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Issue: Margaret McKeown

9th Circuit hears plea to extend voting deadline for Navajo residents

A sign points to a local polling station for the Arizona Democratic presidential preference election Tuesday, March 17, 2020, in Phoenix. (AP Photo/Ross D. Franklin)
A sign points to a local polling station for the Arizona Democratic presidential preference election Tuesday, March 17, 2020, in Phoenix. (AP Photo/Ross D. Franklin)

An attorney representing several Navajo Nation residents asked a federal appeals court Tuesday to give reservation dwellers more time to submit their ballots and have them counted.

Steven Sandven argued that Judge Murray Snow got it wrong last month when he concluded that the burdens on reservation residents in meeting the 7 p.m. Election Day deadline is no greater than that faced by residents of other rural areas of the state. As such, Snow concluded, the deadline does not violate the federal Voter Protection Act.

But Sandven told the appellate judges the test is whether Native Americans, as a “protected class” under federal law, have the same opportunity to vote as all other non-Indians in the state, regardless of where they live. The record, he said, shows that is not the case.

He said this is more than just the fact that mail to and from rural areas takes longer, leaving reservation residents less time to consider the issues than non-Indian voters before they have to send their ballots back.

For example, Sandven said, in Scottsdale there is one Election Day polling place for every 13.4 square miles versus one location on the Navajo Reservation for 306 miles.

On top of that, he said, there is no home delivery for most of the reservation, the distance to the post office “and the fact that many Navajo Nation members have insufficient funds to travel to a post office.”

All that, Sandven said, is that tribal members have less opportunity to exercise their right to vote than other voters.

“We don’t need to show that they have no opportunity to vote,” he said.

“There’s no dispute as to the nature of those conditions and the effect that those conditions have in terms of making it more difficult for these voters to access the ballot.”

But members of the three-judge panel hearing the case were not sure they can provide the relief he wants: requiring ballots from Navajo Nation addresses to be counted if they are postmarked by 7 p.m. on Election Day.

Judge Margaret McKeown said there’s no evidence that ballot envelopes actually get a postmark, despite an order to the U.S. Postal Service in a separate case out of New York to do so this year.

Even if they do, there’s the sorting question.

Assuming county recorders could figure out which ballots came from on-reservation addresses, there are, in fact, people who are not Native American who live there and who are entitled, based on their “protected status,” to more time to turn in their ballots.

Roopali Desai, who represents Secretary of State Katie Hobbs, told the appellate judges there are even more basic questions. It starts with the fact that the lawsuit filed on behalf of six members of the Navajo Nation names only Hobbs as the defendant.

But Desai said her client has nothing to do with receiving or counting ballots — or even can tell the county recorders what to do. She said anyone seeking to change the deadline must also sue the recorders.

Desai also questioned whether the six plaintiffs even have legal standing to sue in the first place because they never claimed any actual injury from the deadline.

“There are no allegations in the complaint, nor did any of the plaintiffs testify at the injunction hearing about the fact that they intend to participate in the 2020 election, that they are planning to use themselves a vote-by-mail ballot,” she said. “And there is no evidence in the record that they have ever previously submitted a ballot that was rejected because they suffered from some sort of mail delay or the fact that their ballot was too late to be counted.”

Desai told the judge that Hobbs acknowledges the hardships that are faced by members of the Navajo Nation including poverty, isolation, problems with traveling on the reservation and unreliable mail service.

“But those harms are not traceable to the secretary or, more importantly, to the receipt deadline,” she said.

And there’s one more thing.

Desai pointed out that the lawsuit specifically seeks the extra time solely for those living on the Navajo Reservation. She told the appellate judges if they were to grant that request it likely would result in confusion.

“What is somebody who is a member of the Pascua Yaqui tribal nation in southern Arizona thought that the order … intended to allow all Native Americans in Arizona to postmark their ballot as opposed to having it returned on the Election Day receipt deadline?” she asked the appellate judges. “Would it apply to one Native American voter versus another?”

The appellate judges gave no indication when they will rule — and whether that will come in time for this year’s election.

 

9th Circuit upholds law to burden Libertarian candidates

Symbol of law and justice in the empty courtroom, law and justice concept.
Deposit Photos

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.

Libertarians want U.S. Supreme Court to quash law designed to keep them off ballot

Voting ballot box isometric vector icon with paper sheet

The Arizona Libertarian Party is making a last-ditch effort to quash a state statute, which was designed  and succeeded at keeping its candidates off the ballot.

In filings with the U.S. Supreme Court, attorney Oliver Hall from the Center for Competitive Democracy said the law pushed through the Republican-controlled Legislature in 2015 sharply increased – sometimes by a factor of 30 – the number of signatures needed for Libertarian candidates to qualify for the ballot.

That wasn’t by accident. In fact the record shows that J.D. Mesnard, then a GOP representative from Chandler and now a state senator, told colleagues that Republicans would have been elected to two congressional seats had it not been for what he said were Libertarian candidates in the same race siphoning off votes he said otherwise would have gone to the GOP contenders.

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

Hall told the justices the law had its desired effect: Only one Libertarian qualified for the ballot in 2016  and none at all in 2018.

“Arizona has relegated the Arizona Libertarian Party to a state of electoral purgatory,” Hall wrote. “The party is ballot-qualified under Arizona law, but it cannot place its candidates on the ballot.”

J.D. Mesnard
J.D. Mesnard

All that, he said, is unconstitutional.

Republican Control

Hall acknowledged that the U.S. Constitution gives states the power to regulate the times, places and manner of holding elections. But he said that was “not as a source of power to dictate electoral outcomes, to favor or disfavor a class of candidates, or to evade important constitutional restraints.”

