Post Trial Brief Kresky Allen Idaho Case 1-08-Cv-00165-BLW

DEFENDANT-INTERVENORS’ POST TRIAL BRIEF - 1

GARY G. ALLEN (ISB # 4366) GIVENS PURSLEY LLP 601 West Bannock Street P.O. Box 2720 Boise, Idaho 83701-2720 Telephone: 208-388-1200 Facsimile: 208-388-1300 Email: [email protected] HARRY KRESKY LAW OFFICE OF HARRY KRESKY 250 W. 57th Street, Ste. 2017 New York, NY 10107 Telephone: 212-581-1516 Facsimile: 212-581-1352 Email: [email protected] Attorneys for Defendants-Intervenors 1008699_7

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF IDAHO

THE IDAHO REPUBLICAN PARTY, et al., Plaintiffs, vs. BEN YSURSA, in his Official Capacity as Secretary of State of the State of Idaho, Defendants.

Case No. 1:08-cv-00165-BLW DEFENDANT-INTERVENORS’ POST-TRIAL BRIEF

I. INTRODUCTION

In this case, the State Central Committee of the Idaho Republican Party and others affiliated

with the Idaho Republican Party organization (the “IRP Organization”) ask the Court to invalidate an

open primary system created and supported by Republican elected officials, known in political

science literature as the “party in government” (the “IRP in Government”). The IRP in Government

was elected by voters in who chose to affiliate with the IRP in primary elections (the “IRP in the

Case 1:08-cv-00165-BLW Document 81 Filed 11/16/10 of 29

mailto:[email protected]



Electorate”). Thus irony frames the case around two critical issues. The first issue is whether the

IRP Organization has associational rights separate from the IRP in Government and the IRP in the

Electorate, or is this case simply an intra-party dispute that is not a matter of Constitutional import.

Second, if the IRP Organization has separate rights, is the burden imposed on those rights a modest

or a severe one when weighed against the interests of the State of Idaho in offering non-partisan

registration and open primaries to its citizens.

The court granted intervention to Defendant-Intervenors on their representation that, if the

IRP Organization prevails, the 28 percent of the Idaho electorate who, like Defendant-Intervenors,

are independent voters, would be barred from participation in Idaho’s primary elections unless they

registered into a political party which they do not wish to do. Now, having come to better understand

the position taken by the IRP Organization and its implications, Defendant-Intervenors realize that

more than the narrow issue of their participation in the first round of voting is at stake. At a time

when Americans are deeply concerned with how partisanship is making it increasingly difficult to

achieve consensus (or even constructive compromise) on the issues facing our country, the IRP

Organization asserts that the U.S. Constitution (which makes no mention of political parties) not only

protects the right of citizens to organize parties, but also guarantees party organizations a dominant

role in determining the electoral framework. The IRP Organization’s position is fundamentally

opposed to our clients’ core belief that, in a democracy, it is the people, not party activists, who

determine the form of government and how those who govern are chosen.

Who holds the associational rights of the IRP? At trial, experts on both sides agreed that a

political party consists of three elements: the “party organization,” the “party in government,” and

the “party in the electorate.”1

1 The factual statements made herein are based on Defendant-Intervenors’ proposed findings of fact, which contain citations to the record.

Idaho law focuses on the associational rights of citizens, as opposed to

any per se rights of a political organization. See Id. Const. Art. I, § 2 (“All political power is inherent



in the people . . . no special privileges or immunities shall ever be granted that may not be altered,

revoked, or repealed by the legislature); American Independent Party in Idaho, Inc. v. Cenarrusa,

92 Idaho 356, 358, 442 P.2d 766, 769 (1968) (“The right of citizens to organize, and give expression

and effect to their political aspirations through political parties is inherent in, and a part of, the right

to suffrage.”); I.C. § 34-501 (1)(“A ‘political party’ within the meaning of this act, is an organization

of electors under a given name.”).

The IRP Organization is the element of the IRP that has brought this lawsuit. It consists of

the party’s most ardent activists. The structure of the IRP Organization is largely dictated by Idaho

law, with the required structure defined by Chapter 5 and portions of Chapters 6 and 7 of Title 34 of

the Idaho Code,2 and by rules adopted by the IRP Organization. At the base of the organization are

the precinct committeemen, ironically elected in open primaries,3 in the most obscure election, most

subject to roll-off, voter apathy and separation from the IRP in the Electorate. By statute, the

precinct committeemen meet following the primary election, without any requirement of input from

the party in government or the party in the electorate, to select county and legislative district central

committees, and those committees subsequently select the state central committee of the party.4 The

state central committee, also without any requirement of input from the party in government or the

party in the electorate, then may adopt rules and resolutions such as the ones the IRP Organization

has adopted, in this case demanding a closed primary for the IRP.5

The IRP Organization also holds a periodic convention at which, among other things, the IRP

Organization adopts a platform, a document to which many of the fact witnesses in this case attach

particular significance. However, the IRP platform effectively represents the views only of ardent

2 See I.C. §§ 34-501-507 (defining a party, setting requirements for the structure of the party at the county, legislative district and state levels, and setting forth the powers and duties of each level of the party structure), 34-624, 34-624A (setting requirements for election of precinct committeemen) and 34-707 (setting requirements for party conventions). 3 I.C. §§ 34-502, 34-624, 34-624A. 4 I.C. §§ 34-502, 34-503, 34-504. 5 I.C. §§ 34-504, 34-507.



party activists, to the exclusion of the IRP in Government and the IRP in the Electorate. This result

is ensured because the IRP Rules allow only elected or appointed precinct committeemen a vote in

the selection of convention delegates, thus ensuring that the IRP Organization has complete control

over who votes at the GOP State Convention.6

The IRP in Government is arguably the most successful group of Republican elected officials

in the nation. In the 2011 legislative session, Republicans will hold 85 of 105 seats in the Idaho

legislature and all statewide offices, including the governorship. In all, this is a group of hundreds of

people, all of whom have been elected as Republicans in public elections. In Exhibit 2102, the

State’s experts describe the IRP in Government’s extraordinary success in detail. The IRP in

Government has the clear power and authority to adopt any lawful primary system, including the

closed primary that the IRP Organization has resolved that it wants. To date, the IRP in Government

has chosen not to change the primary.

While the delegate selection process confers minimal

legitimacy on the Party Organization as compared to the smoke-filled rooms of the past, it also

insures that the Party Organization is distant from the IRP in the Electorate and the IRP in

Government and has, as its primary interest, accruing power to itself.

