State lawmakers are free to provide special spots on voter registration forms to Democrats and Republicans that are not offered to other political parties, a federal judge has ruled.
Judge Cindy Jorgenson acknowledged that the 2011 law does mean that those who want to register as Libertarians - or, for that matter, any minor party - have an additional hurdle.
That's because the registration forms have three spaces: Republican, Democrat and "other." And that last option requires an individual to write out the name of the desired party.
But Jorgenson rejected claims by an attorney for the Libertarian Party that the law amounts to illegal and unacceptable discrimination. She said the state has a legitimate interest in keeping the registration form simple.
Jorgenson, in U.S. District Court, also pointed out the law does not mention any specific party but instead requires that the two parties with the most registered voters be listed. The judge said that means, at least theoretically, that the Libertarians could qualify.
The provision was made part of a larger proposal on changes to state election laws pushed during the legislative session by the Arizona Republican Party.
Until 2011, those registering to vote were given a blank line to insert their preferred party choice. Former state Sen. Frank Antenori, R-Tucson, who sponsored the legislation, said at the time there was a good reason for it: People were leaving the parties.
What that meant, Antenori said, is they were registered as independent, unaffiliated with any party at all. But he said some people probably wanted to list themselves with a party but just forgot.
He said there was insufficient space on the form to list all four recognized parties, along with the option to remain independent. So the decision was made to list just the two parties with the largest registration.
Attorney David Hardy charged that was not fair. He said those who might want to register with the Green or Libertarian parties might look at the revised form and conclude they "must not be real political parties or do not have ballot access, and thus there is no purpose to registering in them."
To prove his point, Hardy presented evidence showing that during a 15-month period from January 2011 through March 2012, registration for Republicans dropped by less than 1 percent, registration for Democrats fell by 5 percent and Libertarian registration went down 10 percent. Green Party registration during the same period fell 2 percent.
But Jorgenson said the legislative change to put the largest two parties on the form does not discriminate against any specific party. She said nothing in the law inhibits the development of other or new parties.
"Additionally, the burden of writing a name on a line does not unnecessarily burden parties that are not the two largest political parties that are entitled to continued representation on the ballot to organize," the judge wrote.
The change in the law came as the two major parties had been losing registration share.
Five years before the lawsuit was filed, Republicans made up nearly 40 percent of those registered. That figure was 33.5 percent when the lawsuit was filed; the latest count puts it at 35.6 percent.
Democrats watched their share slide from more than 33 percent in 2006 to less than 31 percent now when the challenge was mounted and now stands at 30.5 percent.
The big shift has been not to other parties but to unaffiliated.