Arizona Libertarian Party v. Katie Hobbs

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ARIZONA LIBERTARIAN PARTY; No. 17-16491

MICHAEL KIELSKY,

Plaintiffs-Appellants, D.C. No.

2:16-cv-01019-

v. DGC

KATIE HOBBS, in her official

capacity as Secretary of State of OPINION

Arizona,

Defendant-Appellee.

Appeal from the United States District Court

for the District of Arizona

David G. Campbell, District Judge, Presiding

Argued and Submitted March 12, 2019

San Francisco, California

Filed May 31, 2019

Before: J. Clifford Wallace, A. Wallace Tashima, and

M. Margaret McKeown, Circuit Judges.

Opinion by Judge McKeown

2 ARIZ. LIBERTARIAN PARTY V. HOBBS

SUMMARY *

Civil Rights / Elections

The panel affirmed the district court’s summary

judgment in favor of Arizona’s Secretary of State in an

action brought by the Arizona Libertarian Party challenging,

under the First and Fourteenth Amendments, a state law

requiring up to 1% of voters eligible to participate in

Arizona’s primary to sign a nominating petition for a

Libertarian candidate to earn a place on the primary ballot.

Applying the balancing framework set forth in Anderson

v. Celebrezze, 460 U.S. 780 (1983), and Burdick v. Takushi,

504 U.S. 428 (1992), the panel first held that the State’s

signature requirement imposed a minimal burden on the

Libertarian Party’s right to access the primary ballot.

Accordingly, the panel determined that a less exacting

scrutiny was appropriate. The panel concluded that

Arizona’s signature requirements reasonably furthered

Arizona’s regulatory interest in preventing voter confusion,

ballot overcrowding, and frivolous candidacies and justified

the modest burden on the Libertarian Party’s right to ballot

access.

The panel rejected the Libertarian Party’s contention that

the Arizona law infringed upon its right to free association

by effectively requiring its candidates to solicit signatures

from non-members. The panel held that any burden on the

Libertarian Party’s associational freedom was modest, and

*

This summary constitutes no part of the opinion of the court. It

has been prepared by court staff for the convenience of the reader.

ARIZ. LIBERTARIAN PARTY V. HOBBS 3

again applying less exacting scrutiny, the panel credited

Arizona’s important interests to justify the reasonable

requirements.

The panel further rejected the Libertarian Party’s

contention that Arizona’s signature requirement violated

equal protection, noting that the Libertarian, Democratic,

and Republican Parties were all subject to the same statutory

requirements. The panel observed no equal protection issue

in Arizona’s treatment of the Green Party, a new party that

was subject to different statutory requirements.

COUNSEL

Oliver B. Hall (argued), Center for Competitive Democracy,

Washington, D.C., for Plaintiffs-Appellants.

Kara M. Karlson (argued) and Joseph E. La Rue, Assistant

Attorneys General; Mark Brnovich, Attorney General;

Office of the Attorney General, Phoenix, Arizona; for

Defendant-Appellee.

OPINION

McKEOWN, Circuit Judge:

Once again, we have before us a challenge to Arizona’s

requirements to earn a place on the ballot. See, e.g., Ariz.

Green Party v. Reagan, 838 F.3d 983 (9th Cir. 2016); Nader

v. Brewer, 531 F.3d 1028 (9th Cir. 2008). The Arizona

Libertarian Party challenges under the First and Fourteenth

Amendments a state law requiring up to 1% of voters eligible

to participate in its primary to sign a nominating petition for

4 ARIZ. LIBERTARIAN PARTY V. HOBBS

a Libertarian candidate to earn a place on the primary ballot.

The district court granted summary judgment to the Arizona

Secretary of State (the “Secretary”), and we affirm.

BACKGROUND

Under Arizona law, there are two types of political

parties: “established” parties and “new” parties. A party is

“established” in a jurisdiction if it (i) obtained at least 5% of

the total votes cast in the prior general election, or

(ii) maintains membership exceeding 0.66% of registered

voters in that jurisdiction. Ariz. Rev. Stat. § 16-804

(applying to state, county, city, and town elections). An

established party is entitled to “continued representation” on

the general election ballot. Id. The Libertarian, Democratic,

and Republican Parties are established statewide. 1

Before 2016, to qualify for the primary ballot, an

established party candidate needed to submit signatures 2

exceeding a certain percentage (ranging between 0.5% and

2%, depending on the office sought) of the party’s registered

voters in the jurisdiction where he sought election. Ariz.