Who constitutes the IRP in the Electorate? This is an interesting question in a non-partisan

registration, open primary state. The report of the State’s experts described the “party in the

electorate” as those who indentify with the party and, by voting, elect the party in government. The

IRP’s expert did not contest this definition. In Idaho, at least part of the IRP in the Electorate are

those who come to the polls on primary election day, choose the IRP ballot and vote for a person

seeking the IRP’s nomination. In any given primary election, this amounts to about 125,000 people.

The evidence in this case does not support a conclusion that the affiliation these voters make, to

choose to vote only for Republican candidates in the primary to the exclusion of candidates of other

parties, is any less legitimate than checking the “Republican” box on the voter registration form as

6 E.g., Ex. 1010A, pp. 38-40 (Beck Deposition).



the IRP Organization has requested. Indeed, it is difficult to discern what cross-over voting means

in a non-partisan registration state where voters have not been required to brand themselves with a

party label, much less to conclude that the act of voting, restricted to persons willing to limit their

vote to a Republican primary ballot, violates the associational rights of the IRP Organization. After

all, it is the IRP in the Electorate that determines who are the Republican nominees for the general

election and who comprises the IRP Organization. In this light, we submit that the IRP in the

Electorate is the most legitimate claimant to the associational rights of the IRP, and the element of

the IRP whose associational rights are most in need of protection.

At the end of the day, then, the associational rights issue comes down to whether the IRP

Organization, consisting of the party’s most ardent and ideologically conservative activists, selected

in obscure and largely ignored elections, has the right to dictate to the IRP in Government how to

conduct primary elections, and to the IRP in the Electorate a process that is most conducive to the

choosing of candidates preferred by the IRP Organization, for whatever reason. Plaintiffs attempt to

elevate this into a question of associational rights by claiming that the IRP Organization is the

guardian of ideology, the guarantor of who is a true Republican. However, unless we are to scrap

primaries altogether, that contention must be rejected. The true Republican is the one chosen by the

IRP in the Electorate. Further, party organizations are about control and patronage as much as about

ideology. Why would this Court interpret the U.S. Constitution to require that the IRP Organization,

the narrowest and least representative part of the Party and the most subject to corruption, can

subordinate the wishes of the IRP in Government and the IRP in the Electorate when it comes to the

process of choosing the Party’s candidates for public office? Defendant-Intervenors contend the IRP

Organization has no such right.

Moreover, the IRP organization seeks to impose its views not only on the other elements of

the IRP, but also it wishes to force the State to require the citizens of the State of Idaho to publicly

state a party preference when they register to vote and to bar those citizens from what is often the



only round of voting if they are unwilling to identify themselves publicly as Republicans. In

addition, a victory by the IRP Organization in this case opens the door for great mischief. What if

the IRP Organization decides to do away with primaries altogether and revert to choosing candidates

in “smoke-filled rooms?” If partisan registration is mandatory, what is left of the State of Idaho’s

authority to determine the “times, places and manner” of holding elections for public office?

Modest or severe burden?

A threshold issue, if the Court recognizes a separate associational right for the IRP

Organization, is whether only the impacts on the IRP Organization are considered, or whether the

Court must also assess the impacts on the IRP in Government and the IRP in the Electorate. If the

IRP in Government and the IRP in the Electorate must be considered, the IRP Organization’s claim

fails miserably. The evidence shows that the open primary clearly benefits the IRP in Government.

The IRP in Government enjoys extraordinary success, far beyond the percentage of Republicans in

the electorate, and the evidence supports a conclusion that the open primary plays a part in this. Both

of IRP’s expert witnesses, Mr. Ripley and Dr. Munger, testified that closing the primary would likely

help the Democratic Party by causing the IRP to nominate more conservative candidates who could

not win in moderate districts.

For purposes of argument, let us close our eyes to the inescapable

fact that the IRP in Government has complete control over the type of primary the State of Idaho

offers, and assume the unprecedented: that the IRP Organization has some form of associational right

separate from the other elements of the party. Even given these questionable premises, the evidence

in this case shows that the open primary imposes only a modest burden on the IRP Organization’s

associational rights.

7

7 Ex. 1007A, pp. 146-149 (Ripley Deposition); Trial transcript, p. 273.

The open primary also benefits the IRP in the Electorate by offering

IRP supporters the ability to declare their affiliation only in private and not to have to affiliate until

election day. Closing the primary would take that benefit away. The only consideration weighing

against these impacts is the possibility that the IRP may nominate more conservative candidates in a



closed primary. With all these considerations balanced, the open primary is a modest burden indeed,

and in fact the evidence more strongly supports a conclusion that the open primary is a benefit to the

IRP as a whole. And, as the Court reminded plaintiffs’ expert, Dr. Munger, the issue is not what is

best for the Party, but whether the current system violates the associational rights of the voters who

comprise the IRP.8

It is only if the burdens on the IRP Organization are segregated completely from the impacts

on the other elements of the party that a detriment can be seriously argued. Even then, Defendant-

Intervenors submit that the burden is a modest one. As a threshold matter, we should not forget the

substantial benefits the IRP Organization receives by being a qualified political party in Idaho,

including automatic ballot access in state-financed primary and general elections and the authority to

nominate successors to partisan offices. Setting that aside, and assuming arguendo that cross-over

voting is a meaningful construct to in Idaho in the absence of partisan registration, the evidence in

this case shows a negligible impact despite decades of experience with open primaries. No credible

evidence has been introduced to demonstrate that the institution of partisan registration and closed

primaries would materially alter either the messaging of IRP candidates or the outcome of its

primaries.

If the IRP is defined as it should be, with the IRP in the Electorate as the base, the

Party Organization can have no right to demand that the federal courts assist in assuring that

candidates more to its liking are chosen as the IRP’s nominees for public office.

II. ARGUMENT

The argument below makes the following points: (A) Mr. Moore and Mr. Ripley’s testimony

is inadmissible or should be given little or no weight; (B) the legal framework requires a precise

determination of whose associational rights are at stake and a careful balancing of those rights with

the obligation of the State to offer free and fair elections; (C) the IRP Organization has not

demonstrated that it has an associational right separate from the IRP in Government and the IRP in

8 Trial transcript, p. 272.



the Electorate; and (D) the IRP Organization has not met its burden of demonstrating that the open

primary system constitutes a severe burden on the IRP Organization’s associational rights or one that

is not justified by important interests of the State.

A. The Moore Survey and the Ripley Analyses are inadmissible under F.R.E. 702 or, alternatively, should be given little or no weight.

