U.S. District Court Upholds Arizona Primary Petition Requirement

Ballot Access News

On July 10, U.S. District Court Judge David G. Campbell, a Bush Jr. appointee, upheld the 2015 Arizona law that sharply increased the number of signatures a member of an established small qualified party needs to get on his or her own party’s primary ballot. Arizona Libertarian Party v Reagan, cv-16-1019. The decision is 30 pages. The new law also sharply increased the number of write-in votes needed for a member of a minor party to be considered nominated (assuming he or she gets the most votes of anyone seeking that nomination).

The 2015 law, passed by the majority Republicans in the legislature, seemed aimed at stopping Libertarians, and only Libertarians, from running for partisan office. It did not injure the ballot-qualified Green Party, and made only slight changes for Democrats and Republicans. Whereas the old law set the number of signatures to get on a party primary ballot as a percentage of the the party’s number of registered voters, the new law says the number of signatures is a percentage of all the registered voters. However, not all registered voters can sign. A Libertarian primary petition can be signed by registered voters who are not Democrats or Republicans.

The Green Party was not injured by the 2015 law because it is considered a “new” party, even though it last petitioned for party status in 2014 (for the 2016 and 2018 elections), and members of new parties only need a tiny number of signatures to get on their party’s primary ballot, and only need one write-in to get a nomination by write-in. The decision says the law is not discriminatory, relative to Libertarians and Greens, because it wasn’t passed with discriminatory intent, and also because the Greens (due to their failure to ever have registration of at least two-thirds of 1%) are forced to do a party petition every four years.

The decision is based on Munro v Socialist Workers Party, a 1986 U.S. District Court decision that upheld Washington state’s old ballot access law. That old law said a minor party or independent candidate could not appear on the November ballot unless he or she got 1% in the September blanket primary (all voters got the same ballot, and it listed all candidates from all parties). The Arizona decision says that law was also hard on minor party and independent voters, because under the Washington state law, only one of twelve minor party candidates got the 1%, and yet it was constitutional. But the Arizona decision doesn’t mention footnote eleven of the Munro decision, which said that 40 minor party and independent candidates (out of 45 who tried) successfully got on the Washington state general election ballot for non-statewide office. The reference to one of twelve only referred to statewide offices. The impact of the Arizona law on the 2016 Libertarian campaign was so severe that only one Libertarian for any partisan office managed to appear on the November ballot (excluding president, which has nothing to do with primaries).

The decision excludes some of the evidence submitted by the Libertarian Party, for various procedural reasons. It is very likely that the party will appeal to the Ninth Circuit. The major flaw with the decision is that it requires Libertarian candidates, seeking their party’s nomination, to ask for signatures for independent voters, which violates the party’s associational rights. In response to that point, the Arizona decision says the party should just go out and increase its registration (see pages 21 and 27).

UPDATE: under the logic of the decision, there is no rational reason why all voters shouldn’t be allowed to sign Libertarian primary petitions. Yet the law doesn’t allow Democrats or Republicans to sign.

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