Lead Opinion
Opinion by Judge TASHIMA; Concurrence by Judge McKEOWN.
OPINION
In 2011, the Arizona Legislature enacted a law requiring the voter registration form distributed by the Arizona Secretary of State to list the two largest parties (as measured by number of registered voters) on the form, as well as provide a blank line for “other party preferences.” The Arizona Green Party, Arizona Libertarian Party, and three of their members (together, “Plaintiffs”) brought this action, alleging that the new voter registration form violated their First and Fourteenth Amendment rights. The district court concluded that the amended voter registration form survived constitutional scrutiny and granted the State’s motion for summary judgment. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
I.
A. Section 16-152(A)(5) and the Registration Form
In 2011, the Arizona Legislature amended the statute that dictates the content of the voter registration form provided by the State (the “Registration Form”). See 2011 Ariz. Legis. Serv. Ch. 389 § 1 (West) (codified at Ariz.Rev.Stat. § 16-152(A)). The amended statute provides, in relevant part:
A. The form used for registration of electors ghall contain.
5. The registrant’s party preference. The two largest political parties that are entitled to continued representation on the ballot shall be listed on the form in the order determined by calculating which party has the highest number of registered voters at the close of registration for the most recent general election for governor, then the second highest. The form shall allow the registrant to circle, check or otherwise mark the party preference and shall include a blank line for other party preference options.
Ariz.Rev.Stat. § 16-152(A)(5). Prior to the 2011 amendment, Arizona law required only that voter registration forms include a blank space for “[t]he registrant’s party preference.” See Ariz.Rev.Stat. § 16-152(A)(5) (2010). As of January 1, 2011, the two parties with the highest number of registered voters in Arizona were the Republican Party, with approximately 35.8 percent, and the Democratic Party, with approximately 31.6 percent. The next largest party was the Libertarian Party, with approximately 0.78 percent of registered voters.
In response to the amendment, the Arizona Secretary of State revised box 14 on the Registration Form. In its current form, box 14 appears as follows:
The blank line under the “Other” checkbox is approximately 0.9 inch long. The Registration Form also provides the following instructions regarding box 14:
Fill in your political party preference in box 14. If you leave this box blank as a first time registrant in your county, your party preference will be “Party Not Designated.” If you leave this box blank and you are already registered in the county, your current party preference will be retained. Please write full name of party preference in box.
B. Arizona’s Voter Registration Scheme
Under Arizona law, qualified electors
1.They may obtain, fill out, and mail in the Registration Form, which can be downloaded from the Secretary of State’s website or picked up from either the Secretary of State’s office or any local county recorder’s office, see Ariz.Rev.Stat. § 16-151;
2. They may submit an online voter registration application using the “EZ Voter Registration” process, available at the Arizona Department of Transportation’s service website, see Ariz.Rev.Stat. § 16-112(B)(4); see also Ariz. Dep’t of Transp. Motor Vehicle Div., Service Arizona, http://www.servicearizona.com (last visited Jan. 7, 2015);3 or,
3. They may register in person at Arizona Motor Vehicle Division offices by filling out a section provided on the form for a driver’s license or renewal for individuals who want to register to vote.
Section 16-152(A)(5) applies only to the first of these three options — that is, only the Secretary of State is required to provide checkboxes for the two largest parties on the Registration Form.' See Ariz.Rev. Stat. § 16-152(E) (providing that the content regulations set forth in § 16-152(A) “do[] not apply to registrations received from the department of transportation”). Like the Secretary of State’s form before the amendment to § 16-152(A)(5), the second and third options allow a registrant to indicate party preference by entering any party’s name, including a major party.
Under Arizona law, there are two ways for a party to get its preferred candidate on the ballot.