Central to plaintiffs’ effort to establish the extent and impact of cross over voting in Idaho are

a survey by Robert Moore (the “Moore Survey”) and a report by David Ripley (the “Ripley

Analyses”). Mr. Moore, a pollster who works primarily for Republican candidates, designed and

conducted a survey of 400 Idaho voters who participated in the May, 2008 primary election. The

survey asked the respondents how they usually vote as a mechanism for categorizing voters as

“GOP” and “Non-GOP,” followed by two questions about their primary voting patterns and several

about their views on various issues. Mr. Ripley, the Executive Director of Idaho Chooses Life,

analyzed several primary elections and issued a report that purports to demonstrate how cross over

voting organized by the Idaho Education Association (“IEA”) impacted the outcomes.

The Moore Survey and the Ripley Analyses fail to meet the test for admissibility under

Federal Rule of Evidence (“F.R.E.”) 702. As discussed in the subsections below, the Moore Survey

is not the product of reliable principles and methods, and the Ripley Analyses fail because Mr.

Ripley is not a qualified expert and his analyses failed to use or apply reliable methods for

determining the existence and extent of roll-over voting.

1. F.R.E. 702 requires that expert testimony be provided by qualified experts using sufficient evidence and applying reliable methods

FRE 702 states as follows:

.

If scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.



In short summary, expert testimony may be admitted only when (1) the expert is qualified,

(2) the witness relies on sufficient facts or data, (3) the method used is reliable, and (4) the witness

applies the method reliably.

2. The Moore Survey should be excluded because it is not the product of reliable principles and methods

The Moore Survey purports to be a reliable scientific survey showing the existence and

possibly the extent of cross-over voting in Idaho primary elections. Unfortunately, the forms of

questions used in the survey render the results unreliable.

.

Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) sets forth five non-

exclusive touchstones that comprise the basic test for trial courts to assess the reliability of scientific

techniques and methods used in expert testimony:

(1) whether the expert’s technique or theory can be or has been tested;

(2) whether the technique or theory has been subject to peer review and publication;

(3) the known or potential rate of error of the technique or theory when applied;

(4) the existence and maintenance of standards and controls; and

(5) whether the theory has been generally accepted in the scientific community.

509 U.S. at 589.

The first fatal flaw in the Moore survey is the fact the survey asks respondents how they

usually vote as a method to determine party identification. People who responded that they vote

“[m]ostly or only for Republicans” or for “[a] few more Republicans than Democrats,” were

categorized as Republicans, all others were categorized as “Non-GOPs.” Mr. Moore’s approach is

contrary to 50 years of political science research and substantial and long-standing polling data,

where party affiliation is determined in terms of attitude, that is, whether the person self-identifies

him or herself as a Republican, Democrat or Independent. Dr. Saunders described this method as

“almost canonical,” a characterization with which Dr. Munger did not disagree. In fact, both Dr.



Munger and Dr. Saunders agreed that self-identification is the accepted way to determine party

identification, and Dr. Munger admitted that he “would have preferred”9

Dr. Munger provided no cogent defense of the use of voting behavior data in this context, and

Mr. Moore simply asserted that he thought his method was more useful in the context of election

polling, which comprises essentially the entirety of Mr. Moore’s experience. Unfortunately, the use

of election polling methods when trying to determine the existence and extent of cross-over voting

creates serious problems for two primary reasons. First, one cannot ground-truth the results relative

to more traditional surveys, such as the Boise State public policy survey or the national ANES

Survey. In addition, the use of voting behavior does not allow resolution of the questions raised by

Drs. Saunders and Martin discussed below.

to have self-identification

data in addition to the voting behavior data that Mr. Moore collected.

The Martin and Saunders report, in Exhibit 2105, comprises a devastating critique of the

construction of the Moore survey. We leave the review of this document to the Court, except to

summarize its key findings. First, 31.74 percent of respondents demonstrate false memory or no

memory of their voting. In addition, the survey respondents display a substantial desirability bias,

that is, a tendency to say they voted for the winner. The questions in the Moore Survey are

extremely confusing and change their reference point regarding timeframe (i.e. the last election or all

elections) and whether they refer to the primary or general election. The survey was taken 19 months

after the last primary, a timeframe for which the political science literature shows that people have

clear memory problems. The survey and its findings were so confusing that plaintiffs’ own expert

Dr. Munger misconstrued the numbers on which he was basing his opinions.10

9 Trial transcript, p. 213.

In constructing the

survey, Mr. Moore did not consult with anyone but Mr. Ripley, who admits he is not a qualified

political scientist.

10 Trial transcript, pp. 226-36.



Given these facts, the Moore Survey fares very poorly under the touchstones identified by

Daubert. The key survey questions Mr. Moore used have not been tested in the context of

determining the existence or extent of cross-over voting. The technique has not been published or

peer-reviewed, and in fact would not pass peer review, according to Dr. Saunders uncontradicted

testimony. The error rate is extremely high, based on demonstrated false memory and lack of

memory, social desirability bias and other failings. Mr. Moore could identify no standards or

controls apart from his own experience, and both sides’ political science experts agreed the method is

not accepted by the political science community. The Moore Survey should be excluded so as not to

confuse the record.

3. The Ripley Analyses should not be admitted because Mr. Ripley is not qualified as an expert witness and his opinions do not meet the criteria under Rule 702

The Ripley Analyses should be excluded from the record both because Mr. Ripley is not

qualified to offer the opinion and because the study he performed fails to meet F.R.E. 702’s

reliability criterion for several reasons.

.

(a) Mr. Ripley lacks expertise in the fields of political science and statistics, both of which are necessary to offer an opinion on roll-off voting

What is troubling at the outset about the Ripley Analyses is Mr. Ripley’s obvious bias. He

was engaged by his employer to support conservative candidates in almost all of the primaries he

studied. In almost all cases, he was engaged to oppose moderate Republican candidates supported by

the IEA. He freely admits he “had a dog in the fight”

.

11

Mr. Ripley admits he is not an expert either in the field of political science or in the field of

statistics. Yet one can only garner relevant information about the case from the information he

in almost every election he studied. While

this by itself does not disqualify him as an expert witness, it certainly invites the Court to look

closely at his qualifications.

11 Ex. 1007A, p. 167.



provides by using principles and methods from both fields. For example, Mr. Ripley failed to use a

random sample of contested Republican primaries, a fundamental flaw that the IRP’s own political

science expert admits does not allow any conclusions to be drawn about the extent of the roll-off

effect Mr. Ripley alleges. Further, Mr. Ripley ignored alternative explanations for the roll-off he

alleges, a fundamental error that no political scientist would make.12

The qualifications Mr. Ripley does offer, nearly 30 years as a campaign operative, are not

helpful for deciding the existence or extent of cross-over voting in Idaho Republican primaries. At

best, Mr. Ripley offers factual testimony to the effect that the IEA sometimes supports candidates in

IRP primaries, and urges its members to support those candidates whom the IEA considers to be

education supporters. Mr. Ripley’s testimony cannot be elevated to the level of expert testimony.

