagainst them. The Ninth Circuit granted theCommittees’ motion, without ruling on Montana’smotion to dismiss the appeal for lack of standing. Pet.App. 52-53. The County Committees then petitionedfor certiorari, without a court having ever decidedwhether they have standing to pursue their claimsindependent of the Montana Republican Party.

If this Court were to grant certiorari, it would haveto address the County Committees’ standing beforeaddressing the merits. Whitmore v. Arkansas, 495 U.S.149, 154-55 (1990). But the Court would be forced to doso in the first instance “without the benefit of thoroughlower court opinions to guide” its analysis. Zivotofskyv. Clinton, 566 U.S. 189, 201 (2012). And if the Courtfinds that the County Committees do not have

3 The plaintiff in that case has filed a petition for certiorari. SeeDemocratic Party of Hawaii v. Nago, Pet. for Certiorari, No. 16-652(Nov. 14, 2016). The County Committees’ question presented isidentical to the question presented in Nago.

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standing, it will have to dismiss the writ of certiorarifor want of jurisdiction, without ever reaching themerits. These unresolved uncertainties counsel againstgranting the petition.

The Court should also reject the petition and declineto address the County Committees’ standing becausethey failed to include standing as a question presentedin their petition. Rule 14.1(a) provides that “[t]hestatement of any question presented [in a petition forcertiorari] will be deemed to comprise every subsidiaryquestion fairly included therein. Only the questions setforth in the petition, or fairly included therein, will beconsidered by the Court.” Standing is not a subsidiaryquestion because it is a “threshold inquiry that in noway depends on the merits of the case.” IzumiSeimitsu Kogyo Kabushiki Kaisha v. U.S. Philips Corp.,510 U.S. 27, 31 (1993) (noting that denial of a motionto intervene was a threshold issue “akin to a questionregarding a party’s standing”). Because the CountyCommittees did not include standing as a questionpresented, the Court should decline to hear the case onthat basis alone. Id. at 34 (dismissing writ of certiorarias improvidently granted because the petitioner failedto include a threshold issue in the questionspresented).

In sum, the open question concerning the CountyCommittees’ standing makes this case a particularlypoor vehicle to decide the question presented.

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B. No Court Has Yet Resolved Whether theCounty Committees Mooted Their CaseBy Voluntarily Dismissing It WithPrejudice.

This Court has long held that a plaintiff “who hasvoluntarily dismissed his complaint” may not appealfrom that dismissal. United States v. Procter & GambleCo., 356 U.S. 677, 680-81 (1958). Article III’s case orcontroversy requirement is no longer met because aplaintiff loses a personal stake in the litigation, and theissues becomes moot. Thus, even if the CountyCommittees at one point had a personal stake in thiscase, they relinquished it when the voluntarilydismissed their complaint after the district courtdenied the cross-motions for summary judgment.

In contrast to this Court’s reasoning, the NinthCircuit allows appeal from a voluntary dismissal withprejudice if there is an underlying ruling that the“plaintiff believes to be determinative of his claim.”Concha, 62 F.3d at 1507. This Court is currentlyreviewing the Ninth Circuit’s precedent allowingappeals from voluntary dismissals with prejudice in thecontext of class certification. Microsoft Corporation v.Baker, No. 15-457. That issue is equally relevant here,and casts further doubt on the case’s justiciability.

Here, the district court denied cross-motions forsummary judgment, noting that the conflict over theCounty Committees’ and the Montana RepublicanParty’s allegation of cross-over voting in Montanaconstituted a genuine issue of material fact. Pet. App.46. The plaintiffs then asked the district court to re-open discovery so that they could conduct a survey totry to gather Montana-specific evidence. Resp. App. 2,

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4. Only after the district court denied that motion didthe County Committees voluntarily dismiss their casewith prejudice so that they could appeal. But their co-plaintiff, the Montana Republican Party, dismissed itscomplaint without prejudice.

