Arizona Libertarian Party v. Ken Bennett ( 2015 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ARIZONA LIBERTARIAN PARTY; No. 13-16254
ARIZONA GREEN PARTY; JAMES
MARCH; KENT SOLBERG; STEVE DC No.
LACKEY, 4:11 cv-0856
Plaintiffs-Appellants, CKJ
v.
ORDER AND
MICHELE REAGAN, Secretary of AMENDED
State, OPINION
Defendant-Appellee.
Appeal from the United States District Court
for the District of Arizona
Cindy K. Jorgenson, District Judge, Presiding
Argued and Submitted
January 29, 2015—University of Arizona, James E. Rogers
College of Law, Tucson, Arizona
Filed April 24, 2015
Amended August 7, 2015
Before: A. Wallace Tashima, M. Margaret McKeown,
and Marsha S. Berzon, Circuit Judges.
Order;
Opinion by Judge Tashima;
Concurrence by Judge McKeown
2 ARIZONA LIBERTARIAN PARTY V. REAGAN
SUMMARY*
Civil Rights
The panel affirmed the district court’s summary judgment
in an action brought by the Arizona Green Party, the Arizona
Libertarian Party, and three of their members alleging that
Arizona’s voter registration form violates their First and
Fourteenth Amendment rights.
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.” See 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 the registrant’s party preference.
The panel first determined that plaintiffs failed to adduce
evidence that the revised registration form actually
discourages or prevents voters from registering with minor
parties. The panel held that at most, § 16-152(A)(5) imposes
a de minimis burden on plaintiffs’ First and Fourteenth
Amendment rights. The panel then concluded that plaintiffs
failed to meet their burden of demonstrating that § 16-
152(A)(5) is not rationally related to a legitimate state
interest. The panel held that § 16-152(A)(5) helps to ensure
that election officials will easily be able to determine the
preferred party for most of Arizona’s voters in a manner that
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
ARIZONA LIBERTARIAN PARTY V. REAGAN 3
the State has deemed to be cost efficient and less prone to
clerical error.
Concurring, Judge McKeown agreed that Arizona’s voter
registration form passes constitutional muster. She wrote
separately because she believes the rational basis review and
burden-shifting standards articulated in Libertarian Party of
Washington v. Munro, 31 F.3d 759 (9th Cir. 1994), and
applied by the panel in this case, are inconsistent with the
Supreme Court’s approach to analyzing voting rights
challenges.
COUNSEL
David T. Hardy, Tucson, Arizona, 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, Arizona, for Defendant-Appellant.
ORDER
The opinion filed April 24, 2015, and reported at 784 F.3d
611, is amended by adding at the end of the carryover
paragraph from page 16, slip op. at 17, 784 F.3d at 621, left-
hand column, end of carryover paragraph from page 620, a
new footnote 12, as follows:
12
We apply Munro because it is binding on us
and addresses situations, like this one, in
which the burden, if it exists at all, is
4 ARIZONA LIBERTARIAN PARTY V. REAGAN
vanishingly small. We note, however, that
Munro’s statements that we may consider
hypothetical rationales for a state’s election
law, and that the plaintiff alleging a de
minimis burden must demonstrate the lack of
a rationale basis, are in tension with some of
our other cases and Supreme Court precedent.
See, e.g., Burdick, 504 U.S. at 434; Dudum,
640 F.3d at 1106, 1113–14. We need not
resolve that tension, however, because even
under the balancing of interests and burdens
analysis, we would nonetheless reject this
challenge. First, as noted above, Plaintiffs
failed to adduce evidence of any burden at all;
absent any burden, there is no reason to call
on the State to justify its practice. At most,
Plaintiffs established a burden on those
wishing to register with a third party, limited
to writing a word rather than checking a box
– assuredly not an infringement of
constitutional dimension. Second, the State’s
rationale, which we below hold justifies this
law, is not hypothetical or manufactured by
the court, having been specifically articulated
in its brief on appeal. Third, even if the State
bears the ultimate burden of persuasion with
regard to the justification of this law, we are
persuaded, given the very slight burden
involved, that it survives constitutional
scrutiny.