He also conducted no analysis

of the statistical significance of the differences he observed, a mistake no qualified statistician would

make.

(b) Mr. Ripley’s opinions do not meet the criteria of Rule 702 for sufficient data, reliable methods or reliable application

As mentioned, Mr. Ripley’s testimony includes at least three fatal flaws. First, he failed to

use a random sample of primary elections, which does not allow any conclusions to be drawn about

the extent of cross-over voting in Republican primary elections. Second, he failed to account for

other explanations of the roll-off encountered, including uncontested top of the ticket races, the

relatively moderate demographics of the district, and the experience and name recognition of the

moderate candidate in the race. Finally, he failed to conduct any analysis of the statistical

significance of his findings. Exhibit 2108 contains a further explanation of the deficiencies of the

Ripley Analyses. In short, it falls far short of the rigor necessary for its admission as expert

.

12 Subsequent to Daubert, courts have used additional criteria to assess the reliability of expert testimony. The most applicable to this case is whether the expert has accounted for obvious alternative explanations. See Claar v. Burlington N.R.R., 29 F.3d 499 (9th Cir. 1994) (testimony excluded where the expert failed to consider other obvious causes for the plaintiff’s condition).



testimony. The data are insufficient, reliable methods are not used and are not reliably applied. The

Court should exclude this testimony so as not to confuse the record.

4. If the Moore Survey, the Ripley Analyses or both are admissible, the Court should give them little or no weight

As discussed in more detail below, even if the Court admits the Moore Survey, the Ripley

Analyses or both, it should give them little or no weight. The Moore Survey is hopelessly confusing,

and adds nothing to the non-state specific political science literature.

.

The Ripley Analyses are prepared by a biased source, and fail to follow accepted protocols in

the fields of political science or statistics. It is uncontested that the Ripley Analyses can only be used

to show the existence of cross-over voting, but not its extent. As a result, it cannot support a

conclusion that the open primary constitutes a severe, as opposed to a modest, burden on the IRP

Organization’s associational rights.

B. The IRP Organization has no associational rights separate from the IRP in Government and the IRP in the Electorate.

A critical threshold issue is: who holds the protected associational rights of the IRP? In this

case, both sides’ political science experts testified that a political party does not consist solely of the

party organization. Rather, it consists of the party organization, the party in the electorate and the

party in government. At trial, plaintiffs made clear they represent the IRP Organization and

acknowledged that they are not in agreement with the IRP in Government on the core issues in this

case.

This testimony creates a unique factual predicate for this case. None of the Supreme Court’s

political primary jurisprudence directly raises the issue of which element of the party holds the

associational rights, and we have found no lower court cases addressing the issue. However, several

cases include language that reflects the tensions between the three parts of a political party. Indeed,

this Court raised this central question during the questioning of Dr. Munger:



We have the Supreme Court decision in Citizens United, which now suggests that corporations have constitutional rights, First Amendment rights -- or excuse me, corporations have First Amendment constitutional rights. Parties, I don't know, as an entity.

The associational right is, of course, implicit in the party structure, but it's the right of the individual to associate with people of similar minds and to be categorized or associate with only those who have -- who share the same views. One of the issues I'm going to have to wrestle with is: What is that associational right? What is its parameter?

But I'm concerned by your comment that the party should have the right to choose as opposed to the state simply providing a system which protects the associational rights of the individual party members as opposed to the right of the party, as an entity, to choose.

Do you see the distinction I'm making?

(Trial transcript, pp. 202-203)

The case law strongly suggests that the protected associational rights belong to the voters

who comprise a political party and not the party per se. The rights of the party organization are most

clearly implicated in cases such as Eu. v. San Francisco County Democratic Cent. Comm., 489 U.S.

214, 231 (1989), that address state regulation of the party’s internal governance. Even there, the

Supreme Court spoke of the “associational rights of political parties and their members.” Id., 479

U.S. at 230. In Tashjian v. v. Republican Party of Conn., where the issue was the right of the

Connecticut Republican Party to allow independents to participate in its primary elections, the Court

invoked both the rights of the party and the rights of its members and adherents:

The nature of appellees' First Amendment interest is evident. "It is beyond debate that freedom to engage in association for the advancement of beliefs and ideas is an inseparable aspect of the 'liberty' assured by the Due Process Clause of the Fourteenth Amendment, which embraces freedom of speech." NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 460 (1958); see NAACP v. Button, 371 U.S. 415, 430 (1963); Bates v. Little Rock, 361 U.S. 516, 522-523 (1960). The freedom of association protected by the First and Fourteenth Amendments includes partisan political organization. Elrod v. Burns, 427 U.S. 347, 357 (1976) (plurality opinion); Buckley v. Valeo, 424 U.S. 1, 15 (1976). "The right to associate with the political party of one's choice is an integral part of this basic constitutional freedom." Kusper v. Pontikes, 414 U.S. 51, 57 (1973).



The Party here contends that § 9-431 impermissibly burdens the right of its members to determine for themselves with whom they will associate, and whose support they will seek, in their quest for political success. The Party's attempt to broaden the base of public participation in and support for its activities is conduct undeniably central to the exercise of the right of association. As we have said, the freedom to join together in furtherance of common political beliefs "necessarily presupposes the freedom to identify the people who constitute the association." Democratic Party of United States v. Wisconsin ex rel. La Follette, 450 U.S. 107, 122 (1981).

479 U.S. 208, 217 (1986) (emphasis added).

A major state political party necessarily includes individuals playing a broad spectrum of roles in the organization's activities. Some of the Party's members devote substantial portions of their lives to furthering its political and organizational goals, others provide substantial financial support, while still others limit their participation to casting their votes for some or all of the Party's candidates. Considered from the standpoint of the Party itself, the act of formal enrollment or public affiliation with the Party is merely one element in the continuum of participation in Party affairs, and need not be in any sense the most important.

Likewise, in Clingman v. Beaver, 544 U.S. 581 (2005), in which the Libertarian Party of

Oklahoma sought the right to open its primaries to members of other parties, the emphasis was

decidedly on the right of citizens to associate with a political party. 544 U.S. at 599-600 (concurring

opinion of Justice O’Connor) (“No right is more precious in a free country than that of having a

voice in the election of those who make the laws under which, as good citizens, we must live, and the

right to associate with the political party of one’s choice is an integral part of this basic constitutional

freedom . . .”) (internal quotation marks and citations omitted).

