ORDER
Pending before the Court are Defendant’s Motion for Summary Judgment (“Def.’s Mot.”) filed October 14, 1997, Plaintiffs’ Motion for Summary Judgment (“Pis.’ Mot.”) filed November 19, 1997, and Oppositions and Replies to each. On August 4, 1998, the Honorable Raymond Ter-lizzi, United States Magistrate Judge, filed his Report and Recommendation, recommending that the District Court grant Defendant’s Motion and deny Plaintiffs’ Motion. The Court granted Plaintiffs’ August 17, 1998 Motion for an Extension of Time to File Objections to Magistrate’s Report and Recommendation. On September 21, 1998, Plaintiffs filed their Objection to the Magistrate’s Report and Recommendation. A hearing on the cross motions for summary judgment was held in front of the Honorable William D. Browning on March 16, 1999. After a thorough and de novo review of the record and the additional evidence presented by Plaintiffs in their objection to the Report and Recommendation and both parties at the hearing, the Court declines to accept the recommendation of the Magistrate Judge.
FACTUAL AND PROCEDURAL BACKGROUND
The facts are essentially undisputed. Plaintiffs Campbell and Haywood are members of the Arizona Green Party who sought office as, and circulated petitions to become, presidential elector candidates on behalf of their party and its candidate, Ralph Nader, in the 1996 presidential election. (Compl. at ¶¶ 2, 3.) Plaintiff Kromko, a registered Democrat, signed a nominating petition for presidential elector candi
In Arizona, political parties are either “qualified” parties, or “non-qualified” parties, depending on how many votes the party received in the last election. Pursuant to A.R.S. § 16-341, to be placed on the general election ballot, candidates from a “non-qualified” party such as the Green Party must circulate nomination petitions and obtain a certain minimum number of valid signatures. A.R.S. § 16-341(E). This is different from the process required of “qualified” parties; pursuant to A.R.S. § 16-344, the respective state chairmen of the qualified parties appoint their own party’s candidates for presidential electors. A.R.S. § 16-344. Those candidates appear on the general election ballot without the candidates having to circulate petitions. (Def.’s Mot. at 12.) In March of 1996, the qualified parties were the Democratic, Republican and Libertarian parties. (Def.’s Statement of Facts (“DSOF”) in Supp. of Mot.Summ. J. at ¶ 13.)
Members of the Greén Party began circulating nominating petitions for presidential elector candidates supporting Ralph Nader on May 4,1996. (PL’s Statement of Facts (“PSOF”) at ¶ 21.) They were required, pursuant to A.R.S. § 16-341(E), to obtain signatures equal to 3% of the qualified electors (registered voters) in the State of Arizona at the last election who were not members of a qualified political party. (DSOF at ¶ 8.) At the time of the 1994 election, there were 260,404 such voters. (DSOF at ¶ 10.) Accordingly, Green Party candidates needed to obtain 7,813 valid signatures to appear on the 1996 general election ballot. (Id.) Only registered voters who were not registered Democrats, Republicans or Libertarians could validly sign a petition for Green Party presidential elector candidates. (DSOF at ¶¶ 8, 13.) Thus, John Kromko, a registered Democrat, could not validly sign a petition for Green Party candidates pursuant to A.R.S. § 16-341. (Compl. at 2.)
The only qualification for signors of presidential elector candidate petitions pursuant to AR.S. § 16-341 is that they not be members of a qualified political party. (DSOF at ¶ 12.) The petitions do not have to be notarized, there is no commencement date for collecting signatures (just an ending deadline), one signature on a petition can count as a signature for up to eight candidates listed on one petition, and there is no geographical limitation (a signature gatherer can obtain signatures from qualified signors in any county in Arizona). (Id. at ¶¶ 18-22.)
As of March 1, 1996, Arizona -had an applicable pool of 273,772 registered voters who were not members of a qualified party, and thus were eligible to sign a nomination petition.
(Id.
at ¶ 14.) At the County Recorder’s offices one can discover the names of all registered voters in a particular county eligible to sign petitions for candidates of non-qualified parties.
(Id.
at ¶ 30.) The lists are available for review for free, or a list can be obtained for a price (five cents per name for a paper list or ten cents per name for an electronic list). A.R.S. § 16-168(E). For the number of eligible signors involved in this case, someone would have had to copy over a quarter of a million names by hand, or purchase a list on paper for $13,689 (273,-772 x $.05), or purchase an electronic list (which would be necessary for mass mailing purposes) for $27,377 (273,772 x $.10); These numbers are slightly in dispute and they are recited here for demonstrative purposes only.