The footnotes following new footnote 12 are accordingly
renumbered.
ARIZONA LIBERTARIAN PARTY V. REAGAN 5
The amended opinion and the amended concurrence are
filed concurrently with this order.
With the above amendments, Judges McKeown and
Berzon vote to deny the petition for rehearing en banc and
Judge Tashima so recommends. The full court has been
advised of the petition for rehearing en banc and no judge of
the court has requested a vote on en banc rehearing. See Fed.
R. App. P. 35(f). The petition for rehearing en banc is
denied. No further petitions for rehearing/rehearing en banc
will be entertained.
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.
6 ARIZONA LIBERTARIAN PARTY V. REAGAN
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,
ARIZONA LIBERTARIAN PARTY V. REAGAN 7
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
1
Although the exact percentage of voters registered with each party has
fluctuated slightly since January 1, 2011, the Republican and Democratic
Parties have remained the two parties with the highest number of
registered voters.
8 ARIZONA LIBERTARIAN PARTY V. REAGAN
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
2
Arizona law sets forth certain criteria that make a resident of the state
a “qualified elector.” See Ariz. Rev. Stat. §§ 16-101, 16-121.
3
We may take judicial notice of “official information posted on a
governmental website, the accuracy of which [is] undisputed.” Dudum v.
Arntz, 640 F.3d 1098, 1101 n.6 (9th Cir. 2011) (citing Daniels-Hall v.
Nat’l Educ. Ass’n, 629 F.3d 998–99 (9th Cir. 2010)).
ARIZONA LIBERTARIAN PARTY V. REAGAN 9
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 (1a) percent “of
4
In addition, “[t]he National Voter Registration Act requires States to
‘accept and use’ a uniform federal form to register voters in federal
elections. Arizona v. Inter Tribal Council of Ariz., Inc., 133 S. Ct. 2247,
2251 (2013). The federal form, like the second and third Arizona options
described above, permits a voter to indicate a political party of choice, but
does not include checkboxes for the two largest political parties. See U.S.
Election Assistance Commission, National Mail Voter Registration Form,
http://www.eac.gov/assets/1/Documents/Federal%20Voter%20
Registration_6-25-14_ENG.pdf (last visited Mar. 20, 2015).
5
Arizona law also permits individuals who are not members of political
parties to qualify for the ballot if they comply with certain criteria. See
Ariz. Rev. Stat. § 16-341.
10 ARIZONA LIBERTARIAN PARTY V. REAGAN
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 (1a) 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
ARIZONA LIBERTARIAN PARTY V. REAGAN 11
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
6
At oral argument counsel for appellants informed the court that the
Green Party has again qualified for continuing ballot access by submitting
a petition with a sufficient number of signatures.
12 ARIZONA LIBERTARIAN PARTY V. REAGAN
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 (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 (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,
“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 (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 (1992)).
“Common sense, as well as constitutional law, compels the
conclusion that government must play an active role in
structuring elections.” Id. at 1103 (quoting Burdick, 504 U.S
at 433). The Constitution itself “provides that States may
prescribe ‘the Times, Places and Manner of holding Elections
for Senators and Representatives.’” Burdick, 504 U.S. at 433
7
Although Plaintiffs assert both First and Fourteenth Amendment
claims, “[t]he Supreme Court has addressed such claims collectively using
a single analytic framework.” Dudum, 640 F.3d at 1106 n.15. Plaintiffs
agree that this “single analytic framework” applies here.
ARIZONA LIBERTARIAN PARTY V. REAGAN 13
(quoting U.S. Const. art. I, § 4, cl. 1 (brackets omitted)).
And, “[t]o achieve these necessary objectives, States have
enacted comprehensive and sometimes complex election
codes.” Anderson, 460 U.S. at 788. Moreover, every law
regulating elections, “whether it governs the registration and
qualifications of voters, the selection and eligibility of
candidates, or the voting process itself, inevitably affects—at
least to some degree—the individual’s right to vote and his
right to associate with others for political ends.” Id.