And, even in Jones, the Court invoked the rights “of those composing the party,” not the

rights of the party organization. 530 U.S. at 573, fn. 4, and 584.

The legal framework for the Idaho primary system also supports a conclusion that the

protected rights belong to the voter as compared to the political parties as entities. The Idaho system

balances the right to vote with the legislature’s authority to regulate that right for the public benefit.

The Idaho Constitution makes clear that the right of suffrage itself belongs to the individual and the

people and not to the State. Id. Const., Art. I, § 2 (“All political power is retained in the people”);



Id. Const., Art. I, § 19 (granting right of suffrage to Idaho citizens). Counterpoised against that right

is the legislature’s authority to regulate the right to vote. Id. Const., Art VI, § 4 (“The legislature

may prescribe qualifications, limitations, and conditions for the right of suffrage, additional to those

prescribed in this article, but shall never annul any of the provisions in this article contained.”).

The primary election system that implements this framework does not just affect the party

organization but rather balances benefits and burdens among the party in the electorate, the party in

government and the party organization. To enjoy the privilege of voting in a party primary, the party

in the electorate is required to register to vote, to meet minimum age requirements and to affiliate

with the party by choosing that party’s ballot at the primary election to the exclusion of other parties’

ballots. I.C. §§ 34-402 (minimum age requirements), 34-404 (registration), and 34-904 (primary

election procedures).

One who wishes to be a part of the party in government must register as a candidate where he

or she makes a public declaration of party affiliation, and appears on the primary ballot. See

generally, Idaho Code, Title 34, Ch. 6. If a candidate loses in the primary election, he or she cannot

appear on the general election ballot as an independent or on any other party’s ballot line. I.C. § 34-

704.

Persons wishing to be a part of the formal party organization must make a declaration of

party affiliation to run for precinct committeeman. I.C. § 34-624, 34-624A. Those persons elected

are required to organize into legislative district and county committees and to select representatives

to the state central committee. I.C. § 34-502, 34-503, 34-504. In exchange, the party organization

receives certain legal benefits, including the right to recommend candidates to the governor and

others for open partisan offices in the event of a vacancy. E.g., I.C. § 59-906 (vacancies in county

offices).

Given this structure, we see no reason to conclude that the party organization holds the

associational rights of the party. The primary election system affects all three parts of the party in



important ways and one cannot effect a change at the request of one element of the party without

impacting the other elements. In Tashjian, the Supreme Court held that the Republican Party of

Connecticut had a constitutional right to allow independents to vote in their primary. Tashjian v.

Republican Party of Conn., 479 U.S. 208, 217 (1986). In this case, where the IRP in Government

has decided to create and maintain an open primary for 40 years, why is that decision not as

deserving of protection as the IRP Organization’s resolution? Why can a faction of the IRP decide to

override the decision of the elected Republican legislature based on nothing but the wishes of

precinct committeeman selected in the most obscure elections of all (and sometimes simply

appointed by others in the party organization)?

Defendant-Intervenors submit that the IRP Organization has a remedy, but it is not a remedy

in court. The IRP Organization needs to seek its remedy in the Idaho legislature, where even just a

portion of the Republican majority in the legislature could close the primary. Failing that, the IRP

Organization has a remedy with the IRP in the Electorate, to convince the 125,000 or so people who

regularly and sincerely vote for Republicans to elect candidates to support their position. Their

grievance is simply not a matter of Constitutional import.

C. The IRP Organization has failed to prove that the Idaho open primary burdens its constitutional rights to the extent necessary to overcome the State of Idaho’s interests in non-partisan registration and open primaries.

In the event the Court determines the IRP Organization has a cognizable right separate from

the other elements of the party, the Court has to undertake a careful balancing of the authority of the

State to regulate elections versus the associational rights alleged. In doing so, it is helpful to attempt

to identify with precision the nature of the constitutional rights at issue, as the resolution of this case

demands a respect for each of them. First, the State of Idaho and its citizens have the right and

authority to prescribe the “times, places and manner” of holding elections for federal office, under

Art. I, Sec. 4, cl. 1 of the U.S. Constitution. The Idaho Constitution contains an analogous provision

allowing the State to regulate the right of suffrage. Id. Const., Art VI, § 4 (“The legislature may



prescribe qualifications, limitations, and conditions for the right of suffrage, additional to those

prescribed in this article, but shall never annul any of the provisions in this article contained.”), but at

the same time establishing strong guarantees retaining political power in the people, Id. Const., Art. I,

§ 2, and providing for suffrage. Id. Const., Art. I, § 19.

Weighed against the State and citizens’ rights is the legal status of political parties when they

participate in the electoral process. Are they public or private actors? These rights are addressed in

turn below, followed by an analysis of how they interrelate in the context of the question before this

Court, the legitimacy of Idaho’s nonpartisan registration, open primary system.

1. The Constitution plainly recognizes the State’s “broad power” to regulate the “time, places and manner” of holding elections

In Clingman v. Beaver, 544 U.S. 581, 586 (2005), the Supreme Court stated:

.

The Constitution grants States "broad power to prescribe the 'Times, Places and Manner of holding Elections for Senators and Representatives,' Art. I, § 4, cl. 1, which power is matched by state control over the election process for state offices." Tashjian v. Republican Party of Conn., 479 U.S. 208, 217, 93 L. Ed. 2d 514, 107 S. Ct. 544(1986); Timmons v. Twin Cities Area New Party, 520 U.S. 351, 358, 137 L. Ed. 2d 589, 117 S. Ct. 1364 (1997)

State government plainly has the “broad power” to require the two major political parties to

nominate their candidates for public office by primary election. Id., at 599; California Democratic

Party v. Jones, 530 U.S. 567, 572 (2000); Eu v. San Francisco County Democratic Cent. Comm.,

489 U.S. 214, 231 (1989). Further, the conduct of those primaries is also subject to state regulation.

Eu, supra, at 232. Thus, the issue is not whether the State of Idaho can mandate that the IRP

nominate by a state-administered primary – clearly it can. Rather, the issue is whether the current

primary system unconstitutionally infringes on rights guaranteed under the First Amendment. In this

case, the alleged infringements are not blatant and do not trample on core First Amendment

activities. The parties and those associated with them remain free to express themselves, govern

themselves, recruit members and adherents and function freely within the State’s primary system.



