Ariz. Green Party v. Reagan

• Decision Date: 23 September 2016
• Docket Number: No. 14–15976,14–15976
• Citation: 838 F.3d 983
• Parties: Arizona Green Party; Claudia Ellquist, Plaintiffs–Appellants, v. Michele Reagan, in her official capacity as Secretary of the State of Arizona, Defendant–Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

838 F.3d 983

Arizona Green Party; Claudia Ellquist, Plaintiffs–Appellants,

v.Michele Reagan, in her official capacity as Secretary of the State of Arizona, Defendant–Appellee.

No. 14–15976

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 11, 2016 San Francisco, California

Filed September 23, 2016

Julia Damron (argued) and Robert E. Barnes, Los Angeles, California, for Plaintiffs–Appellants.

James Driscoll–MacEachron Assistant Attorney General; Office of the Arizona Attorney General, Phoenix, Arizona; for Defendant–Appellee.

Before: M. Margaret McKeown and Michelle T. Friedland, Circuit Judges, and Joan Lefkow,^** District Judge.

OPINION

McKEOWN, Circuit Judge:

The Arizona Green Party (the “Green Party” or the “Party”), having failed to meet the deadline for recognition as an official political party on the 2014 Arizona ballot, challenges the constitutionality of Arizona's filing deadline for new party petitions.¹ The Green Party seeks declaratory and injunctive relief against the Arizona Secretary of State (the “Secretary”), claiming that by requiring “new”² parties to file recognition petitions 180 days before the primary, Arizona unconstitutionally burdens those parties' First and Fourteenth Amendment rights.

Ballot access litigation follows a common pattern. The scrutiny courts employ in assessing the constitutionality of a state's election law turns on the severity the law imposes on the party or candidate's First and Fourteenth Amendment rights. The plaintiff bears the burden of showing the severity of the burden on those constitutional rights; evidence that the burden is severe, de minimis, or something in between, sets the stage for the analysis by determining how compelling the state's interest must be to justify the law in question. In this case, the Green Party chose not to present any evidence. Instead, it relied on analogies to earlier cases to argue that Arizona's 180–day deadline for filing new party recognition petitions is unconstitutional as a matter of law.

Without evidence of the specific obstacles to ballot access that the deadline imposes, the Green Party did not establish that its rights are severely burdened. At best—on this record—any burden is de minimis. By contrast, Arizona's evidence supports the interrelated deadlines that make up its election cycle. Balancing the impact of the 180–day filing deadline on the Green Party's rights against Arizona's interests in maintaining that deadline, we conclude that the Green Party has not demonstrated an unconstitutional interference with ballot access.

BACKGROUND

Arizona election law provides three avenues for political parties to obtain state recognition, each of which requires a threshold level of political support within the state. For automatic and continued recognition, a party must have received at least five percent of votes cast in the last preceding general election or achieved a threshold number of registered electors. A third alternative allows a party to demonstrate the requisite level of support via petition.

Arizona Revised Statute § 16–804 lays out the framework for automatic and continued recognition:

A) A political organization that at the last preceding [applicable] general election cast ... not less than five per cent of the total votes cast for governor or presidential electors, ... is entitled to representation as a political party on the official ballot for state officers or for officers of such county or local subdivision.

B) [A] political organization is entitled to continued representation as a political party on the official ballot ... if, on October 1 of the year immediately preceding the year [of the applicable] general election ... [or] one hundred fifty-five days immediately preceding the primary election in such jurisdiction, such party has registered electors in the party equal to at least two-thirds of one per cent of the total registered electors in such jurisdiction.

Id . § 16–804(A), (B). Parties that do not meet these requirements may obtain recognition by filing “a petition signed by a number of qualified electors equal to not less than one and one-third per cent of the total votes cast for governor at the last preceding general election at which a governor was elected.” Id . § 16–801(A).

Once recognized through any of these mechanisms, parties are entitled to state-provided primary ballots as well as a designated column of party candidates on the general election ballot. Id . §§ 16–341(B), 16–502(C). New party recognition lasts for two regularly scheduled general elections for federal office before party status must be renewed. Id . § 16–801(B).

Even if a party does not qualify as officially recognized, its candidates still have the benefit of party designation, subject to some restrictions.³ Candidates who are affiliated with unrecognized political organizations can run as independent candidates and may designate their own party affiliation, which appears next to the candidate's name on the general election ballot. Id . at § 16–341. Write-in candidates may also designate a party affiliation next to their name, which is posted on the Arizona Secretary of State's official website. See id . § 16–312.

