Arizona Libertarian Party v. Katie Hobbs

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ARIZONA LIBERTARIAN PARTY; No. 17-16491
MICHAEL KIELSKY,
Plaintiffs-Appellants, D.C. No.
2:16-cv-01019-
v. DGC
KATIE HOBBS, in her official
capacity as Secretary of State of OPINION
Arizona,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Arizona
David G. Campbell, District Judge, Presiding
Argued and Submitted March 12, 2019
San Francisco, California
Filed May 31, 2019
Before: J. Clifford Wallace, A. Wallace Tashima, and
M. Margaret McKeown, Circuit Judges.
Opinion by Judge McKeown
2 ARIZ. LIBERTARIAN PARTY V. HOBBS
SUMMARY *
Civil Rights / Elections
The panel affirmed the district court’s summary
judgment in favor of Arizona’s Secretary of State in an
action brought by the Arizona Libertarian Party challenging,
under the First and Fourteenth Amendments, a state law
requiring up to 1% of voters eligible to participate in
Arizona’s primary to sign a nominating petition for a
Libertarian candidate to earn a place on the primary ballot.
Applying the balancing framework set forth in Anderson
v. Celebrezze, 460 U.S. 780 (1983), and Burdick v. Takushi,
504 U.S. 428 (1992), the panel first held that the State’s
signature requirement imposed a minimal burden on the
Libertarian Party’s right to access the primary ballot.
Accordingly, the panel determined that a less exacting
scrutiny was appropriate. The panel concluded that
Arizona’s signature requirements reasonably furthered
Arizona’s regulatory interest in preventing voter confusion,
ballot overcrowding, and frivolous candidacies and justified
the modest burden on the Libertarian Party’s right to ballot
access.
The panel rejected the Libertarian Party’s contention that
the Arizona law infringed upon its right to free association
by effectively requiring its candidates to solicit signatures
from non-members. The panel held that any burden on the
Libertarian Party’s associational freedom was modest, and
*
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
ARIZ. LIBERTARIAN PARTY V. HOBBS 3
again applying less exacting scrutiny, the panel credited
Arizona’s important interests to justify the reasonable
requirements.
The panel further rejected the Libertarian Party’s
contention that Arizona’s signature requirement violated
equal protection, noting that the Libertarian, Democratic,
and Republican Parties were all subject to the same statutory
requirements. The panel observed no equal protection issue
in Arizona’s treatment of the Green Party, a new party that
was subject to different statutory requirements.
COUNSEL
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.
OPINION
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
4 ARIZ. LIBERTARIAN PARTY V. HOBBS
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 signatures 2
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
1
The Libertarian Party satisfies the voter registration requirement,
and the Democratic and Republican Parties satisfy both requirements.
As of January 1, 2019, Arizona had 1.31 million registered Republicans,
1.17 million registered Democrats, and 32,056 registered Libertarians.
Ariz. Sec. of State, Voter Registration & Historical Election Data,
https://azsos.gov/elections/voter-registration-historical-election-data
(last visited May 7, 2019).
2
A voter may only sign one nominating petition per office per
election, unless more than one candidate is to be elected to that office.
Ariz. Rev. Stat. § 16-321(A).
ARIZ. LIBERTARIAN PARTY V. HOBBS 5
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
3
As of January 1, 2019, Arizona had 1.25 million unaffiliated
registered voters. Ariz. Sec. of State, Voter Registration & Historical
Election Data, https://azsos.gov/elections/voter-registration-historical-
election-data (last visited May 7, 2019).
6 ARIZ. LIBERTARIAN PARTY V. HOBBS
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
4
As of January 1, 2019, the Green Party had 6,450 registered
members in Arizona. Ariz. Sec. of State, Voter Registration & Historical
Election Data, https://azsos.gov/elections/voter-registration-historical-
election-data (last visited May 7, 2019).
5
A state may not keep a party from welcoming unaffiliated voters
to participate in its primary, Tashjian v. Republican Party of Conn.,
479 U.S. 208, 213–29 (1986), though it may prohibit party members
from participating in another party’s primary. Clingman v. Beaver,
544 U.S. 581, 586–97 (2005).
ARIZ. LIBERTARIAN PARTY V. HOBBS 7
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 ballot 6 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.