Thus, in order to “resolve the tension between a [party’s]
First Amendment rights and the state’s interest in preserving
the fairness and integrity of the voting process,” the
“Supreme Court developed a balancing test.” Rubin v. City
of Santa Monica, 308 F.3d 1008, 1014 (9th Cir. 2002). “In
considering a constitutional challenge to an election law, we
must weigh the character and magnitude of the asserted injury
to the rights protected by the First and Fourteenth
Amendments against the precise interests put forward by the
State as justifications for the burden imposed by its rule.”
Nader v. Cronin, 620 F.3d 1214, 1217 (9th Cir. 2010) (per
curiam) (internal quotation marks omitted).
Accordingly, “the severity of the burden the election law
imposes on the plaintiff’s rights dictates the level of scrutiny
applied by the court.” Id. (quoting Nader v. Brewer, 531 F.3d
1028, 1034 (9th Cir. 2008) (internal quotation marks
omitted)); see also Burdick, 504 U.S. at 434 (“[T]he
rigorousness of our inquiry into the propriety of a state
election law depends upon the extent to which a challenged
regulation burdens First and Fourteenth Amendment rights.”).
“An election regulation that imposes a severe burden is
subject to strict scrutiny and will be upheld only if it is
narrowly tailored to serve a compelling state interest.”
14 ARIZONA LIBERTARIAN PARTY V. REAGAN
Cronin, 620 F.3d at 1217 (quoting Brewer, 531 F.3d at 1035
(internal quotation marks and brackets omitted)). By
contrast, “[a] state may justify election regulations imposing
a lesser burden by demonstrating the state has ‘important
regulatory interests.’” Id. (quoting Brewer, 531 F.3d at
1035).
B. Section 16-152(A) Imposes a De Minimis Burden on
Plaintiffs’ Constitutional Rights
In cases “previously examining differing treatments of
minor and major political parties,” we have held that, “in
determining the nature and magnitude of the burden that the
state’s election procedures impose on the minor party, we
must examine the entire scheme regulating ballot access.”
Cronin, 620 F.3d at 1217 (quoting Libertarian Party of
Wash. v. Munro, 31 F.3d 759, 761–62 (9th Cir. 1994)
(internal quotation marks and brackets omitted)).8 The
8
Plaintiffs urge us to forgo a severity-of-the-burden analysis, arguing
that, because § 16-152(A)(5) differentiates between major and minor
parties on its face, strict scrutiny automatically applies. Plaintiffs’
proposed bright-line rule is at odds with both Supreme Court precedent
and our own. Although the Supreme Court has expressed a generalized
concern about laws that favor major parties over minor parties, see, e.g.,
Anderson, 460 U.S. at 793 n. 16; Clingman v. Beaver, 544 U.S. 581, 603
(2005) (O’Connor, J., concurring in part and concurring in the judgment),
it has only applied strict scrutiny to a state election law after determining
that the law imposed a severe burden on a party’s constitutional rights.
See, e.g., Williams, 393 U.S. at 25 n.1, 31. Moreover, we have repeatedly
refused to apply strict scrutiny to election laws that differentiate between
major and minor parties, so long as the law at issue did not “severely
burden” a minor party’s constitutional rights. See, e.g., Cronin, 620 F.3d
at 1217–18; Munro, 31 F.3d at 763. Accordingly, we reject Plaintiffs’
contention that strict scrutiny automatically applies to all state election
laws that facially distinguish between major and minor parties.
ARIZONA LIBERTARIAN PARTY V. REAGAN 15
relevant inquiry “is whether ‘reasonably diligent’ minor party
candidates can normally gain a place on the ballot, or if
instead they only rarely will succeed.” Munro, 31 F.3d at 762
(quoting Storer v. Brown, 415 U.S. 724, 742 (1974)); see also
Anderson, 460 U.S. at 787–88 (noting that the relevant
inquiry in determining the constitutionality of election
regulations is the ability of voters’ preferred candidates to get
on the ballot). Moreover, the party challenging the law bears
“the initial burden of showing that [the state’s] ballot access
requirements seriously restrict the availability of political
opportunity.” Munro, 31 F.3d at 762.