Thus, the parties essentially hedged their bets. TheCounty Committees voluntarily dismissed withprejudice so they could appeal under the NinthCircuit’s rule in Concha, while the Montana RepublicanParty voluntarily dismissed without prejudice so itcould refile if it could accumulate evidence of cross-overvoting.

Montana argued in its motion to dismiss at theNinth Circuit that the appeal therefore lackednecessary adverseness and should be dismissed. CA9Dkt. 5. But, like standing, the County Committeesavoided judicial review of the issue by requestingsummary affirmance. Thus, this is anotherjurisdictional issue that the Court would be required toaddress in the first instance, and is yet anotherexample of this case’s substantial vehicle problems thatmay prevent consideration of the merits.

C. The Question Presented Does Not AllowResolution of this Case.

This Court only considers “questions set forth in thepetition, or fairly included therein.” Rule 14.1(a). TheCounty Committees’ question presented is “whetherstate-mandated open primaries, which requiremembers of a political party to join with nonmemberswhen selecting party nominees, severely burden aparty’s First Amendment associational rights as amatter of law.” (emphasis added). That question

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presented bears little resemblance to the issuesactually presented in this case because the MontanaRepublican Party is not a party to this action and it hasno membership in any event.

The County Committees ask this Court to simplyassume that many people who vote the Republicanballot in Montana’s open primary are “nonmembers.”The County Committees cannot make this claim,however, because the Montana Republican Party doesnot have members, unlike the Democratic Party ofHawaii. Ninth Cir. CA9 Dkt. 15 at ER 206-10. As theParty’s Rule 30(b)(6) witness conceded, “there is noexact way to become a member” of the Party. Id. at ER206.4

In short, even assuming the Court answered thequestion presented in the affirmative, it would notchange the outcome of this case. The CountyCommittees have no basis to assume that“nonmembers” select the nominees for the RepublicanParty when the Party does not have members in thefirst place. The question presented by the CountyCommittees would therefore not resolve this case andthey would still be required to present evidence of whotheir members are.

4 This also undercuts the County Committees’ argument regardingits right to “identify” its members. See Pet 11-12.

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D. The Ninth Circuit Never Considered theMerits of the County Committees’ Case.

In addition to never addressing whether the CountyCommittees have standing, the Ninth Circuit neverconsidered the merits of the County Committees’claims. That is because the County Committees askedthe Ninth Circuit to summarily affirm the districtcourt’s decision against them based on the court’sdecision in a different case, Democratic Party of Hawaiiv. Nago. Pet. App. 52. This is yet another reason thatthis case is a poor vehicle. Like standing, this Courthas no opinion from the Court of Appeals specificallyanalyzing the County Committees’ claims.

That is particularly significant here because Nagoinvolved different claims and different facts than thiscase. First, Nago is a facial challenge to Hawaii’s openprimary. 833 F.3d at 1122; id. at n.1 (noting that if theDemocratic Party’s facial challenge failed, “it may bringan as-applied challenge”). The County Committees’challenge to Montana’s open primary, however, is asapplied. Pet. App. 20, 40; Third Amended Compl., D.Ct. Doc. 43 ¶¶ 1, 70, 76. While a facial challengeconsiders all of a statute’s possible applications, an as-applied challenge tests the application of the statute toa plaintiff’s specific factual circumstances. WashingtonState Grange v. Washington State Republican Party,552 U.S. 442, 444, 449 (2008).

Despite filing an as-applied complaint and engagingin discovery in an effort to support its claim, theCounty Committees now argue that the open primaryposes a per se severe burden on their First Amendmentrights, without the need to provide any Montana-specific data supporting that claim. And they are

17

making this argument even though the MontanaRepublican Party does not have formal membership,and does nothing to track membership. CA9 Dkt. 15 atER 206-10. Because the County Committees asked theNinth Circuit to summarily affirm the district court’sdecision, the panel never considered the significance ofthe Montana Republican Party’s lack of membership inthe context of the County Committees’ as-appliedchallenge.