6
The Libertarian Party also contends that the statute violates its right
to create and establish a political party. See Norman v. Reed, 502 U.S.
279, 288 (1992). This claim merely recites the right to access the ballot
claim, and it fails for the same reasons. See infra pp.9–14.
7
The Libertarian Party also appeals the district court’s exclusion of
certain evidence. That issue is moot because summary judgment for the
Secretary is warranted even if we consider the excluded evidence.
8 ARIZ. LIBERTARIAN PARTY V. HOBBS
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 (1974).
To harmonize these competing demands, we look to
Anderson v. Celebrezze, 460 U.S. 780 (1983), and Burdick
v. Takushi, 504 U.S. 428 (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 (quoting Anderson, 460 U.S.
at 789). 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. 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 (1997) (quoting Burdick, 504 U.S. at 434).
ARIZ. LIBERTARIAN PARTY V. HOBBS 9
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
(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; see Jenness, 403 U.S. at 442; Williams
v. Rhodes, 393 U.S. 23, 24–25 (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
10 ARIZ. LIBERTARIAN PARTY V. HOBBS
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, significantly circumscribed pool?
The Supreme Court has never expressly answered this
question, but its framework in ballot access cases is
instructive. The state laws challenged in Norman, Jenness,
and Williams required candidates and parties seeking
placement on the general election ballot to submit signatures
from registered voters equaling a designated percentage of
the general election electorate. 8 The Court’s approach in
these cases was straightforward: it determined whether the
required signatures represented a reasonable share of the
voters eligible to participate in the upcoming election. See
Norman, 502 U.S. at 295; Jenness, 403 U.S. at 438–40, 442;
Williams, 393 U.S. at 24–25, 30–34. In American Party of
Texas 9 and Storer, the state laws imposed similar
requirements, with an additional limitation: a voter who
participated in another party’s primary or convention or
signed another candidate’s petition was ineligible to sign a
nominating petition. 10 In both cases, the Court determined
whether the required signatures represented a reasonable
8
The laws challenged in Norman and Williams approximated the
electorate by reference to the number of voters who participated in the
preceding general election. Norman, 502 U.S. at 282 n.2; Williams,
393 U.S. at 24–25. The law challenged in Jenness approximated the
electorate by reference to the number of registered voters during the
previous general election. 403 U.S. at 432–33.
9
Am. Party of Tex. v. White, 415 U.S. 767 (1974).
10
Like the laws challenged in Norman and Williams, those at issue
in American Party of Texas and Storer approximated the electorate by
reference to the number of voters who participated in the preceding
general election. Am. Party, 415 U.S. at 774–75 & nn.6–7; Storer,
415 U.S. at 726–27, 739–40.
ARIZ. LIBERTARIAN PARTY V. HOBBS 11
share of the “available pool” of signers, i.e., voters who had
not disqualified themselves by participating in another
primary or convention or by signing a previous petition.
Storer, 415 U.S. at 739–40; see Am. Party, 415 U.S. at 774–
91.
In each of these cases, the Court asked whether the
required signatures constituted an unfairly large percentage
of those voters eligible under state law to offer their
signatures. There was no adjustment to account for the
significant portion of this pool comprised of registered
members of other parties, many of whom, it can be
reasonably presumed, were unlikely to help nominate a
competing candidate or party. Nor was there any suggestion
that a candidate should be limited to seeking signatures from
voters who have already pledged their support to the
candidate or his party or cause. Rather, the Court time and
again affirmed that requiring a demonstration of “significant,
measurable quantum of community support” does not
impose a severe burden. Am. Party, 415 U.S. at 782.
We invoked a similar analysis in Nader v. Cronin,
620 F.3d 1214, 1217 (9th Cir. 2010). And we do so again
here. Arizona law permits all qualified signers— Libertarian
Party members, new party members, and registered
unaffiliated voters—to sign a Libertarian candidate’s
nominating petition and to vote in the Libertarian primary.
However, qualified signers who already signed another
candidate’s nominating petition are excluded from the
“available pool” of voters able to sign a Libertarian
candidate’s petition.