The Green Party sought recognition via petition in 2014 because it lost its official status in 2013. After the 2010 gubernatorial election, the Green Party was on notice that it had failed to garner five per cent of the vote and, on November 20, 2013, the Secretary officially confirmed that the Green Party had lost its recognized status. At that point, the Party had approximately three months to collect signatures in support of new party recognition. Signature gathering to obtain recognition under § 16–801 may commence as soon as a party learns that it did not qualify for automatic recognition based on votes cast or electors registered in the previous general election. For the 2014 election cycle, parties petitioning under § 16–801 were required to file 23,401 signatures with the Secretary by February 27, 2014.

The 180–day petition-filing deadline has been an element of Arizona election law since 2000. Id . § 16–803(A) (“A petition for recognition of a new political party shall be filed ... not less than one hundred eighty days before the primary election for which the party seeks recognition.”).⁴ The deadline is calculated by working backward from a number of nested deadlines leading up to the primary, which include:

• Calculating candidate signature requirements, id . §§ 16–168(G), 16–322(B);

• Filing deadlines for candidates, id . at §§ 16–311, 16–341 ;

• Mailing notice to voters on the early voting list, id . at § 16–544(D);

• Resolving nomination petition challenges, id . at § 16–351(A);

• Finalizing primary ballots for printing;

• Mailing primary ballots to uniformed and overseas voters, id . at § 16–544(F);

• Testing the electronic ballot machines, id . at § 16–449; and

• Early voting deadlines for the primary, id . at § 16–542(C).

Rather than filing a new party petition, in February 2014 the Green Party and Green Party supporter Claudia Ellquist filed a 42 U.S.C. § 1983 suit against the Secretary in federal court alleging that the February deadline was unconstitutional under the First and Fourteenth Amendments. In an effort to resolve the matter before the 2014 general election, the parties stipulated to an expedited litigation process resulting in cross-motions for summary judgment. The Green Party did not seek a preliminary injunction.

The district court granted summary judgment in favor of the Secretary. Because the Green Party did not present any evidence or controvert the Secretary's material facts, the district court found that the Green Party had failed to demonstrate how “the 180–day deadline alone, considered outside the context of the election cycle requiring it, necessarily imposes a severe burden. And they have not offered evidence—or even alleged—that the other interrelated provisions governing the election cycle impose a severe burden.” Explaining that the deadline was not “unnecessary, excessive, or discriminatory,” the district court concluded that “the interplay between the February deadline and [Arizona's] election scheme as a whole ... rationally accommodates the state's administrative needs.”

The Green Party did not seek expedited review on appeal, and its first brief was not filed until September 2014, long after the petition-filing deadline passed.

ANALYSIS

I. Mootness

The 2014 election has come and gone, so we cannot devise a remedy that will put the Green Party on the ballot for that election cycle. All specific demands for relief related to the 2014 election are moot. Because the Green Party will need to requalify as a new party every two election cycles (unless it reaches the § 16–804 threshold), the 180–day deadline is likely to surface again and is therefore “capable of repetition, yet evading review,” Norman v. Reed , 502 U.S. 279, 288, 112 S.Ct. 698, 116 L.Ed.2d 711 (1992) (quoting Moore v. Ogilvie , 394 U.S. 814, 816, 89 S.Ct. 1493, 23 L.Ed.2d 1 (1969) ). Accordingly, the challenge to that deadline's constitutionality is not moot. We thus have jurisdiction to address the merits of the Green Party's claim on appeal.

II. The Balancing Test for Ballot Access

The foundation of our analysis comes from two Supreme Court cases that address the framework in ballot access cases: Anderson v. Celebrezze , 460 U.S. 780, 103 S.Ct. 1564, 75 L.Ed.2d 547 (1983), and Burdick v. Takushi , 504 U.S. 428, 112 S.Ct. 2059, 119 L.Ed.2d 245 (1992). In Anderson, the Supreme Court articulated a balancing test to determine whether rules impacting ballot access pass constitutional muster:

[A] court must.... first consider the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments that the plaintiff seeks to vindicate. It then must identify and evaluate the precise interests put forward by the State as justifications for the burden imposed by its rule.

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