Ariz. Libertarian Party v. Reagan

• Decision Date: 24 April 2015
• Docket Number: No. 13–16254.,13–16254.
• Citation: 798 F.3d 723
• Parties: ARIZONA LIBERTARIAN PARTY; Arizona Green Party; James March; Kent Solberg; Steve Lackey, Plaintiffs–Appellants, v. Michele REAGAN, Secretary of State, Defendant–Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

798 F.3d 723

ARIZONA LIBERTARIAN PARTY; Arizona Green Party; James March; Kent Solberg; Steve Lackey, Plaintiffs–Appellants

v.Michele REAGAN, Secretary of State, Defendant–Appellee.

No. 13–16254.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Jan. 29, 2015.

Filed April 24, 2015.

Amended Aug. 7, 2015.

David T. Hardy, Tucson, AZ, for Plaintiffs–Appellants.

Thomas C. Horne, Attorney General of Arizona, Robert L. Ellman, Deputy Attorney General (argued), Michele L. Forney and Todd M. Allison, Assistant Attorneys General, Phoenix, AZ, for Defendant–Appellant.

Appeal from the United States District Court for the District of Arizona, Cindy K. Jorgenson, District Judge, Presiding. DC No. 4:11 cv–0856–CKJ.

Before: A. WALLACE TASHIMA, M. MARGARET McKEOWN, and MARSHA S. BERZON, Circuit Judges.

Opinion by Judge TASHIMA

; Concurrence by Judge McKEOWN.

OPINION

TASHIMA, Circuit Judge:

In 2011, the Arizona Legislature enacted a law requiring the voter registration form distributed by the Arizona Secretary of State to list the two largest parties (as measured by number of registered voters) on the form, as well as provide a blank line for “other party preferences.” The Arizona Green Party, Arizona Libertarian Party, and three of their members (together, “Plaintiffs”) brought this action, alleging that the new voter registration form violated their First and Fourteenth Amendment rights. The district court concluded that the amended voter registration form survived constitutional scrutiny and granted the State's motion for summary judgment. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

I.

A. Section 16–152(A)(5) and the Registration Form

In 2011, the Arizona Legislature amended the statute that dictates the content of the voter registration form provided by the State (the “Registration Form”). See 2011 Ariz. Legis. Serv. Ch. 339 § 1 (West) (codified at Ariz.Rev.Stat. § 16–152(A) ). The amended statute provides, in relevant part:

A. The form used for registration of electors shall contain:

...

5. The registrant's party preference. The two largest political parties that are entitled to continued representation on the ballot shall be listed on the form in the order determined by calculating which party has the highest number of registered voters at the close of registration for the most recent general election for governor, then the second highest. The form shall allow the registrant to circle, check or otherwise mark the party preference and shall include a blank line for other party preference options.

Ariz.Rev.Stat. § 16–152(A)(5). Prior to the 2011 amendment, Arizona law required only that voter registration forms include a blank space for “[t]he registrant's party preference.” See Ariz.Rev.Stat. § 16–152(A)(5) (2010). As of January 1, 2011, the two parties with the highest number of registered voters in Arizona were the Republican Party, with approximately 35.8 percent, and the Democratic Party, with approximately 31.6 percent. The next largest party was the Libertarian Party, with approximately 0.78 percent of registered voters.¹

In response to the amendment, the Arizona Secretary of State revised box 14 on the Registration Form. In its current form, box 14 appears as follows:

The blank line under the “Other” checkbox is approximately 0.9 inch long. The Registration Form also provides the following instructions regarding box 14:

Fill in your political party preference in box 14. If you leave this box blank as a first time registrant in your county, your party preference will be “Party Not Designated.” If you leave this box blank and you are already registered in the county, your current party preference will be retained. Please write full name of party preference in box.

B. Arizona's Voter Registration Scheme

Under Arizona law, qualified electors² may register to vote in one of three ways:

1. They may obtain, fill out, and mail in the Registration Form, which can be downloaded from the Secretary of State's website or picked up from either the Secretary of State's office or any local county recorder's office, see Ariz.Rev.Stat. § 16–151 ;

2. They may submit an online voter registration application using the “EZ Voter Registration” process, available at the Arizona Department of Transportation's service website, see Ariz.Rev.Stat. § 16–112(B)(4) ; see also Ariz. Dep't of Transp. Motor Vehicle Div., Service Arizona, http://www.servicearizona.com (last visited Jan. 7, 2015);³ or,

3. They may register in person at Arizona Motor Vehicle Division offices by filling out a section provided on the form for a driver's license or renewal for individuals who want to register to vote.