No evidence suggests that, in practice, the statute’s (at
most) 1% signature requirement even approaches 5% of this
remaining pool of eligible signers. It falls upon the
Libertarian Party to demonstrate that Arizona imposes a
12 ARIZ. LIBERTARIAN PARTY V. HOBBS
severe burden, and it has failed to do so here. The party’s
policy choice to exclude all non-members from its primary
and its preference to obtain signatures only from party
members do not change the calculus. To hold otherwise
would permit a party to determine the number of signatures
required by manipulating its nominating petition and
primary voting requirements. At the same time, the
Libertarian Party’s proposed rule would incentivize parties
to have fewer registered members and therefore artificially
reduce the signature requirements. Just as important: where,
in this scheme, is the offensive state action? There is no
question that the signature requirement would be
constitutional if the Libertarian Party permitted non-
members to vote in its primary. A political party cannot
manipulate its internal preferences and processes to
transform a constitutional statute into an unconstitutional
one. 11
Crucially, Arizona law does not impose any other
requirements, such as a strict time period for signature
collection, that might nonetheless render the 1% requirement
“an impossible burden” or “an impractical undertaking.”
Storer, 415 U.S. at 740 (requiring 1,000 canvassers to collect
14 signatures each day for 24 days likely imposes a modest
burden); see Clingman, 544 U.S. at 589–90 (limiting a
party’s internal structure, decision-making processes, and
ability to communicate with the electorate likely imposes a
11
Neither of the cases cited by the Libertarian Party persuades us
otherwise. One addressed a law that made it “impossible either
absolutely . . . or practically” for a candidate to meet a signature
requirement. See Consumer Party v. Davis, 633 F. Supp. 877, 883 (E.D.
Pa. 1986). The other struck down signature requirements because they
imposed disparate requirements on similarly situated parties that were,
the state conceded, impossible to justify. In re Candidacy of Indep. Party
Candidates v. Kiffmeyer, 688 N.W.2d 854, 859–61 (Minn. 2004).
ARIZ. LIBERTARIAN PARTY V. HOBBS 13
severe burden); Timmons, 520 U.S. at 363 (same); Anderson,
460 U.S. at 790–94 (requiring an independent candidate to
file several months before party conventions imposes severe
burden); Am. Party, 415 U.S. at 778–81 (requiring all
signatures to be notarized and submitted in 55-day period
does not impose severe burden); Jenness, 403 U.S. at 434,
438 (permitting 180 days for collection of nominating
signatures and requiring submission of signatures five
months before election does not impose severe burden);
Williams, 393 U.S. at 24–25 & n.1 (conditioning minor
party’s ballot access on formation of statewide and county-
level party committees, participation in a national party
convention, and submission of nominating signatures by an
early deadline exclusively from voters who never voted in a
previous election imposes significant burden). To the
contrary, Arizona permits candidates to solicit and submit
signatures through an easy-to-use and streamlined online
portal. A candidate collecting hand-written signatures must,
in practice, collect more than the minimum number of
signatures required because, inevitably, some will be
deemed ineligible. In contrast, signatures submitted through
the online portal are instantaneously verified, thereby
reducing the need to submit signatures above the threshold.
The limited evidence describing the Libertarian Party’s
modest efforts to mobilize voters and several candidates’
unsuccessful write-in campaigns fails to establish that, in
practice, Arizona law “imposes insurmountable obstacles”
to getting on the primary ballot. Am. Party, 415 U.S. at 784.
Nor does the simple fact that the Libertarian Party had more
candidates on past primary and general election ballots
reflect such an obstacle under the amended rules. See Munro
v. Socialist Workers Party, 479 U.S. 189, 196–97 (1986).
Accordingly, we apply “less exacting” scrutiny because
Arizona law imposes a minimal burden on the Libertarian
14 ARIZ. LIBERTARIAN PARTY V. HOBBS
Party’s right to access the primary ballot. Timmons,
520 U.S. at 358; see Cronin, 620 F.3d at 1218.
We now turn to whether Arizona has an “important
regulatory interest” that justifies this modest burden.