Nor did the Ninth Circuit have an opportunity todetermine whether the County Committees waivedtheir “matter of law” argument by admitting that theyneeded evidence to show a severe burden. The CountyCommittees, early in the case, acknowledged that theyneeded to put on evidence to prove that Montana’s openprimary severely burdens their associational rights.CA9 Dkt. 15 at ER 214-15 (admitting “evidence . . . isrequired for challenges to laws regulating a party’scandidates for public office”) (emphasis in original).The County Committees’ expert likewise recognizedthat a survey analyzing potential cross-over voting “isa necessary tool to measure [the electorate’s] behavior.” CA9 No. 15-35967 Dkt. 17 at ER 366 (emphasis added).

Nonetheless, the County Committees filed theircase without having that survey information andwithout demonstrating how a political party that doesnot have formal membership or any way to trackmembership can — in any concrete way — be adverselyaffected by an open primary. The County Committeesthen shifted gears mid-case, and tried to salvage theirclaim by arguing that they do not need evidencebecause open primaries constitute a per se severeburden on their associational rights. But the

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substantive decision from which the CountyCommittees are petitioning for certiorari is the HawaiiDemocratic Party’s facial challenge, not even their owncase. The Ninth Circuit never analyzed the CountyCommittees’ specific as-applied claims under this case’sparticular facts, including that—unlike Hawaii—theMontana Republican Party does not even havemembership. Thus, this is yet another issue that theCourt would have to address without the benefit ofanalysis by the Court of Appeals.

II. There Is No Conflict Among the Circuits.

Although the County Committees claim that theNinth Circuit’s decision in Nago “conflicts with severalFourth Circuit decisions,” they reference only twodecisions in the same case, Miller I and Miller II,neither of which conflicts with the Ninth Circuit. Thequestion that the Ninth Circuit decided and that thiscase presents is what evidence is necessary to addresswhether an open primary severely burdens a politicalparty’s First Amendment rights. That was not even atissue in either Miller decision from the Fourth Circuit.

In Miller v. Brown, 462 F.3d 312 (4th Cir. 2006)(“Miller I”), the only issue was whether the plaintiffs’challenge to Virginia’s open primary law wasjusticiable. Virginia law allowed an incumbent tochoose the method by which a candidate would benominated, whether by a convention, a caucus, or aprimary. Id. at 362. The incumbent chose a primaryas the method of nomination, and Virginia law dictatedthat the primary be open. Id. at 315. But because theplaintiffs challenged the open primary two years beforethe primary was to take place, and before it was clearwhether the incumbent would even have a primary

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challenger, the district court ruled that the plaintiffslacked standing and that the issue was not ripe. Id. at316. The Fourth Circuit reversed, holding that the casewas justiciable. Id. at 314.

The Fourth Circuit in Miller I had no occasion toaddress the merits, including the question that thiscase presents concerning whether a plaintiff needs tosubmit evidence that an open primary creates a severeburden. Nonetheless, the County Committees seize onthe Court’s recognition that “[t]he only issue in thiscase is whether Virginia’s open primary law violatesthe plaintiffs’ First Amendment rights to freelyassociate, which presents a purely legal question.” Id.at 319. That general observation was in the context ofits discussion concerning ripeness. Id. at 318-320. TheCourt did not address, whatsoever, whether a plaintiffmust present evidence to substantiate his claim thatthe open primary creates a severe burden. The CountyCommittees’ argument that Miller I conflicts with theNinth Circuit’s decision in Nago is wrong, given thatthe cases did not address the same question.

Similarly, Miller II did not address the questionpresented in this case. While the Fourth Circuit inMiller II did address the merits of the plaintiffs FirstAmendment claim, it did not address what evidence isnecessary to show a severe burden. Miller v. Brown,503 F.3d 360 (4th Cir. 2007). Under the facts of thatcase, Virginia conceded that the open primary severelyburdened the plaintiffs’ First Amendment rights, sothere was no occasion to address whether evidence isrequired to prove that burden. Id. at 368. The court’sacceptance of that concession suggests that it viewedthe issue as a question of fact, since under Fourth

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Circuit law, parties cannot concede questions of law.See United States v. Rodriguez, 433 F.3d 411, 414 n.6(4th Cir. 2006). Further, the court was clear that itwas deciding the issue based on “the narrow facts ofthis case” and it did not decide “whether [an] openprimary statute, viewed in isolation, impermissiblyburdens a political party’s associational rights.” Id. at367.

