WASHINGTON STATE GRANGE v. WASHINGTON STATE REPUBLICAN PARTY et al.

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Syllabus
WASHINGTON STATE GRANGE v. WASHINGTON
STATE REPUBLICAN PARTY et al.
certiorari to the united states court of appeals for
the ninth circuit
No. 06–713. Argued October 1, 2007—Decided March 18, 2008*
After the Ninth Circuit invalidated Washington’s blanket primary system
on the ground that it was nearly identical to the California system
struck down in California Democratic Party v. Jones, 530 U. S. 567,
state voters passed an initiative (I–872), providing that candidates must
be identified on the primary ballot by their self-designated party prefer
ence; that voters may vote for any candidate; and that the two top
votegetters for each office, regardless of party preference, advance to
the general election. Respondent political parties claim that the new
law, on its face, violates a party’s associational rights by usurping its
right to nominate its own candidates and by forcing it to associate with
candidates it does not endorse. The District Court granted respond
ents summary judgment, enjoining I–872’s implementation. The Ninth
Circuit affirmed.
Held: I–872 is facially constitutional. Pp. 449–459.
(a) Facial challenges, which require a showing that a law is uncon
stitutional in all of its applications, are disfavored: They often rest on
speculation; they run contrary to the fundamental principle of judicial
restraint that courts should neither “ ‘anticipate a question of consti
tutional law in advance of the necessity of deciding it’ ” nor “ ‘formulate
a rule of constitutional law broader than is required by the precise facts
to which it is to be applied,’ ” Ashwander v. TVA, 297 U. S. 288, 483; and
they threaten to short circuit the democratic process by preventing laws
embodying the will of the people from being implemented consistent
with the Constitution. Pp. 449–451.
(b) If I–872 severely burdens associational rights, it is subject to
strict scrutiny and will be upheld only if it is “narrowly tailored to serve
a compelling state interest,” Clingman v. Beaver, 544 U. S. 581, 586.
Contrary to petitioners’ argument, this Court’s presumption in Jones—
that a nonpartisan blanket primary where the top two votegetters pro
ceed to the general election regardless of party would be a less restric
*Together with No. 06–730, Washington et al. v. Washington State Re
publican Party et al., also on certiorari to the same court.

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tive alternative to California’s system because it would not nominate
candidates—is not dispositive here. There, the Court had no occasion
to determine whether a primary system that indicates each candidate’s
party preference on the ballot, in effect, chooses the parties’ nominees.
Respondents’ arguments that I–872 imposes a severe burden are flawed.
They claim that the law is unconstitutional under Jones because it
allows primary voters unaffiliated with a party to choose the party’s
nominee, thus violating the party’s right to choose its own standard
bearer. Unlike California’s primary, however, the I–872 primary does
not, by its terms, choose the parties’ nominees. The choice of a party
representative does not occur under I–872. The two top primary candi
dates proceed to the general election regardless of their party prefer
ences. Whether the parties nominate their own candidate outside the
state-run primary is irrelevant. Respondents counter that voters will
assume that candidates on the general election ballot are their preferred
nominees; and that even if voters do not make that assumption, they
will at least assume that the parties associate with, and approve of, the
nominees. However, those claims depend not on any facial requirement
of I–872, but on the possibility that voters will be confused as to the
meaning of the party-preference designation. This is sheer speculation.
Even if voters could possibly misinterpret the designations, I–872 can
not be struck down in a facial challenge based on the mere possibility
of voter confusion. The State could implement I–872 in a variety of
ways, e. g., through ballot design, that would eliminate any real threat
of confusion. And without the specter of widespread voter confusion,
respondents’ forced association and compelled speech arguments fall
flat. Pp. 451–458.
(c) Because I–872 does not severely burden respondents, the State
need not assert a compelling interest. Its interest in providing voters
with relevant information about the candidates on the ballot is easily
sufficient to sustain the provision. P. 458.
460 F. 3d 1108, reversed.
Thomas, J., delivered the opinion of the Court, in which Roberts, C. J.,
and Stevens, Souter, Ginsburg, Breyer, and Alito, JJ., joined. Rob
erts, C. J., filed a concurring opinion, in which Alito, J., joined, post,
p. 459. Scalia, J., filed a dissenting opinion, in which Kennedy, J.,
joined, post, p. 462.
Robert M. McKenna, Attorney General of Washington, ar
gued the cause for petitioners in both cases. With him on

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the briefs in No. 06–730 were Maureen Hart, Solicitor Gen
eral, and James Kendrick Pharris, William Berggren Col
lins, and Jeffrey Todd Even, Deputy Solicitors General.
Thomas Fitzgerald Ahearne filed briefs for petitioner in
No. 06–713.
John J. White, Jr., argued the cause for respondents in
both cases. With him on the brief for Washington State Re
publican Party et al. was Kevin B. Hansen. David T. Mc-
Donald, John P. Krill, Jr., and Matthew J. Segal filed a brief
in both cases for respondent Washington State Democratic
Central Committee. Richard Shepard filed a brief in both
cases for respondent Libertarian Party of Washington.†
Justice Thomas delivered the opinion of the Court.
In 2004, voters in the State of Washington passed an initia
tive changing the State’s primary election system. The
People’s Choice Initiative of 2004, or Initiative 872 (I–872),
provides that candidates for office shall be identified on the
ballot by their self-designated “party preference”; that vot
ers may vote for any candidate; and that the top two voteget
ters for each office, regardless of party preference, advance
to the general election. The Court of Appeals for the Ninth
Circuit held I–872 facially invalid as imposing an unconstitu
tional burden on state political parties’ First Amendment
rights. Because I–872 does not on its face impose a severe
burden on political parties’ associational rights, and because
respondents’ arguments to the contrary rest on factual as
sumptions about voter confusion that can be evaluated only
in the context of an as-applied challenge, we reverse.
†Briefs of amici curiae urging affirmance in both cases were filed for
the California Democratic Party by Lance H. Olson, Deborah B. Caplan,
and Richard C. Miadich; and for the Democratic National Committee by
Joseph E. Sandler.
Charles C. Foti, Jr., Attorney General of Louisiana, and William P.
Bryan III filed a brief in both cases for the State of Louisiana as amicus
curiae.

