Three Libertarian candidates have been knocked off the ballot – thinning competition for the potential tough November elections – thanks to efforts by the Arizona Republican Party.
A Maricopa County Superior Court judge agreed with the plaintiff’s lawyers, who were hired by the state Republican Party, that independent voters – who, until last week, had been barred from voting in the Libertarian primary elections – cannot sign petitions to nominate Libertarian candidates.
Michael Kielsky, first vice chair of the Arizona Libertarian Party and the attorney for the three Libertarian candidates, argued in court June 18 that, even though independents cannot vote in Libertarian primaries – something that could change this election cycle – the party has always maintained that they are allowed to sign Libertarian nominating petitions.
The ballot challenge filed by Scottsdale attorneys Scott Williams and Mark Zinman on behalf of Republican activists sought to remove 1st Congressional District candidate Anthony Prowell, Legislative District 11 Senate candidate Kim Allen and Legislative District 28 Senate candidate James Iannuzo from the ballot for gathering signatures from voters who were registered as independents at the time of signing.
While independents are normally allowed to sign partisan nominating petitions and vote in the partisan primary of their choice, the Libertarian Party has held closed primaries, excluding independent voters after winning the right to do so in federal court in 2007.
The complaint argued that, because the primary is closed, independents are not “qualified electors who are qualified to vote for the candidate whose nomination petition they are signing,” as required by state law.
State Election Director Amy Chan said her opinion has always been that independents could not sign Libertarian petitions, though she noted the question hasn’t really come up before.
“This is the first challenge of its kind,” she said.
But because the permanent injunction in the federal case left the decision of whether to exclude independents up to the party and did not change any statutes, Kielsky argued that independents should still be considered “qualified to vote” under the law, even though the party would not permit them to do so.
In anticipation of the court date, the Libertarian Party also sent a letter June 15 to the Secretary of State’s Office, indicating its desire to open the primary to independent voters this August – a move Kielsky said was intended to persuade the court to validate the signatures from independent voters.
However, Judge John Rea shot down both arguments, ruling that the Libertarian Party’s intention to just close primary voting to independents, but not petition signing, didn’t follow state law.
Further, Rea deferred to the testimony of Chan and Maricopa County Elections Director Karen Osborne about the high cost and technical challenges of opening the Aug. 28 Libertarian primary to non-Libertarian voters.
Both officials testified that all independent early and overseas voters would have to be informed that they can now request a Libertarian ballot – Osborne said that would amount to about 230,000 notices for just Maricopa County – polling-place volunteers would need retraining and, since the court-ordered exemption for Libertarians is included in state elections manual, the change might need to be precleared by the U.S. Department of Justice.
The judge ruled that, even if opening the primary would not constitute an undue burden on the state and counties, doing so more than two weeks after candidates had to file nominating petitions does not “retroactively validate” the signatures from independents.
Rea was also unmoved by Kielsky’s attempt to show that it is common policy to accept independent signatures on Libertarian petitions through the fact that all three candidates had been told by elections employees at the state and county level that the signatures would count.
“If given, this advice was wrong, as a matter of law,” he wrote in his ruling.
Iannuzo, who is also the chairman of the Maricopa County Libertarian Party, said he was not surprised by the judge’s decision but dismayed by his reasoning.
“It seems like, a lot of the time, the right outcome is not important because it would be an undue burden,” he said. “It’s not about doing what the law says, it’s about what the cost is.”
Allen found a silver lining in being removed from the ballot, and surmised that the Republican Party targeted the three Libertarians because they were a credible threat to the Republican candidates in those races.
“They’re scared that we will actually take votes away from them,” he said.
All three candidates would have faced a Republican in the general: Allen was facing Sen. Al Melvin in LD11, Iannuzo was challenging Sen. Adam Driggs in LD28 and Prowell would have been up against one of four Republicans in the CD1 race, including former state legislator Jonathan Paton.
“What bothers me is that one choice has been removed from the ballot,” Iannuzo said.
The state Republican Party did orchestrate the lawsuit, but spokesman Shane Wikfors said the party’s interest in the case is “much bigger than most people would presume.”
The party takes an “equal protection” approach, he said, and tries to ensure that all candidates are going through the same process to qualify for the ballot.
“All of the parties are competing to have their candidates on the ballot. We want to make sure that our candidates win and, in order to win, all the candidates have to follow the same rules,” Wikfors said.
All three Libertarian candidates will probably run as write-in candidates in a different race, Iannuzo said, adding that he might run for U.S. Senate.
He also said the trio is considering an appeal to the Arizona Supreme Court.
“I want to play this out first,” he said.
The deadline for filing an appeal is June 25.