Ariz. Libertarian Party v. Hobbs

• Decision Date: 31 May 2019
• Docket Number: No. 17-16491,17-16491
• Citation: 925 F.3d 1085
• Parties: ARIZONA LIBERTARIAN PARTY ; Michael Kielsky, Plaintiffs-Appellants, v. Katie HOBBS, in her official capacity as Secretary of State of Arizona, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

925 F.3d 1085

ARIZONA LIBERTARIAN PARTY ; Michael Kielsky, Plaintiffs-Appellants,

v.Katie HOBBS, in her official capacity as Secretary of State of Arizona, Defendant-Appellee.

No. 17-16491

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 12, 2019 San Francisco, California

Filed May 31, 2019

Oliver B. Hall (argued), Center for Competitive Democracy, Washington, D.C., for Plaintiffs-Appellants.

Kara M. Karlson (argued) and Joseph E. La Rue, Assistant Attorneys General; Mark Brnovich, Attorney General; Office of the Attorney General, Phoenix, Arizona; for Defendant-Appellee.

Before: J. Clifford Wallace, A. Wallace Tashima, and M. Margaret McKeown, Circuit Judges.

McKEOWN, Circuit Judge:

Once again, we have before us a challenge to Arizona's requirements to earn a place on the ballot. See, e.g. , Ariz. Green Party v. Reagan , 838 F.3d 983 (9th Cir. 2016) ; Nader v. Brewer , 531 F.3d 1028 (9th Cir. 2008). The Arizona Libertarian Party challenges under the First and Fourteenth Amendments a state law requiring up to 1% of voters eligible to participate in its primary to sign a nominating petition for a Libertarian candidate to earn a place on the primary ballot. The district court granted summary judgment to the Arizona Secretary of State (the "Secretary"), and we affirm.

BACKGROUND

Under Arizona law, there are two types of political parties: "established" parties and "new" parties. A party is "established" in a jurisdiction if it (i) obtained at least 5% of the total votes cast in the prior general election, or (ii) maintains membership exceeding 0.66% of registered voters in that jurisdiction. Ariz. Rev. Stat. § 16-804 (applying to state, county, city, and town elections). An established party is entitled to "continued representation" on the general election ballot. Id. The Libertarian, Democratic, and Republican Parties are established statewide.¹

Before 2016, to qualify for the primary ballot, an established party candidate needed to submit signatures² exceeding a certain percentage (ranging between 0.5% and 2%, depending on the office sought) of the party's registered voters in the jurisdiction where he sought election. Ariz. Rev. Stat. § 16-322(A) (2015). A candidate was permitted to submit signatures from party members, members of any new party, or unaffiliated registered voters.³ Id. § 16-321(D).

In 2015, the Arizona legislature amended the signature requirements for established party candidates. 2015 Ariz. Sess. Laws Ch. 293, §§ 2–3 (H.B. 2608). Now, to qualify for a primary ballot, an established party candidate must submit signatures exceeding a certain percentage of "qualified signer[s]," which include the party's registered voters, as well as all new party voters and unaffiliated registered voters. Ariz. Rev. Stat. § 16-321(F). The amendments reduced the signature threshold for each office to between 0.25% and 1%. Id. § 16-322(A). In 2016—the first election governed by the amended rules—there were significantly fewer Libertarian candidates on the primary and general election ballots than in prior elections. See generally Ariz. Sec. of State, Historical Election Results & Information , https://azsos.gov/elections/voter-registration-historical-election-data/historical-election-results-information (last visited May 7, 2019) (collecting data for recent Arizona elections).

A "new" party is subject to different rules. A new party must first submit a petition for recognition and signatures from eligible voters exceeding 1.33% of total votes cast statewide in the prior gubernatorial election. Ariz. Rev. Stat. §§ 16-801(A), 16-803. After doing so, the party's candidates are eligible to pursue placement on the primary and general election ballots for the next four years. Ariz. Rev. Stat. § 16-801(B). To retain its recognition and ballot eligibility at the end of the four years, the party must either qualify as an established party or file another petition for recognition and the accompanying signatures. Id. ; see Ariz. Rev. Stat. §§ 16-803 –04.

To qualify for the primary ballot, a new party candidate must submit signatures exceeding 0.1% "of the total vote for the winning candidate or candidates for governor or presidential electors at the last general election within the district." Ariz. Rev. Stat. § 16-322(C). The Arizona Green Party first qualified as a new party in 1990, and, never having qualified as an established party, has successfully re-filed petitions for new party recognition and the accompanying signatures several times, most recently in 2014.⁴ Since the beginning of 2017, Arizona has permitted digital solicitation and streamlined submission of voter signatures through an online portal. Ariz. Rev. Stat. §§ 16-316 –18.