1
Plaintiffs obtained a list
Presidential elector candidates must file their nomination petitions not less than 75 nor more than 105 days before the primary election. See A.R.S. § 16-341(C) and § 16-311. In 1996, the primary election was held on September 10 pursuant to A.R.S. § 16-201, therefore, the petition filing deadline was June 27, 1996. (Def.’s Mot. at 5.) On that day, Green Party volunteers turned in either 4,242 or 4,257 signatures to the Secretary of State’s office. 2 (DSOF at ¶¶ 16, 17.) The Secretary determined that the number of signatures was insufficient to place Green Party electors representing their candidate Ralph Nader on the November 1996 general election ballot. (Compl. at ¶ 13.) Plaintiffs filed this action on July 3, 1996. (Id. at ¶ 14.)
Any candidate that fails to gain access to the general election ballot by obtaining signatures may still gain access as a write-in candidate, pursuant to A.R.S. § 16-312, without obtaining signatures, by filing a nomination form no later than fourteen days prior to the general election. (DSOF at ¶ 35.) The eight Green Party presidential elector candidates representing their party and its candidate, Ralph Nader, achieved write-in candidate status by following those procedures. (Id. at ¶36.) Plaintiff Kromko voted for them as write-in candidates in the 1996 general election. (Id. at ¶ 37.)
The current version of A.R.S. § 16-341 became effective January 1, 1994. (Id. at ¶ 60.) Since then there have been two statewide general elections, one in November 1994 and one in November 1996. (Id.) The office of presidential elector appeared on the ballot in November 1996, but not in 1994. (Id.) Two state legislative candidates belonging to a non-qualified party, the Natural Law Party, gained access to the general election ballot pursuant to A.R.S. § 16-341 in 1996. (Id. at ¶ 61.) No presidential elector candidates from non-qualified parties made the general election ballot other than as write-in candidates. (Pis.’ Mot. at 10.)
STATEMENT OF THE CASE
Plaintiffs challenge the constitutionality of three provisions of A.R.S. § 16-341:(1) A.R.S. § 16-341(C) in combination with A.R.S. § 16-311(A) — the deadline for submission of nomination petitions for presidential elector candidates; (2) A.R.S. § 16-341(C) — the requirement that signors of nomination petitions not be members of qualified political parties; and (3) A.R.S. § 16-341(E) — the percentage of signatures required on nomination petitions. Specifically, Plaintiffs claim that these provisions combine to severely burden their right to vote for the candidate of their choice, in violation of their rights to equal protection and due process under the Fourteenth Amendment and their right to free speech/freedom to associate under the First Amendment. Plaintiffs claim that the provisions make it virtually impossible for a reasonably diligent independent candidate to secure access to the Arizona ballot. Furthermore, Plaintiffs argue that Arizona’s asserted interests are not sufficiently weighty to justify the harsh limitations on Plaintiffs’ rights, and that the statute is not narrowly tailored to meet the state’s less-than compelling interests.
Defendant argues that the burdens the statute imposes on minor-party candidates are
de minimis.
She argues that the statute’s provisions are reasonable and nondiscriminatory, and a diligent independent candidate could fulfill the requirements. She claims that any failure of Plaintiffs to gain ballot access is a result, not of any statutory hurdles, but of Plaintiffs’ lack of due diligence in collecting signatures. She also claims that the statute furthers the state’s interests in holding fair, honest and efficient elections, accomplishing necessary pre-election tasks, protecting party members’ associational rights, and in prevent
STANDARD FOR SUMMARY JUDGMENT
Summary judgment is proper where no genuine issue as to any material fact exists and the movant is entitled to judgment as a matter of law.
See
Fed.R.Civ.P. 56(c);
Celotex Corp. v. Catrett, 477
U.S. 317, 322,
The initial burden rests on the moving party to point out the absence of any genuine issue of material fact, but the moving party need not support its motion with affidavits or other supporting materials.
See
Fed.R.Civ.P. 56(a);
Celotex, 477
U.S. at 323,
The parties in this case have each filed Motions for Summary Judgment. They agree that there are no genuine issues of material fact in dispute; the parties disagree on the significance of the facts. They agree that the issues are essentially legal. Therefore, summary judgment is appropriate.