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I
For most of the past century, Washington voters selected
nominees for state and local offices using a blanket primary.1
From 1935 until 2003, the State used a blanket primary that
placed candidates from all parties on one ballot and allowed
voters to select a candidate from any party. See 1935 Wash.
Laws §§ 1–5, pp. 60–64. Under this system, the candidate
who won a plurality of votes within each major party became
that party’s nominee in the general election. See 2003
Wash. Laws § 919, p. 775.
California used a nearly identical primary in its own elec
tions until our decision in California Democratic Party v.
Jones, 530 U. S. 567 (2000). In Jones, four political parties
challenged California’s blanket primary, arguing that it un
constitutionally burdened their associational rights by forc
ing them to associate with voters who did not share their
beliefs. We agreed and struck down the blanket primary as
inconsistent with the First Amendment. In so doing, we
emphasized the importance of the nomination process as
“ ‘the crucial juncture at which the appeal to common princi
ples may be translated into concerted action, and hence to
political power in the community.’ ” Id., at 575 (quoting
Tashjian v. Republican Party of Conn., 479 U. S. 208, 216
(1986)). We observed that a party’s right to exclude is cen
tral to its freedom of association, and is never “more impor
tant than in the process of selecting its nominee.” 530 U. S.,
at 575. California’s blanket primary, we concluded, severely
burdened the parties’ freedom of association because it
1 The term “blanket primary” refers to a system in which “any person,
regardless of party affiliation, may vote for a party’s nominee.” Califor
nia Democratic Party v. Jones, 530 U. S. 567, 576, n. 6 (2000). A blanket
primary is distinct from an “open primary,” in which a person may vote
for any party’s nominees, but must choose among that party’s nominees
for all offices, ibid., and the more traditional “closed primary,” in which
“only persons who are members of the political party . . . can vote on its
nominee,” id., at 570.

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forced them to allow nonmembers to participate in selecting
the parties’ nominees. That the parties retained the right
to endorse their preferred candidates did not render the bur
den any less severe, as “[t]here is simply no substitute for a
party’s selecting its own candidates.” Id., at 581.
Because California’s blanket primary severely burdened
the parties’ associational rights, we subjected it to strict
scrutiny, carefully examining each of the state interests of
fered by California in support of its primary system. We
rejected as illegitimate three of the asserted interests: “pro
ducing elected officials who better represent the electorate,”
“expanding candidate debate beyond the scope of partisan
concerns,” and ensuring “the right to an effective vote” by
allowing nonmembers of a party to vote in the majority par
ty’s primary in “ ‘safe’ ” districts. Id., at 582–584. We con
cluded that the remaining interests—promoting fairness, af
fording voters greater choice, increasing voter participation,
and protecting privacy—were not compelling on the facts of
the case. Even if they were, the partisan California primary
was not narrowly tailored to further those interests because
a nonpartisan blanket primary, in which the top two vote
getters advance to the general election regardless of party
affiliation, would accomplish each of those interests without
burdening the parties’ associational rights. Id., at 585–586.
The nonpartisan blanket primary had “all the characteristics
of the partisan blanket primary, save the constitutionally
crucial one: Primary voters [were] not choosing a party’s
nominee.” Ibid.
After our decision in Jones, the Court of Appeals for the
Ninth Circuit struck down Washington’s primary as “materi
ally indistinguishable from the California scheme.” Demo
cratic Party of Washington State v. Reed, 343 F. 3d 1198,
1203 (2003). The Washington State Grange 2 promptly pro
2 The Washington State Grange is a fraternal, social, and civic organiza
tion chartered by the National Grange in 1889. Although originally
formed to represent the interests of farmers, the organization has advo

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posed I–872 as a replacement.3 It passed with nearly 60%
of the vote and became effective in December 2004.
Under I–872, all elections for “partisan offices” 4 are con
ducted in two stages: a primary and a general election. To
participate in the primary, a candidate must file a “declara
tion of candidacy” form, on which he declares his “major or
minor party preference, or independent status.” Wash. Rev.
Code § 29A.24.030 (Supp. 2005). Each candidate and his
party preference (or independent status) is in turn desig
nated on the primary election ballot. A political party can
not prevent a candidate who is unaffiliated with, or even
repugnant to, the party from designating it as his party of
preference. See App. 396–397, 595 (declaration of James K.
Pharris, Exhibit C: Ruling Order, May 18, 2005, Wash.
Admin. Code § 434–215–015). In the primary election, vot
ers may select “any candidate listed on the ballot, regardless
of the party preference of the candidates or the voter.” Id.,
at 606, § 434–262–012.
The candidates with the highest and second-highest vote
totals advance to the general election, regardless of their
cated a variety of goals, including women’s suffrage, rural electrification,
protection of water resources, and universal telephone service. The State
Grange also supported the Washington constitutional amendment estab
lishing initiatives and referendums and sponsored the 1934 blanket pri
mary initiative.
3 Respondents make much of the fact that the promoters of I–872 pre
sented it to Washington voters as a way to preserve the primary system
in place from 1935 to 2003. But our task is not to judge I–872 based
on its promoters’ assertions about its similarity, or lack thereof, to the
unconstitutional primary; we must evaluate the constitutionality of I–872
on its own terms. Whether the language of I–872 was purposely drafted
to survive a Jones-type constitutional challenge is irrelevant to whether
it has successfully done so.
4 “ ‘Partisan office’ means a public office for which a candidate may indi
cate a political party preference on his or her declaration of candidacy and
have that preference appear on the primary and general election ballot in
conjunction with his or her name.” Wash. Rev. Code § 29A.04.110 (Supp.
2005).

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party preferences. Ibid. Thus, the general election may
pit two candidates with the same party preference against
one another.5 Each candidate’s party preference is listed
on the general election ballot, and may not be changed be
tween the primary and general elections. See id., at 601,
§ 434–230–040.
Immediately after the State enacted regulations to imple
ment I–872, the Washington State Republican Party filed
suit against a number of county auditors challenging the law
on its face. The party contended that the new system vio
lates its associational rights by usurping its right to nomi
nate its own candidates and by forcing it to associate with
candidates it does not endorse. The Washington State Dem
ocratic Central Committee and Libertarian Party of Wash
ington State joined the suit as plaintiffs. The Washington
State Grange joined as a defendant, and the State of Wash
ington was substituted for the county auditors as defendant.
The United States District Court for the Western District of
Washington granted the political parties’ motions for sum
mary judgment and enjoined the implementation of I–872.
See Washington State Republican Party v. Logan, 377
F. Supp. 2d 907, 932 (2005).
The Court of Appeals affirmed. 460 F. 3d 1108, 1125 (CA9
2006). It held that the I–872 primary severely burdens the
political parties’ associational rights because the party
preference designation on the ballot creates a risk that pri
mary winners will be perceived as the parties’ nominees and
produces an “impression of associatio[n]” between a candi
date and his party of preference even when the party does
not associate, or wish to be associated, with the candidate.
Id., at 1119. The Court of Appeals noted a “constitutionally
5 This is not a hypothetical outcome. The Court of Appeals observed
that, had the 1996 gubernatorial primary been conducted under the I–872
system, two Democratic candidates and no Republican candidate would
have advanced from the primary to the general election. See 460 F. 3d
1108, 1114, n. 8 (CA9 2006).

