Arizona Green Party v. Michele Reagan , 838 F.3d 983 ( 2016 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ARIZONA GREEN PARTY; No. 14-15976
CLAUDIA ELLQUIST,
Plaintiffs-Appellants, D.C. No.
2:14-cv-00375-NVW
v.
MICHELE REAGAN, in her OPINION
official capacity as Secretary
of the State of Arizona,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Arizona
Neil V. Wake, District Judge, Presiding
Argued and Submitted May 11, 2016
San Francisco, California
Filed September 23, 2016
Before: M. Margaret McKeown and Michelle T. Friedland,
Circuit Judges, and Joan Lefkow, * District Judge.
Opinion by Judge McKeown
*
The Honorable Joan H. Lefkow, Senior District Judge for the U.S.
District Court for the Northern District of Illinois, sitting by designation.
2 ARIZONA GREEN PARTY V. REAGAN
SUMMARY **
Civil Rights
The panel affirmed the district court’s summary
judgment in favor of the Arizona Secretary of State in an
action brought under 42 U.S.C. § 1983 by the Arizona Green
Party and a supporter challenging the constitutionality of
Arizona’s filing deadline for new party petitions.
The Green Party asserted that by requiring new parties to
file recognition petitions 180 days before the primary,
Arizona unconstitutionally burdened those parties’ First and
Fourteenth Amendment rights.
Noting that the Green Party did not submit any
supporting evidence with its motion for summary judgment,
the panel held that the Green Party did not meet its burden
of showing that Arizona’s 180-day petition-filing deadline
significantly burdened its constitutional rights. The panel
further held that the Secretary demonstrated that the
restriction served Arizona’s important interest in
administering orderly elections.
**
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 GREEN PARTY V. REAGAN 3
COUNSEL
Julia Damron (argued) and Robert E. Barnes, Los Angeles,
California, for Plaintiffs-Appellants.
James Driscoss-MacEachron (argued), Deputy State
Attorney General; Office of the Arizona Attorney General,
Phoenix, Arizona; for Defendant-Appellee.
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,
1
Although much of the Green Party’s brief is dedicated to a
historical discussion of third parties in presidential elections, the Arizona
rules governing the presidential election cycle are not at issue here. See
Ariz. Rev. Stat. § 16-341(G) (“A nomination petition for the office of
presidential elector shall be filed not less than sixty nor more than ninety
days before the general election.”).
2
The term “new” party is something of a misnomer because parties
that use this mechanism for ballot recognition need not be newly formed.
For example, the Arizona Green Party has existed for many years but is
still treated as a “new” party. Although a more accurate term would be
“small,” “minor” or “third” party, we follow the terminology in
Arizona’s statute.
4 ARIZONA GREEN PARTY V. REAGAN
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
ARIZONA GREEN PARTY V. REAGAN 5
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
6 ARIZONA GREEN PARTY V. REAGAN
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
3
At oral argument, counsel for the Secretary explained that the
restrictions listed in § 16-341 prohibit independent candidates from
circumventing the rules for county or municipal party recognition or for
continued recognition under § 16-804, but that there was “no limit that I
see that would stop” an independent candidate from designating the
Green Party as its political affiliation on the general election ballot.
ARIZONA GREEN PARTY V. REAGAN 7
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);
4
Before the new party petition deadline was amended in 2000, the
deadline was 140 days before the primary. Ariz. Rev. Stat. § 16-803(2000). In 2011 and 2012, the Arizona legislature again amended § 16-
803 to shift part of the task of verifying signatures from the counties to
the Secretary, but the 180-day deadline remained the same. Id. (2011)
(amended by S.B. 1471); id. (2012) (amended by H.B. 2033).
8 ARIZONA GREEN PARTY V. REAGAN
$ 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.
ARIZONA GREEN PARTY V. REAGAN 9
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 (1992) (quoting Moore v. Ogilvie, 394
U.S. 814, 816 (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 (1983), and
Burdick v. Takushi, 504 U.S. 428 (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. In passing judgment, the
10 ARIZONA GREEN PARTY V. REAGAN
Court must not only determine the legitimacy
and strength of each of those interests; it also
must consider the extent to which those
interests make it necessary to burden the
plaintiff’s rights. Only after weighing all
these factors is the reviewing court in a
position to decide whether the challenged
provision is unconstitutional.