Timmons, 520 U.S. at 358 (quoting Burdick, 504 U.S.
at 434). Arizona’s asserted interests in preventing voter
confusion, ballot overcrowding, and frivolous candidacies
are important interests that have justified equally, if not
more, burdensome general election ballot restrictions. See
Munro, 479 U.S. at 194–95. These interests are also
important in the primary context, given the “obvious and
strong interconnection” between primary and general
elections, which together operate as a “single instrumentality
for choice of officers.” Pub. Integrity All., Inc. v. City of
Tucson, 836 F.3d 1019, 1026 (9th Cir. 2016) (quoting Smith
v. Allwright, 321 U.S. 649, 660 (1944)); see Storer, 415 U.S.
at 735 (A primary election “functions to winnow out and
finally reject all but the chosen candidates.”). Conditioning
primary ballot placement on a demonstration of significant
community support advances Arizona’s interests in the
administration of its primary and general elections. See
Anderson, 460 U.S. at 788–89; see also Jenness, 403 U.S.
at 442; Munro, 479 U.S. at 193–94.
Because we neither require “a particularized showing of
the existence of voter confusion, ballot overcrowding, or the
presence of frivolous candidacies,” Munro, 479 U.S. at 194–
95, nor proof that ballot rules are “the only or the best way
to further the proffered interests,” Dudum v. Arntz, 640 F.3d
1098, 1114 (9th Cir. 2011), Arizona has easily met its
burden. The primary signature requirements reasonably
further Arizona’s important regulatory interests and
therefore justify a modest burden on the Libertarian Party’s
right to ballot access.
ARIZ. LIBERTARIAN PARTY V. HOBBS 15
III. Right to Free Association
The Libertarian Party contends that Arizona law
infringes upon its right to free association by effectively
requiring its candidates to solicit signatures from non-
members. Although the Constitution protects a political
party’s right to not associate with non-members, that right
has its limits. U.S. Civil Serv. Comm’n v. Nat’l Ass’n of
Letter Carriers, AFL-CIO, 413 U.S. 548, 567 (1973). We
first ask whether Arizona in any way “forces” the Libertarian
Party to associate with non-members. Cal. Democratic
Party v. Jones, 530 U.S. 567, 577, 581–82, 586 (2000). If
so, we then consider whether such forced association creates
a “risk that nonparty members will skew either primary
results or candidates’ positions.” Ariz. Libertarian Party,
Inc. v. Bayless, 351 F.3d 1277, 1282 (9th Cir. 2003). We
answer both questions in the negative.
Unlike the state laws at issue in Jones and Bayless,
Arizona law permits political parties to exclude non-
members from voting in their primaries. At their option,
Libertarian candidates may use signatures from non-party
members to qualify for the primary ballot—but Arizona law
does not require them to do so. Soliciting non-member
signatures would seemingly prove helpful in placing more
candidates on the primary ballot, but it is the Libertarian
Party’s modest membership, not a “state-imposed restriction
on [its] freedom of association,” that imposes upon it this
“hard choice.” Jones, 530 U.S. at 584. 12
12
In Jenness, the Supreme Court noted that, for an independent or
minor party candidate seeking “signatures of 5% of the eligible
electorate[,] . . . the way is open [because] Georgia imposes no
suffocating restrictions whatever upon the free circulation of nominating
16 ARIZ. LIBERTARIAN PARTY V. HOBBS
We acknowledge, without deciding, that there may be
some point where the ratio between party members and
required signatures constitutes de facto forced association
with non-members. For example, if the signature
requirement exceeded the number of party members, then a
candidate necessarily would, as a matter of arithmetic, have
to solicit non-member signatures to qualify for the ballot.
But we face no such situation here. Libertarian candidates
can qualify for the primary ballot with signatures from 11%
to 30% of party members in their jurisdictions, and no
evidence suggests it is impossible to do so as a practical
matter. Even if collecting these signatures is difficult, we
expect “[h]ard work and sacrifice by dedicated volunteers”
in the operation of “any political organization.” Am. Party,
415 U.S. at 787. Such expectations do not in any way
“force” Libertarian candidates or voters to associate with
non-members.