Rev. Stat. § 16-322(A) (2015). A candidate was permitted

to submit signatures from party members, members of any

1

The Libertarian Party satisfies the voter registration requirement,

and the Democratic and Republican Parties satisfy both requirements.

As of January 1, 2019, Arizona had 1.31 million registered Republicans,

1.17 million registered Democrats, and 32,056 registered Libertarians.

Ariz. Sec. of State, Voter Registration & Historical Election Data,

https://azsos.gov/elections/voter-registration-historical-election-data

(last visited May 7, 2019).

2

A voter may only sign one nominating petition per office per

election, unless more than one candidate is to be elected to that office.

Ariz. Rev. Stat. § 16-321(A).

ARIZ. LIBERTARIAN PARTY V. HOBBS 5

new party, or unaffiliated registered voters. 3 Id.

§ 16-321(D).

In 2015, the Arizona legislature amended the signature

requirements for established party candidates. 2015 Ariz.

Sess. Laws Ch. 293, §§ 2–3 (H.B. 2608). Now, to qualify

for a primary ballot, an established party candidate must

submit signatures exceeding a certain percentage of

“qualified signer[s],” which include the party’s registered

voters, as well as all new party voters and unaffiliated

registered voters. Ariz. Rev. Stat. § 16-321(F). The

amendments reduced the signature threshold for each office

to between 0.25% and 1%. Id. § 16-322(A). In 2016—the

first election governed by the amended rules—there

were significantly fewer Libertarian candidates on the

primary and general election ballots than in prior elections.

See generally Ariz. Sec. of State, Historical Election

Results & Information, https://azsos.gov/elections/

voter-registration-historical-election-data/historical-election-

results-information (last visited May 7, 2019) (collecting

data for recent Arizona elections).

A “new” party is subject to different rules. A new party

must first submit a petition for recognition and signatures

from eligible voters exceeding 1.33% of total votes cast

statewide in the prior gubernatorial election. Ariz. Rev. Stat.

§§ 16-801(A), 16-803. After doing so, the party’s

candidates are eligible to pursue placement on the primary

and general election ballots for the next four years. Ariz.

Rev. Stat. § 16-801(B). To retain its recognition and ballot

3

As of January 1, 2019, Arizona had 1.25 million unaffiliated

registered voters. Ariz. Sec. of State, Voter Registration & Historical

Election Data, https://azsos.gov/elections/voter-registration-historical-

election-data (last visited May 7, 2019).

6 ARIZ. LIBERTARIAN PARTY V. HOBBS

eligibility at the end of the four years, the party must either

qualify as an established party or file another petition for

recognition and the accompanying signatures. Id.; see Ariz.

Rev. Stat. §§ 16-803–04.

To qualify for the primary ballot, a new party candidate

must submit signatures exceeding 0.1% “of the total vote for

the winning candidate or candidates for governor or

presidential electors at the last general election within the

district.” Ariz. Rev. Stat. § 16-322(C). The Arizona Green

Party first qualified as a new party in 1990, and, never having

qualified as an established party, has successfully re-filed

petitions for new party recognition and the accompanying

signatures several times, most recently in 2014. 4 Since the

beginning of 2017, Arizona has permitted digital solicitation

and streamlined submission of voter signatures through an

online portal. Ariz. Rev. Stat. §§ 16-316–18.

Under Arizona law, an established party member may

not vote in another party’s primary, but it is up to the

established parties to decide whether new party members or

unaffiliated voters can participate in their primaries. See

Ariz. Rev. Stat. § 16-467. 5 The Libertarian Party excludes

4

As of January 1, 2019, the Green Party had 6,450 registered

members in Arizona. Ariz. Sec. of State, Voter Registration & Historical

Election Data, https://azsos.gov/elections/voter-registration-historical-

election-data (last visited May 7, 2019).