So far, Hall’s arguments have failed to sway federal judges. They concluded that the wording of that 2015 law, strictly speaking, treats all parties equally in how they get their candidates qualified for the ballot.

But it’s the way the system actually works that is behind the litigation.

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 the Republicans who control the Legislature lowered the requirement for all parties to one-quarter of one percent. But they engineered it so that the figure was based not on party registration but 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.

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

Hall charges that the state cannot force Libertarians to depend on political independents to get their names on the ballot, particularly as they cannot actually vote in the primary. The bottom line, he said, is that a Libertarian contender, seeking support from like-minded people who are affiliated with the party, have a much higher burden.

Margaret McKeown
Margaret McKeown

Take that 2018 primary.

There were about 1.26 million registered Republicans. So a GOP contender, seeking signatures of just Republicans, needed just signatures from 0.4 percent of party faithful.

But for a Libertarian, getting 3,153 signatures from only Libertarians amounted to more than 10 percent of total registered Libertarians.

Libertarians, Not Legislature

Judge Margaret McKeown of the 9th Circuit Court of Appeals acknowledged that, for some offices, the party’s desire to have petitions signed only by party faithful could amount to 30 percent of registered Libertarians.

But in writing a ruling earlier this year upholding the law, she said that Libertarians, just like Republicans and Democrats, are free to seek the signatures of just 1 percent of those who are eligible to sign petitions. That means not just Libertarians but more than a million Arizonans who are registered to vote as independents.

McKeown said it is the decision of the Libertarian Party and not the Legislature to allow only party members to participate in the primary.

Put simply, McKeown said the problem is of the party’s own making because of its exclusionary policy. And she said that voiding the 2015 law — and going back to the prior law — would “incentivize parties to have fewer registered members and therefore artificially reduce the signature requirements.”

Hall, however, said forcing Libertarian contenders to rely on the support of independents is unconstitutional, saying it amounts to “a form of compelled association.”

“Arizona has no legitimate interest in requiring that Libertarian candidates demonstrate support from independent voters who are not eligible to vote for them, and who have no reason or incentive to support the candidates’ effort to obtain (the party’s) nomination.

He also told the justices that what the state wants is unusual.

“Arizona stands alone in requiring that candidates demonstrate support from voters who are not eligible to vote for them,” Hall wrote.

Hall told Capitol Media Services that, legally speaking, the motives behind the move by Republicans to change the law is legally irrelevant to what he said is its unconstitutionality. But the legislative record makes it clear that the GOP lawmakers who pushed the change made it clear they hoped to improve the odds for Republican lawmakers who might otherwise lose votes to a Libertarian.

As proof, during debate they cited the 2012 congressional race.

In 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 that Mesnard 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.

Supreme Court passes on appeal of Libertarian Party voter case

This April 23, 2018, file photo shows the Supreme Court in Washington. (AP Photo/Jessica Gresko, File)
This April 23, 2018, file photo shows the Supreme Court in Washington. (AP Photo/Jessica Gresko, File)

The U.S. Supreme Court has quashed a last-ditch effort by the Arizona Libertarian Party to void a state statute which was designed — and succeeded — at keeping its candidates off the ballot.

Without comment the justices on Monday rejected a bid by attorney Oliver Hall from the Center for Competitive Democracy asking the court to look at the 2015 law which sharply increased — sometimes by a factor of 30 — the number of signatures needed for Libertarian candidates to qualify for the ballot. That decision leaves in place a 2019 ruling by the 9th Circuit Court of Appeals which acknowledged the hurdle but suggested it is one of the party’s own making.

At the heart of the fight is that 2015 law which changed the number of signatures required for candidates to qualify for the ballot.

Prior to that, candidates for all recognized 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.

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 base.

J.D. Mesnard
J.D. Mesnard
The move had political motives.

The record shows that J.D. Mesnard, then a GOP representative from Chandler and now a state senator, told colleagues that Republicans would have been elected to two congressional seats had it not been for what he said were Libertarian candidates in the same race siphoning off votes — votes he said otherwise would have gone to the GOP contenders.

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

Hall argued that the law had its desired effect: Only one Libertarian qualified for the ballot in 2016 — and none at all in 2018.

“Arizona has relegated the Arizona Libertarian Party to a state of electoral purgatory,” Hall wrote. “The party is ballot-qualified under Arizona law, but it cannot place its candidates on the ballot.”

All that, he said, is unconstitutional.

In its ruling last year, Judge Margaret McKeown of the 9th Circuit Court of Appeals acknowledged that, for some offices, the party’s desire to have petitions signed only by party faithful could amount to 30 percent of registered Libertarians.

But she said that Libertarians, just like Republicans and Democrats, are free to seek the signatures of just 1 percent of those who are eligible to sign petitions. That means not just Libertarians but more than a million Arizonans who are registered to vote as independents.

McKeown said it is the decision of the Libertarian Party — and not the Legislature — to allow only party members to participate in the primary.

Put simply, McKeown said the problem is of the party’s own making because of its exclusionary policy. And she said that voiding the 2015 law — and going back to the prior law — would “incentivize parties to have fewer registered members and therefore artificially reduce the signature requirements.”

Hall, however, said forcing Libertarian contenders to rely on the support of independents is unconstitutional, saying it amounts to “a form of compelled association.”

“Arizona has no legitimate interest in requiring that Libertarian candidates demonstrate support from independent voters who are not eligible to vote for them, and who have no reason or incentive to support the candidates’ effort to obtain (the party’s) nomination.

He also told the justices that what the state wants is unusual.

The politics of the change — and the reason for GOP support — came out during one of the debates.

Proponents cited the 2012 congressional race.

In the First Congressional District, 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 Mesnard contended likely would have gone to Paton.

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