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significant distinction between ballots and other vehicles for
political expression,” reasoning that the risk of perceived as
sociation is particularly acute when ballots include party
labels because such labels are typically used to designate
candidates’ views on issues of public concern. Id., at 1121.
And it determined that the State’s interests underlying
I–872 were not sufficiently compelling to justify the severe
burden on the parties’ association. Concluding that the pro
visions of I–872 providing for the party-preference designa
tion on the ballot were not severable, the court struck down
I–872 in its entirety.
We granted certiorari, 549 U. S. 1251 (2007), to determine
whether I–872, on its face, violates the political parties’ asso
ciational rights.
II
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 (1987), a plaintiff can only succeed in
a facial challenge by “establish[ing] that no set of circum
stances exists under which the Act would be valid,” i. e., that
the law is unconstitutional in all of its applications. Id., at
745. 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, and n. 7
(1997) (Stevens, J., concurring in judgments). Washing
ton’s primary system survives under either standard, as we
explain below. 6 In determining whether a law is facially in
6 Our cases recognize a second type of facial challenge in the First
Amendment context under which a law may be overturned as impermissi
bly overbroad because a “substantial number” of its applications are un
constitutional, “ ‘judged in relation to the statute’s plainly legitimate
sweep.’ ” New York v. Ferber, 458 U. S. 747, 769–771 (1982) (quoting
Broadrick v. Oklahoma, 413 U. S. 601, 615 (1973)). We generally do not
apply the “ ‘strong medicine’ ” of overbreadth analysis where the par
ties fail to describe the instances of arguable overbreadth of the contested

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valid, we must be careful not to go beyond the statute’s facial
requirements and speculate about “hypothetical” or “imagi
nary” cases. See United States v. Raines, 362 U. S. 17, 22
(1960) (“The delicate power of pronouncing an Act of Con
gress unconstitutional is not to be exercised with reference
to hypothetical cases thus imagined”). The State has had
no opportunity to implement I–872, and its courts have had
no occasion to construe the law in the context of actual dis
putes arising from the electoral context, or to accord the law
a limiting construction to avoid constitutional questions.
Cf. Yazoo & Mississippi Valley R. Co. v. Jackson Vinegar
Co., 226 U. S. 217, 220 (1912) (“How the state court may apply
[a statute] to other cases, whether its general words may be
treated as more or less restrained, and how far parts of it
may be sustained if others fail are matters upon which we
need not speculate now”). Exercising judicial restraint in a
facial challenge “frees the Court not only from unnecessary
pronouncement on constitutional issues, but also from pre
mature interpretations of statutes in areas where their con
stitutional application might be cloudy.” Raines, supra,
at 22.
Facial challenges are disfavored for several reasons.
Claims of facial invalidity often rest on speculation. As a
consequence, they raise the risk of “premature interpreta
tion of statutes on the basis of factually barebones records.”
Sabri v. United States, 541 U. S. 600, 609 (2004) (internal
quotation marks and brackets omitted). Facial challenges
also run contrary to the fundamental principle of judicial re
straint that courts should neither “ ‘anticipate a question of
constitutional law in advance of the necessity of deciding it’ ”
nor “ ‘formulate a rule of constitutional law broader than is
required by the precise facts to which it is to be applied.’ ”
Ashwander v. TVA, 297 U. S. 288, 346–347 (1936) (Brandeis,
J., concurring) (quoting Liverpool, New York & Philadelphia
law. See New York State Club Assn., Inc. v. City of New York, 487 U. S.
1, 14 (1988).

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S. S. Co. v. Commissioners of Emigration, 113 U. S. 33, 39
(1885)). Finally, facial challenges threaten to short circuit
the democratic process by preventing laws embodying the
will of the people from being implemented in a manner con
sistent with the Constitution. We must keep in mind that
“ ‘[a] ruling of unconstitutionality frustrates the intent of the
elected representatives of the people.’ ” Ayotte v. Planned
Parenthood of Northern New Eng., 546 U. S. 320, 329 (2006)
(quoting Regan v. Time, Inc., 468 U. S. 641, 652 (1984) (plural
ity opinion)). It is with these principles in view that we
turn to the merits of respondents’ facial challenge to I–872.
A
The States possess a “ ‘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.’ ” Clingman v. Beaver, 544 U. S. 581, 586 (2005)
(quoting Tashjian, 479 U. S., at 217); Timmons v. Twin
Cities Area New Party, 520 U. S. 351, 358 (1997) (same).
This power is not absolute, but is “subject to the limita
tion that [it] may not be exercised in a way that violates
. . . specific provisions of the Constitution.” Williams v.
Rhodes, 393 U. S. 23, 29 (1968). In particular, the State has
the “ ‘responsibility to observe the limits established by the
First Amendment rights of the State’s citizens,’ ” including
the freedom of political association. Eu v. San Francisco
County Democratic Central Comm., 489 U. S. 214, 222 (1989)
(quoting Tashjian, supra, at 217).
Election regulations that impose a severe burden on asso
ciational rights are subject to strict scrutiny, and we uphold
them only if they are “narrowly tailored to serve a compel
ling state interest.” Clingman, supra, at 586; see also
Rhodes, supra, at 31 (“ ‘[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

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freedoms’ ” (quoting NAACP v. Button, 371 U. S. 415, 438
(1963))). If a statute imposes only modest burdens, how
ever, then “the State’s important regulatory interests are
generally sufficient to justify reasonable, nondiscriminatory
restrictions” on election procedures. Anderson v. Cele
brezze, 460 U. S. 780, 788 (1983). “Accordingly, we have re
peatedly upheld reasonable, politically neutral regulations
that have the effect of channeling expressive activity at the
polls.” Burdick v. Takushi, 504 U. S. 428, 438 (1992).
The parties do not dispute these general principles; rather,
they disagree about whether I–872 severely burdens re
spondents’ associational rights. That disagreement begins
with Jones. Petitioners argue that the I–872 primary is in
distinguishable from the alternative Jones suggested would
be constitutional. In Jones we noted that a nonpartisan
blanket primary, where the top two votegetters proceed to
the general election regardless of their party, was a less re
strictive alternative to California’s system because such a
primary does not nominate candidates. 530 U. S., at 585–
586 (The nonpartisan blanket primary “has all the character
istics of the partisan blanket primary, save the constitution
ally crucial one: Primary voters are not choosing a party’s
nominee”). Petitioners are correct that we assumed that
the nonpartisan primary we described in Jones would be con
stitutional. But that is not dispositive here because we had
no occasion in Jones to determine whether a primary system
that indicates each candidate’s party preference on the bal
lot, in effect, chooses the parties’ nominees.
That question is now squarely before us. Respondents
argue that I–872 is unconstitutional under Jones because it
has the same “constitutionally crucial” infirmity that doomed
California’s blanket primary: It allows primary voters who
are unaffiliated with a party to choose the party’s nominee.
Respondents claim that candidates who progress to the gen
eral election under I–872 will become the de facto nominees

