Originally Published: September 15, 2018 11:37 p.m.
PHOENIX — For the first time in more than two decades, Arizonans won't have the option to vote for a Libertarian Party candidate for governor.
And that's exactly the way Republican lawmakers designed it.
A law in effect for the first time in a statewide race makes it much harder for candidates of recognized minor parties to actually get their names on the general election ballot, whether through petitions or write-in votes.
Supporters of that 2015 law, all Republicans, made no secret at the time they were doing that out of fear that Libertarians were siphoning off votes that otherwise would go to Republicans. So the theory was simple: eliminate Libertarians from the ballot and help GOP candidates.
Barry Hess, who has been the Libertarian candidate for governor every election since 2002, said the law is based on the flawed premise that members of his party, denied the chance to vote for one of their own, would instead mark the ballot for a Republican. He said without a Libertarian on the ballot they generally are more likely to protest by refusing to vote.
But Hess said Libertarians, angered by the maneuvers of GOP lawmakers, may now actually make their predictions come true.
"What you're going to see is a backlash,'' he told Capitol Media Services.
"If we're not on the ballot, we're going to all vote Democrat,'' Hess said. "Screw them!''
Prior to 2015, candidates for recognized minor parties could get on the ballot simply by submitting petitions with the signatures of one-half of one percent of those registered with the party. This year for the Libertarians, a statewide candidate would have had to collect around 160 names.
That year Republicans pushed through a change lowering the requirement to one-quarter of one percent. 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 this year the minimum signature requirement for a Libertarian running statewide was 3,153, about 10 percent of all those actually registered as Libertarians
Meanwhile the numbers for Republican and Democrat nominations remained close to what it always had been: 6,223 for the GOP and 5,801 for Democrats, both a small fraction of each party's voter registration.
GOP lawmakers who pushed the change made it clear they hoped to improve the odds for Republican lawmakers who might otherwise lose votes to a Libertarian. Their proof? The 2012 congressional race.
In CD 1, which runs from Flagstaff and the Navajo Nation to the edge of Tucson, Republican Jonathan Paton garnered 113,594 votes against 122,774 for Democrat Ann Kirkpatrick. But Libertarian Kim Allen picked up 15,227 votes -- votes that Rep. J.D. Mesnard contended likely would have gone to Paton.
Similarly, in the newly created CD 9 which encompasses parts of Tempe and Phoenix, Democrat Kyrsten Sinema bested Vernon Parker by 10,251 votes, with Libertarian Powell Gammill tallying 16,620.
And to ensure the point was not lost on his GOP colleagues, Mesnard made the issue more personal, warning them that they, too, could find themselves aced out of a seat if they don't change the signature requirements.
"I can't believe we wouldn't see the benefit of this,'' he said during a floor speech.
The law has produced the desired results: No minor party candidate running for statewide office gathered enough signatures to be on the ballot in the primary.
That still left the possibility of minor party candidates qualifying for the ballot through write-in efforts during the primary. Hess pursued that path in his Libertarian gubernatorial bid this year.
But that same 2015 law required they get at least as many write-in votes as signatures they otherwise would have been required to get for regular nomination. And the formal election results announced this week found none of the three met that burden.
That clears the way for a head-to-head race between incumbent Republican Doug Ducey and Democrat challenger David Garcia, without either candidate having to worry about votes being siphoned off by Hess, though Angel Torres did qualify as Green Party candidate.
Hess said if there is a need for a minimum signature requirement -- a point he does not concede -- the number needed "should be low to accommodate an open field.''
"What they're trying to do is shut the field down completely, to win by exclusion,'' he said.
And if that's what Republicans are doing, Hess said, they're going to be sorry as there will be a "concerted effort'' by Libertarians to throw their support to Democrats in protest.
"And they are our worst enemies, for crying out loud,'' he said.
Legal challenges by the Libertarians have come up empty.
In a ruling last year, U.S. District Court Judge David Campbell acknowledged that the 2015 law sharply increased the number of signatures Libertarian candidates needed to qualify for ballot status. In some cases, the difference is more than 20 times the old requirement.
But Campbell said the new hurdle is not "unconstitutionally burdensome.'' And the judge accepted the arguments by attorneys for the state that the higher signature requirements ensure that candidates who reach the November ballot have some "threshold of support.''
The case now awaits a hearing at the federal appeals court.