Section 16–152(A)(5) applies only to the first of these three options—that is, only the Secretary of State is required to provide checkboxes for the two largest parties on the Registration Form. See Ariz.Rev.Stat. § 16–152(E) (providing that the content regulations set forth in § 16–152(A) “do [ ] not apply to registrations received from the department of transportation”). Like the Secretary of State's form before the amendment to § 16–152(A)(5), the second and third options allow a registrant to indicate party preference by entering any party's name, including a major party.⁴

C. Arizona's Ballot Access Laws

Under Arizona law, there are two ways for a party to get its preferred candidate on the ballot.⁵ First, a “new political party” becomes “eligible for recognition” upon filing a petition with the Secretary of State signed by a number of qualified electors equal to one and one-third (1 ?) percent “of the total votes cast for governor at the last preceding general election at which a governor was elected.” Ariz.Rev.Stat. § 16–801(A). Recognition entitles a new political party to be “represented by an official party ballot at the primary election and accorded a ballot column at the succeeding general election” through at least “the next two regularly scheduled general elections for federal office immediately following recognition of the political party.” Ariz.Rev.Stat. § 16–801(B).

After these first two federal election cycles, a party may continue to be represented by an official party ballot during a primary election and accorded a ballot column in the succeeding general election (that is, the party is entitled to “continuing ballot access”) in one of two ways. First, a party is entitled to continuing ballot access if its candidate receives “not less than five per cent of the total votes cast for governor or presidential electors” at the “last preceding general election” for certain specified offices. Ariz.Rev.Stat. § 16–804(A). Second, a party is entitled to continuing ballot access if, on certain dates prescribed by statute, the 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.” Ariz.Rev.Stat. § 16–804(B). A party that loses continuing ballot access may get it back the same way a new party would gain access to the ballot: it must submit another petition signed by a number of qualified electors equal to one and one-third (1 ?) percent of the total votes cast for governor at the last preceding general election at which a governor was elected.See Ariz.Rev.Stat. § 16–801(B).

When Plaintiffs filed their complaint, five parties had continuing ballot access: Republican, Democratic, Green, Libertarian, and Americans Elect. During the pendency of this appeal, the Arizona Green Party lost its continuing ballot access.⁶

D. Procedural History

Plaintiffs' complaint, filed against defendant Ken Bennett, as Arizona Secretary of State, alleges that § 16–152(A)(5) violated their First and Fourteenth Amendment rights. Plaintiffs sought an order from the district court enjoining the State from issuing voter registration forms that failed to “treat equally the four parties with Statewide continuing ballot access.” On the parties' cross-motions for summary judgment, the district court denied Plaintiffs' motion and granted the State's motion. Plaintiffs timely appeal.

II.

This Court reviews the constitutionality of a statute de novo. See Chamness v. Bowen, 722 F.3d 1110, 1116 (9th Cir.2013).

III.

A. The Framework for Resolving Constitutional Challenges to State Election Laws

“Restrictions on voting can burden equal protection rights as well as ‘interwoven strands of liberty’ protected by the First and Fourteenth Amendments—namely, the ‘right of individuals to associate for the advancement of political beliefs, and the right of qualified voters, regardless of their political persuasion, to cast their votes effectively.’ ” Dudum, 640 F.3d at 1105–06 (quoting Anderson v. Celebrezze, 460 U.S. 780, 787, 103 S.Ct. 1564, 75 L.Ed.2d 547 (1983) (some internal quotation marks omitted)).⁷ As the Supreme Court has recognized, these rights are generally guaranteed by ensuring that political parties, including those that are new to the political scene, are given the opportunity to place their candidate on the ballot. See Ill. State Bd. of Elections v. Socialist Workers Party, 440 U.S. 173, 184, 99 S.Ct. 983, 59 L.Ed.2d 230 (1979) (“The freedom to associate as a political party ... has diminished practical value if the party can be kept off the ballot.”). Indeed, because “an election campaign is an effective platform for the expression of views on the issues of the day, and a candidate serves as a rallying-point for like-minded citizens,” Anderson, 460 U.S. at 788, 103 S.Ct. 1564 “the right to vote is heavily burdened if that vote may be cast only for one of two parties at a time when other parties are clamoring for a place on the ballot.” Williams v. Rhodes, 393 U.S. 23, 31, 89 S.Ct. 5, 21 L.Ed.2d 24 (1968).

“At the same time,” however, “ ‘States retain the power to regulate their own elections.’ ” Dudum, 640 F.3d at 1106 (quoting Burdick v. Takushi, 504 U.S. 428, 433, 112 S.Ct. 2059, 119 L.Ed.2d 245 (1992) ). “Common sense, as well as constitutional law, compels the conclusion that...