As previously reported, on June 11, U.S. District Court Magistrate John Z. Boyle, an Obama appointee, upheld Arizona’s independent presidential petition requirement. Here is the 19-page opinion in De La Fuente v State of Arizona, 2:16cv-2419.

The case was filed in 2016, against the Arizona independent petition, which required 35,514 signatures. The plaintiff, Rocky De La Fuente, attempted to qualify in Arizona, but did not succeed. He then sued, pointing out that only one independent presidential petition in Arizona had succeeded in the years since 1993, when the current law was written (although it has changed somewhat since 1993). That one success was by Ralph Nader, in 2008. The U.S. Supreme Court in Storer v Brown, and Mandel v Bradley, has said that a ballot access requirement that is rarely used successfully is probably too difficult.

In response, the state submitted factually incorrect information that said it is very common for states to hold presidential elections in which no independent candidate qualified. Unfortunately, the Magistrate Judge accepted this information as true, and incorporated it into his decision, on page 12. For example, the decision says that in 2012, Arizona was one of 41 jurisdictions with no independent presidential candidate on its ballot.

A slight majority of states permit a candidate who uses the independent presidential procedure to choose a party label other than just “independent.” Ironically, Arizona is one of those states. In 2012, there were 25 jurisdictions in which a presidential candidate used the independent petition procedure, not nine. It appears the evidence the state submitted excluded all instances when a presidential candidate used the independent procedure but had a label other than “independent.” The state also excluded instances when the state does not permit a party label, nor does it permit the word “independent”. For example, some states require “nomination by petition”, or “unaffiliated”, or no label at all (Ohio). The state didn’t even count those states.