Caryn Ann Harlos: Arizona Ballot Access and Denial of Preliminary Injunction

By Caryn Ann Harlos, originally published earlier today at American Third Party Report

UnknownA few weeks ago, the US District Court for the District of Arizona issued it’s Order denying the request of the Arizona Libertarian Party (AZLP) for an injunction regarding legislation that tremendously increased the threshold burden for its write-in candidates in its closed primary. The opinion may be found here: 34-AzLP-v.-Reagan-Order_7-20-2016-Denying-TRO

The Court gives a very detailed summary of this legislation and its potential impact on pre-primary signature and primary write-in requirements on pages 1-4. I summarized it a bit differently in my July 17, 2016 Region 1 report as follows (using hypothetical numbers—the Court’s summary uses specific “real life” examples of impact):

The first hurdle in Arizona ballot access is having registered Libertarians comprise .67% of active registered voters. Right now, they have .76% of the active registered voters. In addition, in order to be on the Primary ballot (either printed or added as a write-in), candidates have to obtain a certain number of signed Nominating Petitions. The Primary will take place on August 30, 2016 and is a closed primary, limited to registered Libertarian voters. This is particularly critical as the County Precinct Committeemen are included that are the pool from which the Party officers will be chosen. An open Primary would effectively be allowing non-Libertarians to chose the eventual Party officers.

The issue of the Nominating Petitions is currently the subject of a lawsuit as Arizona has changed the requirements in a way that is calculated to deny access to minor parties. Previously, the Nominating Petition requirement was .5 % of the registered Libertarians in the candidate’s district (or statewide). However, the new requirements cut the percentage in half to .25% but expanded the total pool from which the calculation is determined to include both Libertarians and independents/undeclared which are the most numerous voting bloc in the state. For example, using 2016 statewide figures (rounded for simplicity) of 25,000 Libertarians and 1,180,000 “others,” the former rule would have required 125 signatures, while this new requirement totals 3,012 signatures. As a counter-example, using the statewide figures for Republicans of 1,125,000, and the same number of independents/undeclared, the former rule would have required 5,625 signatures, and the new one would require 5,762 signatures, a negligible difference. With this in mind, if a candidate does not obtain the required nominating signatures, they can be put in as a write-in candidate but still have to meet the same burden in write-in votes which puts the AZLP in a conundrum since their Primary is closed, yet the figures that the write- ins have to meet include independents/undeclared. In some areas, it would be mathematically impossible for the write-in to obtain the required number of votes from the pool of registered Libertarians. A hearing on the AZLP’s request for an injunction was set for August 5, 2016, and moved to July 12, 2016. [note: this was written before the decision]

I found the most interesting part of the Order to begin on page 8 where the Court discussed the case of Lightfoot v. Eu, 964 F.2d 865 (9th Cir. 1992) that had some facts in common with the Arizona situation, to wit, an incredibly high threshold to obtain needed write-ins in a closed Libertarian primary. The Lightfoot Court incredibly opined that the Libertarian Party could simply open up its primary or get a better message. The Arizona Court noted a later Supreme Court decision (California Democratic Party v. Jones, 530 U.S. 567 (200)) casts doubt upon the continued relevance of Lightfoot as forcing parties to open their primaries was determined to potentially violate the party’s rights of freedom of association under the First Amendment. Additionally Lightfoot had facts divergent from the Arizona matter in that there was an easy alternate path to obtain ballot access prior to the primary by meeting a low signature threshold, which path does not exist in Arizona.

Considering all of this however, it is astonishing that the Court did not find the Arizona write-in threshold with no easy alternative path to be persuasive—instead pitting the state’s alleged right to demand proof of a modicum of support for a candidate against the Party’s associational rights.

It will be interesting to see how this eventually plays out. An injunction is an extraordinarily remedy with high burdens to meet. When the constitutional challenge is taken up, I would hope that the result is much more favourable.

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