On November 22, Arizona officials filed this brief in the Ninth Circuit in Arizona Libertarian Party v Bennett, 13-16254. The issue is the state law that says only the two largest political parties should be listed on the voter registration form with a checkbox. If a voter wants to register into any other party, qualified or not, the voter must check the “other” box and write-in the choice, whether it is “independent” or the name of a party.

In Arizona, all qualified parties nominate by primary. In 2012, there were five qualified parties: Democratic, Republican, Libertarian, Green, and Americans Elect. Americans Elect is still on the ballot because it petitioned in 2012 and petitioning parties get the next two elections. The Green Party has gone off the ballot because it last petitioned in 2010 and so its two elections are used up. It expects to be on the 2014 ballot, and is currently circulating a petition for that purpose.

The state’s brief says that not listing the qualified minor parties is just a “miniscule” burden, and an “insignificant” burden. However, parties that have registration of at least two-thirds of 1% remain on the ballot indefinitely, no matter how few votes they poll. Therefore, not being listed on the voter registration form is a significant problem. Probably if the Green Party had been listed on the voter registration form, it would now have the needed 21,499 registrants to remain on the ballot.

The state’s brief says there have been 16 qualified minor parties on the ballot at one time or another in the last 38 years, but the truth is that there have been seven (Libertarian, Green, Reform, Natural Law, Americans Elect, Socialist Workers, and New Alliance). The reason the state made this error is that whoever wrote the brief didn’t notice that most of the allegedly qualified parties were not on the ballot, but were included in the election returns for president because they had write-in status.

The state’s brief says the state interest in listing only the Democratic and Republican Parties is its interest in “stability” and fostering “a healthy two-party system.” It is true that former Chief Justice William Rehnquist said in Timmons v Twin Cities Area New Party that Minnesota’s law banning fusion was justified by the need to encourage a “two-party system”. However, the dissent in Timmons correctly points out that Minnesota did not make that argument in its briefs, and that there was no evidence for Rehnquist’s assertion in the record. However, the Arizona recent brief erroneously says that Minnesota officials made the “two-party system” argument.