Under Arizona law, an established party member may not vote in another party's primary, but it is up to the established parties to decide whether new party members or unaffiliated voters can participate in their primaries. See Ariz. Rev. Stat. § 16-467.⁵ The Libertarian Party excludes such voters, while the Democratic and Republican Parties do not.

In April 2016, the Libertarian Party and its chairman Michael Kielsky (collectively, the "Libertarian Party") filed this action challenging the primary signature requirements. The district court denied the Libertarian Party's request for a preliminary injunction prohibiting enforcement of the amended requirements for the 2016 election. The parties filed cross-motions for summary judgment, and, in July 2017, the district court granted summary judgment to the Secretary.

ANALYSIS

The Libertarian Party contends that Arizona's ballot access scheme violates equal protection and infringes upon the right to place its candidates on the ballot⁶ and the right to free association.⁷ Only the rules governing access to the primary election ballot are at issue on this appeal—the Libertarian Party does not call into question the rules for earning a place on the general election ballot. With that in mind, we first set forth the balancing framework that guides our review and then explain why Arizona's rules for accessing the primary ballot are constitutionally sound.

I. The Anderson /Burdick Balancing Framework

There is an inevitable tension between a state's authority and need to regulate its elections and the First and Fourteenth Amendment rights of voters, candidates, and political parties. See Storer v. Brown , 415 U.S. 724, 729–30, 94 S.Ct. 1274, 39 L.Ed.2d 714 (1974). To harmonize these competing demands, we look to 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), which provide a "flexible standard" for reviewing constitutional challenges to state election regulations:

A court considering a challenge to a state election law must weigh "the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments that the plaintiff seeks to vindicate" against "the precise interests put forward by the State as justifications for the burden imposed by its rule," taking into consideration "the extent to which those interests make it necessary to burden the plaintiff's rights."

Burdick , 504 U.S. at 434, 112 S.Ct. 2059 (quoting Anderson , 460 U.S. at 789, 103 S.Ct. 1564 ). We have described this approach as a "sliding scale"—the more severe the burden imposed, the more exacting our scrutiny; the less severe, the more relaxed our scrutiny. Ariz. Green Party , 838 F.3d at 988. To pass constitutional muster, a state law imposing a severe burden must be narrowly tailored to advance "compelling" interests. Norman , 502 U.S. at 289, 112 S.Ct. 698. On the other hand, a law imposing a minimal burden need only reasonably advance "important" interests. Timmons v. Twin Cities Area New Party , 520 U.S. 351, 358, 117 S.Ct. 1364, 137 L.Ed.2d 589 (1997) (quoting Burdick , 504 U.S. at 434, 112 S.Ct. 2059 ).

We now consider each of the Libertarian Party's constitutional challenges under the Anderson / Burdick balancing framework.

II. Right to Access the Ballot

It was long ago established that a state may condition ballot placement on a "preliminary showing of a significant modicum of support." Jenness v. Fortson , 403 U.S. 431, 442, 91 S.Ct. 1970, 29 L.Ed.2d 554 (1971). And there is no dispute that a state may require a candidate to demonstrate support from slightly, but not "substantially," more than 5% of voters without imposing a severe burden triggering heightened scrutiny. Storer , 415 U.S. at 739–40, 94 S.Ct. 1274 ; see Jenness , 403 U.S. at 442, 91 S.Ct. 1970 ; Williams v. Rhodes , 393 U.S. 23, 24–25, 89 S.Ct. 5, 21 L.Ed.2d 24 (1968) (invalidating 15% requirement). The Libertarian Party contends that Arizona law imposes an impermissibly high signature burden, reaching as high as 30% for certain candidates. Yet, the threshold—and dispositive—question is which pool of voters we should consider when measuring this showing.

Under Arizona law, all qualified signers—Libertarian Party members, unaffiliated registered voters, and new party members—are eligible to participate in the Libertarian Party primary and to sign a Libertarian Party nominating petition. By its very terms, the statute never requires signatures from more than 1% of these voters. However, by choice, the Libertarian Party has barred non-members from voting in its primary—under party policy, only members can vote in the primary. And it does not want its candidates to solicit signatures from non-members; as a consequence, Libertarian candidates must submit signatures equal to 11% to 30% of party membership in their jurisdiction to qualify for the primary ballot. Thus, our dilemma: is the "significant modicum of support" measured against all voters eligible under state law to sign a nominating petition and participate in the primary? Or do we factor in a party's decision to exclude certain eligible voters from its primary and instead consider the resulting,...