After these first two federal election cycles, a party may continue to be represented by an official party ballot during a primary election and accorded a ballot column in the succeeding general election (that is, the party is entitled to “continuing ballot access”) in one of two ways. First, a party is entitled to continuing ballot access if its candidate receives “not less than five per cent of the total votes cast for governor or presidential electors” at the “last preceding general election” for certain specified offices. Ariz.Rev.Stat. § 16-804(A). Second, a party is entitled to continuing ballot access if, on certain dates prescribed by statute, the party “has registered electors in the party equal to at least two-thirds of one per cent of the total registered electors in such jurisdiction.” Ariz.Rev.Stat. § 16-804(B). A party that loses continuing ballot access may get it back the same way a new party would gain access to the ballot: it must submit another petition signed by a number of qualified electors equal to one and one-third (1 lk) percent of the total votes cast for governor at the last preceding general election at which a governor was elected. See Ariz. Rev.Stat. § 16-801(B).
When Plaintiffs filed their complaint, five parties had continuing ballot access: Republican, Democratic, Green, Libertarian, and Americans Elect. During the pendency of this appeal, the Arizona Green Party lost its continuing ballot access.
D. Procedural History
Plaintiffs’ complaint, filed against defendant Ken Bennett, as Arizona Secretary of State, alleges that § 16-152(A)(5) violated their' First and Fourteenth Amendment rights. Plaintiffs sought an order from the district court enjoining the State from issuing voter registration forms that failed to “treat equally the four parties with Statewide continuing ballot access.” On the parties’ cross-motions for summary judgment, the district court denied Plaintiffs’ motion and granted the State’s motion. Plaintiffs timely appeal.
II.
This Court reviews the constitutionality of a statute de novo. See Chamness v. Bowen,
III.
A. The Framework for Resolving Constitutional Challenges to State Election Laws
“Restrictions on voting can burden equal protection rights as well as ‘in
“At the same time,” however, “ ‘States retain the power to regulate their own elections.’ ” Dudum,
Thus, in order to “resolve the tension between a [party’s] First Amendment rights and the state’s interest in preserving the fairness and integrity of the voting process,” the “Supreme Court developed a balancing test.” Rubin v. City of Santa Monica,
Accordingly, “the severity of the burden the election law imposes on the plaintiffs rights dictates the level of scrutiny applied by the court.” Id. (quoting
B. Section 16-152(A) Imposes a De Minimis Burden on Plaintiffs’ Constitutional Rights
In cases “previously examining differing treatments of minor and major political parties,” we have held that, “in determining the nature and magnitude of the burden that the state’s election procedures impose on the minor party, we must examine the entire scheme regulating ballot access.” Cronin,
Plaintiffs have failed to make any such showing. Section 16-152(A)(5) does not directly inhibit the ability of any party to gain access to the ballot, nor does it articulate different criteria for major and minor parties who seek to get their candidates on the ballot. All new political parties (and parties that have lost continuing ballot access) are required to comply with the same criteria to get their candidate on the ballot. See Ariz.Rev.Stat. § 16-801. Moreover, all political parties, major and minor alike, are entitled to continuing ballot access if: (1) their candidates garner at least five percent of the “total votes cast for governor or presidential electors” at the “last
Acknowledging that § 16 — 152(A)(5) does not directly burden their ability to get their preferred candidate on the ballot, Plaintiffs instead assert that the statute indirectly “restricts] the availability of political opportunity,” Munro,
Plaintiffs have failed, however, to adduce any evidence that § 16-152(A)(5) actually encourages individuals to register for major parties instead of minor ones. As an initial matter, Plaintiffs have failed to show how many new voters actually use the Registration Form to register, as opposed to using one of the other three alternative means, which do not require use of the Registration Form. Without some assessment of how many voters actually use the Registration Form, we cannot even begin to gauge the impact it may have had on party registration rolls.
Moreover, even if we were to assume that a significant number of voters used the Registration Form, Plaintiffs failed to adduce any evidence — statistical, anecdotal, or otherwise — that the Registration Form has, in fact, encouraged voters to register for the major parties over minor ones. Plaintiffs suggest that the Registration Form discourages voters from registering with minor parties by sending “a message to the future voter” that there are only “two [real ] political parties in this State,” and that “[registering for any other party is a show of eccentricity” that must be “grudgingly tolerate[d].” However, Plaintiffs failed to introduce even an iota of evidence in support of this assertion. The alleged psychological effects that the Registration Form has on registering voters is sheer speculation.
