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Brewer’s signing of election bill creates major hurdle for third parties

Libertarian standard bearer Barry Hess was one of 22 Libertarians seeking office in Arizona in 2010.

Third-party candidates may become a rare breed in Arizona.

HB2305, an omnibus elections bill, dramatically raises the number of signatures that Green Party, Libertarian and other third-party candidates will need to qualify for the ballot. Whereas signature requirements have historically been based on the number of registered votes a party has, the bill equalizes the requirements for all parties.

The end result is that Greens and Libertarians who could previously get on the ballot with a dozen signatures or fewer in some districts now must get hundreds or thousands. The parties allege that the bill was intended to get them off the ballot, especially in the case of Libertarians whom some Republicans say have cost them some close races in the past few years.

Gov. Jan Brewer signed HB2305 into law on June 19, making the path to the ballot extraordinarily difficult for Greens, Libertarians and the fledgling Americans Elect party. In many legislative and congressional districts, the signature requirements for Green Party and Americans Elect candidates are higher than the number of registered voters those parties have.

In Legislative District 27, home of Arizona Green Party Chairman Angel Torres, there are 102 registered Green Party voters. Under HB2305, the minimum requirement for Green Party candidates jumps to 130 signatures, up from just one. Green Party registration outnumbers the proposed new signature requirement in just six of 30 legislative districts.

For Libertarians, the path is less daunting but still steep. In Arizona’s 1st Congressional District, with 2,412 registered Libertarians, a Libertarian candidate would have to get about 1,246 signatures. Arizona’s 2nd Congressional District, one of last year’s tightest races, has 2,787 registered Libertarians, but Libertarian candidates would have to get about 1,315 signatures.

The Green Party and Americans Elect have open primaries, and the Arizona Libertarian Party recently opted to temporarily open its primary as well, meaning they can get signatures from independent voters as well. In most legislative and congressional districts, Green and Americans Elect will have no choice but to get signatures from independents because they don’t have enough registered voters to meet the signature requirements.

Libertarians, Democrats and other critics of the bill say the new signature requirements in HB2305 were passed with one goal – helping Republicans win elections by eliminating Libertarian candidates whom many believe siphon votes away from the GOP.

The change may be especially significant in congressional races, where Republicans in the past two elections believe Libertarian candidates cost them hotly contested races.

In last year’s race for CD1, Libertarian candidate Kim Allen won 15,277 votes in a race where Democrat Ann Kirkpatrick beat Republican Jonathan Paton by 9,180 votes. In Arizona’s 9th Congressional District, Democrat Kyrsten Sinema beat Republican Vernon Parker by 10,251 votes, while Libertarian Powell Gammill took 16,620 votes. And in 2010, then U.S. Rep. Gabrielle Giffords, a Democrat, eked out a 4,156-vote win over Republican Jesse Kelly, in a race where Libertarian Steven Stoltz took 11,174 votes.

Arizona Libertarian Party Chairman Warren Severein said there’s no question that the proposed signature requirement is meant to boost the GOP’s electoral fortunes by keeping Libertarians off the ballot.

“What it comes down to is the Republicans feel Libertarians take more votes from them than they do from Democrats,” Severein said. “This is a concerted effort by Republican leadership to get us off the ballot.”

D.J. Quinlan, executive director of the Arizona Democratic Party, said the proposed requirement is a transparent attempt to help Republicans get elected.

“It’s a 100 percent sheer political move,” Quinlan said.

Supporters of the bill acknowledge that it could help the GOP. During debate on the House floor, Rep. J.D. Mesnard, R-Chandler, expressed concern that people try to manipulate elections with “sham” candidates they can get on the ballot with just a small handful of signatures. That can have a major impact on elections, he said.

“I believe that if you look at the last election, there was at least one, probably two congressional seats that may have gone in a different direction … if this requirement had been there,” Mesnard said. “Not only will this impact the state of Arizona. It could impact the United States House of Representatives.”

