By Howard Fischer
Capitol Media Services
PHOENIX -- The U.S. Supreme Court has quashed a last-ditch effort by the Arizona Libertarian Party to void a state statute which was designed -- and succeeded -- at keeping its candidates off the ballot.
Without comment the justices on Monday rejected a bid by attorney Oliver Hall from the Center for Competitive Democracy asking the court to look at the 2015 law which sharply increased -- sometimes by a factor of 30 -- the number of signatures needed for Libertarian candidates to qualify for the ballot. That decision leaves in place a 2019 ruling by the 9th Circuit Court of Appeals which acknowledged the hurdle but suggested it is one of the party's own making.
At the heart of the fight is that 2015 law which changed the number of signatures required for candidates to qualify for the ballot.
Prior to that, candidates for all recognized 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. In 2018 for the Libertarians, a statewide candidate would have had to collect around 160 names.
That year Republicans lowered 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 in 2018 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
The move had political motives.
The record shows that J.D. Mesnard, then a GOP representative from Chandler and now a state senator, told colleagues that Republicans would have been elected to two congressional seats had it not been for what he said were Libertarian candidates in the same race siphoning off votes -- votes he said otherwise would have gone to the GOP contenders.
"I can't believe we wouldn't see the benefit of this,'' Mesnard said during a floor speech.
Hall argued that the law had its desired effect: Only one Libertarian qualified for the ballot in 2016 -- and none at all in 2018.
"Arizona has relegated the Arizona Libertarian Party to a state of electoral purgatory,'' Hall wrote. "The party is ballot-qualified under Arizona law, but it cannot place its candidates on the ballot.''
All that, he said, is unconstitutional.
In its ruling last year, Judge Margaret McKeown of the 9th Circuit Court of Appeals acknowledged that, for some offices, the party's desire to have petitions signed only by party faithful could amount to 30 percent of registered Libertarians.
But she said that Libertarians, just like Republicans and Democrats, are free to seek the signatures of just 1 percent of those who are eligible to sign petitions. That means not just Libertarians but more than a million Arizonans who are registered to vote as independents.
McKeown said it is the decision of the Libertarian Party -- and not the Legislature -- to allow only party members to participate in the primary.
Put simply, McKeown said the problem is of the party's own making because of its exclusionary policy. And she said that voiding the 2015 law -- and going back to the prior law -- would "incentivize parties to have fewer registered members and therefore artificially reduce the signature requirements.''
Hall, however, said forcing Libertarian contenders to rely on the support of independents is unconstitutional, saying it amounts to "a form of compelled association.''
"Arizona has no legitimate interest in requiring that Libertarian candidates demonstrate support from independent voters who are not eligible to vote for them, and who have no reason or incentive to support the candidates' effort to obtain (the party's) nomination.
He also told the justices that what the state want is unusual.
The politics of the change -- and the reason for GOP support -- came out during one of the debates.
Proponents cited 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 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.