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of the parties they prefer, thereby violating the parties’ right
to choose their own standard bearers, see Timmons, supra,
at 359, and altering their messages. They rely on our state
ment in Jones reaffirming “the special place the First
Amendment reserves for, and the special protection it ac
cords, the process by which a political party ‘select[s] a
standard bearer who best represents the party’s ideologies
and preferences.’ ” Jones, 530 U. S., at 575 (quoting Eu,
supra, at 224).
The flaw in this argument is that, unlike the California
primary, the I–872 primary does not, by its terms, choose
parties’ nominees. The essence of nomination—the choice
of a party representative—does not occur under I–872. The
law never refers to the candidates as nominees of any party,
nor does it treat them as such. To the contrary, the elec
tion regulations specifically provide that the primary “does
not serve to determine the nominees of a political party
but serves to winnow the number of candidates to a final
list of two for the general election.” App. 606, Wash. Admin.
Code § 434–262–012. The top two candidates from the
primary election proceed to the general election regard
less of their party preferences. Whether parties nominate
their own candidates outside the state-run primary is sim
ply irrelevant. In fact, parties may now nominate can
didates by whatever mechanism they choose because I–872
repealed Washington’s prior regulations governing party
nominations.7
7 It is true that parties may no longer indicate their nominees on the
ballot, but that is unexceptionable: The First Amendment does not give
political parties a right to have their nominees designated as such on the
ballot. See Timmons v. Twin Cities Area New Party, 520 U. S. 351, 362–
363 (1997) (“We are unpersuaded, however, by the party’s contention that
it has a right to use the ballot itself to send a particularized message, to
its candidate and to the voters, about the nature of its support for the
candidate”). Parties do not gain such a right simply because the State
affords candidates the opportunity to indicate their party preference on

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Respondents counter that, even if the I–872 primary does
not actually choose parties’ nominees, it nevertheless bur
dens their associational rights because voters will assume
that candidates on the general election ballot are the nomi
nees of their preferred parties. This brings us to the heart
of respondents’ case—and to the fatal flaw in their argument.
At bottom, respondents’ objection to I–872 is that voters will
be confused by candidates’ party-preference designations.
Respondents’ arguments are largely variations on this
theme. Thus, they argue that even if voters do not assume
that candidates on the general election ballot are the nomi
nees of their parties, they will at least assume that the par
ties associate with, and approve of, them. This, they say,
compels them to associate with candidates they do not en
dorse, alters the messages they wish to convey, and forces
them to engage in counterspeech to disassociate themselves
from the candidates and their positions on the issues.
We reject each of these contentions for the same reason:
They all depend, not on any facial requirement of I–872, but
on the possibility that voters will be confused as to the mean
ing of the party-preference designation. But respondents’
assertion that voters will misinterpret the party-preference
designation is sheer speculation. It “depends upon the be
lief that voters can be ‘misled’ by party labels. But ‘[o]ur
cases reflect a greater faith in the ability of individual voters
to inform themselves about campaign issues.’ ” Tashjian,
479 U. S., at 220 (quoting Anderson, supra, at 797).
There is simply no basis to presume that a well-informed
electorate will interpret a candidate’s party-preference des
ignation to mean that the candidate is the party’s chosen
nominee or representative or that the party associates with
or approves of the candidate. See New York State Clubn
Assn., Inc. v. City of New York, 487 U. S. 1, 13–14 (1988)
the ballot. “Ballots serve primarily to elect candidates, not as forums for
political expression.” Id., at 363.

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(rejecting a facial challenge to a law regulating club member
ship and noting that “[w]e could hardly hold otherwise on the
record before us, which contains no specific evidence on the
characteristics of any club covered by the [l]aw”). This
strikes us as especially true here, given that it was the vot
ers of Washington themselves, rather than their elected rep
resentatives, who enacted I–872.
Of course, it is possible that voters will misinterpret the
candidates’ party-preference designations as reflecting en
dorsement by the parties. But these cases involve a facial
challenge, and we cannot strike down I–872 on its face based
on the mere possibility of voter confusion. See Yazoo, 226
U. S., at 219 (“[T]his court must deal with the case in hand
and not with imaginary ones”); Pullman Co. v. Knott, 235
U. S. 23, 26 (1914) (A statute “is not to be upset upon hypo
thetical and unreal possibilities, if it would be good upon the
facts as they are”). Because respondents brought their suit
as a facial challenge, we have no evidentiary record against
which to assess their assertions that voters will be confused.
See Timmons, 520 U. S., at 375–376 (Stevens, J., dissenting)
(rejecting judgments based on “imaginative theoretical
sources of voter confusion” and “entirely hypothetical” out
comes). Indeed, because I–872 has never been imple
mented, we do not even have ballots indicating how party
preference will be displayed. It stands to reason that
whether voters will be confused by the party-preference des
ignations will depend in significant part on the form of the
ballot. The Court of Appeals assumed that the ballot would
not place abbreviations like “ ‘D’ ” and “ ‘R,’ ” or “ ‘Dem.’ ” and
“ ‘Rep.’ ” after the names of candidates, but would instead
“clearly state that a particular candidate ‘prefers’ a particu
lar party.” 460 F. 3d, at 1121, n. 20. It thought that even
such a clear statement did too little to eliminate the risk of
voter confusion.
But we see no reason to stop there. As long as we are
speculating about the form of the ballot—and we can do no

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456 WASHINGTON STATE GRANGE v. WASHINGTON
STATE REPUBLICAN PARTY
Opinion of the Court
more than speculate in this facial challenge—we must, in
fairness to the voters of the State of Washington who
enacted I–872 and in deference to the executive and judicial
officials who are charged with implementing it, ask whether
the ballot could conceivably be printed in such a way as to
eliminate the possibility of widespread voter confusion and
with it the perceived threat to the First Amendment. See
Ayotte, 546 U. S., at 329 (noting that courts should not nullify
more of a state law than necessary so as to avoid frustrating
the intent of the people and their duly elected representa
tives); Ward v. Rock Against Racism, 491 U. S. 781, 795–796
(1989) (“ ‘[I]n evaluating a facial challenge to a state law, a
federal court must . . . consider any limiting construction that
a state court or enforcement agency has proffered’ ” (quoting
Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455
U. S. 489, 494, n. 5 (1982))).
It is not difficult to conceive of such a ballot. For exam
ple, petitioners propose that the actual I–872 ballot could
include prominent disclaimers explaining that party prefer
ence reflects only the self-designation of the candidate and
not an official endorsement by the party. They also suggest
that the ballots might note preference in the form of a candi
date statement that emphasizes the candidate’s personal de
termination rather than the party’s acceptance of the candi
date, such as “my party preference is the Republican Party.”
Additionally, the State could decide to educate the public
about the new primary ballots through advertising or ex
planatory materials mailed to voters along with their bal
lots.8 We are satisfied that there are a variety of ways in
which the State could implement I–872 that would eliminate
any real threat of voter confusion. And without the spec
8 Washington counties have broad authority to conduct elections entirely
by mail ballot rather than at in-person polling places. See Wash. Rev.
Code § 29A.48.010. As a result, over 90% of Washington voters now vote
by mail. See Tr. of Oral Arg. 11.