5

A state may not keep a party from welcoming unaffiliated voters

to participate in its primary, Tashjian v. Republican Party of Conn.,

479 U.S. 208, 213–29 (1986), though it may prohibit party members

from participating in another party’s primary. Clingman v. Beaver,

544 U.S. 581, 586–97 (2005).

ARIZ. LIBERTARIAN PARTY V. HOBBS 7

such voters, while the Democratic and Republican Parties do

not.

In April 2016, the Libertarian Party and its chairman

Michael Kielsky (collectively, the “Libertarian Party”) filed

this action challenging the primary signature requirements.

The district court denied the Libertarian Party’s request for

a preliminary injunction prohibiting enforcement of the

amended requirements for the 2016 election. The parties

filed cross-motions for summary judgment, and, in

July 2017, the district court granted summary judgment to

the Secretary.

ANALYSIS

The Libertarian Party contends that Arizona’s ballot

access scheme violates equal protection and infringes upon

the right to place its candidates on the ballot 6 and the right

to free association. 7 Only the rules governing access to the

primary election ballot are at issue on this appeal—the

Libertarian Party does not call into question the rules for

earning a place on the general election ballot. With that in

mind, we first set forth the balancing framework that guides

our review and then explain why Arizona’s rules for

accessing the primary ballot are constitutionally sound.

6

The Libertarian Party also contends that the statute violates its right

to create and establish a political party. See Norman v. Reed, 502 U.S.

279, 288 (1992). This claim merely recites the right to access the ballot

claim, and it fails for the same reasons. See infra pp.9–14.

7

The Libertarian Party also appeals the district court’s exclusion of

certain evidence. That issue is moot because summary judgment for the

Secretary is warranted even if we consider the excluded evidence.

8 ARIZ. LIBERTARIAN PARTY V. HOBBS

I. The Anderson/Burdick Balancing Framework

There is an inevitable tension between a state’s authority

and need to regulate its elections and the First and Fourteenth

Amendment rights of voters, candidates, and political

parties. See Storer v. Brown, 415 U.S. 724, 729–30 (1974).

To harmonize these competing demands, we look to

Anderson v. Celebrezze, 460 U.S. 780 (1983), and Burdick

v. Takushi, 504 U.S. 428 (1992), which provide a “flexible

standard” for reviewing constitutional challenges to state

election regulations:

A court considering a challenge to a state

election law must weigh “the character and

magnitude of the asserted injury to the rights

protected by the First and Fourteenth

Amendments that the plaintiff seeks to

vindicate” against “the precise interests put

forward by the State as justifications for the

burden imposed by its rule,” taking into

consideration “the extent to which those

interests make it necessary to burden the

plaintiff’s rights.”

Burdick, 504 U.S. at 434 (quoting Anderson, 460 U.S.

at 789). We have described this approach as a “sliding

scale”—the more severe the burden imposed, the more

exacting our scrutiny; the less severe, the more relaxed our

scrutiny. Ariz. Green Party, 838 F.3d at 988. To pass

constitutional muster, a state law imposing a severe burden

must be narrowly tailored to advance “compelling” interests.

Norman, 502 U.S. at 289. On the other hand, a law imposing

a minimal burden need only reasonably advance “important”

interests. Timmons v. Twin Cities Area New Party, 520 U.S.

351, 358 (1997) (quoting Burdick, 504 U.S. at 434).

ARIZ. LIBERTARIAN PARTY V. HOBBS 9

We now consider each of the Libertarian Party’s

constitutional challenges under the Anderson/Burdick

balancing framework.

II. Right to Access the Ballot

It was long ago established that a state may condition

ballot placement on a “preliminary showing of a significant

modicum of support.” Jenness v. Fortson, 403 U.S. 431, 442

(1971). And there is no dispute that a state may require a

candidate to demonstrate support from slightly, but not

“substantially,” more than 5% of voters without imposing a

severe burden triggering heightened scrutiny. Storer,

415 U.S. at 739–40; see Jenness, 403 U.S. at 442; Williams

v. Rhodes, 393 U.S. 23, 24–25 (1968) (invalidating

15% requirement). The Libertarian Party contends that

Arizona law imposes an impermissibly high signature

burden, reaching as high as 30% for certain candidates. Yet,

the threshold—and dispositive—question is which pool of

voters we should consider when measuring this showing.

