Monday, September 26, 2016
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Ninth Circuit Rejects Green Party’s Ballot Access Suit
By KENNETH OFGANG, Staff Writer
The Green Party failed to prove that Arizona’s early deadline for filing ballot access petitions is a significant burden on its constitutional rights, the Ninth U.S. Circuit Court of Appeals ruled Friday.
The panel affirmed a U.S. district judge’s ruling that the party failed to overcome the state’s showing that the law—which requires a party to submit the required number of signatures at least 180 days before the late summer primary—serves a significant public interest by promoting the orderly administration of elections.
The Green Party is on the ballot in Arizona this year, along with the Democrats, Republicans, and Libertarians. The Ninth Circuit, however, agreed to decide the merits of its appeal from its denial of access in 2014, given that the issue may come up again, Judge M. Margaret McKeown explained.
Arizona law allows a previously qualified party to remain on the ballot as long as it gets at least five percent of the presidential or gubernatorial vote, or as long as the number of voters registered as affiliated with the party is at least two-thirds of one percent of the total. Otherwise, a party may qualify for the next two elections by obtaining a number of signatures equal to one and one-third percent of the votes cast for governor in the last election, which would have been 23,401 in advance of the 2014 balloting.
U.S. District Judge Neil V. Wake of the District of Arizona granted Secretary of State Michele Reagan’s motion for summary judgment rejecting the party’s lawsuit. He said the deadline was not “unnecessary, excessive, or discriminatory” and “rationally accommodates the state’s administrative needs” in the context of state election law as a whole.
Balancing Test
In upholding that reasoning, McKeown explained that federal courts impose a balancing test when a plaintiff claims that a ballot-access restriction violates the First and Fourteenth Amendments. The burden is on the plaintiff to show that the restriction significantly impacts its ability to qualify, and if it does, the burden shifts to the state to show that the burden on the plaintiffs is outweighed by the state interests involved, the judge said.
The Green Party complaint cited the cost of meeting the February deadline and the need to solicit signatures at a time of year when there is little interest in politics. But the party submitted no evidence, McKeown said, resting on the legal argument that the deadline was per se unconstitutional.
The lack of such evidence, however, makes the burdens pled in the complaint “purely speculative,” the appellate jurist said.
“For example, we do not know how difficult it was for the Green Party to collect the required signatures, how much the signature-gathering effort cost, whether petition efforts diverted the Party’s resources from other endeavors, whether the ‘mind of the general public’ was diverted from the election at the time the Party sought to collect signatures, how difficult it has been for new parties to comply with the deadline historically, or even if the Party attempted to comply with the deadline at all,” she wrote.
She distinguished a 1996 case in which a federal district judge in Arkansas ruled in favor of Ross Perot’s Reform Party in its challenge to an early filing deadline. McKeown noted that the ruling in that case cited, among other things, evidence that it was hard to collect signatures in winter weather, which would not be a problem in Arizona.
“Analogy and rhetoric are no substitute for evidence,” she wrote. Case law requires “context-specific analysis in ballot access cases.”
Judge Michelle T. Friedland and visiting Senior District Judge Joan H. Lefkow of the Northern District of Illinois concurred in the opinion in Arizona Green Party v. Reagan, 14-15976.
Activist’s Comment
Ballot Access News, edited by longtime third-party activist Richard Winger, noted Friday that an untimely petition filed by the Arizona Greens in May 2014 was accepted as valid for this year’s vote, “so the effort wasn’t entirely wasted.”
The party’s presidential candidate, Jill Stein, almost missed the Arizona ballot anyway, as the party missed a June 1 deadline for filing its presidential elector list. A challenge to that deadline proved more effective, as the party claimed it was not given notice of the date and the state stipulated to an order placing Stein’s name on the ballot.
The secretary of state said that early deadline was unnecessary and should be changed by the Legislature, Arizona newspapers reported.
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