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Issue: Powell Gammill

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.

Hobbs asks U.S. Supreme Court to uphold Libertarian law change

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)

Secretary of State Katie Hobbs is urging the U.S. Supreme Court to swat down a last-ditch effort by the Arizona Libertarian Party to make it easier to put its candidates on the general election ballot.

In new legal filings, attorneys for Hobbs acknowledge that prior to 2015 a Libertarian contender for governor or statewide office could qualify for the ballot with as few as 133 signatures on nomination papers. Now contenders have to get about 3,000 supporters.

But Assistant Attorney General Kara Karlson said that’s not unfair, even though it represents close to 10 percent of all registered Libertarians.

Katie Hobbs
Katie Hobbs

She said those seeking to run under the Libertarian banner are entitled to seek signatures not just from members of their own party but the more than 1.2 million Arizonans who are registered as independents. And Karlson said the fact that Libertarians want to gather support from only among their own tiny party is a “self-inflicted harm” and not because of anything done to them by the state.

The filing, however, does not address the fact that the Republicans who control the state Legislature — and who pushed through the change in 2015 — conceded there was at least a partial political motivation behind the move: They wanted to keep Libertarians off the ballot amid fears that the party’s candidates were siphoning off votes that otherwise would go to GOP contenders.

Prior to 2015, each party could put a candidate on the ballot based on a percentage of those registered with that party. That’s what led to the low threshold for Libertarians.

Under the 2015 law, the test was altered to be based on the number of people who could sign a candidate’s nominating papers. And that includes independents.

When lower courts refused to disturb the law, attorney Oliver Hall from the Center for Competitive Democracy, representing the Libertarian Party, sought intervention from the U.S. Supreme Court.

He 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. So he wants the 2015 law voided, returning the statutes to the way they were before.

Karlson told the justices the party was asking for special treatment. She pointed out while they want the lower signature requirement — the one based solely on party registration — they never challenged the part of the law allowing them to also get signatures from independents.

“In other words, they want to continue to have the ability to gather signatures from over one million voters, but submit only 133 signatures to qualify a statewide candidate who could, ultimately, represent 7.28 million people,” she wrote. Karlson said the Libertarians are “attempting to use their internal political party choices to manipulate Arizona law to obtain preferential ballot access with truly miniscule support.”

The justices have given no indication when they will consider the issue.

In pushing for the change, several Republicans made no secret of their belief that Libertarian candidates were costing them elections.

During one debate they cited the 2012 congressional race.

In Congressional District 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, R-Chandler, contended likely would have gone to Paton.

Similarly, in the newly created Congressional District 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.

Libertarian candidates on sidelines in general election

Barry Hess
Barry Hess

For the first time in more than two decades, Arizonans won’t have the option to vote for a Libertarian Party candidate for governor.

And that’s exactly the way Republican lawmakers designed it.

A law in effect for the first time in a statewide race makes it much harder for candidates of recognized minor parties to actually get their names on the general election ballot, whether through petitions or write-in votes.

Supporters of that 2015 law, all Republicans, made no secret at the time they were doing that out of fear that Libertarians were siphoning off votes that otherwise would go to Republicans. So the theory was simple: eliminate Libertarians from the ballot and help GOP candidates.

Barry Hess, who has been the Libertarian candidate for governor every election since 2002, said the law is based on the flawed premise that members of his party, denied the chance to vote for one of their own, would instead mark the ballot for a Republican. He said without a Libertarian on the ballot they generally are more likely to protest by refusing to vote.

But Hess said Libertarians, angered by the maneuvers of GOP lawmakers, may now actually make their predictions come true.

“What you’re going to see is a backlash,” he told Capitol Media Services.

“If we’re not on the ballot, we’re going to all vote Democrat,” Hess said. “Screw them!”

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. This year for the Libertarians, a statewide candidate would have had to collect around 160 names.

That year Republicans pushed through a change lowering 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 this year 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 registration.

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. Their proof? 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 — votes that Rep. J.D. 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 bested 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.

The law has produced the desired results: No minor party candidate running for statewide office gathered enough signatures to be on the ballot in the primary.

That still left the possibility of minor party candidates qualifying for the ballot through write-in efforts during the primary. Hess pursued that path in his Libertarian gubernatorial bid this year.

But that same 2015 law required they get at least as many write-in votes as signatures they otherwise would have been required to get for regular nomination. And the formal election results announced this week found none of the three met that burden.

That clears 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 Hess, though Angel Torres did qualify as Green Party candidate.

Hess said if there is a need for a minimum signature requirement — a point he does not concede — the number needed “should be low to accommodate an open field.”

“What they’re trying to do is shut the field down completely, to win by exclusion,” he said.

And if that’s what Republicans are doing, Hess said, they’re going to be sorry as there will be a “concerted effort” by Libertarians to throw their support to Democrats in protest.

“And they are our worst enemies, for crying out loud,” he said.

Legal challenges by the Libertarians have come up empty.

In a ruling last year, U.S. District Court Judge David Campbell acknowledged that the 2015 law sharply increased the number of signatures Libertarian candidates needed to qualify for ballot status. In some cases, the difference is more than 20 times the old requirement.

But Campbell said the new hurdle is not “unconstitutionally burdensome.” And the judge accepted the arguments by attorneys for the state that the higher signature requirements ensure that candidates who reach the November ballot have some “threshold of support.”

The case now awaits a hearing at the federal appeals court.

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.