In sum, the Fourth Circuit’s decisions in Miller Iand Miller II do not conflict with the Ninth Circuit’sdecision in Nago because the Fourth Circuit did notdeal with the question presented here—whetherevidence is required to sustain a plaintiff’s claim thatthe open primary imposes a severe burden onassociational rights. But the fact that the CountyCommittees point to only one Circuit as beingostensibly in conflict is telling, given that thirty stateshave some form of open or semi-open primary.5 Indeed,open primaries have been “a long-standing feature ofthe American electoral landscape.” Richard H. Pildes,Why the Center Does Not Hold: The Causes ofHyperpolarized Democracy in America, 99 Calif. L. Rev.273, 307 (April 2011). They have been part ofMontana’s electoral landscape for more than a hundredyears. Pet. App. 19. The fact that there are so fewcases addressing open primaries suggests that theissue is not worthy of the Court’s attention. Because adecision on the question has the potential to disruptthe longstanding electoral traditions of so many states,

5 National Conference of State Legislatures, State Primary ElectionTypes (July 21, 2016), at http://www.ncsl.org/research/elections-and-campaigns/primary-types.aspx#.

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the Court should wait for this issue to fully develop intoan actual conflict before deciding the issue.

III. The Court of Appeals’ Decision inDemocratic Party of Hawaii v. Nago IsCorrect.

Finally, this Court should deny the petition becausethe Ninth Circuit is correct. A party must demonstratethe extent to which its associational rights areburdened, and this is a factual question requiringevidentiary proof. Pet. App. 9.

A. This Court’s Cases Require Evidence ToShow the Extent of the Burden onAssociational Rights.

The Ninth Circuit carefully followed this Court’sdecision in California Democratic Party v. Jones, 530U.S. 567 (2000), holding that whether FirstAmendment rights are severely burdened is a factualquestion. Pet. App. 6-9. At issue in Jones was theburden imposed by California’s blanket primary. 530U.S. at 569. In analyzing whether the burden imposedby the blanket primary was severe, Jones explicitlyrelied on “evidence . . . demonstrat[ing] that underCalifornia’s blanket primary system, the prospect ofhaving a party’s nominee determined by adherents ofan opposing party [was] a clear and present danger”Jones, 530 U.S. at 578-79 (emphasis added).

Thus, the severity of the burden imposed byCalifornia’s blanket primary was demonstrated byfactual evidence, not just the structure of the primary.The Court specifically relied on a “survey of Californiavoters,” noting that the figures in the California-

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specific survey were “comparable to the results ofstudies in other States with blanket primaries.” Id.

The Court also explained that an open primarysystem “in which the voter is limited to one party’sballot” may be “constitutionally distinct” from theunconstitutional blanket primary. Id. at 577 n.8. TheCourt was also careful to distinguish the open primaryfrom the blanket primary. Id. at 577, n.6&8.

Indeed, this Court has long acknowledged that“challenges to specific provisions of a State’s electionslaws . . . cannot be resolved by any ‘litmus-paper test’that will separate valid from invalid restrictions.”Tashjian v. Republican Party of Connecticut, 479 U.S.208, 213-14 (1986) (citing Anderson v. Celebrezze, 460U.S. 780, 789 (1983) (quoting Storer v. Brown, 415 U.S.724, 730 (1974)). “Instead, a court . . . must firstconsider the character and magnitude of the assertedinjury to the rights protected by the First andFourteenth Amendments that the plaintiff seeks tovindicate.” Id. at 214 (quoting Anderson, 460 U.S. at789). This analysis “derives much from the particularfacts involved.” Id. at 224 n.13.