The bill initially failed in the Senate, but passed on reconsideration after holdout Republican Sen. Steve Pierce, R-Prescott, faced intense pressure to change his vote. Daniel Scarpinato, a national spokesman for the National Republican Congressional Committee, called Pierce to urge him to vote for HB2305.

Scarpinato said he didn’t call Pierce on behalf of NRCC, and called only as a friend and Arizonan.
Pierce told the Arizona Capitol Times that Scarpinato had a personal interest in the bill because he worked on Paton’s 2012 campaign, a loss that some Republicans attributed to the Libertarian candidate on the ballot in CD1.

But despite his comments on the House floor, Mesnard said HB2305 isn’t about helping Republicans win elections. It’s about making the system fairer.

If Republicans and Democrats have to collect hundreds or thousands of signatures to get on the ballot, Mesnard questioned why a candidate should be able to get the same spot on a general election ballot with a minuscule number of signatures.

“The same rules should apply,” Mesnard said. “We’re all ending up on the general election ballot, equally before all voters. So it seems to me that everybody should at least pass some kind of hurdle of equal value in getting there. And the hurdle we have in place, in part, is signature requirements.”

Brewer spokesman Matthew Benson said the new signature requirements aren’t intended to help Republicans win elections.

“I think the legislative intent is to level the playing field,” Benson said.

Mesnard acknowledged that HB2305 would tilt the system more in favor of the two major parties. But considering the fact that the United States has a two-party system, this is the fairest way to govern ballot access, he said.

“The solution is go get more people. Win over people into your party,” Mesnard said.

Mesnard noted that third-party candidates can still get signatures from voters with no party affiliation. There are more than 1 million independents in Arizona, making them the second largest group of voters in the state.

If Republicans believe Libertarian voters will automatically side with Republicans if there are no Libertarians on the ballot, Severein said they should think again. The party chairman said many will simply not vote, and Libertarian Party communications director Barry Hess, the party’s three-time nominee for governor, said many would side with Democrats because of their shared views on social issues.

Hess said smaller parties should have the right to choose their nominees in their primaries and get their candidates on the ballot. Smaller parties have lower signature thresholds for a reason, he said.

“We represent a specific group of people that are called Libertarians and people who agree with us,” Hess said.

Hess and Severein also denied that any Libertarian candidates in recent elections have been “shams,” and said they would have exposed any sham Libertarian candidates themselves.

The Green and Libertarian parties are likely to sue. Hess said the Libertarians are already exploring legal options, and Torres said the Green Party will probably join forces with them.

Attorney Joe Kanefield, who formerly served as Brewer’s general counsel and her elections director at the Secretary of State’s Office, said the case will come down whether HB2305 unduly burdens political parties’ First Amendment rights to free association.

“If it’s a regulation designed to protect the integrity of the electoral process and its burdens on a political party are minimal, then it’s likely to be upheld by the courts,” said Kanefield, of the firm Ballard Spahr. “But if it’s determined that the burdens on the parties outweighs the election administration and integrity concerns, then a decision would likely be in favor of the parties.”

Elections attorney Tom Ryan said he has no question that a court will strike down the requirements as unconstitutional. He said the federal courts have established that laws limiting ballot access must be narrowly tailored and must address a compelling state interest.

“If it’s to protect the two-party system, that’s not a compelling state interest,” Ryan said.

But Lee Miller, a Republican elections attorney, said the Greens and Libertarians don’t have a case.

“So long as the requirements to get on the ballot are uniform for all parties, they should be legal and constitutional,” Miller said. “I can get on the Republican ballot with all independents too. That’s just the way the system works. It’s a uniform set of rules that applies to any candidate regardless of party.”

Ryan said there are already laws on the books to address “sham” candidates, as some Republicans argued was the impetus for the bill. And he pointed out that Republicans have a recent history of “sham” candidates, such as former Rep. Steve May’s recruitment of street people to run as Green Party candidates in 2010, or the recruitment of Olivia Cortes by allies of former Senate President Russell Pearce in the 2011 recall election against him.

