A federal appeals court has upheld a 2015 Arizona law that some Republican lawmakers admitted was specifically designed to keep Libertarian 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 for some offices to gather the signatures of up to 30% of registered members of the party to qualify for a primary election.
But Judge Margaret McKeown, writing for the court, said that isn’t the fault of the Republican-controlled Arizona Legislature.
She pointed out that under the law, Libertarians, just like Republicans and Democrats, could offer themselves for office by getting the signatures of just 1% of all who are eligible to sign their petitions — which means people registered in their parties, plus independents. In this case, then, Libertarian candidates could draw petition-signers from their own party members and from unaffiliated voters.
However, McKeown 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 Libertarian Party member and plaintiff in the lawsuit, said he expects 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 1% of those registered with the party. In 2018 for the Libertarians, a statewide candidate would have had to collect about 160 names.
That year, Republicans lowered the requirement to one-quarter of 1%. 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% of all those actually registered as Libertarians. For the Green Party, the floor was 1,253.
Meanwhile, the numbers for Republican and Democratic nominations remained close to what they 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% 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 said the current burden isn’t unreasonable, citing the fact that Arizona law permits people to get nomination signatures not just in person but online.
Kielsky said the court ignored evidence that there were political motives behind the change in the law.
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.
The law produced the desired results: There was not a Libertarian Party candidate for governor on the ballot in the last election for the first time in more than two decades.
That cleared the way for a race between incumbent Republican Doug Ducey and Democratic challenger David Garcia, without either having to worry about votes being siphoned off by a minor party contender.