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ter of widespread voter confusion, respondents’ arguments
about forced association 9 and compelled speech 10 fall flat.
Our conclusion that these implementations of I–872 would
be consistent with the First Amendment is fatal to respond
ents’ facial challenge. See Schall v. Martin, 467 U. S. 253,
264 (1984) (a facial challenge fails where “at least some”
constitutional applications exist). Each of their arguments
rests on factual assumptions about voter confusion, and each
fails for the same reason: In the absence of evidence, we can
not assume that Washington’s voters will be misled. See
Jones, 530 U. S., at 600 (Stevens, J., dissenting) (“[A]n em
pirically debatable assumption . . . is too thin a reed to sup
port a credible First Amendment distinction” between per
missible and impermissible burdens on association). That
9 Respondents rely on Hurley v. Irish-American Gay, Lesbian and Bi
sexual Group of Boston, Inc., 515 U. S. 557 (1995) (holding that a State
may not require a parade to include a group if the parade’s organizer
disagrees with the group’s message), and Boy Scouts of America v. Dale,
530 U. S. 640 (2000) (holding that the Boy Scouts’ freedom of expressive
association was violated by a state law requiring the organization to admit
a homosexual scoutmaster). In those cases, actual association threatened
to distort the groups’ intended messages. We are aware of no case in
which the mere impression of association was held to place a severe bur
den on a group’s First Amendment rights, but we need not decide that
question here.
10 Relying on Pacific Gas & Elec. Co. v. Public Util. Comm’n of Cal.,
475 U. S. 1 (1986) (holding that a state agency may not require a utility
company to include a third-party newsletter in its billing envelope), re
spondents argue that the threat of voter confusion will force them to speak
to clarify their positions. Because I–872 does not actually force the par
ties to speak, however, Pacific Gas & Elec. is inapposite. I–872 does not
require the parties to reproduce another’s speech against their will; nor
does it co-opt the parties’ own conduits for speech. Rather, it simply pro
vides a place on the ballot for candidates to designate their party pref
erences. Facilitation of speech to which a political party may choose
to respond does not amount to forcing the political party to speak.
Cf. Rumsfeld v. Forum for Academic and Institutional Rights, Inc., 547
U. S. 47, 64–65 (2006).

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458 WASHINGTON STATE GRANGE v. WASHINGTON
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Opinion of the Court
factual determination must await an as-applied challenge.
On its face, I–872 does not impose any severe burden on re
spondents’ associational rights.
B
Because we have concluded that I–872 does not severely
burden respondents, the State need not assert a compelling
interest. See Clingman, 544 U. S., at 593 (“When a state
electoral provision places no heavy burden on associational
rights, ‘a State’s important regulatory interests will usually
be enough to justify reasonable, nondiscriminatory restric
tions’ ” (quoting Timmons, 520 U. S., at 358)). The State’s
asserted interest in providing voters with relevant informa
tion about the candidates on the ballot is easily sufficient to
sustain I–872. See Anderson, 460 U. S., at 796 (“There can
be no question about the legitimacy of the State’s interest in
fostering informed and educated expressions of the popular
will in a general election”).11
III
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 en
forcement of I–872. The First Amendment does not require
this extraordinary and precipitous nullification of the will of
the people. Because I–872 does not on its face provide for
11 Respondent Libertarian Party of Washington argues that I–872 is un
constitutional because of its implications for ballot access, trademark pro
tection of party names, and campaign finance. We do not consider the
ballot access and trademark arguments as they were not addressed below
and are not encompassed by the question on which we granted certiorari:
“Does Washington’s primary election system . . . violate the associational
rights of political parties because candidates are permitted to iden
tify their political party preference on the ballot?” Pet. for Cert. in
No. 06–730, p. i. The campaign finance issue also was not addressed below
and is more suitable for consideration on remand.

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Roberts, C. J., concurring
the nomination of candidates or compel political parties to
associate with or endorse candidates, and because there is no
basis in this facial challenge for presuming that candidates’
party-preference designations will confuse voters, I–872
does not on its face severely burden respondents’ associ
ational rights. We accordingly hold that I–872 is facially
constitutional. The judgment of the Court of Appeals is
reversed.
It is so ordered.
Chief Justice Roberts, with whom Justice Alito
joins, concurring.
I share Justice Scalia’s concern that permitting a candi
date to identify his political party preference on an official
election ballot—regardless of whether the candidate is en
dorsed by the party or is even a member—may effect
ively force parties to accept candidates they do not want,
amounting to forced association in violation of the First
Amendment.
I do think, however, that whether voters perceive the can
didate and the party to be associated is relevant to the con
stitutional inquiry. Our other forced-association cases indi
cate as much. In Boy Scouts of America v. Dale, 530 U. S.
640, 653 (2000), we said that Dale’s presence in the Boy
Scouts would “force the organization to send a message . . .
[to] the world” that the Scouts approved of homosexuality.
In other words, accepting Dale would lead outsiders to be
lieve the Scouts endorsed homosexual conduct. Largely for
that reason, we held that the First Amendment entitled the
Scouts to exclude Dale. Id., at 659. Similarly, in Hurley v.
Irish-American Gay, Lesbian and Bisexual Group of Bos
ton, Inc., 515 U. S. 557 (1995), we allowed the organizers of
Boston’s St. Patrick’s Day Parade to exclude a pro-gay rights
float because the float’s presence in the parade might create
the impression that the organizers agreed with the float
sponsors’ message. See id., at 575–577.

