On October 17, the Alaskan Independence Party filed for a rehearing en banc in the 9th circuit, in Alaskan Independence Party v State, no. 07-35186. The brief emphasizes that the original 9th circuit decision of October 6 made factual errors.

The original 9th circuit decision, footnote 3, says that the party had not filed an “as applied” challenge. But the petition for rehearing quotes from the party’s original complaint and its memo in the U.S. District Court to show that the party did file an “as applied” challenge. The party experienced problems with a rogue member in the elections of 2004, 2006, and this year. The whole point of the lawsuit was to keep that particular individual from running in the party’s primaries, now and in the future. An “as applied” challenge always has specific instances in which a state law is causing harm, whereas a “facial” challenge just says the law is always unconstitutional, regardless of specific problems.

Even more important, the 9th circuit had said that there is no conflict between any AIP bylaw and state law. But the petition for rehearing shows that the AIP has a bylaw which says, “Only those candidates endorsed by the Alaskan Independence Party may run as Alaskan Independence Party candidates in the primary or general election in the State of Alaska.”