Under Arizona law, all qualified signers—Libertarian

Party members, unaffiliated registered voters, and new party

members—are eligible to participate in the Libertarian Party

primary and to sign a Libertarian Party nominating petition.

By its very terms, the statute never requires signatures from

more than 1% of these voters. However, by choice, the

Libertarian Party has barred non-members from voting in its

primary—under party policy, only members can vote in the

primary. And it does not want its candidates to solicit

signatures from non-members; as a consequence, Libertarian

candidates must submit signatures equal to 11% to 30% of

party membership in their jurisdiction to qualify for the

primary ballot. Thus, our dilemma: is the “significant

modicum of support” measured against all voters eligible

under state law to sign a nominating petition and participate

10 ARIZ. LIBERTARIAN PARTY V. HOBBS

in the primary? Or do we factor in a party’s decision to

exclude certain eligible voters from its primary and instead

consider the resulting, significantly circumscribed pool?

The Supreme Court has never expressly answered this

question, but its framework in ballot access cases is

instructive. The state laws challenged in Norman, Jenness,

and Williams required candidates and parties seeking

placement on the general election ballot to submit signatures

from registered voters equaling a designated percentage of

the general election electorate. 8 The Court’s approach in

these cases was straightforward: it determined whether the

required signatures represented a reasonable share of the

voters eligible to participate in the upcoming election. See

Norman, 502 U.S. at 295; Jenness, 403 U.S. at 438–40, 442;

Williams, 393 U.S. at 24–25, 30–34. In American Party of

Texas 9 and Storer, the state laws imposed similar

requirements, with an additional limitation: a voter who

participated in another party’s primary or convention or

signed another candidate’s petition was ineligible to sign a

nominating petition. 10 In both cases, the Court determined

whether the required signatures represented a reasonable

8

The laws challenged in Norman and Williams approximated the

electorate by reference to the number of voters who participated in the

preceding general election. Norman, 502 U.S. at 282 n.2; Williams,

393 U.S. at 24–25. The law challenged in Jenness approximated the

electorate by reference to the number of registered voters during the

previous general election. 403 U.S. at 432–33.

9

Am. Party of Tex. v. White, 415 U.S. 767 (1974).

10

Like the laws challenged in Norman and Williams, those at issue

in American Party of Texas and Storer approximated the electorate by

reference to the number of voters who participated in the preceding

general election. Am. Party, 415 U.S. at 774–75 & nn.6–7; Storer,

415 U.S. at 726–27, 739–40.

ARIZ. LIBERTARIAN PARTY V. HOBBS 11

share of the “available pool” of signers, i.e., voters who had

not disqualified themselves by participating in another

primary or convention or by signing a previous petition.

Storer, 415 U.S. at 739–40; see Am. Party, 415 U.S. at 774–

91.

In each of these cases, the Court asked whether the

required signatures constituted an unfairly large percentage

of those voters eligible under state law to offer their

signatures. There was no adjustment to account for the

significant portion of this pool comprised of registered

members of other parties, many of whom, it can be

reasonably presumed, were unlikely to help nominate a

competing candidate or party. Nor was there any suggestion

that a candidate should be limited to seeking signatures from

voters who have already pledged their support to the

candidate or his party or cause. Rather, the Court time and

again affirmed that requiring a demonstration of “significant,

measurable quantum of community support” does not

impose a severe burden. Am. Party, 415 U.S. at 782.

We invoked a similar analysis in Nader v. Cronin,

620 F.3d 1214, 1217 (9th Cir. 2010). And we do so again

here. Arizona law permits all qualified signers— Libertarian

Party members, new party members, and registered

unaffiliated voters—to sign a Libertarian candidate’s

nominating petition and to vote in the Libertarian primary.

However, qualified signers who already signed another

candidate’s nominating petition are excluded from the

“available pool” of voters able to sign a Libertarian

candidate’s petition.