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Roberts, C. J., concurring
Voter perceptions matter, and if voters do not actually be
lieve the parties and the candidates are tied together, it is
hard to see how the parties’ associational rights are ad
versely implicated. See Rumsfeld v. Forum for Academic
and Institutional Rights, Inc., 547 U. S. 47, 65 (2006) (reject
ing law schools’ First Amendment objection to military
recruiters on campus because no reasonable person would
believe the “law schools agree[d] with any speech by
recruiters”). After all, individuals frequently claim to favor
this or that political party; these preferences, without more,
do not create an unconstitutional forced association.
What makes these cases different, as Justice Scalia ex
plains, is the place where the candidates express their party
preferences: on the ballot. See post, at 465 (dissenting opin
ion) (noting “the special role that a state-printed ballot plays
in elections”). And what makes the ballot “special” is pre
cisely the effect it has on voter impressions. See Cook v.
Gralike, 531 U. S. 510, 532 (2001) (Rehnquist, C. J., concur
ring in judgment) (“[T]he ballot . . . is the last thing the
voter sees before he makes his choice”); Anderson v. Martin,
375 U. S. 399, 402 (1964) (“[D]irecting the citizen’s attention
to the single consideration of race . . . may decisively influ
ence the citizen to cast his ballot along racial lines”).
But because respondents brought this challenge before the
State of Washington had printed ballots for use under the
new primary regime, we have no idea what those ballots will
look like. Petitioners themselves emphasize that the con
tent of the ballots in the pertinent respect is yet to be deter
mined. See Reply Brief for Washington State Grange 2–4,
7–13.
If the ballot is designed in such a manner that no reason
able voter would believe that the candidates listed there are
nominees or members of, or otherwise associated with, the
parties the candidates claimed to “prefer,” the I–872 primary
system would likely pass constitutional muster. I cannot
say on the present record that it would be impossible for

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the State to design such a ballot. Assuming the ballot is so
designed, voters would not regard the listed candidates as
“party” candidates, any more than someone saying “I like
Campbell’s soup” would be understood to be associated with
Campbell’s. Voters would understand that the candidate
does not speak on the party’s behalf or with the party’s ap
proval. On the other hand, if the ballot merely lists the can
didates’ preferred parties next to the candidates’ names, or
otherwise fails clearly to convey that the parties and the
candidates are not necessarily associated, the I–872 system
would not survive a First Amendment challenge.
Justice Scalia complains that “[i]t is hard to know how
to respond” to such mistaken views, post, at 467 (dissenting
opinion), but he soldiers on nonetheless. He would hold that
a party is burdened by a candidate’s statement of preference
even if no reasonable voter believes from the ballot that the
party and the candidate are associated. I take his point to
be that a particular candidate’s “endorsement” of a party
might alter the party’s message, and this violates the party’s
freedom of association. See post, at 468 (dissenting opinion).
But there is no general right to stop an individual from
saying, “I prefer this party,” even if the party would rather
he not. Normally, the party protects its message in such a
case through responsive speech of its own. What makes
these cases different of course is that the State controls the
content of the ballot, which we have never considered a pub
lic forum. See Timmons v. Twin Cities Area New Party,
520 U. S. 351, 363 (1997) (ballots are not “forums for political
expression”). Neither the candidate nor the party dictates
the message conveyed by the ballot. In such a case, it is
important to know what the ballot actually says—both about
the candidate and about the party’s association with the can
didate. It is possible that no reasonable voter in Washing
ton State will regard the listed candidates as members of, or
otherwise associated with, the political parties the candi
dates claim to prefer. Nothing in my analysis requires the

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parties to produce studies regarding voter perceptions on
this score, but I would wait to see what the ballot says before
deciding whether it is unconstitutional.
Still, I agree with Justice Scalia that the history of the
challenged law suggests the State is not particularly inter
ested in devising ballots that meet these constitutional re
quirements. See post, at 468 (dissenting opinion). But this
record simply does not allow us to say with certainty that
the election system created by I–872 is unconstitutional.
Accordingly, I agree with the Court that respondents’ pres
ent challenge to the law must fail, and I join the Court’s
opinion.
Justice Scalia, with whom Justice Kennedy joins,
dissenting.
The electorate’s perception of a political party’s beliefs is
colored by its perception of those who support the party;
and a party’s defining act is the selection of a candidate and
advocacy of that candidate’s election by conferring upon him
the party’s endorsement. When the state-printed ballot for
the general election causes a party to be associated with can
didates who may not fully (if at all) represent its views, it
undermines both these vital aspects of political association.
The views of the self-identified party supporter color percep
tion of the party’s message, and that self-identification on the
ballot, with no space for party repudiation or party identifi
cation of its own candidate, impairs the party’s advocacy of
its standard bearer. Because Washington has not demon
strated that this severe burden upon parties’ associational
rights is narrowly tailored to serve a compelling interest—
indeed, because it seems to me Washington’s only plausible
interest is precisely to reduce the effectiveness of political
parties—I would find the law unconstitutional.
I
I begin with the principles on which the Court and I agree.
States may not use election regulations to undercut political

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parties’ freedoms of speech or association. See U. S. Term
Limits, Inc. v. Thornton, 514 U. S. 779, 833–834 (1995).
Thus, when a State regulates political parties as a part of its
election process, we consider “the ‘character and magni
tude’ ” of the burden imposed on the party’s associational
rights and “the extent to which the State’s concerns make
the burden necessary.” Timmons v. Twin Cities Area New
Party, 520 U. S. 351, 358 (1997). Regulations imposing se
vere burdens must be narrowly tailored to advance a compel
ling state interest. Ibid.
Among the First Amendment rights that political parties
possess is the right to associate with the persons whom they
choose and to refrain from associating with persons whom
they reject. Democratic Party of United States v. Wiscon
sin ex rel. La Follette, 450 U. S. 107, 122 (1981). Also in
cluded is the freedom to choose and promote the “ ‘standard
bearer who best represents the party’s ideologies and prefer
ences.’ ” Eu v. San Francisco County Democratic Central
Comm., 489 U. S. 214, 224 (1989).
When an expressive organization is compelled to associate
with a person whose views the group does not accept, the
organization’s message is undermined; the organization is un
derstood to embrace, or at the very least tolerate, the views
of the persons linked with them. We therefore held, for
example, that a State severely burdened the right of expres
sive association when it required the Boy Scouts to accept
an openly gay scoutmaster. The scoutmaster’s presence
“would, at the very least, force the organization to send a
message, both to the youth members and the world, that the
Boy Scouts accepts homosexual conduct as a legitimate form
of behavior.” Boy Scouts of America v. Dale, 530 U. S. 640,
653 (2000).
A political party’s expressive mission is not simply, or even
primarily, to persuade voters of the party’s views. Parties
seek principally to promote the election of candidates who
will implement those views. See, e. g., Tashjian v. Republi