Nor has the Libertarian Party demonstrated that the
solicitation and submission of some non-member signatures
“will skew either primary results or candidates’ positions.”
Bayless, 351 F.3d at 1282. We decline to embrace such a
speculative conclusion. Any burden on the Libertarian
Party’s associational freedom is modest, so we again apply
less exacting scrutiny and, as above, credit Arizona’s
important interests to justify these reasonable requirements.
See Timmons, 520 U.S. at 358.
petitions.” 403 U.S. at 438. The Court identified various limitations on
signature collection that could be, but were not, imposed under Georgia
law. Id. at 438–39. That a minor party candidate would likely obtain
signatures from non-party members was presupposed by the Court, not
as a bug of this system, but as a positive feature. Id.
ARIZ. LIBERTARIAN PARTY V. HOBBS 17
IV. Equal Protection
Finally, the Libertarian Party contends that the signature
requirements violate equal protection because they impose
lesser burdens on other parties. 13 The Libertarian,
Democratic, and Republican Parties are all established
parties subject to the same statutory requirements.
Although, on its face, Arizona law treats them identically,
we look to see whether the requirements provide “a real and
essentially equal opportunity for ballot qualification.” Am.
Party, 415 U.S. at 788. That standard is clearly satisfied
here. A Libertarian candidate vying for the primary ballot
actually faces a significantly lower burden than his
Democratic and Republican counterparts. For example, a
statewide Libertarian candidate needs to submit
approximately 3,200 signatures, compared to 6,000 and
6,400 signatures for the Democratic and Republican
competitors, respectively. See Ariz. Rev. Stat.
§ 16-322(A)(1); Ariz. Sec. of State, Voter Registration &
Historical Election Data, https://azsos.gov/elections/voter-
registration-historical-election-data (last visited May 7,
2019). 14
That a Libertarian candidate must submit signatures
representing a higher percentage of his party membership
than a Democratic or Republican candidate is a consequence
13
Despite their differences, we assume, without deciding, that the
Libertarian Party is similarly situated to the Democratic, Republican, and
Green Parties and that the Equal Protection Clause applies. See Cronin,
620 F.3d at 1218.
14
Of course, the signature ratio between parties varies within each
political subdivision, as voters are not perfectly distributed throughout
the state. The statewide figures are sufficiently representative for our
purposes.
18 ARIZ. LIBERTARIAN PARTY V. HOBBS
of the Libertarian Party’s modest size, not a fatal flaw of the
statutory scheme. The Supreme Court has indicated that an
analogous imbalance lacks constitutional significance. In
Illinois State Board of Elections v. Socialist Workers Party,
the Court struck down on equal protection grounds a state
law requiring local candidates to submit substantially more
signatures to qualify for the ballot than statewide candidates.
440 U.S. 173, 186–87 (1979). The remedy: imposing the
same, 25,000 signature requirement for both local and
statewide candidates, even though the eligible voter pool for
statewide candidates was six times larger than for certain
local candidates. See id. at 183–87. If such an outcome
comports with equal protection, then surely so does the
situation here.
Even if we assume that the signature requirements
impose a marginally higher burden on the Libertarian Party,
that additional burden is far from severe. Cf. Williams,
393 U.S. at 25 (striking down state law that imposed
“substantially smaller burdens” on certain parties, while
making it “virtually impossible” for others to place a
candidate on the ballot). Under less exacting scrutiny, we
again conclude that the same important regulatory interests
justify the signature requirements. In setting the threshold
for a “significant modicum of support,” Jenness, 403 U.S. at
442, a state must use either an absolute number of voters or
a percentage of some group. Not only is it mathematically
impossible to craft a statute where the burden on each party
is identical under both measurements, Arizona has no
obligation to seek such precision. See Dudum, 640 F.3d
at 1114 (recognizing regulations need not be “narrowly
tailored”). Nor was Arizona required to replicate or fold in
the preexisting burdens on each party when it amended the
ballot access rules in 2015. Cf. Ohio Democratic Party v.