Plaintiffs have failed to make any such showing. Section
16-152(A)(5) does not directly inhibit the ability of any party
to gain access to the ballot, nor does it articulate different
criteria for major and minor parties who seek to get their
candidates on the ballot. All new political parties (and parties
that have lost continuing ballot access) are required to comply
with the same criteria to get their candidate on the ballot. See
Ariz. Rev. Stat. § 16-801. Moreover, all political parties,
major and minor alike, are entitled to continuing ballot access
if: (1) their candidates garner at least five percent of the
“total votes cast for governor or presidential electors” at the
“last preceding general election” for certain specified offices;
or, (2) they have “registered electors . . . equal to at least two-
thirds of one per cent of the total registered electors” in the
relevant jurisdiction by a specified date. Ariz. Rev. Stat.
§ 16-804.
Acknowledging that § 16-152(A)(5) does not directly
burden their ability to get their preferred candidate on the
ballot, Plaintiffs instead assert that the statute indirectly
“restrict[s] the availability of political opportunity,” Munro,
31 F.3d at 762, by encouraging voters to register with the two
16 ARIZONA LIBERTARIAN PARTY V. REAGAN
major parties over all others. This encouragement, Plaintiffs
contend, affects their ability to get their preferred candidate
on the ballot, because continuing ballot access is linked (at
least partially) to the number of voters who are registered
with the party.
Plaintiffs have failed, however, to adduce any evidence
that § 16-152(A)(5) actually encourages individuals to
register for major parties instead of minor ones. As an initial
matter, Plaintiffs have failed to show how many new voters
actually use the Registration Form to register, as opposed to
using one of the other three alternative means, which do not
require use of the Registration Form. Without some
assessment of how many voters actually use the Registration
Form, we cannot even begin to gauge the impact it may have
had on party registration rolls.
Moreover, even if we were to assume that a significant
number of voters used the Registration Form, Plaintiffs failed
to adduce any evidence – statistical, anecdotal, or otherwise
– that the Registration Form has, in fact, encouraged voters to
register for the major parties over minor ones. Plaintiffs
suggest that the Registration Form discourages voters from
registering with minor parties by sending “a message to the
future voter” that there are only “two [real] political parties
in this State,” and that “[r]egistering for any other party is a
show of eccentricity” that must be “grudgingly tolerate[d].”
However, Plaintiffs failed to introduce even an iota of
evidence in support of this assertion. The alleged
psychological effects that the Registration Form has on
ARIZONA LIBERTARIAN PARTY V. REAGAN 17
registering voters is sheer speculation.9 Plaintiffs’ other
contention – that voters have been unable to register with the
party of their choosing because the blank line below the word
“Other” in box 14 is “too short to contain even the word
‘Libertarian’” – is similarly unsupported by any evidence in
the record.
In sum, by failing to adduce evidence that the Registration
Form actually discourages or prevents voters from registering
with minor parties, Plaintiffs have failed to meet their “initial
burden of showing that [Arizona’s] ballot access
requirements seriously restrict the availability of political
opportunity.” Munro, 31 F.3d at 762. At most, § 16-
152(A)(5) imposes a de minimis burden on Plaintiffs’ First
and Fourteenth Amendment rights.
C. Section 16-152(A)(5) is Rationally Related to a
Legitimate State Interest
Where, as here, a state election law imposes only a de
minimis burden on a party’s First and Fourteenth Amendment
rights, the State “need demonstrate only that [the statute at
9
Both sides make much of a chart compiled by the State that details the
number of qualified electors registered with the Republican, Democratic,
Green, and Libertarian Parties, as well as an undefined “Other” category,
at various points between January 1, 2011, and March 1, 2012. These raw
data do not, by themselves, allow us to draw reliable conclusions as to
whether the Registration Form actually dissuaded new voters from
registering with minor parties. Party registration may ebb and flow for
myriad reasons, including overall changes in the number of eligible voters,
in voter mobilization activity, or in disaffection with the electoral process.
Although a study isolating the effects that the Registration Form has had
on party registration might allow a fact-finder reasonably to infer that the
Registration Form has discouraged voters from registering with minor
parties, Plaintiffs have presented no such evidence here.