460 U.S. at 789. In Burdick, the Court refined its analysis as
to the degree of rigor required in weighing a restriction’s
burden on ballot access rights against the state’s interest:
[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. Thus, as we have recognized when
those rights are subjected to severe
restrictions, the regulation must be narrowly
drawn to advance a state interest of
compelling importance. But when a state
election law provision imposes only
reasonable, nondiscriminatory restrictions
upon the First and Fourteenth Amendment
rights of voters, the State’s important
regulatory interests are generally sufficient to
justify the restrictions.
504 U.S. at 434 (internal quotations and citation omitted).
We have summarized the Supreme Court’s approach as
a “balancing and means-end fit framework.” Pub. Integrity
All., Inc. v. City of Tucson, — F.3d —, 2016 WL 4578366,
at *3 (9th Cir. 2016) (en banc). This is a sliding scale test,
where the more severe the burden, the more compelling the
ARIZONA GREEN PARTY V. REAGAN 11
state’s interest must be, such that “a state may justify
election regulations imposing a lesser burden by
demonstrating the state has important regulatory interests.”
Ariz. Libertarian Party v. Reagan, 798 F.3d 723, 729–30
(9th Cir. 2015), cert. denied, 136 S. Ct. 823 (2016) (internal
citations, alterations, and quotation marks omitted).
III. Burdens on Ballot Access
We begin by acknowledging the importance of third
parties and the constitutional interests implicated by limiting
their access to the ballot. As the Supreme Court emphasized
in Norman:
[T]he constitutional right of citizens to create
and develop new political parties . . . . derives
from the First and Fourteenth Amendments
and advances the constitutional interest of
like-minded voters to gather in pursuit of
common political ends, thus enlarging the
opportunities of all voters to express their
own political preferences. To the degree that
a State would thwart this interest by limiting
the access of new parties to the ballot, we
have called for the demonstration of a
corresponding interest sufficiently weighty to
justify the limitation.
502 U.S. at 288–89 (internal citations omitted).
These principles led the Court to strike down a series of
Ohio laws that made it virtually impossible for any party
other than the Democratic and Republican parties to appear
on the ballot. As the Court observed, “[t]he right to form a
party for the advancement of political goals means little if a
party can be kept off the election ballot and thus denied an
12 ARIZONA GREEN PARTY V. REAGAN
equal opportunity to win votes.” Williams v. Rhodes,
393 U.S. 23, 31 (1968).
More specifically, the Supreme Court, and many lower
courts, have recognized that—in general—timing obstacles
can pose unconstitutional barriers to ballot access:
When the primary campaigns are far in the
future and the election itself is even more
remote, the obstacles facing an independent
candidate’s organizing efforts are
compounded. Volunteers are more difficult
to recruit and retain, media publicity and
campaign contributions are more difficult to
secure, and voters are less interested in the
campaign.
Anderson, 460 U.S. at 792; see also Libertarian Party of
Ohio v. Blackwell, 462 F.3d 579, 586–87 (6th Cir. 2006)
(“Deadlines early in the election cycle require minor
political parties to recruit supporters at a time when the
major party candidates are not known and when the populace
is not politically energized. . . . Early deadlines also have the
effect of ensuring that any contentious issue raised in the
same year as an election cannot be responded to by the
formation of a new political party. The combination of these
burdens impacts the party’s ability to appear on the general
election ballot, and thus, its opportunity to garner votes and
win the right to govern.” (internal citations omitted)). For
all of these reasons, we can imagine how an early filing
deadline could impact the Green Party’s rights, but that does
not mean that Arizona’s deadline necessarily poses an
unconstitutional burden.