Courts must inquire into what burden a lawimposes because it dictates the appropriate level ofscrutiny. A plaintiff must show the “character andmagnitude of the asserted injury” because only“[r]egulations that impose severe burdens onassociational rights” are subject to strict scrutiny.Clingman v. Beaver, 544 U.S. 581, 586 (2005) (citingTimmons v. Twin Cities Area New Party, 520 U.S. 351,358 (1997)). Regulations that “impose lesser burdens,”however, are generally justified by “a State’s importantregulatory interests[.]” Id. at 587. “[M]inor barriers

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between voter and party do not compel strict scrutiny.”Id. at 593. A contrary ruling “would subject virtuallyevery electoral regulation to strict scrutiny, hamper theability of States to run efficient and equitable elections,and compel federal courts to rewrite state electoralcodes.” Id.

Here, the County Committees made specificallegations that the open primary severely burdenedtheir associational rights, alleging that “20-30 percent”of non-Republican voters crossed over to vote inRepublican primaries.6 First Amended Compl. ¶ 28,D.C. Doc. 1. They alleged that cross-over voting forcedthe Republican Party and its candidates to alter theirmessages. Id. at ¶¶ 32-38. The lower courts werecorrect in holding that a plaintiff must actually supportsuch allegations, rather than merely relying on itsassumption that they are true, as the CountyCommittees did in this case.7

B. La Follette Is Not to the Contrary.

The County Committees nonetheless assert thatthey need not provide evidence of the character andmagnitude of the burden imposed by Montana’s openprimary. They primarily rely on Democratic Party of

6 This Court has acknowledged that some of the asserted “evils” ofcross-over voting, such as “raiding,” Amicus Br. 19, have “neverbeen conclusively proven by survey research.” Tashjian, 479 U.S.at 219 (citing La Follette, 450 U.S. at 122-23 n. 23)).

7 The Montana Republican Party had over a century to obtain“necessary” survey evidence. The Party is therefore disingenuouswhen it laments having to secure survey data in “at least oneelection cycle.” Amicus Br. 20.

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United States v. Wisconsin ex rel. La Follette, 450 U.S.107 (1981), which they claim held “that open primariesare a ‘substantial intrusion’ upon a party’s freedom ofassociation.” Pet. 6.

The Ninth Circuit had no reason to address LaFollette, because the question in that case was “notwhether Wisconsin may conduct an open primaryelection if it chooses to do so.” La Follette, 450 U.S. at120. Rather the question was whether Wisconsin could“bind the National Party” regarding the selection of theNational Party’s delegates “in a separate process,”which is clearly not at issue here. Id. at 120, 125. Indeed, this Court acknowledged that the WisconsinSupreme Court “may well be correct” that Wisconsin’sopen primary is constitutional. Id. at 121.

La Follette thus does not apply to the questionhere—whether the open primary imposes a severeburden to parties at the state level. As to thatquestion, this Court’s later precedents, described above,require that a plaintiff demonstrate the extent of theburden imposed by a particular state’s election law.

C. The County Committees Present NoEvidence of Forced Association.

The County Committees were unable to presentevidence to the district court of forced association andits burden because they have no formal membershipand no Montana-specific evidence of cross-over voting.CA9 Dkt. 15 at ER 206-10. Instead of presentingevidence of “forced association” and its burden, theCounty Committees ask this Court to simply assumethat many who vote the Republican ballot in Montana’sopen primary are “nonmembers.”

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A voter in Montana affiliates with the Party whenthe voter casts a Republican ballot in the primary.Jones, 530 U.S. at 577 n.8 (noting that “[t]he act ofvoting in the Democratic primary [in an open primarysystem] can be described as an act of affiliation withthe Democratic Party”) (quoting La Follette, 450 U.S. at130 n.2 (Powell, J., dissenting)). As this Court hasrecognized “anyone can ‘join’ a political party merely byasking for the appropriate ballot at the appropriatetime . . . .” Clingman v. Beaver, 544 U.S. 581 at 590-91(2005) (quoting Jones at 598 (Stevens, J., dissenting);id. at 601 (O’Connor, J., concurring) (“The act of castinga ballot in a given primary may, for both the voter andthe party, constitute a form of association that is atleast as important as the act of registering.”).