18 ARIZONA LIBERTARIAN PARTY V. REAGAN
issue] is rationally related to a legitimate state interest.”
Cronin, 620 F.3d at 1218 (quoting Munro, 31 F.3d at 763
(internal quotation marks omitted)).10 In evaluating the
constitutionality of such statutes, we may “look to any
conceivable interest promoted by the challenged procedures,
whether or not the state cited that interest in its briefs or in the
district court.” Munro, 31 F.3d at 763; see also Dudum, 640
F.3d at 1116 n.28 (noting that, in sustaining an election law
that did not impose a severe burden on constitutional rights,
the Supreme Court in Timmons v. Twin Cities Area New
Party, 520 U.S. 351 (1997), “expressly relied on a state
interest admittedly not advanced in its briefs, but mentioned
during oral argument”). Furthermore, we need not determine
whether the interests served by § 16-152(A)(5) can be better
served by other means: as we recently concluded, “when a
challenged rule imposes only limited burdens on the right to
vote, there is no requirement that the rule is the only or the
best way to further the proffered interests.” Dudum, 640 F.3d
at 1114.11 Finally, where, as here, the regulation at issue
10
Alternatively, we have stated that, in cases in which an election law
imposes a de minimis burden on constitutional rights, the challenged
procedures “survive review as long as they further a state’s important
regulatory interests.” Wash. State Republican Party v. Wash. State
Grange, 676 F.3d 784, 793-94 (9th Cir. 2012) (internal quotation marks
omitted) (emphasis added). In this context, we have used the terms
“legitimate” interests and “important regulatory” interests
interchangeably. See Cronin, 620 F.3d at 1217, 1218; Dudum, 640 F.3d
at 1114, 1116.
11
Although we have noted that there may be “instances where a burden
is not severe enough to warrant strict scrutiny review but is serious enough
to require an assessment of whether alternative methods would advance
the proffered governmental interests,” Dudum, 640 F.3d at 1114 n.27, for
the reasons set forth above, it is clear that § 16-152(A)(5) does not impose
ARIZONA LIBERTARIAN PARTY V. REAGAN 19
imposes only a slight burden on a party’s constitutional
rights, that party “bear[s] the burden of demonstrating that the
regulations [it] attack[s] have no legitimate rational basis.”
Munro, 31 F.3d at 763.12
Plaintiffs have failed to meet their burden. Section 16-
152(A)(5) is rationally related to Arizona’s legitimate interest
in ensuring that election official correctly register voters as
members of parties of their choosing. By providing
checkboxes for the two largest political parties, the
Registration Form reduces the potential that an election
official will incorrectly register a voter who wishes to affiliate
with one of the state’s two most prominent parties. Because
a serious enough burden on Plaintiffs’ constitutional rights to mandate this
kind of comparative analysis.
12
We apply Munro because it is binding on us and addresses situations,
like this one, in which the burden, if it exists at all, is vanishingly small.
We note, however, that Munro’s statements that we may consider
hypothetical rationales for a state’s election law, and that the plaintiff
alleging a de minimis burden must demonstrate the lack of a rational basis,
are in tension with some of our other cases and Supreme Court precedent.
See, e.g., Burdick, 504 U.S. at 434; Dudum, 640 F.3d at 1106, 1113–14.
We need not resolve that tension, however, because even under the
balancing of interests and burdens analysis, we would nonetheless reject
this challenge. First, as noted above, Plaintiffs failed to adduce evidence
of any burden at all; absent any burden, there is no reason to call on the
State to justify its practice. At most, Plaintiffs established a burden on
those wishing to register with a third party, limited to writing a word
rather than checking a box – assuredly not an infringement of
constitutional dimension. Second, the State’s rationale, which we below
hold justifies this law, is not hypothetical or manufactured by the court,
having been specifically articulated in its brief on appeal. Third, even if
the State bears the ultimate burden of persuasion with regard to the
justification of this law, we are persuaded, given the very slight burden
involved, that it survives constitutional scrutiny.