An important threshold question in assessing the state’s power to regulate primary elections

is whether, in considering their participation in primary elections, political parties are state actors or

private actors insofar as they participate in those elections. As discussed below, Justice Scalia’s

statement in Jones that primary elections are “not public affairs, free of First Amendment

protections,” 530 U.S. at 572-73, has muddied the waters regarding the states’ authority to regulate

the participation of political parties in elections. At the end of the day, however, Jones does not

change the fundamental test that state regulation will be upheld as long as it imposes only a modest

burden on political parties’ associational rights and is supported by legitimate state interests.

The all-white primary cases state these principles starkly. In striking down the all-white

primaries conducted by southern Democratic Parties, the Supreme Court found that by conducting

primary elections, the Party was a state actor and, therefore, subject to the Fourteenth and Fifteenth

Amendments that prohibit denying the right to vote “on account of race, color, or previous condition

of servitude.” Terry v. Adams, 345 U.S. 461 (1953); Smith v. Allwright, 321 U.S. 649, 663-64 (1944).

The Supreme Court reiterated this position when it considered the application of Section 5 of the

Voting Rights Act to the conduct of political parties. Morse v. Republican Party of Virginia, 517 U.S.

186 (1996).

The extent to which a political party is performing a private or public function in nominating

its candidates for public office separated the majority and dissent in Jones, the decision that

invalidated California’s blanket primary. Writing for the majority, Justice Scalia stated:

What we have not held, however, is that the processes by which political parties select their nominees are, as respondents would have it, wholly public affairs that States may regulate freely. To the contrary, we have continually stressed that when States regulate parties' internal processes they must act within limits imposed by the Constitution. See, e.g., Eu v. San Francisco County Democratic Central Comm.,489 U.S. 214, 103 L. Ed. 2d 271, 109 S. Ct. 1013 (1989); Democratic Party of United States v. Wisconsin ex rel. La Follette, 450 U.S. 107, 67 L. Ed. 2d 82, 101 S. Ct. 1010 (1981). In this regard, respondents' reliance on Smith v. Allwright, 321 U.S. 649, 88 L. Ed. 987, 64 S. Ct. 757 (1944), and Terry v. Adams, 345 U.S.



461, 97 L. Ed. 1152, 73 S. Ct. 809 (1953), is misplaced. In Allwright, we invalidated the Texas Democratic Party's rule limiting participation in its primary to whites; in Terry, we invalidated the same rule promulgated by the Jaybird Democratic Association, a "self-governing voluntary club," 345 U.S. at 463. These cases held only that, when a State prescribes an election process that gives a special role to political parties, it "endorses, adopts and enforces the discrimination against Negroes," that the parties (or, in the case of the Jaybird Democratic Association, organizations that are "part and parcel" of the parties, see 345 U.S. at 482 (Clark, J., concurring)) bring into the process -- so that the parties' discriminatory action becomes state action under the Fifteenth Amendment. Allwright, supra, at 664; see also Terry, 345 U.S. at 484 (Clark, J., concurring); 345 U.S. at 469(opinion of Black, J.). They do not stand for the proposition that party affairs are public affairs, free of First Amendment protections -- and our later holdings make that entirely clear.

530 U.S. at 572-73.

In his dissent, Justice Stevens stated:

I think it clear -- though the point has never been decided by this Court -- "that a State may require parties to use the primary format for selecting their nominees." Ante, at 4. The reason a State may impose this significant restriction on a party's associational freedoms is that both the general election and the primary are quintessential forms of state action. It is because the primary is state action that an organization -- whether it calls itself a political party or just a "Jaybird" association -- may not deny non-Caucasians the right to participate in the selection of its nominees. Terry v. Adams, 345 U.S. 461, 97 L. Ed. 1152, 73 S. Ct. 809 (1953); Smith v. Allwright, 321 U.S. 649, 663-664, 88 L. Ed. 987, 64 S. Ct. 757 (1944). The Court is quite right in stating that those cases "do not stand for the proposition that party affairs are [wholly] public affairs, free of First Amendment protections." Ante, at 6. They do, however, stand for the proposition that primary elections, unlike most "party affairs," are state action. The protections that the First Amendment affords to the "internal processes" of a political party, ibid., do not encompass a right to exclude nonmembers from voting in a state-required, state-financed primary election.

530 U.S. at 594-595.

As Justice Stevens noted, the majority cites as authority the cases that protect a party’s

internal processes from state intrusion as a basis for insulating it from state regulation of its primary

process. And even then, Justice Scalia can say no more than that primary elections are not “public



affairs, free of First Amendment protections.” Defendant-Intervenors respectfully submit that Justice

Scalia’s logical and jurisprudential leap is a reason for this Court to proceed cautiously in extending

the Jones holding to impose partisan registration and closed primaries on the citizens of Idaho. The

radical nature of the IRP Organization’s position in this regard was made clear when, at trial,

plaintiffs' expert, Dr. Munger stated his belief that the state should play no role in setting the rules for

state-financed and regulated primary elections:

My opinion is that parties, and not the state, are the best judge of what is best for them. It's entirely possible that a party might choose an open primary system. They get to decide what inhibits. (sic) So if someone were to ask me, I could give arguments on both sides. My only claim is that it’s the party that has to decide.

Trial transcript, pp. 176-77.

Later in cross-examination, Dr. Munger made clear he means the party organization is the

one to decide:

Q. It’s something – well, let’s try a different word than “feud”; that was a poor choice of words. Isn’t this just – isn’t this – isn’t the heart of this a dispute between the Republican Party in government and the Republican Party organization?

A. The Republican Party in government is chosen under the existing system. It’s not surprising that they would be in favor of it. The opposition from the Republican Party organization is to try to change that. But they’ve been unable to because they have no control over the candidates that they select. You could contrast that with the experience of Utah. The Utah Republican Party decided they wanted to make changes, and it went through because they had more control of their candidates.

Trial transcript, p. 246.

In the most recent case that addressed this issue, the Supreme Court was careful to give

explicit recognition and a substantial measure of deference to the State’s interest in creating and

administering primary elections and the choices it made in so doing. Washington State Grange, v.

Washington State Republican Party, 552 U.S. 442, 451-52 (2008); Clingman, supra, 544 U.S. at 586-

87, 599-600. For example, the Supreme Court stated as follows in Washington Grange:



Respondents ask this Court to invalidate a popularly enacted election process that has never been carried out. Immediately after implementing regulations were enacted, respondents obtained a permanent injunction against the enforcement of I-872. The First Amendment does not require this extraordinary and precipitous nullification of the will of the people.

552 U.S. at 458.

2. The IRP Organization has failed to prove that the Idaho open primary constitutes any more than a modest burden on its associational rights, a burden more than justified by the State of Idaho’s interests in non-partisan registration and open primaries

(a)

.