Montana’s open primary is therefore functionallyequivalent to a closed primary with same-dayregistration. See Pet. App. 59 (Montana allows same-day registration); CA9 Dkt. 15 at ER 212 (the CountyCommittees’ counsel admitting closed primary withsame-day registration is the “functional equivalent” ofan open primary). As such, the risk of forcedassociation with nonmembers is no greater inMontana’s open primary than a closed primary withsame-day registration, and this Court has neverquestioned the constitutionality of a closed primary.See, e.g., Jones, 530 U.S. at 577 (contrasting blanket toclosed, and open, primaries).

Although the County Committees made specificallegations of forced association, they presented noevidence to support the argument—just conclusorystatements. And without formal membership, they areunable to show any cross-over voting whatsoever.

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CONCLUSION

The Court should deny the County Committees’petition for a writ of certiorari.

Respectfully submitted,

Timothy C. FoxMontana Attorney GeneralDale SchowengerdtSolicitor General Counsel of RecordJ. Stuart SegrestAssistant Attorney GeneralMONTANA DEPARTMENT OF JUSTICE215 N. Sanders St.Helena, MT 59601DaleS@mt.gov(406) 444-2026

Counsel for Respondents

APPENDIX

i

APPENDIX

TABLE OF CONTENTS

Appendix 1 Order in the United States DistrictCourt for the District of MontanaHelena Division(March 11, 2016) . . . . . . . . . . . . . App. 1

App. 1

APPENDIX 1

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MONTANA

HELENA DIVISION

CV 14-58-H-BMM

[Filed March 11, 2016]__________________________________________RAVALLI COUNTY REPUBLICAN CENTRAL )COMITEE, GALLATIN COUNTY REPUBLICAN )CENTRAL COMMITTEE, SANDERS COUNTY )REPUBLICAN CENTRAL COMMITTEE, )DAWSON COUNTY REPUBLICAN CENTRAL )COMMITTEE, STILLWATER 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 DENTRAL COMMITTEE, )MONTANA REPUBLICAN PARTY )

Plaintiffs, ))

v. ))

LINDA McCULLOCH, in her official capacity )as Montana’s Secretary of State, et al., )

Defendants. )_______________________________________________ )

App. 2

ORDER

The Court denied Plaintiffs’ Motion for PreliminaryInjunction (Doc. 70) and Motion for SummaryJudgment (Doc. 91) on December 14, 2015. The Courtalso denied Defendant’s Motion for SummaryJudgment (Doc. 88) on the same day. Plaintiffs filed anotice of appeal from the Court’s order denying theirMotion for Preliminary Injunction on December 16,2015. (Doc. 115.) Plaintiffs did not appeal the Court’sorder denying their Motion for Summary Judgment.

The Court ordered the parties to submit a jointstatement regarding the current status of the matter.(Doc. 120.) The parties submitted a status report. (Doc.123.) Plaintiffs have moved to reopen discovery. (Doc.124.) Plaintiffs have requested time to conduct a surveyduring the primary election. Id. at 2. Plaintiffs haveproposed a deadline of September 1, 2016, to exchangeexpert reports and November 1, 2016, to conductsupplemental discovery related to those expert reports.Id. at 2-3. The State opposes the motion.

District court judges possess broad authority toregulate the conduct of discovery. The Ninth Circuitupheld a district court’s denial of motion to extenddiscovery in Century 21 Real Est. Corp. v. Sadlin, 846F.2d 1175, 1181 (9th Cir. 1988). The court directed thedefendant in Century 21 to submit a memorandum inopposition to summary judgment along with a planoutlining a discovery schedule. Id. The defendant filedhis memorandum late and provided no discoveryschedule. Id. Eleven days later, and three days beforethe summary judgment hearing, the defendant movedfor an extension of discovery time to conduct a survey.Id. The Ninth Circuit determined that the Court

App. 3

possessed discretion to deny the request for a discoveryextension. Id.