20 ARIZONA LIBERTARIAN PARTY V. REAGAN
the overwhelming majority of Arizona voters are registered
with one of the two major parties, the checkbox method
ensures that most voters will be able to participate in the
primary election of their choosing. See Ariz. Rev. Stat. § 16-
467 (providing that, in primary elections, voters who are
registered as a member of a political party shall be given “one
ballot only of the party with which the voter is affiliated”).
Ensuring that voters are able to participate in their preferred
party’s primary election is, at the very least, a legitimate state
interest. See Kusper v. Pontikes, 414 U.S. 51, 58 (1973)
(“Under our political system, a basic function of a political
party is to select the candidates for public office to be offered
to the voters at general elections. A prime objective of most
voters in associating themselves with a particular party must
surely be to gain a voice in that selection process.”).
Although election officials also have an interest in
correctly registering applicants who wish to associate with
smaller political parties, there are, as the State notes,
countervailing concerns about providing checkboxes for
smaller political parties that are not present with the two
largest parties. For example, smaller political parties lose
their status as recognized political parties under Arizona law
much more frequently than the major parties do. If Arizona
was required to provide checkboxes for all political parties
entitled to continuing ballot access, as Plaintiffs suggest, the
State would be required to change, and reprint, the
Registration Form each time a party lost, or gained,
continuing ballot access.13 Thus, § 16-152(A)(5) helps to
13
Indeed, just during the pendency of this appeal, the State would have
had to alter and replace such a Registration Form when the Green Party
lost its continuing ballot access, and change it again when the Green Party
regained access.
ARIZONA LIBERTARIAN PARTY V. REAGAN 21
ensure that election officials will easily be able to determine
the preferred party for most of Arizona’s voters in a manner
that the State has deemed to be cost efficient and less prone
to clerical error. This cost-benefit analysis is the kind of
judgment that the Legislature was entitled to make. See
Munro, 31 F.3d at 764 (“[B]ecause the current scheme poses
only a minuscule burden for minor party candidacies, the
Constitution does not require [the state] to adopt a system that
is the most efficient possible; it need only adopt a system that
is rationally related to achieving its goals.”); Lemons v.
Bradbury, 538 F.3d 1098, 1104 (9th Cir. 2008) (upholding
Oregon’s system for verifying that individuals who signed a
referendum because it reduced the state’s administrative
burden); Weber v. Shelley, 347 F.3d 1101, 1106 (9th Cir.
2003) (concluding that a state has a legitimate interest in
saving money).14
IV.
In sum, we conclude that Plaintiffs have failed to meet
their burden of demonstrating that § 16-152(A)(5) is not
rationally related to a legitimate state interest. Accordingly,
the judgment of the district court is
AFFIRMED.
14
The State also argues that § 16-152(A)(5) serves its interest of
“maintaining the stability of Arizona’s political system through a healthy
two-party system.” In light of our conclusion that § 16-152(A)(5) is
rationally related to the State’s legitimate interest in efficiently and
accurately determining most voters’ registration preference, we do not
address this assertion.
22 ARIZONA LIBERTARIAN PARTY V. REAGAN
Judge McKEOWN, Circuit Judge, concurring:
I concur in the panel’s judgment: Arizona’s voter
registration form passes constitutional muster. I write
separately because I believe the rational basis review and
burden-shifting standards articulated in Libertarian Party of
Washington v. Munro, 31 F.3d 759 (9th Cir. 1994), and
applied by the panel in this case, are inconsistent with the
Supreme Court’s approach to analyzing voting rights
challenges.