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can Party of Conn., 479 U. S. 208, 216 (1986); Storer v.
Brown, 415 U. S. 724, 745 (1974); M. Hershey & P. Beck,
Party Politics in America 13 (10th ed. 2003). That is
achieved in large part by marking candidates with the par
ty’s seal of approval. Parties devote substantial resources
to making their names trusted symbols of certain approaches
to governance. See, e. g., App. 239 (declaration of Demo
cratic Committee Chair Paul J. Berendt); J. Aldrich, Why
Parties? 48–49 (1995). They then encourage voters to cast
their votes for the candidates that carry the party name.
Parties’ efforts to support candidates by marking them with
the party trademark, so to speak, have been successful
enough to make the party name, in the words of one commen
tator, “the most important resource that the party pos
sesses.” Cain, Party Autonomy and Two-Party Electoral
Competition, 149 U. Pa. L. Rev. 793, 804 (2001). And all evi
dence suggests party labels are indeed a central consider
ation for most voters. See, e. g., id., at 804, n. 34; Rahn,
The Role of Partisan Stereotypes in Information Processing
About Political Candidates, 37 Am. J. Pol. Sci. 472 (1993);
Klein & Baum, Ballot Information and Voting Decisions in
Judicial Elections, 54 Pol. Research Q. 709 (2001).
II
A
The State of Washington need not like, and need not favor,
political parties. It is entirely free to decline running pri
maries for the selection of party nominees and to hold non
partisan general elections in which party labels have no place
on the ballot. See California Democratic Party v. Jones,
530 U. S. 567, 585–586 (2000). Parties would then be left
to their own devices in both selecting and publicizing their
candidates. But Washington has done more than merely de
cline to make its electoral machinery available for party
building. Recognizing that parties draw support for their
candidates by giving them the party imprimatur, Washing

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ton seeks to reduce the effectiveness of that endorsement by
allowing any candidate to use the ballot for drawing upon
the goodwill that a party has developed, while preventing
the party from using the ballot to reject the claimed associa
tion or to identify the genuine candidate of its choice. This
does not merely place the ballot off limits for party building;
it makes the ballot an instrument by which party building is
impeded, permitting unrebutted associations that the party
itself does not approve.
These cases cannot be decided without taking account of
the special role that a state-printed ballot plays in elections.
The ballot comes into play “at the most crucial stage in the
electoral process—the instant before the vote is cast.”
Anderson v. Martin, 375 U. S. 399, 402 (1964). It is the only
document that all voters are guaranteed to see, and it is “the
last thing the voter sees before he makes his choice,” Cook
v. Gralike, 531 U. S. 510, 532 (2001) (Rehnquist, C. J., concur
ring in judgment). Thus, we have held that a State cannot
elevate a particular issue to prominence by making it the
only issue for which the ballot sets forth the candidates’ posi
tions. Id., at 525–526 (opinion of the Court). And we held
unconstitutional California’s election system, which listed as
the party’s candidate on the general-election ballot the candi
date selected in a state-run “blanket primary” in which all
citizens could determine who would be the party’s nominee.
Jones, 530 U. S., at 586. It was not enough to sustain the
law that the party remained free to select its preferred can
didate through another process, and could denounce or cam
paign against the candidate carrying the party’s name on the
general-election ballot. Forced association with the party
on the general-election ballot was fatal. Id., at 575–577.
The Court makes much of the fact that the party names
shown on the Washington ballot may be billed as mere state
ments of candidate “preference.” See ante, at 454–457. To
be sure, the party is not itself forced to display favor for
someone it does not wish to associate with, as the Boy Scouts

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were arguably forced to do by employing the homosexual
scoutmaster in Dale, and as the political parties were ar
guably forced to do by lending their ballot endorsement as
party nominee in Jones. But thrusting an unwelcome, self
proclaimed association upon the party on the election ballot
itself is amply destructive of the party’s associational rights.
An individual’s endorsement of a party shapes the voter’s
view of what the party stands for, no less than the party’s
endorsement of an individual shapes the voter’s view of what
the individual stands for. That is why party nominees are
often asked (and regularly agree) to repudiate the support
of persons regarded as racial extremists. On Washington’s
ballot, such repudiation is impossible. And because the bal
lot is the only document voters are guaranteed to see, and
the last thing they see before casting their vote, there is “no
means of replying” that “would be equally effective with the
voter.” Cook, supra, at 532 (Rehnquist, C. J., concurring in
judgment).
Not only is the party’s message distorted, but its goodwill
is hijacked. There can be no dispute that candidate acquisi
tion of party labels on Washington’s ballot—even if billed as
self-identification—is a means of garnering the support of
those who trust and agree with the party. The “I prefer the
D’s” and “I prefer the R’s” will not be on the ballot for es
thetic reasons; they are designed to link candidates to unwill
ing parties (or at least parties who are unable to express
their revulsion) and to encourage voters to cast their ballots
based in part on the trust they place in the party’s name
and the party’s philosophy. These harms will be present no
matter how Washington’s law is implemented. There is
therefore “no set of circumstances” under which Washing
ton’s law would not severely burden political parties, see
United States v. Salerno, 481 U. S. 739, 745 (1987), and no
good reason to wait until Washington has undermined its
political parties to declare that it is forbidden to do so.

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B
The Chief Justice would wait to see if the law is imple
mented in a manner that no more harms political parties
than allowing a person to state that he “ ‘like[s] Campbell’s
soup’ ” would harm the Campbell Soup Company. See ante,
at 461 (concurring opinion). It is hard to know how to re
spond. First and most fundamentally, there is simply no
comparison between statements of “preference” for an ex
pressive association and statements of “preference” for soup.
The robust First Amendment freedom to associate belongs
only to groups “engage[d] in ‘expressive association,’ ” Dale,
530 U. S., at 648. The Campbell Soup Company does not
exist to promote a message, and “there is only minimal con
stitutional protection of the freedom of commercial associa
tion,” Roberts v. United States Jaycees, 468 U. S. 609, 634
(1984) (O’Connor, J., concurring in part and concurring in
judgment).
Second, I assuredly do not share The Chief Justice’s
view that the First Amendment will be satisfied so long as
the ballot “is designed in such a manner that no reasonable
voter would believe that the candidates listed there are
nominees or members of, or otherwise associated with, the
parties the candidates claimed to ‘prefer.’ ” Ante, at 460.
To begin with, it seems to me quite impossible for the ballot
to satisfy a reasonable voter that the candidate is not “associ
ated with” the party for which he has expressed a prefer
ence. He has associated himself with the party by his very
expression of a preference—and that indeed is the whole
purpose of allowing the preference to be expressed. If all
The Chief Justice means by “associated with” is that the
candidate “does not speak on the party’s behalf or with the
party’s approval,” ante, at 461, none of my analysis in this
opinion relies upon that misperception, nor upon the misper
ception that the candidate is a member or the nominee of the
party. Avoiding those misperceptions is far from enough.

