Even if the referendum drive against the omnibus elections measure HB2305 falls short, Greens and Libertarians may still be able to strike down a requirement in the legislation that dramatically increases the number of signatures they need to get on the ballot.
Members of the Green and Libertarian parties are still contemplating a lawsuit against a provision in HB2305 that requires all candidates to get the same number of signatures to qualify for a primary election ballot. Third-party candidates who in some cases needed a dozen or fewer signatures to run for the Legislature will now need hundreds. In some legislative districts, the number of registered Green Party voters is actually lower than the number of signatures its candidates will need to get on the ballot.
Libertarians, who say Republicans passed HB2305 to keep them off the ballot, argue that the new signature requirements violate their constitutional right to free association. Attorney Joe Kanefield, a former elections director at the Arizona Secretary of State’s Office, said the key to the case will be whether a judge views the requirement as a violation of smaller parties’ First Amendment rights.
“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,” Kanefield said. “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.”
Supporters of the law say it is needed to prevent “sham candidates” who can get on the ballot with a minute number of signatures, and that the same rules should apply to all candidates because all parties’ nominees get an equal spot on the general election ballot. Some GOP supporters have also touted the new signature requirements as a way to boost Republicans’ electoral chances by preventing Libertarians from siphoning votes from them.
While the U.S. Supreme Court has weighed in numerous times on signature requirements for independent candidates who haven’t won a party primary, court precedent is sparse on ballot access for third- party candidates, according to Richard Winger, who runs the website Ballot Access News. However, Winger said he believes the new signature requirement is unconstitutional.
“Of the states that do require signatures to get on a partisan primary ballot, there’s only three states now, and Arizona is now one of them, that don’t take into account the size of the party,” said Winger, a staunch advocate of third-party ballot access.
Barry Hess, vice chairman of the Arizona Libertarian Party, is hoping that a case won by his own party in Arizona will help pave the way for a courtroom defeat of HB2305. In 2007, a federal court upheld the Libertarians’ right to close their primary elections, unlike Democrats and Republicans, who must allow independent voters to cast ballots in their primaries.
The U.S. District Court judge ruled that forcing the Libertarian Party into an open primary system created a danger that its nominees could be chosen by voters who aren’t actually Libertarians.
“A party’s right to choose its own nominees is a core associational activity and the mandatory inclusion of unaffiliated persons with the political party may seriously distort the party’s decision,” Judge Raner Collins wrote.
Michael Kielsky, a Libertarian Party stalwart, said the state established a system in which parties must choose their nominees through a primary, but is now trying to make it virtually impossible for third-party candidates to get on the ballot for their own primaries. Hess said the state is now treating the primary like a playoff system in a sports tournament, rather than an electoral system in which parties select their nominees.
But Republican elections attorney Lee Miller said elections jurisprudence is now more likely to view the primary as a two-step process by which voters choose their elected leaders. The state, Miller said, clearly has a compelling interest in establishing a threshold of support for people who want to get on the ballot.
“I think probably the most compelling interest the state can argue is that the Legislature has investigated this issue and come to a conclusion after debate and votes in both bodies that the formula articulated in (HB) 2305 is the appropriate formula to have a reasonable showing on the part of anybody who wants to stand as a candidate that they should be entitled to all the benefits and privileges of being a candidate,” Miller said.
Kory Langhofer, a Republican elections attorney, said minor parties in Arizona have been blessed for years with easy access to the ballot.
States are allowed to require parties and candidates to show a minimum level of support before their names appear on a ballot, he said, and many states have much higher standards than Arizona.
Under the old requirements, candidates needed to collect signatures equal to 1 percent of their party’s voter registration for legislative and congressional races, and one half of 1 percent for statewide races. HB2305 raises the bar to one-third of 1 percent of a district’s total voter registration, and one-sixth of 1 percent for statewide races.
The Greens and Libertarians’ arguments are also undermined by the fact that they don’t have to rely solely on their own registered voters for signatures. As long as independents can sign, it’s hard for them to argue that the new signature requirements are a major obstacle, he said.
“I don’t think the question should be how many people are registered in your party in your district, but how many eligible voters in your election are there in your district,” Langhofer said.
David Cantelme, also a GOP elections attorney, said states generally have broad discretion to determine ballot access, as long as the laws are not abusive. For a court to find that the new requirements are “arbitrary or capricious,” it must find that no reasonable person could agree with it, Cantelme said.
“It’s still, I think, within the discretion of the Legislature,” Cantelme said of the new signature requirements.
If the Greens and Libertarians closed their primaries — Libertarians recently opened their primary elections — they would have a stronger case against HB2305, Langhofer said. Of course, the state could counter that by raising the bar for third parties to have their candidates appear on the ballot in the first place, he said.
Prior rulings indicate that the U.S. Supreme Court looks unfavorably upon laws that treat smaller parties equally to the Democratic and Republican parties.
In its 1971 ruling in Jenness v. Fortson, the high court upheld a Georgia law requiring candidates whose parties didn’t qualify for ballot access to collect the signatures of 5 percent of eligible voters for their races.
But the court made it clear that small political parties have different needs than those with longstanding, established support.
“Sometimes the grossest discrimination can lie in treating things that are different as though they were exactly alike,” Justice Potter Stewart wrote.
In another landmark decision out of Ohio, the court three years earlier ruled that the state must show a “compelling interest” to justify heavy burdens that limit political parties’ First Amendment freedoms. In that case, Williams v. Rhodes, the court rejected an Ohio law requiring political parties to collect signatures equal to 15 percent of the electorate from the most recent gubernatorial race.
Justice Hugo Black wrote that the right to form a political party means little if it can be kept off the ballot, and the court ruled that Ohio could not make it virtually impossible for new or small parties to get on the ballot. He also wrote that maintaining a two- party system dominated by Democrats and Republicans is not a legitimate state interest.
“The Ohio system does not merely favor a ‘two-party system’; it favors two particular parties … and, in effect, tends to give them a complete monopoly. There is, of course, no reason why two parties should retain a permanent monopoly on the right to have people vote for or against them,” Black wrote.