U.S. District Court Upholds Arizona Primary Petition Requirement

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.


U.S. District Court Upholds Arizona Primary Petition Requirement — 16 Comments

  1. Top 2 would solve these problems by removing partisan nominations. It does not prevent the Libertarian Party from recruiting candidates or organizing support for their candidacies.

  2. Having the 2015 law declared unconstitutional would solve the problem. There was no problem before 2015. The decision is devoid of any state interest in keeping Libertarians from running in the general election.

  3. Washington state has top-two now as a direct result of the 2004 election cycle where the Libertarian Party was a major third party. After the election the Democrats and Republicans sued the state to change the primary system to top-two in an effort to lock up the ballots from ever having a third party candidate on the general election ballot.

  4. @Paul, You have a vivid imagination.

    Washington had used the blanket primary for 70 years, when California copied it, and got sued, and lost (California Democratic Party v Jones). Washington was later sued, and also lost, even though there were differences in implementation, since Washington does not have partisan primaries.

    In the California decision, Justice Scalia had suggested that a primary in which all candidates ran, and some number advanced to the general election ballot would be constitutional because it removed the critical factor – nomination by segregated partisan primaries.

    The Washington legislature then passed the Top 2 primary, along with backup of the Pick-A-Party primary. Governor Gary Locke made an ill-advised line-item veto of the Top 2 primary. As a result the Washington Grange proposed a citizens initiative which was approved by 59.85% of voters in November 2004.

    The then three major parties then sued the State of Washington to prevent implementation. This went to the SCOTUS (Washington State Grange v. Washington Republican Party) which overturned the decisions of the federal district court and the 9th Circuit, and remanded the case to the federal district court to determine whether voters could discern between the personal beliefs of the candidates, and whether words such as “I prefer the Salmon Yoga (or some other) party” would suggest that the candidate was a tool of the Salmon Yoga party bosses.

    The district court determined that voters would not be confused, a decision which was upheld by the 9th Circuit. The SCOTUS chose not to take an appeal.

  5. @Richard Winger,

    For 100 years, the United States had no problem with voters voting for candidates without regard to party. A candidate might say he is a Whig at one election, and a Republican or American at the next because of some congressional action. The candidates had not changed. Why do you favor giving private organizations control of ballot access?

  6. “Why do you favor giving private organizations control of ballot access?” – Jim Riley

    Because they are more likely to be fair than government.

  7. Jim, why do you say I favor giving private organizations control of ballot access?

    Every state permits independent candidates to get on the general election ballot. State ballot access laws control ballot access; parties don’t. State legislators have the power; parties don’t.

    As to your history of top-two in Washington and California, I agree with it, except that you didn’t mention that Scalia’s comment about a theoretical system that would be constitutional was a system without any party labels on the ballot. This is clearly true because when Justice Clarence Thomas mostly upheld top-two in 2008, Scalia dissented and said Washington’s top-two is unconstitutional and there is no meed for a remand. Justice Kennedy agreed with Justice Scalia.

  8. @Richard Winger,

    In his dissent in ‘California Democratic Party v. Jones’, Justice Stevens said that Justice Scalia was writing about the Louisiana system, which clearly has party labels. The Grange and others who proposed the Top 2 system in Washington must have interpreted it that way.

    In theory, every candidate is independent of the party that nominates them. So why restrict candidates to groups that “nominate” them? If a party likes someone, they can encourage them to run, provide financial and other support. But this provides an equal opportunity for ad hoc groups to form.

  9. I think Justice Scalia knew more about what he had in mind, then Justice Stevens knew about Scalia’s thinking. Justice Scalia’s dissent in the Washington top-two case proves that the top-two system as implemented by Washington and California is not what Scalia had in mind in his 2000 decision throwing out the California blanket primary and suggesting a non-partisan system.

  10. ALL of the SCOTUS ballot access cases since 1968 have been mindless JUNK.

    EVERY election is NEW.

  11. Both the D and R gangsters in DC have command orders to their State hacks to wipe out all third parties which may cause the D or R gangs to lose gerrymander control in DC-States.

    PR and nonpartisan App.V. in all regimes.

  12. Jim Riley, do you belong to a non-cartel political party (i.e. other than Democrat or Republican), or are you a political independent?

    The reason I ask is because you apparently support “top two” laws, and the consensus among alternative party supporters, as far as I’m aware, is that these laws stink, and are basically designed to keep non-cartel candidates off general election ballots. Here in California, they have most definitely had this effect.

    So I could see why a cartel party supporter might want such laws (if they had a low commitment to fairness and democracy), but I have trouble understanding why any independent would.

  13. I simply remind readers that balloting is a First Amendment activity. Congress (nor the states) shall make no law abridging … freedom of speech or the press… A voter engages in publishing when he marks a ballot. Until late in the 19th century all ballots in the U S were privately published by individuals or parties. The role of government was collecting and counting what private individual voters published and used that collection to count names to place a person in office.
    All ballot access laws are censorship of voters. The aim of such laws to prevent voters from using the names of certain people when they publish their vote on a ballot.
    Voting by secret (anonymous) ballot does not require censorship anymore than publishing a book anonymously requires that the author only use certain words.
    The Gordian Knot of ballot access litigation can be cut by using an all write-in ballot with no restriction on candidate names that may be written-in and party labels pre-printed on the ballots to “cue” voters. Such subsidized advertising of parties and candidates on the ballot is discriminatory is, in effect, “leads the witness” (voter).

  14. Starchild- Jim Riley didn’t answer your question I see. I would like to know who he shills for as well. My guess is the Democrats but since Republicans are equally as messed up I guess we can’t be sure unless he answers. My money is on his continued silence!

  15. Thank you all for all the critical info. Oh if people only knew what. Torture Rs and Ds engage in.

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