The relevant inquiry is whether “[the state]’s ballot
access requirements seriously restrict the availability of
ARIZONA GREEN PARTY V. REAGAN 13
political opportunity.” Libertarian Party of Wash. v. Munro,
31 F.3d 759, 762 (9th Cir. 1994). The Green Party bears the
initial burden of showing such restrictions. See id. In
Munro, we made clear that parties alleging a severe burden
must provide evidence of the specific burdens imposed by
the law at issue. See id. “[T]he extent of the burden that a
primary system imposes . . . is a factual question on which
the plaintiff bears the burden of proof.” Democratic Party of
Haw. v. Nago, — F.3d —, 2016 WL 4269872, at *2 (9th Cir.
2016). In challenging ballot access regulations, parties must
articulate the nature of the burden, which “should be
measured by whether, in light of the entire statutory scheme
regulating ballot access, ‘reasonably diligent’ [parties] can
normally gain a place on the ballot, or whether they will
rarely succeed in doing so.” Nader v. Brewer, 531 F.3d
1028, 1035 (9th Cir. 2008) (internal citations omitted).
In its complaint, the Green Party alleges that the
February deadline greatly increases costs faced by third
parties, was not designed to allow a reasonably diligent
minor party to qualify for ballot access, and requires minor
parties to gather signatures when the “mind of the general
public and the attention of the media is not focused on the
general elections.” These may well be legitimate
complaints, but the Green Party did not submit any
supporting evidence with its motion for summary judgment.
Instead, the Party chose to argue that the deadline was
unconstitutional as a matter of law. As a result, “[a]ny effort
to apply the balancing standard to this case is hamstrung by
a lack of evidence. . . . Without any evidence regarding the
practical consequences of the [deadline], we find ourselves
in the position of Lady Justice: blindfolded and stuck
holding empty scales.” Ariz. Libertarian Party, 798 F.3d at
736 (McKeown J., concurring) (internal citations omitted).
14 ARIZONA GREEN PARTY V. REAGAN
For example, we do not know how difficult it was for the
Green Party to collect the required signatures, how much the
signature-gathering effort cost, whether petition efforts
diverted the Party’s resources from other endeavors, whether
the “mind of the general public” was diverted from the
election at the time the Party sought to collect signatures,
how difficult it has been for new parties to comply with the
deadline historically, or even if the Party attempted to
comply with the deadline at all. Without evidence, the
burdens identified in the Green Party’s complaint are purely
speculative.
In the absence of specifics, the Green Party relies heavily
on a district court decision holding an Arkansas filing
deadline unconstitutional. See Citizens to Establish a Reform
Party in Ark. v. Priest, 970 F. Supp 690 (E.D. Ark. 1996).
Unlike the Green Party, the Arkansas Reform Party
presented considerable testimony about the burdens of the
deadline, including the analysis of two experts in minor
political parties and ballot access. Id. at 694. For example,
the plaintiffs presented testimony that “[t]hey experienced
difficulty collecting petition signatures in the winter time
due to cold temperatures and inclement weather,” id. at 692,
circumstances that would likely not impair signature
gathering in early winter in most parts of Arizona. The
extensive evidence provided in Priest stands in stark contrast
to the bare record here.
Analogy and rhetoric are no substitute for evidence,
particularly where there are significant differences between
the cases the Green Party relies on and the Arizona election
system it challenges. The Supreme Court and our sister
circuits have emphasized the need for context-specific
analysis in ballot access cases. See Cal. Democratic Party
v. Jones, 530 U.S. 567, 578 (2000) (“The evidence in this
ARIZONA GREEN PARTY V. REAGAN 15
case demonstrates that under California’s blanket primary
system, the prospect of [harm] is far from remote—indeed,
it is a clear and present danger.” (emphasis added));
Blackwell, 462 F.3d at 587 (“In determining the magnitude
of the burden imposed by a state’s election laws, the
Supreme Court has looked to the associational rights at issue,
including whether alternative means are available to exercise
those rights; the effect of the regulations on the voters, the
parties and the candidates; evidence of the real impact the
restriction has on the process; and the interests of the state
relative to the scope of the election.” (emphasis added));
Nago, 2016 WL 4269872, at *2 (“Because the . . . Party has
not presented any evidence to meet its burden, its facial
challenge fails.”).