DISCUSSION
The right to associate and form political parties for the advancement of common political goals and ideas is protected by the First and Fourteenth Amendments to the U.S. Constitution.
See Timmons v. Twin Cities Area New Party,
“Although these rights of voters are fundamental, not all restrictions imposed by the States on candidates’ eligibility for the ballot impose constitutionally suspect burdens on voter’s right to associate or to choose among candidates.”
Id.
at 788,
There is surely an important state interest in requiring some preliminary showing of a significant modicum of support before printing the name of a political organization’s candidate on the ballot— the interest, if no other, in avoiding confusion, deception and even frustration of the democratic process at the general election.
Jenness v. Fortson,
“Moreover, a State has an interest, if not a duty, to protect the integrity of its political processes from frivolous or fraudulent candidacies.”
Bullock,
TEST FOR CONSTITUTIONALITY
Laws imposing a burden on the right to vote is not necessarily subject to strict scrutiny.
See Burdick v. Takushi,
The rigorousness of the Court’s inquiry into the propriety of a state election law depends upon the extent to which a challenged regulation burdens First and Fourteenth Amendment rights.
See Burdick,
A. Severity of Burden Imposed
“The right to vote is heavily burdened if that vote may be cast only for one of two parties at a time when other parties are clamoring for a place on the ballot.”
Lubin,
In determining the nature and magnitude of the burden that Arizona’s procedures impose on independent candidates, the Court must examine the entire scheme regulating ballot access.
See Libertarian Party of Washington,
1. June 27 filing deadline
Plaintiffs argue that the Nader campaign grew from a single state candidacy in December 1995 to a nationwide effort in the summer of 1996. (PSOF at ¶¶ 4-36.) In April, when it appeared that Nader would succeed in mounting a national campaign, the Arizona Green Party decided to join the effort. (Id. at ¶ 17.) They began circulating petitions on May 4, 1996. Plaintiffs argue that at the rate the campaign was picking up steam, they would have been able to meet the signature requirement if they had an additional month, even considering the exclusion of major party members from the pool of eligible signors. (Id. at ¶ 30.) Defendant argues that if all Plaintiffs needed was 30 more days, they should have started collecting signatures earlier, rather than waiting until the eleventh hour. Plaintiffs counter that all months are not equal in an election year; what they needed was more time in the summer, as issues crystalized and voter interest increased. Additionally, Plaintiffs allege that although courts have upheld earlier deadlines in the context of non-presidential independent candidates, no court has upheld a deadline for filing nominating petitions for independent presidential candidates as early as Arizona’s June 27th deadline. Furthermore, the district court in Nevada granted a preliminary injunction that required Nevada to accept a nominating petition filed after its June 10th filing deadline. See Fulani v. Lau, CIV-92-535-ECR (1992).
Courts have recognized that an early filing deadline could have a notable impact oh independent-minded voters.
See Anderson,
In
Anderson,
the Court struck down a March deadline for filing independent parties’ nominating petitions as too remote from the election.
See Id.
The Ohio statute at issue required petitions to be filed 229 days in advance of the election; if they were not timely filed, there was no alternative means of gaining access to the ballot via a write-in campaign. Non-partisan candidates also had to submit their petitions significantly earlier than the partisan candidates.
See Id.
The Court found that these provisions placed too severe a burden on independent-minded voters; if the deadline were later in the year, a newly emergent independent candidate could serve as the focal point for a group of voters who decided that they were dissatisfied with the choices within the two major parties. “[T]his disaffected ‘group’ will rarely if ever be a cohesive or identifiable group until a few months before the election.”
Id.
at 791,
Defendant points out that the Arizona statute sets a deadline 130 days from the election, nearly half that of the 229 days struck down in
Anderson,
and applies equally to all candidates, whether they are affiliated with qualified or non-qualified parties. However, candidates of qualified
Defendant also points out that if potential candidates are unable to collect sufficient signatures to be printed on the ballot, they still have an alternative means of gaining ballot access through write-in procedures, which requires no petitions or signatures, just forms submitted by fourteen days prior to the election. A.R.S. § 16-312.
“The realities of the electoral process, however, strongly suggest that ‘access’ via write-in votes falls far short of access in terms of having the name of the candidate on the ballot.”
Lubin,
The United States Supreme Court upheld a Hawaii prohibition on write-in candidates.