The majority opinion discusses at length how political
parties in Arizona gain access to the ballot and states that
“[t]he relevant inquiry ‘is whether “reasonably diligent”
minor party candidates can normally gain a place on the
ballot . . . .’” Maj. Op. at 14–15 (quoting Munro, 31 F.3d at
762). But this is not a ballot access case. This case focuses
instead on the state’s voter registration process, specifically
the form that lists only the two major political parties and
simply leaves a blank for a prospective voter to identify any
other party. This is, of course, a change from the prior voter
registration form that identified no specific parties and simply
provided a write-in line for party preference. The essence of
the minority parties’ claim is that they are burdened because
the revised form advantages the major parties. By not being
listed, the minority parties claim they are unable to compete
for voter registrations on an equal footing.1
1
In Anderson v. Celebrezze, the Supreme Court explicitly recognized
that state “schemes . . . govern[ing] the registration and qualification of
voters” can burden “the individual’s right to vote and his right to associate
with others for political ends.” 460 U.S. 780, 788 (1983). For example,
it would surely be unconstitutional for a state to sponsor voter registration
drives at Republican Party events, while refusing to do so at comparable
ARIZONA LIBERTARIAN PARTY V. REAGAN 23
The starting point for analyzing an election law challenge
is the Supreme Court’s opinion in Burdick v. Takushi,
504 U.S. 428 (1992). The Court succinctly stated the
applicable standard: “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.” Id. at 434 (internal
quotation marks and citations omitted).
In Munro, we summarized Burdick as follows: “If the
burden is severe, the challenged procedures will pass muster
only if they are narrowly tailored to achieve a compelling
state interest. If the burden is slight, the procedures will
survive review as long as they have a rational basis.” 31 F.3d
at 761 (citing, but not quoting, Burdick, 504 U.S. at 434).
According to Munro, in the event plaintiffs can only
demonstrate a “slight” or “de minimis” impairment of their
rights, they then bear “the burden of demonstrating that the
regulations they attack have no legitimate rational basis.” Id.
at 763. The panel recognizes that the standard articulated in
Munro is in tension with Supreme Court precedent, but
applies it nonetheless. Maj. Op. at 18–19 & n.12.
Neither rational basis review nor the burden-shifting
framework articulated in Munro is found in Burdick, nor in
any other Supreme Court voting rights decision since. The
Supreme Court has consistently employed language that
Democratic gatherings. The tacit encouragement alleged by the minority
parties here is of the same character, but of a different magnitude.
24 ARIZONA LIBERTARIAN PARTY V. REAGAN
rejects traditional rational basis review. In Crawford v.
Marion County Election Board, 553 U.S. 181 (2008), for
example, the Court wrote that there is no “litmus test for
measuring the severity of a burden that a state law imposes on
a political party, an individual voter, or a discrete class of
voters. However slight that burden may appear . . . it must be
justified by relevant and legitimate state interests ‘sufficiently
weighty to justify the limitation.’” Id. at 191 (quoting
Norman v. Reed, 502 U.S. 279, 288–89 (1992)).
This understanding of the Supreme Court’s approach to
analyzing voting rights cases is faithfully reflected in our
recent decision in Dudum v. Arntz, 640 F.3d 1098 (9th Cir.
2011). There, we concluded that San Francisco’s instant
runoff voting system imposed an “extremely limited
burden[]” on the plaintiffs. Id. at 1117. We nonetheless
evaluated whether the government’s purported interests were
“substantial enough to justify” that minimal burden. Id. at
1114–17. This language can be read as a variation on the
“sufficiently weighty” requirement. Other cases have
likewise eschewed resort to traditional rational basis analysis
when evaluating the constitutionality of laws that impose
“nonsevere burdens” on voting rights. See, e.g., Lemons v.
Bradbury, 538 F.3d 1098, 1104 (9th Cir.2008) (upholding
regulation imposing a “minimal burden on plaintiffs’ rights”
with respect to signature verification in the referendum
process); Rubin v. City of Santa Monica, 308 F.3d 1008, 1017
(9th Cir. 2002) (weighing the government’s “important
regulatory interest in predictable and administrable election
rules” against challenge to regulation on how candidates are
identified on the ballot). Indeed, neither party in this case
argued that rational basis review was the appropriate standard
for analyzing the minority parties’ claims.