The balancing test rests on the specific facts of a
particular election system, not on “strained analog[ies]” to
past cases. Munro, 31 F.3d at 762. That filing deadlines of
similar lengths may prove unconstitutionally burdensome in
the context of some election schemes does not eliminate the
need for evidence that a severe burden was imposed by the
filing deadline in this case. See id. (“The problem . . . is that,
while the [Party] claim[s] to suffer exactly the same
disabilities that the Court found unconstitutional in
Anderson, [its] situation is vastly different.”). This is not to
say that in a most unusual circumstance a ballot regulation
could not be deemed unconstitutional on its face without
further evidence. But such is not the case here.
The Green Party cannot prevail by “simply parrot[ing]
the language of [earlier cases] without demonstrating how it
actually applies to [the challenged] scheme.” Id. at 763.
Significantly, we explained in Nader that “[t]o determine the
severity of the burden, . . . past candidates’ ability to secure
a place on the ballot can inform the court’s analysis” of
16 ARIZONA GREEN PARTY V. REAGAN
whether a state election law passes constitutional muster.
531 F.3d at 1035; id. at 1038 (finding a severe burden where
historical evidence showed that after changing the filing
deadline, no independent candidate had appeared on the
ballot). Here, recent historical evidence shows that non-
major parties, including the Green Party, have been able to
gain official party recognition in Arizona despite the 180-
day filing deadline. What little evidence we do have
therefore suggests that Arizona’s deadline does not severely
burden constitutional rights.
Absent evidence of the particular burdens imposed in
this case, we conclude that, at best, the 180-day petition-
filing deadline imposes a de minimis burden on
constitutional rights.
IV. Arizona’s Legitimate Interest
Because the record demonstrates that the filing deadlines
imposes no more than a de minimis burden on the Green
Party’s constitutional rights, Arizona need only demonstrate
that the filing deadline serves “important regulatory
interests.” Burdick, 504 U.S. at 434 (internal quotations
omitted). The evidence Arizona presented more than
satisfied this burden.
Unlike the Green Party, the Secretary presented
substantial evidence that details the processes for ballot
access and the rationale behind each step in the timeline at
each stage of the election process. The nested deadlines
leading up to the Arizona primary, as well as the tasks that
must be accomplished between the primary and general
election, reflect an effort by the state to achieve the
important goal of orderly elections. For example, the
number of required signatures for independent candidate
petitions depends on the number of registered voters who are
ARIZONA GREEN PARTY V. REAGAN 17
not affiliated with a recognized party. For this reason, the
state must know how many recognized parties will appear
on the ballot before setting the candidate signature
requirements, at which point candidates have two months to
collect signatures. As Arizona’s Assistant State Election
Director explained, “[i]f the petition deadline to obtain
recognized party status were moved to a later date, new party
candidates would have little or no meaningful opportunity to
obtain the requisite number of signatures to qualify for the
party’s primary ballot.” She also noted that in late May,
Arizona counties mail a list of recognized political parties
holding primaries in a particular election to the more than
1.9 million early registered voters, and that adding additional
parties after the mailing deadline could therefore impose
considerable burdens on the counties and lead to voter
confusion. Also, in preparation for the primary, ballots must
be translated into Spanish and several Native American
languages, a process that takes time. (See above for the
statutory scheme regulating the pre-election deadlines). 5
Even if Arizona could “streamline its system” and
prepare for the primary in a shorter period of time, it is not
required to “adopt a system that is the most efficient
possible.” Munro, 31 F.3d at 764. On this record, we
conclude that Arizona’s filing deadline serves “important
regulatory interests,” Burdick, 504 U.S. at 434, that
outweigh any de minimis burden the deadline may impose
on the Green Party’s rights.
5
The Green Party does not challenge the time allotted for candidates
to collect signatures, the time needed to print and distribute ballots, or
any of the other interconnected deadlines leading up to the primary.
18 ARIZONA GREEN PARTY V. REAGAN
CONCLUSION
The Green Party has not met its burden of showing that
Arizona’s 180-day petition-filing deadline significantly
burdens constitutional rights, while the Secretary has
demonstrated that the restriction serves Arizona’s important
interest in administering orderly elections. The district court
therefore correctly granted summary judgment in favor of
the Secretary.
AFFIRMED.