Burdick, 504
U.S. at 436-37,
A requirement of 25 or 200 signatures (depending on the office sought) and a cutoff for filing minor party candidacy papers 75 days before the election and 30 days before major party candidates had to announce their candidacies was upheld by the Ninth Circuit in
Libertarian Party of Washington,
The Eleventh Circuit Court of Appeals found that an Alabama statute requiring signatures of at least one percent of the qualified electors by 60 days before the primaries, April 6, posed a significant bur
A review of prevailing case law indicates that the following regulations are constitutional: (1) a cutoff date of 60 days prior to the September primary election combined with a nominal signature requirement and no write-in availability,
Burdick,
Constitutional challenges cannot be resolved by any “litmus-paper test” that will separate valid from invalid restrictions; there is “no substitute for the hard judgments that must be made.”
Storer,
2. Signatures equal to 8% of registered voters in non-qualified parties in last election
Any fixed percentage requirement is necessarily arbitrary.
See American Party of Texas v. White,
In
Jenness,
the United States Supreme Court upheld a Georgia law requiring signatures of 5% of the total of registered voters in the last election, but a voter of any party could sign as many nominating petitions as he wanted.
Jenness,
It is clear that in and of itself, the requirement of 3% of the voters who were not members of qualified parties, in this case 7,813 signatures, is not a severe burden. It is a well-settled principle that states may require a showing of a “modicum of support” to place a minor party’s candidates on the ballot.
See Jenness,
403
3. Petition signors cannot belong to a qualified party
The court is unaware of any other statute in any other state that prohibits voters affiliated with major parties from signing a nomination petition for an independent party’s candidate. Neither Plaintiffs nor Defendant have submitted any case authority on any similar statute. In fact, Plaintiff alleges that in this country’s entire history, only one other state has ever had such a statute. From 1918 to 1949, Louisiana prohibited voters registered as members of the Republican or Democratic parties from signing petitions to place an independent or third-party candidate on its ballot. During that time period, no independent or third-party statewide or federal candidate, including a 1924 Progressive Party candidate who appeared on the ballot in every other state, was able to get a place on the Louisiana ballot. (Pis.’ Mot. at 11.) Moreover, Louisiana’s ballot access laws were far less restrictive than Arizona’s current law in two ways: Louisiana allowed independent candidates until September to file nominating petitions while Arizona’s deadline is June 27, and Arizona requires approximately 7,813 signatures while Louisiana only required 1,000. Defendant argues that Louisiana’s statute from nearly 50 years ago is irrelevant. Plaintiffs assert that, given the dismal historical record of a similar statute, they should not have to wait through numerous election cycles in Arizona before their constitutional rights are vindicated.
The vast majority of voters in Arizona are registered to the qualified parties. Only 13.2% of the registered voters in Arizona in 1996 were unaffiliated, or affiliated with non-qualified parties. Thus, Arizona excludes 86.8% of the electorate from nominating independent candidates, unless they disaffiliate from their current political parties. (PSOF at ¶ 37.) Only about 15.8% of the eligible voters voted in the February 1996 presidential preference election (Arizona’s equivalent of a primary election). Thus, even if Arizona had excluded those voters from signing nominating petitions, there were still over 1.5 million voters, or about 71% of the total number of registered voters, belonging to qualified parties who did not vote in the primary election but were prevented from signing a petition that would allow an independent candidate to appear on the general election ballot. (PSOF at ¶¶ 37-39.) Plaintiffs were therefore prevented from seeking the support of 86.8% of Arizona’s voters, the large majority of whom did not vote in the presidential preference election for whom signing a nomination petition would have been their sole pre-general election “voice”.
Plaintiffs claim that difficulty of finding non-affiliated voters severely burdened their ability to obtain signatures. Defendant argues that Plaintiffs could have obtained, but did not, a list of voters who did not belong to qualified parties, and that Plaintiffs and their party’s volunteers were not diligent in their campaign efforts. Defendant also argues that signatures were only gathered in two counties, Pima and Maricopa, the most densely populated counties, and the total burden on each petition gatherer was a mere 5 signatures per day. Defendant further asserts that only four of the eight Green Party candidates actually circulated petitions. Moreover, Defendant argues that two state legislative candidates did gain access to the general election ballot pursuant to A.R.S. § 16-341. (DSOF at ¶ 61.)