No evidence suggests that, in practice, the statute’s (at

most) 1% signature requirement even approaches 5% of this

remaining pool of eligible signers. It falls upon the

Libertarian Party to demonstrate that Arizona imposes a

12 ARIZ. LIBERTARIAN PARTY V. HOBBS

severe burden, and it has failed to do so here. The party’s

policy choice to exclude all non-members from its primary

and its preference to obtain signatures only from party

members do not change the calculus. To hold otherwise

would permit a party to determine the number of signatures

required by manipulating its nominating petition and

primary voting requirements. At the same time, the

Libertarian Party’s proposed rule would incentivize parties

to have fewer registered members and therefore artificially

reduce the signature requirements. Just as important: where,

in this scheme, is the offensive state action? There is no

question that the signature requirement would be

constitutional if the Libertarian Party permitted non-

members to vote in its primary. A political party cannot

manipulate its internal preferences and processes to

transform a constitutional statute into an unconstitutional

one. 11

Crucially, Arizona law does not impose any other

requirements, such as a strict time period for signature

collection, that might nonetheless render the 1% requirement

“an impossible burden” or “an impractical undertaking.”

Storer, 415 U.S. at 740 (requiring 1,000 canvassers to collect

14 signatures each day for 24 days likely imposes a modest

burden); see Clingman, 544 U.S. at 589–90 (limiting a

party’s internal structure, decision-making processes, and

ability to communicate with the electorate likely imposes a

11

Neither of the cases cited by the Libertarian Party persuades us

otherwise. One addressed a law that made it “impossible either

absolutely . . . or practically” for a candidate to meet a signature

requirement. See Consumer Party v. Davis, 633 F. Supp. 877, 883 (E.D.

Pa. 1986). The other struck down signature requirements because they

imposed disparate requirements on similarly situated parties that were,

the state conceded, impossible to justify. In re Candidacy of Indep. Party

Candidates v. Kiffmeyer, 688 N.W.2d 854, 859–61 (Minn. 2004).

ARIZ. LIBERTARIAN PARTY V. HOBBS 13

severe burden); Timmons, 520 U.S. at 363 (same); Anderson,

460 U.S. at 790–94 (requiring an independent candidate to

file several months before party conventions imposes severe

burden); Am. Party, 415 U.S. at 778–81 (requiring all

signatures to be notarized and submitted in 55-day period

does not impose severe burden); Jenness, 403 U.S. at 434,

438 (permitting 180 days for collection of nominating

signatures and requiring submission of signatures five

months before election does not impose severe burden);

Williams, 393 U.S. at 24–25 & n.1 (conditioning minor

party’s ballot access on formation of statewide and county-

level party committees, participation in a national party

convention, and submission of nominating signatures by an

early deadline exclusively from voters who never voted in a

previous election imposes significant burden). To the

contrary, Arizona permits candidates to solicit and submit

signatures through an easy-to-use and streamlined online

portal. A candidate collecting hand-written signatures must,

in practice, collect more than the minimum number of

signatures required because, inevitably, some will be

deemed ineligible. In contrast, signatures submitted through

the online portal are instantaneously verified, thereby

reducing the need to submit signatures above the threshold.

The limited evidence describing the Libertarian Party’s

modest efforts to mobilize voters and several candidates’

unsuccessful write-in campaigns fails to establish that, in

practice, Arizona law “imposes insurmountable obstacles”

to getting on the primary ballot. Am. Party, 415 U.S. at 784.

Nor does the simple fact that the Libertarian Party had more

candidates on past primary and general election ballots

reflect such an obstacle under the amended rules. See Munro

v. Socialist Workers Party, 479 U.S. 189, 196–97 (1986).

Accordingly, we apply “less exacting” scrutiny because

Arizona law imposes a minimal burden on the Libertarian

14 ARIZ. LIBERTARIAN PARTY V. HOBBS

Party’s right to access the primary ballot. Timmons,

520 U.S. at 358; see Cronin, 620 F.3d at 1218.

We now turn to whether Arizona has an “important

regulatory interest” that justifies this modest burden.