Husted, 834 F.3d 620, 623 (6th Cir. 2016) (rejecting an
ARIZ. LIBERTARIAN PARTY V. HOBBS 19
argument “creat[ing] a ‘one-way ratchet’ that would
discourage states from” increasing ballot access, “lest they
be prohibited by federal courts from later modifying their
election procedures in response to changing
circumstances”). Arizona’s choice to set the threshold as a
percentage of qualified signers for each established party
was neither discriminatory nor unreasonable.
Arizona opted to apply these signature requirements for
all parties that have a significant membership and therefore
exempt such parties from the quadrennial party-wide re-
certification requirements imposed on new parties. This
policy affords significant benefits to all established parties
and furthers the state’s interests in avoiding voter confusion,
minimizing clutter on the primary and general ballots, and
eliminating frivolous candidacies. 15
We likewise observe no equal protection issue in
Arizona’s treatment of the Green Party, a new party subject
to different statutory requirements. When, as here, we
“examin[e] differing treatments of [different types of
political parties], . . . [i]n determining the nature and
magnitude of the burden that [the state’s] election
procedures impose on the [complaining party], we must
examine the entire scheme regulating ballot access.”
Cronin, 620 F.3d at 1217 (internal quotations and citation
omitted). Equal protection is violated when one set of
15
The Libertarian Party’s reliance on Kiffmeyer is, once again,
unpersuasive. There, two minor political parties were subject to the same
ballot access rules; under those rules, one party had all of its candidates
placed on the general election ballot, and the other had none on the ballot,
even though the latter received significantly more votes in the primary.
Kiffmeyer, 688 N.W.2d at 859–61. Minnesota conceded that its these
rules were arbitrary and lacked any “rational . . . purpose.” Id. at 861.
20 ARIZ. LIBERTARIAN PARTY V. HOBBS
requirements is “inherently” or “invidiously” more
burdensome than the other. Am. Party, 415 U.S. at 781;
Jenness, 403 U.S. at 440–41; Cronin, 620 F.3d at 1218–19.
The Libertarian Party’s chief complaint is that Green
Party candidates qualified for the 2016 primary ballot with
significantly fewer signatures than Libertarian candidates
for the same races. 16 This argument fails to account for the
significant quadrennial re-filing burden placed on the Green
Party to retain its new party status. Every four years, the
Green Party, which currently boasts less than
6,500 members, must submit more than 20,000 signatures
for its candidates to be eligible to pursue placement on the
ballot. That is, signatures from three times more voters than
it has registered members. Meeting the re-filing
requirements is “an all-consuming endeavor” for the Green
Party, which relies on “a core group of about 10 volunteers”
to work “every weekend on Saturdays and Sundays for
several hours each” for more than a year. It is only once this
step is complete that the modest individual candidate
signature thresholds apply. Thus, it is obvious that the
primary ballot signature requirements for the Libertarian
Party are not “inherently” or “invidiously” more
burdensome than those imposed on the Green Party. Am.
Party, 415 U.S. at 781; Jenness, 403 U.S. at 440–41. To be
sure, “[t]he procedures are different, but the Equal Protection
16
The Libertarian Party also complains that a write-in new party
candidate automatically qualifies for the general election ballot by
winning his primary, while a write-in established party candidate only
qualifies for the general election ballot if he wins his primary with votes
equaling the number of signatures needed to qualify for the primary
ballot. See Ariz. Rev. Stat. § 16-645(D)–(E). Because the Libertarian
Party expressly disclaims any challenge to Arizona’s general election
ballot access requirements, we do not consider this argument.
ARIZ. LIBERTARIAN PARTY V. HOBBS 21
Clause does not necessarily forbid the one in preference to
the other.” Am. Party, 415 U.S. at 781–82.
CONCLUSION
Arizona has no “constitutional imperative to reduce
voter apathy or to ‘handicap’ an unpopular [party] to
increase the likelihood that [its] candidate[s] will” qualify
for the primary ballot. Munro, 479 U.S. at 198. The state’s
signature requirements are reasonable restrictions that
impose, at most, a modest burden on the Libertarian Party’s
First and Fourteenth Amendment rights, while directly
advancing Arizona’s important regulatory interests. The
district court correctly granted summary judgment to the
Secretary.
AFFIRMED.