The critical question is whether cross-over voting in Idaho, to the extent it exists, imposes a modest or a severe burden on the IRP Organization’s associational rights

The IRP Organization has brought a facial challenge to Idaho’s long-standing system of non-

partisan registration and open primaries. In judging this challenge, the Court must apply the well-

established balancing test most recently articulated in Washington Grange, supra:

.

Election regulations that impose a severe burden on associational rights are subject to strict scrutiny, and we uphold them only if they are "narrowly tailored to serve a compelling state interest." Clingman, supra, at 586, 125 S. Ct. 2029, 161 L. Ed. 2d 920; see also Rhodes, supra, at 31, 89 S. Ct. 5, 21 L. Ed. 2d 24 ("'[O]nly a compelling state interest in the regulation of a subject within the State's constitutional power to regulate can justify limiting First Amendment freedoms'" (quoting NAACP v. Button, 371 U.S. 415, 438, 83 S. Ct. 328, 9 L. Ed. 2d 405 (1963))). If a statute imposes only modest burdens, however, then "the State's important regulatory interests are generally sufficient to justify reasonable, nondiscriminatory restrictions" on election procedures. Anderson v. Celebrezze, 460 U.S. 780, 788, 103 S. Ct. 1564, 75 L. Ed. 2d 547 (1983). "Accordingly, we have repeatedly upheld reasonable, politically neutral regulations that have the effect of channeling expressive activity at the polls. "Burdick v. Takushi, 504 U.S. 428, 438, 112 S. Ct. 2059, 119 L. Ed. 2d 245 (1992).

552 U.S. at 451-2.

In addition, the Court must proceed with caution, particularly in light of plaintiffs’ failure to

produce credible evidence of the extent of cross-over voting or its impact, because the IRP

Organization has brought only a facial challenge. As the majority stated in Washington Grange,

supra:



Respondents object to I-872 not in the context of an actual election, but in a facial challenge. Under United States v. Salerno, 481 U.S. 739, 107 S. Ct. 2095, 95 L. Ed. 2d 697 (1987), a plaintiff can only succeed in a facial challenge by "establish[ing] 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. Id., at 745, 107 S. Ct. 2095, 95 L. Ed. 2d 697. While some Members of the Court have criticized the Salerno formulation, all agree that a facial challenge must fail where the statute has a "'plainly legitimate sweep.'" Washington v. Glucksberg, 521 U.S. 702, 739-740, 117 S. Ct. 2258, 117 S. Ct. 2302, 138 L. Ed. 2d 772, and n. 7 (1997) (Stevens, J., concurring in judgments).

552 U.S. at 449.

This is not a case where a particular candidate has come before the Court seeking to overturn

the result of a particular primary election because of substantial “raiding” by adherents of another

party. In fact, both sides agree that there is no evidence of raiding in Idaho elections. Rather, the IRP

Organization must show that the extent of cross-over voting is so great and its impact so detrimental

to the interests of Idaho voters who identify with the IRP, that the entire primary election system the

State of Idaho has used for decades must be thrown out. Put another way, they must demonstrate that

as a matter of law a system of nonpartisan registration and open primaries cannot withstand

constitutional scrutiny, that there are no circumstances in which it passes constitutional muster.

In the Court’s ruling on summary judgment, the Court delineated what the IRP

Organization must prove at trial to prevail:

Therefore, based on the current record before this Court, genuine issues of material fact remain – mainly whether and to what extent “cross over” voting exists in Idaho, and whether and to what extent the threat of such “cross over” voting affects the message of IRP and its candidates. Therefore, the Court cannot determine whether Idaho’s open primary subjects the Republican Party’s candidate-selection process to persons wholly unaffiliated with the party. Id. At 581. Moreover, the Court cannot simply borrow the statistics, opinions and surveys from Jones because, as noted above, that case dealt with a blanket primary instead of an open primary, and it is clear that there is a distinction between the two. Id. at 576, n.6. These differences may result in different “cross-over” voter statistics.

Thus, the Court cannot determine what burdens or restrictions, if any, are placed on IRP by Idaho’s open primary. In turn, the Court cannot



weigh the character and magnitude of IRP’s asserted injury against the interests of the State as justification for any such burden imposed by its statutes. Burdick, 504 U.S. at 434. These questions of fact prevent the Court from granting summary judgment for either party at this point. Instead, the Court intends to conduct an evidentiary hearing or trial in this matter to better develop the record in a manner similar to the record before the Court in Jones.

Dkt. 43, pp. 14-15.

(b) The evidence does not support a conclusion that cross-over voting has a significant impact on IRP primaries

The IRP Organization failed to produce any credible evidence of cross-over voting in Idaho

following summary judgment. Section II.A above addresses the irretrievable flaws with the Moore

Survey and the Ripley Analyses. The Court should exclude this evidence or give it no weight.

.

Defendant-Intervenors submit that the only credible facts regarding cross-over voting are as

follows. First, the State’s election system offers substantial benefits to the IRP Organization in

addition to the burdens discussed here. These benefits include access to a state-financed election in

both the primary and general elections and the ability to nominate successors to partisan offices.

Second, the political science literature estimates cross-over voting as a general matter at

about ten percent in open primary states. It is undisputed, however, that Idaho is one of the nation’s

most heavily Republican states. Therefore, its elections are less competitive, the concerns associated

with cross-over voting are less pronounced, and the relatively small number of Democrats in Idaho

(25 percent of the electorate in 2008) make it unlikely that even 10 percent of the voters in most

Republican primaries would be persons who self-identified as Democrats.

Third, the IRP Organization produced anecdotal evidence from Mr. Ripley primarily

regarding campaign assistance given by the IEA to education-supporting Republican moderates in

the IRP primary. This assistance included encouraging the IEA’s membership to support these

candidates.



Further, both sides agree there is no evidence of raiding. All of the cross-over voting alleged

is sincere voting in the form of hedging or impact voting. Dr. Munger alleged the existence of a

novel form of “Trojan Horse” voting, but the record includes no credible evidence on this score.

Also, the record contains no material evidence that IRP candidates changed their message

because of cross-over voting. Indeed, only one of the numerous fact witnesses produced by the IRP

Organization, Dennis Mansfield, even mentioned this, and he stated only that he placed less emphasis

on home schooling than he would have. However, the court confined his testimony to actions taken

because of a belief that Democrats were voting in the primary as he provided no admissible evidence

of cross-over voting. (Dkt. 67)

(c) The Idaho open primary system imposes a modest, if any, burden on the IRP organization’s associational rights

On these facts, the Court must uphold Idaho’s open primary for several reasons discussed in

the paragraphs below.