ARIZONA LIBERTARIAN PARTY V. REAGAN 25
Munro, like the majority opinion, suffers another
deficiency—it places the burden on the plaintiffs vis-a-vis the
state’s purported interests. In a situation where there is only
a slight burden on a party’s constitutional rights, Munro
instructs that that party “bear[s] the burden of demonstrating
that the regulations [it] attack[s] have no legitimate rational
basis.” 31 F.3d at 763. This turns Burdick’s balancing
standard on its head and relieves the state of its burden of
putting forward “interests ‘sufficiently weighty to justify the
limitation.’” Crawford, 553 U.S. at 191 (quoting Norman,
502 U.S. at 288–89). It is no accident that in introducing the
balancing standard, the Court counseled lower courts that
they “must weigh the character and magnitude” of plaintiffs’
asserted injury “against the precise interests put forward by
the State.” Burdick, 504 U.S. at 434 (internal quotation
marks omitted).
It may well be that the semantic distinction between the
balancing test and the rational basis standard articulated in
Munro makes little difference in many cases. See Christopher
S. Elmendorf, Structuring Judicial Review of Electoral
Mechanics: Explanations and Opportunities, 156 U. Pa. L.
Rev. 313, 330 (2007) (“For now, suffice it to say that the
Supreme Court typically applies something like rational basis
review in [voting rights cases where the burden is nonsevere],
but that the rationality standard may not be quite so lax as the
one applied to ordinary economic and social legislation.”).
However, it is difficult to believe that the Supreme Court’s
articulation of the balancing standard represents anything
other than a deliberate choice to eschew traditional rational
basis review. The balancing standard instructs courts to be
vigilant in their review of rules and regulations that
disadvantage minority viewpoints. See Anderson, 460 U.S.
at 793 (1983) (“[I]t is especially difficult for the State to
26 ARIZONA LIBERTARIAN PARTY V. REAGAN
justify a restriction that limits political participation by an
identifiable political group whose members share a particular
viewpoint, associational preference, or economic status.”).
The balancing principle also recognizes that voting laws that
at first glance appear to be inconsequential may unfairly
distort election outcomes. See, e.g., Gould v. Grubb,
536 P.2d 1337, 1346 (Cal. 1975) (holding that it is
unconstitutional for a ballot to list candidates in alphabetical
order because it “reserves advantageous ballot positions for
candidates whose names begin with letters occurring early in
the alphabet”).
Any effort to apply the balancing standard to this case is
hamstrung by a lack of evidence. It is remarkable that both
parties rely principally on generalizations, i.e. a claimed
burden, or platitudes, i.e. efficiency, rather than evidence.
Other than the registration form itself and statistics that show
an ambiguous decline in voter registrations across all political
parties, the minority parties have not presented any evidence
that demonstrates the burden on their rights.2 Likewise, the
state has not even attempted to document the administrative
benefits of its voter registration form. Without any evidence
regarding the practical consequences of the voter registration
2
The majority states not only that the burden imposed by the voter
registration form is “de minimis,” but also that it is “assuredly not an
infringement of constitutional dimension.” Maj. Op. at 19 n.12. I
disagree. In the ballot context, the Supreme Court has specifically
recognized the burden imposed by requiring voters to write a word rather
than to check a box. Lubin v. Panish, 415 U.S. 709, 719 n.5. (“The
realities of the electoral process, however, strongly suggest that ‘access’
via write-in votes falls far short of access in terms of having the name of
the candidate on the ballot.”). It would be more accurate to state that any
burden is slight, not that it lacks a “constitutional dimension.”
ARIZONA LIBERTARIAN PARTY V. REAGAN 27
form, we find ourselves in the position of Lady Justice:
blindfolded and stuck holding empty scales.
In light of the poorly developed record in this case, I
conclude that the voter registration form passes constitutional
muster. The form is constitutional, however, not because the
minority parties have “failed to meet their burden” of
demonstrating it “ha[s] no legitimate rational basis,” Maj. Op.
at 19. Rather, the voter registration form is constitutional
because, even on the thin record we have before us, the
state’s asserted interests in reducing printing costs and easing
administrative efficiency are “sufficiently weighty to justify”
the speculative burden on the plaintiffs’ rights. See
Crawford, 553 U.S. at 191.
I recognize that Munro has never been officially overruled
or abrogated. However, in my view, to the extent Munro
prescribes a different standard than what the Supreme Court
articulated in Burdick and reiterated in Crawford, we should
fix it.