Representatives of the Democratic, Green and Libertarian parties gathered at the Capitol on June 18 to denounce HB2305 and urge Brewer to veto the legislation. Sen. Steve Gallardo, D-Phoenix, noted that the group largely included the participants of a rally against Proposition 121, a 2012 initiative that sought to create a “top-two” primary system. But the Republicans who rallied against the ballot measure were absent.

Many opponents, including some of the Republicans, argued that one of Prop. 121’s flaws was that it would effectively bar third-party candidates from general elections. In the publicity pamphlet issued by the Secretary of State’s Office, three Republican lawmakers who later voted for HB2305 made that argument.

“At the time, Republicans stood with us in opposition to these types of tactics. And I hope that the governor would stand with us once again,” Gallardo said.

In last year’s race for CD1, Libertarian candidate Kim Allen won 15,277 votes in a race where Democrat Ann Kirkpatrick beat Republican Jonathan Paton by 9,180 votes. In Arizona’s 9th Congressional District, Democrat Kyrsten Sinema beat Republican Vernon Parker by 10,251 votes, while Libertarian Powell Gammill took 16,620 votes. And in 2010, then U.S. Rep. Gabrielle Giffords, a Democrat, eked out a 4,156-vote win over Republican Jesse Kelly, in a race where Libertarian Steven Stoltz took 11,174 votes.

Arizona Libertarian Party Chairman Warren Severein said there’s no question that the proposed signature requirement is meant to boost the GOP’s electoral fortunes by keeping Libertarians off the ballot.

“What it comes down to is the Republicans feel Libertarians take more votes from them than they do from Democrats,” Severein said. “This is a concerted effort by Republican leadership to get us off the ballot.”

D.J. Quinlan, executive director of the Arizona Democratic Party, said the proposed requirement is a transparent attempt to help Republicans get elected.

“It’s a 100 percent sheer political move,” Quinlan said.

Supporters of the bill acknowledge that it could help the GOP. During debate on the House floor, Rep. J.D. Mesnard, R-Chandler, expressed concern that people try to manipulate elections with “sham” candidates they can get on the ballot with just a small handful of signatures. That can have a major impact on elections, he said.

“I believe that if you look at the last election, there was at least one, probably two congressional seats that may have gone in a different direction … if this requirement had been there,” Mesnard said. “Not only will this impact the state of Arizona. It could impact the United States House of Representatives.”

But Mesnard said HB2305 isn’t about helping Republicans win elections. It’s about making the system fairer.

If Republicans and Democrats have to collect hundreds or thousands of signatures to get on the ballot, Mesnard questioned why a candidate should be able to get the same spot on a general election ballot with a minuscule number of signatures.

“The same rules should apply,” Mesnard said. “We’re all ending up on the general election ballot, equally before all voters. So it seems to me that everybody should at least pass some kind of hurdle of equal value in getting there. And the hurdle we have in place, in part, is signature requirements.”

Mesnard acknowledged that HB2305 would tilt the system more in favor of the two major parties. But considering the fact that the United States has a two-party system, this is the fairest way to govern ballot access, he said.

“The solution is go get more people. Win over people into your party,” Mesnard said.

Mesnard noted that third-party candidates can still get signatures from voters with no party affiliation. There are more than 1 million independents in Arizona, making them the second largest group of voters in the state.

If Republicans believe Libertarian voters will automatically side with Republicans if there are no Libertarians on the ballot, Severein said they should think again. The party chairman said many will simply not vote, and Libertarian Party communications director Barry Hess, the party’s three-time nominee for governor, said many would side with Democrats because of their shared views on social issues.

Hess said smaller parties should have the right to choose their nominees in their primaries and get their candidates on the ballot. Smaller parties have lower signature thresholds for a reason, he said.

“We represent a specific group of people that are called Libertarians and people who agree with us,” Hess said.

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