In sum, by failing to adduce evidence that the Registration Form actually discourages or prevents voters from registering with minor parties, Plaintiffs have failed to meet their “initial burden of showing that [Arizona’s] ballot access requirements seriously restrict the availability of political opportunity.” Munro,
Where, as here, a state election law imposes only a de minimis burden on a party’s First and Fourteenth Amendment rights, the State “need demonstrate only that [the statute at issue] is rationally related to a legitimate state interest.” Cronin,
Plaintiffs have failed to meet their burden. Section 16-152(A)(5) is ra
Although election officials also have an interest in correctly registering applicants who wish to associate with smaller political parties,' there are, as the State notes, countervailing concerns about providing check-boxes for smaller political parties that are not present with the two largest parties. For example, smaller political parties lose their status as recognized political parties under Arizona law much more frequently than the major parties do. If Arizona was required to provide checkboxes for all political parties entitled to continuing ballot access, as Plaintiffs suggest, the State would be required to change, and reprint, the Registration Form each time a party lost, or gained, continuing ballot access.
IV.
In sum, we conclude that Plaintiffs have failed to meet their burden of demonstrat
AFFIRMED.
Notes
. Although the exact percentage of voters registered with each party has fluctuated slightly since January 1, 2011, the Republican and Democratic Parties have • remained the two parties with the highest number of registered voters.
. Arizona law sets forth certain criteria that make a resident of the state a “qualified elector.” See Ariz.Rev.Stat. §§ 16-101, 16-121.
. We may take judicial notice of “official information posted on a govérnmental website, the accuracy of which [is] undisputed.” Dudum v. Arntz,
. In addition, "[t]he National Voter Registration Act requires States to 'accept and use’ a uniform federal form to register voters in federal elections.” Arizona v. Inter Tribal Council of Ariz., Inc.,-U.S.-,
. Arizona law also permits individuals who are not members of political parties to qualify for the ballot if they comply with certain criteria. See Ariz.Rev.Stat. § 16-341.
. At oral argument counsel for appellants informed the court that the Green Party has again qualified for continuing ballot access by submitting a petition with a sufficient number of signatures.
. Although Plaintiffs assert both First and Fourteenth Amendment claims, "[t]he Supreme Court has addressed such claims collectively using a single analytic framework.” Dudum,
. Plaintiffs urge us to forgo a severity-of-the-burden analysis, arguing that, because § 16— 152(A)(5) differentiates between major and minor parties on its face, strict scrutiny automatically applies. Plaintiffs’ proposed bright-line rule is at odds with both Supreme Court precedent and our own. Although the Supreme Court has expressed a generalized concern about laws that favor major parties over minor parties, see, e.g., Anderson,
. Both sides make much of a chart compiled by the State that details the number of qualified electors registered with the Republican, Democratic, Green, and Libertarian Parties, as well as an undefined "Other” category, at various points between January 1, 2011, and March 1, 2012. These raw data do not, by themselves, allow us to draw reliable conclusions as to whether the Registration Form actually dissuaded new voters from registering with minor parties. Party registration may ebb hnd flow for myriad reasons, including overall changes in the number of eligible voters, in voter mobilization activity, or in disaffection with the electoral process. Although a study isolating the effects that the Registration Form has had on party registration might allow a fact-finder reasonably to infer that the Registration Form has discouraged voters from registering with minor parties, Plaintiffs have presented no such evidence here.
. Alternatively, we have stated that, in cases in which an election law imposes a de minim-is burden on constitutional rights, the challenged procedures "survive review as long as they further a state's important regulatory interests." Wash. State Republican Party v. Wash. State Grange,
. Although we have noted that there may be "instances where a burden is not severe enough to warrant strict scrutiny review but is serious enough to require an assessment of whether alternative methods would advance the proffered governmental interests,” Dudum,
. We apply Munro because it is binding on us and addresses situations, like this one, in which the burden, if it exists at all, is vanishingly small. We note, however, that Munro's statements that we may consider hypothetical rationales for a state's election law, and that the plaintiff alleging a de minimis burden must demonstrate the lack of a rational basis, are in tension with some of our other cases and Supreme Court precedent. See, e.g., Bur-dick,
. Indeed, just during the pendency of this appeal, the State would have had to alter and replace such a Registration Form when the Green Party lost its continuing ballot access, and change it again when the Green Party regained access.
