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Washington State's top two primary system did not violate political parties' First Amendment association rights because no actual voter confusion was found where, in accordance with U.S. Supreme Court suggestions, the form of the ballot included a prominent disclaimer that party preference is only a self-designation and not a party endorsement.

Initially, the Democrat, Republican, and Libertarian Parties of Washington (“Parties”), jointly claimed that Washington’s (“State”), top two primary system (“I-872”) violated their First Amendment rights of association. Ultimately, the U.S. Supreme Court disagreed and remanded to allow Parties to challenge I-872 as-applied. The district court then granted State summary judgement on the as-applied associational rights claims, dismissed Parties' ballot access and trademark claims, and granted State reimbursement of attorney’s fees paid in connection with the previous Ninth Circuit appeal. The court also granted Parties summary judgement that State’s manner of electing local officials violated Parties’ associational rights but denied leave to amend to add a state constitutional claim. Parties appealed. The Ninth Circuit affirmed (1) summary judgment against plaintiffs on their as-applied freedom of association claims, having found no actual voter confusion that the party endorsed a candidate where, in accordance with the U.S. Supreme Court opinion in Grange, the form of the ballot included a prominent disclaimer that party preference is only a self-designation; (2) denial of Parties leave to amend, where no justification was offered for exclusion from the initial complaint, and because novel issues are best suited for state courts; (3) that, where the Supreme Court expressly approved the system, I-872 did not severely burden minority party’s right of access to the general ballot; (4) that Party's trademark claims did not plausibly allege, show, or explain how the state used Party’s mark on the ballot to "perform a service in competition" with the Party; and (5) that Party's severability argument is without merit because it “defies common sense” that voters would not have approved I-872’s for partisan offices if they could not also vote for precinct committee officers. The Ninth Circuit reversed the reimbursement of attorney's fees because State should have more clearly reserved its rights to reimbursement in the event of reversal by the Supreme Court. AFFIRMED IN PART; REVERSED IN PART.