A request to reopen discovery differs from a requestto extend discovery. A request for an extension“acknowledges the importance of a deadline,” while arequest to reopen discovery “suggests that the partypaid no attention at all to the deadline.” W. CoastTheater Corp. v. City of Portland, 897 F.2d 1519, 1524(9th Cir. 1990). District courts properly have declinedto reopen discovery when the movant “had ampleopportunity to conduct discovery” but failed to do so.Cornwell v. Electra Cent. Credit Union, 439 F.3d 1018,1026 (9th Cir. 2006) (citing Panatronic USA v. AT & TCorp., 287 F.3d 840, 846 (9th Cir. 2002)); See Hauser v.Farrel, 14 F.3d 1338, 1340-1341 (9th Cir. 1994).

Plaintiffs assert that survey data represents the“most accurate measure of crossover voting inMontana.” (Doc. 124 at 2.) Plaintiffs note that theCourt addressed the lack of Montana specific surveydata in its December 14, 2015, Order. The Courtrecognizes that success on the merits proves moredifficult for Plaintiffs without having obtainedMontana-specific survey data Plaintiffs chose, however,to initiate this litigation in September 2014. Plaintiffspresumably thought that they possessed sufficient factsand evidence to challenge Montana’s open primary lawwhen they raised the challenge back in 2014. Plaintiffsknew, or should have known, that the State would testthe factual sufficiency of Plaintiffs’ claims. Ef.Cornwell, 439 F.3d at 1027.

Plaintiffs simply have not requested more time toaccess an existing piece of evidence. Similar to thedefendant in Century 21, plaintiffs instead now seek to

App. 4

create evidence to help prove the merits of their casewith a survey. Plaintiffs have requested nine months toconduct the survey, exchange expert reports, andconduct supplemental discovery related to the expertreports. Plaintiffs could have conducted these surveysbefore having brought this action or could have movedto extend discovery before the August 14, 2015,deadline. Either of these actions would have comebefore the Plaintiffs had filed their motion for summaryjudgment and their motion for preliminary injunction.The Court conducted a lengthy hearing on thesemotions on November 19, 2015. The Court resolvedthese motions with an order dated December 14, 2015.Plaintiffs have appealed the Court’s denial of theirmotion for preliminary injunction.

Plaintiffs filed their original Complaint onSeptember 8, 2014, without apparently having obtainedthis Montana-specific survey data. (Doc. 1.) Plaintiffsamended their Complaint on four separate occasions.Each amendment occasioned a delay in the case. TheCourt originally set the discovery deadline for July 17,2015. (Doc. 35.) The Court extended the discoverydeadline to August 14, 2015. (Doc. 51.) Plaintiffs’current request to conduct extended discovery comesfive months after the August 14, 2015, discoverydeadline has passed and nearly 18 months afterPlaintiffs initiated litigation in 2014.

To allow Plaintiffs to reopen discovery to collectsurvey data at this stage in litigation would causesignificant delay in the proceedings and prejudice theState. New survey data would create additionalopinions from Plaintiffs’ experts. The State would beforced, in turn, to produce new rebuttal expert reports.

App. 5

The parties may then need to conduct more depositionsand file another round of motions. A decision to reopendiscovery potentially could undermine the State’sefforts these past 18 months to defend the case aspresented by Plaintiffs. Courts commonly use orders toestablish a firm discovery cutoff date. Cornwell, 439F.3d at 1027. These orders generally prove helpful to“the orderly progress of litigation, so that enforcementof such an order should come as a surprise to no one.”Id. The Court declines to disrupt further the progressof this litigation.

Accordingly, IT IS ORDERED that Plaintiffs’Motion to Reopen Discovery (Doc. 124) is DENIED.

DATED this 11th day of March, 2016.

/s/_________________________________Brian MorrisUnited States District Court Judge