. The State also argues that § 16 — 152(A)(5) serves its interest of "maintaining the stability of Arizona’s political system through a healthy two-party system.” In light of our conclusion that § 16 — 152(A)(5) is rationally related to the State's legitimate interest in efficiently and accurately determining most voters’ registration preference, we do not address this assertion.
Concurrence Opinion
concurring:
I concur in the panel’s judgment: Arizona’s voter registration form passes constitutional muster. I write separately because I believe the rational basis review and burden-shifting standards articulated in Libertarian Party of Washington v. Munro,
The majority opinion discusses at length how political parties in Arizona gain access to the ballot and states that “[t]he relevant inquiry ‘is whether “reasonably diligent” minor party candidates can normally gain a place on the ballot....’” Maj. Op. at 730-31 (quoting Munro,
The starting point for analyzing an election law challenge is the Supreme Court’s opinion in Burdick v. Takushi,
In Munro, we summarized Burdick as follows: “If the burden is severe, the challenged procedures will pass muster only if they are narrowly tailored to achieve a compelling state interest. If the burden is slight, the procedures will survive review as long as they have a rational basis.”
This understanding of the Supreme Court’s approach to analyzing voting rights cases is faithfully reflected in our recent decision in Dudum v. Arntz,
Munro, like the majority opinion, suffers another deficiency — it places the burden on the plaintiffs vis-a-vis the state’s purported interests. In a situation where there is only a slight burden on a party’s constitutional rights, Munro instructs that that party “bear[s] the burden of demonstrating that the regulations [it] attack[s] have no legitimate rational basis.” 31 F.3d at. 763. This turns Burdick’s balancing standard on its head and relieves the state of its burden of putting forward “interests ‘sufficiently weighty to justify the limitation.’ ” Crawford,
It may well be that the semantic distinction between the balancing test and the rational basis standard articulated in Munro makes little difference in many cases. See Christopher S. Elmendorf, Structuring Judicial Review of Electoral Mechanics: Explanations and Opportunities, 156 U. Pa. L.Rev. 313, 330 (2007) (“For now, suffice it to say that the Supreme Court typically applies something like rational basis review in [voting rights cases where the burden is nonsevere], but that the rationality standard may .not be quite so lax as the one applied to ordinary economic and social legislation.”). However, it is
Any effort to apply the balancing standard to this case is hamstrung by a lack of evidence. It is remarkable that both parties rely'principally on generalizations, i.e. a claimed burden, or platitudes, i.e. efficiency, rather than evidence. Other than the registration form itself and statistics that show an- ambiguous decline in voter registrations across all political parties, the minority parties have not presented any evidence that demonstrates the burden on their rights.
In light of the poorly developed record in this case, I conclude that the voter registration form passes constitutional muster. The form is constitutional, however, not because the minority parties have “failed to meet their burden” of demonstrating it “ha[s] no legitimate rational basis,” Maj. Op. at 732. Rather, the voter registration form is constitutional because, even on the thin record we have before us, the state’s asserted interests in reducing printing costs and easing administrative efficiency are “sufficiently weighty to justify” the speculative burden on the plaintiffs’ rights. See Crawford,
I recognize that Munro has never been officially overruled or abrogated. However, in my view, to the extent Munro prescribes a different standard than what the Supreme Court articulated in Burdick and reiterated in Crawford, we should fix it.
. In Anderson v. Celebrezze, the Supreme Court explicitly recognized that state "schemes ... govern[ing] the registration and qualification of voters” can burden "the individual's right to vote and his right to associate with others for political ends.”
. The majority states not only that the burden imposed by the voter registration form is "de minimis,” but also that it is "assuredly not an infringement of constitutional dimension.” Maj. Op. at 732 n. 12. I disagree. In the ballot context, the Supreme Court has specifically recognized the burden imposed by requiring voters to write a word rather than to check a box. Lubin v. Panish,