.

First, the benefits and burdens of the primary system on the IRP in the Electorate and the IRP

in Government are a relevant part of the calculus. In this regard, the open primary offers clear

benefits. As described in the introduction, the IRP in Government has thrived with an open primary

holding, as of January 2011, 85 of 105 seats in the Idaho legislature. Similarly, the IRP in the

Electorate benefits from the privacy protection of not having to make a public declaration of

affiliation and the flexibility of being able to register on Election Day.

Second, the Idaho open primary offers a consistent means of affiliation with the IRP, in stark

contrast to the blanket primary in existence in California when Jones was decided. California had

adopted a blanket primary that allowed a voter to register (i.e. affiliate) with the Democratic Party

and then vote in the Republican primary for governor and the Libertarian primary for Attorney

General. In Idaho, in contrast, a voter does not affiliate by registration; he or she only affiliates by

taking the ballot of a single political party at the primary and in so doing forgoes the right to



participate in the primary of any other party. Thus, that voter acts only once to affiliate when he or

she votes; that is, he or she becomes a member of the IRP in the Electorate by voting in the IRP

primary. In this way, as witnessed by Mr. Moore’s difficulties in party identification, cross-over

voting is not a meaningful concept in a state without partisan registration. Because the open primary

does not allow contradictory acts of affiliation, an open primary does not permit the “mischief” about

which the Jones court was concerned. Further, we respectfully submit that the voter’s private choice

of affiliation and his or her actual vote are more telling regarding who is a bona fide Republican than

the views of a narrow sliver of the Party Organization seeking to protect the interests of losing

candidates.

The IRP Organization might prefer some other form of association, and, of course it is free to

accomplish this through, for example, a membership structure or conducting a private caucus in lieu

of a primary. However, the State of Idaho is not required under the Constitution to provide the brand

of association the party wants. Rather, it must only provide something that adequately protects the

IRP Organization’s associational rights. Thus, the IRP Organization may not demand a partisan

registration system where it is not part of the legal framework or political culture13

A further weakness of the IRP Organization’s evidence is that it does not differentiate

between independents who vote in the IRP primary and Democrats. For two reasons, Defendant-

Intervenors submit the key question is whether Democrats or adherents of other parties are crossing

and where an

open primary adequately protects the IRP Organization’s associational rights.

13 In paragraph 51 of the complaint plaintiffs state:

The Idaho Republican Party is entitled to permanent injunctive relief, restraining the State of Idaho, acting by and through Ben Ysursa, Secretary of State, from: a. conducting any primary election after 2008 without affording the Party the right to party registration; b. conducting any primary election after 2008 without implementing a reasonable mechanism for that primary to effectuate the Party’s exercise of its right to limit those who participate in that primary, and without providing a means for the Party to verify that the persons who participated in that primary were registered Party members, and to be able to communicate with its supporters and members who identified themselves by participating in the primary election with regard to Party issues and actions . . .



over, as compared to independents. First, the political science literature is split on whether or not

independents are cross-over voters. Most scholars take the position they are not. Further, even if

partisan registration were imposed in Idaho, independent voters who “lean” Republican would likely

just register into the IRP so as to vote in the primary election as would the strong supporters of public

education who feature so prominently in the IRP’s anecdotal evidence and the Ripley Analyses.

Further, Idaho’s open primary system does not limit the political speech of the IRP

Organization, the IRP in the Electorate or IRP candidates. They are each free to speak as they wish

and to associate with whom they please. But the right to speak does not equate to giving the IRP

Organization control over the party’s nominating process without regard to the interests of the IRP in

Government, the IRP in the Electorate or the State. To rule in the IRP Organization’s favor would

only embolden it to do away with primaries altogether and return to the days of smoke-filled rooms,

when party bosses –far more concerned with patronage and political power than ideology –

determined which candidates would appear on the party’s general election ballot.

Indeed, even if registration were required, registered Republicans would find themselves

associating with many people who choose to register Republican for pragmatic reasons, such as a

desire for public employment, or a wish to have an impact in the election that counts, but who may

have an entirely different ideological orientation. We cannot see that the IRP Organization suffers a

severe burden under the current system if the alternative produces no better result.

The extent of cross-over voting has not been established, nor has its impact on either the

outcome of Idaho primary elections or the messaging of candidates for the IRP nomination. The IRP

Organization has produced no evidence of raiding, no material evidence that candidates have

changed their message, and no evidence that candidates have been elected who are not bona fide

Republicans. The IRP Organization has produced no evidence to contradict Drs. Saunders and

Martin’s testimony that the IRP in Government acts as a coherent ideological block and that every

member of the IRP in Government is more conservative than the most conservative Democrat.



The fact that an issue-oriented interest group, the IEA, has attempted to influence the

outcome of IRP primaries so that the candidates most supportive of public education are nominated,

can hardly be said to impose a severe burden on the IRP Organization’s associational rights. The fact

is the IEA’s message, and the candidates it has supported, have resonated better with the IRP in the

Electorate than the candidates the IRP Organization might have preferred.

III. CONCLUSION

The State of Idaho has adopted a primary system that protects important interests, including

full participation and democratic openness. The State has determined these considerations are more

important than narrow partisan interests. Idaho has a political culture that allows people to function

not as Democrats or Republicans, but as citizens seeking to elect the best possible candidates to

public office. The evidence shows that this system is working, and virtually all voters are voting

sincerely for the person they believe is the best candidate, or at least one who is acceptable. The IRP

in Government dominates the Idaho legislature, but it has not voted to change the current system.

The State’s post-trial brief will speak to the substantial administrative burdens and expense of

implementing the relief sought by the IRP Organization.

As a final point, Defendant-Intervenors emphasize that, should the IRP Organization prevail,

independent voters, now twenty-eight percent of the electorate, would be barred from participating in

the election that very often is the only one that counts.

DATED this 16th day of November, 2010.

GARY G. ALLEN (Idaho SB # 4366) /s/ Gary G. Allen

HARRY KRESKY /s/ Harry Kresky


CERTIFICATE OF SERVICE - 1

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on the 16th day of November, 2010, I submitted this foregoing to the Clerk of the Court for service on CM/ECF Registered Participants as reflected on the Notice of Electronic Filing, including, but not limited to, the following:

Clay R. Smith [email protected] Michael S. Gilmore [email protected]

Christ T. Troupis [email protected], [email protected] John E. Sutton [email protected]

Gary G. Allen /s/ Gary G. Allen







Post Trial Brief Kresky Allen Idaho Case 1-08-Cv-00165-BLW

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