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Is it enough to say on the ballot that a notorious and despised
racist who says that the party is his choice does not speak
with the party’s approval? Surely not. His unrebutted as
sociation of that party with his views distorts the image of
the party nonetheless. And the fact that the candidate who
expresses a “preference” for one or another party is shown
not to be the nominee of that party does not deprive him of
the boost from the party’s reputation which the party wishes
to confer only on its nominee. The Chief Justice claims
that “the content of the ballots in the pertinent respect is
yet to be determined,” ante, at 460. I disagree. We know
all we need to know about the form of ballot. When
pressed, Washington’s attorney general assured us at oral
argument that the ballot will not say whether the party for
whom the candidate expresses a preference claims or dis
avows him. (Of course it will not, for that would enable the
party expression that it is the very object of this legislation
to impair.)
And finally, while The Chief Justice earlier expresses
his awareness that the special character of the ballot is what
makes these cases different, ante, at 460, his Campbell’s Soup
example seems to forget that. If we must speak in terms of
soup, Washington’s law is like a law that encourages Oscar
the Grouch (Sesame Street’s famed bad-taste resident of a
garbage can) to state a “preference” for Campbell’s at every
point of sale, while barring the soup company from disavow
ing his endorsement, or indeed using its name at all, in those
same crucial locations. Reserving the most critical commu
nications forum for statements of “preference” by a po
tentially distasteful speaker alters public perceptions of the
entity that is “preferred”; and when this privileged con
nection undermines not a company’s ability to identify and
promote soup but an expressive association’s ability to iden
tify and promote its message and its standard bearer, the
State treads on the constitutionally protected freedom of
association.

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The majority opinion and The Chief Justice’s concur
rence also endorse a wait-and-see approach on the grounds
that it is not yet evident how the law will affect voter percep
tion of the political parties. But contrary to the Court’s sug
gestion, it is not incumbent on the political parties to adduce
“evidence,” ante, at 457, that forced association affects their
ability to advocate for their candidates and their causes. We
have never put expressive groups to this perhaps-impossible
task. Rather, we accept their own assessments of the mat
ter. The very cases on which The Chief Justice relies for
a wait-and-see approach, ante, at 459–460, establish as much.
In Dale, for example, we did not require the Boy Scouts to
prove that forced acceptance of the openly homosexual scout
master would distort their message. See 530 U. S., at 653
(citing La Follette, 450 U. S., at 123–124). Nor in Hurley v.
Irish-American Gay, Lesbian and Bisexual Group of Bos
ton, Inc., 515 U. S. 557 (1995), did we require the organizers
of the St. Patrick’s Day Parade to demonstrate that including
a gay contingent in the parade would distort their message.
See id., at 577. Nor in Jones, 530 U. S. 567, did we require
the political parties to demonstrate either that voters would
incorrectly perceive the “nominee” labels on the ballot to be
the products of party elections or that the labels would
change voter perceptions of the party. It does not take a
study to establish that when statements of party connection
are the sole information listed next to candidate names on
the ballot, those statements will affect voters’ perceptions of
what the candidate stands for, what the party stands for, and
whom they should elect.
III
Since I conclude that Washington’s law imposes a severe
burden on political parties’ associational rights, I would up
hold the law only if it were “narrowly tailored” to advance
“a compelling state interest.” Timmons, 520 U. S., at 358.
Neither the Court’s opinion nor the State’s submission claims
that Washington’s law passes such scrutiny. The State ar

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470 WASHINGTON STATE GRANGE v. WASHINGTON
STATE REPUBLICAN PARTY
Scalia, J., dissenting
gues only that it “has a rational basis” for “providing voters
with a modicum of relevant information about the candi
dates,” Brief for Petitioners in No. 06–730, pp. 48–49. This
is the only interest the Court’s opinion identifies as well.
Ante, at 458.
But “rational basis” is the least demanding of our tests; it
is the same test that allows individuals to be taxed at differ
ent rates because they are in different businesses. See
Allied Stores of Ohio, Inc. v. Bowers, 358 U. S. 522, 526–527
(1959). It falls far, far short of establishing the compelling
state interest that the First Amendment requires. And to
tell the truth, here even the existence of a rational basis is
questionable. Allowing candidates to identify themselves
with particular parties on the ballot displays the State’s view
that adherence to party philosophy is “an important—
perhaps paramount—consideration in the citizen’s choice.”
Anderson, 375 U. S., at 402. If that is so, however, it seems
to me irrational not to allow the party to disclaim that self
association, or to identify its own endorsed candidate.
It is no mystery what is going on here. There is no state
interest behind this law except the Washington Legislature’s
dislike for bright-colors partisanship, and its desire to blunt
the ability of political parties with noncentrist views to en
dorse and advocate their own candidates. That was the pur
pose of the Washington system that this enactment was
adopted to replace—a system indistinguishable from the one
we invalidated in Jones, which required parties to allow non
members to join in the selection of the candidates shown as
their nominees on the election ballot. (The system was held
unconstitutional in Democratic Party of Washington State
v. Reed, 343 F. 3d 1198 (CA9 2003).) And it is the obvious
purpose of Washington legislation enacted after this law,
which requires political parties to repeat a candidate’s self
declared party “preference” in electioneering communica
tions concerning the candidate—even if the purpose of the
communication is to criticize the candidate and to disavow

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471 Cite as: 552 U. S. 442 (2008)
Scalia, J., dissenting
any connection between him and the party. Wash. Rev.
Code § 42.17.510(1) (2006); see also Wash. Admin. Code § 390–
18–020 (2007).
Even if I were to assume, however, that Washington has
a legitimate interest in telling voters on the ballot (above all
other things) that a candidate says he favors a particular
political party; and even if I were further to assume (per
impossibile) that that interest was a compelling one; Wash
ington would still have to “narrowly tailor” its law to protect
that interest with minimal intrusion upon the parties’ associ
ational rights. There has been no attempt to do that here.
Washington could, for example, have permitted parties to
disclaim on the general-election ballot the asserted associa
tion or to designate on the ballot their true nominees. The
course the State has chosen makes sense only as an effort to
use its monopoly power over the ballot to undermine the
expressive activities of the political parties.
* * *
The right to associate for the election of candidates is fun
damental to the operation of our political system, and state
action impairing that association bears a heavy burden of
justification. Washington’s electoral system permits indi
viduals to appropriate the parties’ trademarks, so to speak,
at the most crucial stage of election, thereby distorting the
parties’ messages and impairing their endorsement of candi
dates. The State’s justification for this (to convey a “modi
cum of relevant information”) is not only weak but undeserv
ing of credence. We have here a system which, like the one
it replaced, does not merely refuse to assist, but positively
impairs, the legitimate role of political parties. I dissent
from the Court’s conclusion that the Constitution permits
this sabotage.