Plaintiffs’ Statement of Facts outlining the actions that were taken during 1996 to get the campaign off the ground presents a
The restriction on party affiliation of potential signors places a significant burden on non-qualified party candidates even though petitions don’t have to be notarized, there is no geographical limitation, signatures can count for up to 8 candidates, and lists of eligible signors are available for a price. This is especially true because in many cases independent candidates are less likely to have a strong financial base, at least early in a campaign, with which to purchase a list of those voters eligible to sign nomination petitions.
Plaintiffs claim that the Green Party did not have enough funds available in their small budget to purchase a list and do a direct mailing. Additionally, it was antithetical to Ralph Nader’s goals and ideals to collect money from political action groups. Their only option was to go out into the community and talk to people wherever crowds gather, to find eligible petition signors. Plaintiffs argue that the United States Supreme Court has made it clear that states may not constitutionally impose even far lower economic barriers to ballot access.
See Bullock,
Although Arizona’s restriction on major-party affiliated voters is unique in the last half-century, numerous courts have concluded that the Constitution does not permit states to require voters to change their party affiliation in order to nominate independents or minor party candidates.
See Libertarian Party of Kentucky v. Ehrler,
The unnecessary cost of obtaining the list of voters who do not belong to qualified parties combined with the small percentage of voters available to sign the petitions (13.2%) and the difficulty of finding these voters creates a severe burden on voters' and candidates’ First and Fourteenth Amendment rights. Additionally/ Arizona may not require voters to change their party affiliation as a condition of nominating independent or minor party candidates. Historically in Louisiana and Arizona this restriction “freezes” the status quo by effectively barring all candidates for national office other than those of the major parties. Therefore, in light of entire Arizona scheme regulating ballot access the restriction on petition signors’ party affiliation creates a severe burden on voters and candidates constitutional rights.
Conclusion
In combination, the June 27 deadline (the third earliest in the nation), the mandated non-qualified party status of nomination petition signors (the only one in the nation), and the requirement of 3% of the voters in the last election who were not affiliated with a qualified party impose severe burdens on voters and non-qualified party candidates. To justify such an imposition, the regulation must be narrowly drawn to advance a state interest of compelling importance. See
Timmons,
520 U.S at 357,
B. State’s Interest
In the context of a Presidential election, state-imposed restrictions implicate a uniquely important national interest. The State has a less important interest in regulating Presidential elections than statewide or local elections, because the outcome of the former will be largely determined by voters beyond the State’s boundaries.
See Anderson,
The Supreme Court has stated, however, that there is surely an important state
Petition signors cannot belong to a qualified party
A.R.S. § 16-34KC) prohibits voters affiliated with qualified parties, whether or not they voted in a presidential preference election, from signing a nominating petition for a candidate affiliated with a non-qualified party. Defendant argues that this statute protects the state’s interests in the prevention of splintered parties and reduction in the probability of frivolous candidates. Defendant further argues that the United States Supreme Court has upheld statutes which prohibit voters who voted in the primary election from signing another candidate’s nominating petition,
see White,
In
Storer v. Brown,
CONCLUSION
Although the restrictions imposed on Plaintiffs by A.R.S. § 16-341 are non-dis-eriminatory, taken as a whole they severely burden Plaintiffs’ First and Fourteenth Amendment rights. Plaintiffs concede that if A.R.S. § 16-341(C), the restriction on support from major party-affiliated voters, is struck down, the early filing date or the 3% requirement standing alone would not offend the Constitution. The state has failed to make a showing that A.R.S. § 16-341(C) is narrowly tailored to advance a compelling state interests. Thus, the Court finds that A.R.S. § 16-341(C), the requirement that signors of nomination pe
Accordingly,
IT IS ORDERED that:
1. Defendant’s Motion for Summary Judgment Doc. # 37 is DENIED;
2. Plaintiffs’ Motion for Summary Judgment Doc. #44 is GRANTED to the extent specified in this Order;
3. Defendant is enjoined from enforcing the second sentence of A.R.S. § 16-341(C); the requirement that signors of nomination petitions not be members of political parties;
4. This action is DISMISSED WITH PREJUDICE.
Notes
. Plaintiff used the October 1996 total of eligible petition signors of 295,499 and, thus, claims it would have cost $29,550 for the list. (PSOF at ¶ 41.)
. The receipt from the Secretary of State’s office on June 27, 1996, shows 4,242 signatures; a review by that office in September 1997 shows the total was actually 4,257.
