9th Circuit upholds law to burden Libertarian candidates

9th Circuit upholds law to burden Libertarian candidates

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A federal appeals court has upheld a 2015 state law which the Libertarian Party charges – and some Republican lawmakers admitted – was specifically designed to keep its candidates off the ballot.

In a unanimous ruling Friday, the 9th Circuit Court of Appeals acknowledged that the law could require would-be Libertarian candidates to gather the signatures of up to 30 percent of registered party members to qualify for the primary.

But Judge Margaret McKeown, writing for the court, said that isn’t the fault of the Republican-controlled Legislature that enacted the requirement.

She pointed out that the Libertarians, just like Republicans and Democrats, can offer themselves for office by getting the signatures of just 1 percent of those who are eligible to sign petitions. That means not just Libertarians but also those who are unaffiliated with any other political party.

Margaret McKeown
Margaret McKeown

McKeown, a President Clinton appointee, said it is the decision of the Libertarian Party to allow only party members to vote in the Libertarian primary.

“And it does not want its candidates to solicit signatures from non-members,” she said.

Put simply, McKeown said the problem is of the party’s own making because of party policy. And she said that voiding the law – and going back to the way things were – would “incentivize parties to have fewer registered members and therefore artificially reduce the signature requirements.”

Michael Kielsky, a party member and plaintiff in the lawsuit, said he expect the ruling to be appealed.

Prior to 2015, candidates for recognized minor parties could get on the ballot simply by submitting petitions with the signatures of one-half of one percent of those registered with the party. In 2018 for the Libertarians, a statewide candidate would have had to collect around 160 names.

That year Republicans lowered the requirement to one-quarter of one percent. But they engineered it so that the figure was based on all who could sign a candidate’s petition.

That added political independents to the base, who actually outnumber Democrats and run a close second to Republicans.

So in 2018 the minimum signature requirement for a Libertarian running statewide was 3,153, about 10 percent of all those actually registered as Libertarians. For the Green Party the floor was 1,253.

Meanwhile the numbers for Republican and Democrat nominations remained close to what it always had been: 6,223 for the GOP and 5,801 for Democrats, both a small fraction of each party’s voter registration.

McKeown acknowledged the burden for Libertarians with the party’s desire to have petitions signed only by party faithful. And she said it could reach 30 percent for some offices.

But she said states are entitled to make the “preliminary showing of a significant modicum of support” as a condition of being put on the ballot. And the judge dismissed the current burden as being unreasonable, citing the fact that Arizona law permits people to get nomination signatures not just in person but online.

Kielsky said the court ignored the evidence that there were political motives behind the change in the law.

“It is designed to screw us,” he told Capitol Media Services.

In debating the change, GOP lawmakers made it clear they hoped to improve the odds for Republican lawmakers who might otherwise lose votes to a Libertarian.

As proof they cited the 2012 congressional race for CD 1, which runs from Flagstaff and the Navajo Nation to the edge of Tucson.

Republican Jonathan Paton garnered 113,594 votes against 122,774 for Democrat Ann Kirkpatrick. But Libertarian Kim Allen picked up 15,227 votes – votes that then-Rep. J.D. Mesnard, now a state senator, contended likely would have gone to Paton.

Similarly, in the newly created CD 9 which encompasses parts of Tempe and Phoenix, Democrat Kyrsten Sinema beat Vernon Parker by 10,251 votes, with Libertarian Powell Gammill tallying 16,620.

And to ensure the point was not lost on his GOP colleagues, Mesnard made the issue more personal, warning them that they, too, could find themselves aced out of a seat if they don’t change the signature requirements.

“I can’t believe we wouldn’t see the benefit of this,” he said during a floor speech.

Kielsky said all that presumes that “the votes belong to a particular party, they do not belong to the people.”

The law produced the desired results: There was not a Libertarian Party candidate for governor on the ballot for the first time in more than two decades. That cleared the way for a head-to-head race between incumbent Republican Doug Ducey and Democrat challenger David Garcia, without either candidate having to worry about votes being siphoned off by a minor party contender.