Timmons, 520 U.S. at 358 (quoting Burdick, 504 U.S.

at 434). Arizona’s asserted interests in preventing voter

confusion, ballot overcrowding, and frivolous candidacies

are important interests that have justified equally, if not

more, burdensome general election ballot restrictions. See

Munro, 479 U.S. at 194–95. These interests are also

important in the primary context, given the “obvious and

strong interconnection” between primary and general

elections, which together operate as a “single instrumentality

for choice of officers.” Pub. Integrity All., Inc. v. City of

Tucson, 836 F.3d 1019, 1026 (9th Cir. 2016) (quoting Smith

v. Allwright, 321 U.S. 649, 660 (1944)); see Storer, 415 U.S.

at 735 (A primary election “functions to winnow out and

finally reject all but the chosen candidates.”). Conditioning

primary ballot placement on a demonstration of significant

community support advances Arizona’s interests in the

administration of its primary and general elections. See

Anderson, 460 U.S. at 788–89; see also Jenness, 403 U.S.

at 442; Munro, 479 U.S. at 193–94.

Because we neither require “a particularized showing of

the existence of voter confusion, ballot overcrowding, or the

presence of frivolous candidacies,” Munro, 479 U.S. at 194–

95, nor proof that ballot rules are “the only or the best way

to further the proffered interests,” Dudum v. Arntz, 640 F.3d

1098, 1114 (9th Cir. 2011), Arizona has easily met its

burden. The primary signature requirements reasonably

further Arizona’s important regulatory interests and

therefore justify a modest burden on the Libertarian Party’s

right to ballot access.

ARIZ. LIBERTARIAN PARTY V. HOBBS 15

III. Right to Free Association

The Libertarian Party contends that Arizona law

infringes upon its right to free association by effectively

requiring its candidates to solicit signatures from non-

members. Although the Constitution protects a political

party’s right to not associate with non-members, that right

has its limits. U.S. Civil Serv. Comm’n v. Nat’l Ass’n of

Letter Carriers, AFL-CIO, 413 U.S. 548, 567 (1973). We

first ask whether Arizona in any way “forces” the Libertarian

Party to associate with non-members. Cal. Democratic

Party v. Jones, 530 U.S. 567, 577, 581–82, 586 (2000). If

so, we then consider whether such forced association creates

a “risk that nonparty members will skew either primary

results or candidates’ positions.” Ariz. Libertarian Party,

Inc. v. Bayless, 351 F.3d 1277, 1282 (9th Cir. 2003). We

answer both questions in the negative.

Unlike the state laws at issue in Jones and Bayless,

Arizona law permits political parties to exclude non-

members from voting in their primaries. At their option,

Libertarian candidates may use signatures from non-party

members to qualify for the primary ballot—but Arizona law

does not require them to do so. Soliciting non-member

signatures would seemingly prove helpful in placing more

candidates on the primary ballot, but it is the Libertarian

Party’s modest membership, not a “state-imposed restriction

on [its] freedom of association,” that imposes upon it this

“hard choice.” Jones, 530 U.S. at 584. 12

12

In Jenness, the Supreme Court noted that, for an independent or

minor party candidate seeking “signatures of 5% of the eligible

electorate[,] . . . the way is open [because] Georgia imposes no

suffocating restrictions whatever upon the free circulation of nominating

16 ARIZ. LIBERTARIAN PARTY V. HOBBS

We acknowledge, without deciding, that there may be

some point where the ratio between party members and

required signatures constitutes de facto forced association

with non-members. For example, if the signature

requirement exceeded the number of party members, then a

candidate necessarily would, as a matter of arithmetic, have

to solicit non-member signatures to qualify for the ballot.

But we face no such situation here. Libertarian candidates

can qualify for the primary ballot with signatures from 11%

to 30% of party members in their jurisdictions, and no

evidence suggests it is impossible to do so as a practical

matter. Even if collecting these signatures is difficult, we

expect “[h]ard work and sacrifice by dedicated volunteers”

in the operation of “any political organization.” Am. Party,

415 U.S. at 787. Such expectations do not in any way

“force” Libertarian candidates or voters to associate with

non-members.

