Judge: New ballot hurdle not ‘unconstitutionally burdensome’
PHOENIX — A federal judge has rebuffed a bid by the Libertarian Party to kill an Arizona law even its sponsors concede was designed to make it harder for minor party candidates to get on the general election ballot.
Judge David Campbell acknowledged Monday the 2015 law sharply increases the number of signatures that Libertarian candidates need to qualify for ballot status. In some cases, the difference is more than 20 times the old requirement.
The result was that only one Libertarian candidate qualified for the ballot in 2016, and none made it to the general election. By contrast, there were 25 in 2004, 19 in 2008 and 18 in 2012.
But Campbell said the new hurdle is not “unconstitutionally burdensome.’’ And the judge accepted the arguments that the higher signature requirements ensure that candidates who reach the November ballot have some “threshold of support.’’
But Libertarian Party Chairman Michael Kielsky said the judge ignored not just the higher burden but the games that the Republican-controlled legislature played in making 2015 the change for their own political purposes.
“The Republicans set out to get the Libertarians off the ballot and the Republicans succeeded,’’ Kielsky said. “And now, Judge Campbell has said, ‘That’s OK.’ ‘’
Kielsky is not just spouting party rhetoric.
In pushing for the change, GOP lawmakers made no secret they do not want Libertarian Party candidates in the race, contending that a vote for a Libertarian is a vote that would otherwise go to a Republican. As proof, some cited the 2012 congressional race.
Republican Jonathan Paton lost the CD 1 race to Democrat Ann Kirkpatrick by 9,180 votes. But Libertarian Kim Allen picked up 15,227 votes -- votes that Rep. J.D. Mesnard, R-Chandler, argued during floor debate likely would have gone to Paton.
And in CD 9, Democrats Kyrsten Sinema defeated Republican Vernon Parker by 10,251 votes, with Libertarian Powell Gammill tallying 16,620.
And if the point was lost, Mesnard made the issue more personal for colleagues, 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 way the legislature accomplished this was to change the rules.
Prior to 2015, would-be candidates qualified for the ballot by getting the signatures of one-half of one percent of all party members within a given area. So for a Republican seeking statewide office, that translated out to 5,660 signatures.
The new formula changed that to one-quarter of a percent -- but for all people who could sign a candidate’s petition. That adds political independents, who outnumber Democrats and are running neck-in-neck with Republicans, to the equation.
Under the new formula, a Republican statewide candidate in 2016 needed 5,790 signatures.
But the effect on minor parties is more profound,
Using that pre-2016 formula, a Libertarian could run for statewide office with petitions bearing just 134 names, one-half percent of all those registered with the party. But the new formula, which takes into account all the independents, required a Libertarian trying to get on a statewide ballot to get 3,023 signatures.
To put that in perspective that is closed to 12 percent of all registered Libertarians. By contrast, the statewide burden for a GOP candidate, based on the number of registered Republicans, remains close to that one-half of one percent of all adherents.
“It’s B.S.,’’ Kielsky said. “It’s completely perverse.’’
But Campbell said there is nothing unconstitutional about the higher requirement to limit the field to bona fide candidates who had some chance of actually winning.
“If a candidate was not required to show any threshold of support through votes or petition signatures, she could win her primary and reach the general ballot with no significant modicum of support at all,’’ Campbell continued. And in the case of Libertarians, who often run unopposed in their party’s primary, “a candidate could win a spot on the general election ballot with only one vote in such a primary.’’
Anyway, the judge said, Libertarian candidates can now seek out support to get on the ballot from independents, “a pool totaling more than one million voters in Arizona.’’
Kielsky said that misses the point.
“That means we have to appeal to things that the independents care about -- but not necessarily the Libertarians care about -- to be a Libertarian candidate,’’ he said. “The distinction of being a Libertarian is diluted, if not lost.’’
And Kielsky called the requirement for a “modicum of support’’ a “red herring.’’ He said if Libertarians were not picking up significant votes, the GOP-controlled legislature would not have changed the law to keep them off the ballot.