Nor has the Libertarian Party demonstrated that the

solicitation and submission of some non-member signatures

“will skew either primary results or candidates’ positions.”

Bayless, 351 F.3d at 1282. We decline to embrace such a

speculative conclusion. Any burden on the Libertarian

Party’s associational freedom is modest, so we again apply

less exacting scrutiny and, as above, credit Arizona’s

important interests to justify these reasonable requirements.

See Timmons, 520 U.S. at 358.

petitions.” 403 U.S. at 438. The Court identified various limitations on

signature collection that could be, but were not, imposed under Georgia

law. Id. at 438–39. That a minor party candidate would likely obtain

signatures from non-party members was presupposed by the Court, not

as a bug of this system, but as a positive feature. Id.

ARIZ. LIBERTARIAN PARTY V. HOBBS 17

IV. Equal Protection

Finally, the Libertarian Party contends that the signature

requirements violate equal protection because they impose

lesser burdens on other parties. 13 The Libertarian,

Democratic, and Republican Parties are all established

parties subject to the same statutory requirements.

Although, on its face, Arizona law treats them identically,

we look to see whether the requirements provide “a real and

essentially equal opportunity for ballot qualification.” Am.

Party, 415 U.S. at 788. That standard is clearly satisfied

here. A Libertarian candidate vying for the primary ballot

actually faces a significantly lower burden than his

Democratic and Republican counterparts. For example, a

statewide Libertarian candidate needs to submit

approximately 3,200 signatures, compared to 6,000 and

6,400 signatures for the Democratic and Republican

competitors, respectively. See Ariz. Rev. Stat.

§ 16-322(A)(1); Ariz. Sec. of State, Voter Registration &

Historical Election Data, https://azsos.gov/elections/voter-

registration-historical-election-data (last visited May 7,

2019). 14

That a Libertarian candidate must submit signatures

representing a higher percentage of his party membership

than a Democratic or Republican candidate is a consequence

13

Despite their differences, we assume, without deciding, that the

Libertarian Party is similarly situated to the Democratic, Republican, and

Green Parties and that the Equal Protection Clause applies. See Cronin,

620 F.3d at 1218.

14

Of course, the signature ratio between parties varies within each

political subdivision, as voters are not perfectly distributed throughout

the state. The statewide figures are sufficiently representative for our

purposes.

18 ARIZ. LIBERTARIAN PARTY V. HOBBS

of the Libertarian Party’s modest size, not a fatal flaw of the

statutory scheme. The Supreme Court has indicated that an

analogous imbalance lacks constitutional significance. In

Illinois State Board of Elections v. Socialist Workers Party,

the Court struck down on equal protection grounds a state

law requiring local candidates to submit substantially more

signatures to qualify for the ballot than statewide candidates.

440 U.S. 173, 186–87 (1979). The remedy: imposing the

same, 25,000 signature requirement for both local and

statewide candidates, even though the eligible voter pool for

statewide candidates was six times larger than for certain

local candidates. See id. at 183–87. If such an outcome

comports with equal protection, then surely so does the

situation here.

Even if we assume that the signature requirements

impose a marginally higher burden on the Libertarian Party,

that additional burden is far from severe. Cf. Williams,

393 U.S. at 25 (striking down state law that imposed

“substantially smaller burdens” on certain parties, while

making it “virtually impossible” for others to place a

candidate on the ballot). Under less exacting scrutiny, we

again conclude that the same important regulatory interests

justify the signature requirements. In setting the threshold

for a “significant modicum of support,” Jenness, 403 U.S. at

442, a state must use either an absolute number of voters or

a percentage of some group. Not only is it mathematically

impossible to craft a statute where the burden on each party

is identical under both measurements, Arizona has no

obligation to seek such precision. See Dudum, 640 F.3d

at 1114 (recognizing regulations need not be “narrowly

tailored”). Nor was Arizona required to replicate or fold in

the preexisting burdens on each party when it amended the

ballot access rules in 2015. Cf. Ohio Democratic Party v.

Husted, 834 F.3d 620, 623 (6th Cir. 2016) (rejecting an

ARIZ. LIBERTARIAN PARTY V. HOBBS 19

argument “creat[ing] a ‘one-way ratchet’ that would

discourage states from” increasing ballot access, “lest they

be prohibited by federal courts from later modifying their

election procedures in response to changing

circumstances”). Arizona’s choice to set the threshold as a

percentage of qualified signers for each established party

was neither discriminatory nor unreasonable.

Arizona opted to apply these signature requirements for

all parties that have a significant membership and therefore

exempt such parties from the quadrennial party-wide re-

certification requirements imposed on new parties. This

policy affords significant benefits to all established parties

and furthers the state’s interests in avoiding voter confusion,

minimizing clutter on the primary and general ballots, and

eliminating frivolous candidacies. 15

We likewise observe no equal protection issue in

Arizona’s treatment of the Green Party, a new party subject

to different statutory requirements. When, as here, we

“examin[e] differing treatments of [different types of

political parties], . . . [i]n determining the nature and

magnitude of the burden that [the state’s] election

procedures impose on the [complaining party], we must

examine the entire scheme regulating ballot access.”

Cronin, 620 F.3d at 1217 (internal quotations and citation

omitted). Equal protection is violated when one set of

15

The Libertarian Party’s reliance on Kiffmeyer is, once again,

unpersuasive. There, two minor political parties were subject to the same

ballot access rules; under those rules, one party had all of its candidates

placed on the general election ballot, and the other had none on the ballot,

even though the latter received significantly more votes in the primary.

Kiffmeyer, 688 N.W.2d at 859–61. Minnesota conceded that its these

rules were arbitrary and lacked any “rational . . . purpose.” Id. at 861.

20 ARIZ. LIBERTARIAN PARTY V. HOBBS

requirements is “inherently” or “invidiously” more

burdensome than the other. Am. Party, 415 U.S. at 781;

Jenness, 403 U.S. at 440–41; Cronin, 620 F.3d at 1218–19.

The Libertarian Party’s chief complaint is that Green

Party candidates qualified for the 2016 primary ballot with

significantly fewer signatures than Libertarian candidates

for the same races. 16 This argument fails to account for the

significant quadrennial re-filing burden placed on the Green

Party to retain its new party status. Every four years, the

Green Party, which currently boasts less than

6,500 members, must submit more than 20,000 signatures

for its candidates to be eligible to pursue placement on the

ballot. That is, signatures from three times more voters than

it has registered members. Meeting the re-filing

requirements is “an all-consuming endeavor” for the Green

Party, which relies on “a core group of about 10 volunteers”

to work “every weekend on Saturdays and Sundays for

several hours each” for more than a year. It is only once this

step is complete that the modest individual candidate

signature thresholds apply. Thus, it is obvious that the

primary ballot signature requirements for the Libertarian

Party are not “inherently” or “invidiously” more

burdensome than those imposed on the Green Party. Am.

Party, 415 U.S. at 781; Jenness, 403 U.S. at 440–41. To be

sure, “[t]he procedures are different, but the Equal Protection

16

The Libertarian Party also complains that a write-in new party

candidate automatically qualifies for the general election ballot by

winning his primary, while a write-in established party candidate only

qualifies for the general election ballot if he wins his primary with votes

equaling the number of signatures needed to qualify for the primary

ballot. See Ariz. Rev. Stat. § 16-645(D)–(E). Because the Libertarian

Party expressly disclaims any challenge to Arizona’s general election

ballot access requirements, we do not consider this argument.

ARIZ. LIBERTARIAN PARTY V. HOBBS 21

Clause does not necessarily forbid the one in preference to

the other.” Am. Party, 415 U.S. at 781–82.

CONCLUSION

Arizona has no “constitutional imperative to reduce

voter apathy or to ‘handicap’ an unpopular [party] to

increase the likelihood that [its] candidate[s] will” qualify

for the primary ballot. Munro, 479 U.S. at 198. The state’s

signature requirements are reasonable restrictions that

impose, at most, a modest burden on the Libertarian Party’s

First and Fourteenth Amendment rights, while directly

advancing Arizona’s important regulatory interests. The

district court correctly granted summary judgment to the

Secretary.

AFFIRMED.