Arizona Green Party v. Bennett (20 F. Supp. 3d 740, 2014)

ORDER

NEIL V. WAKE, District Judge.

Plaintiffs Arizona Green Party and Claudia Ellquist filed a complaint against Arizona Secretary of State Ken Bennett challenging the constitutionality of an Arizona election statute (Doc. 1). The parties filed cross-motions for summary judgment (Docs. 15 and 17) and orally argued their motions on May 7, 2014. For the following reasons, Plaintiffs’ motion will be denied and Defendant’s motion granted.

I. BACKGROUND

Plaintiffs want the Green Party on the ballot for the 2014 election. As explained below, state election law requires the Green Party to have filed a new party petition by February 27, 2014, 180 days before the primary election. On February 25, 2014, Plaintiffs sued the Secretary, alleging that A.R.S. § 16-803, mandating the February deadline, is unconstitutional. Specifically, they alleged, “The challenged statute represents a direct restraint on Plaintiffs’ political speech and severely burdens the political speech, political association rights, and voting rights of Plaintiffs, in violation of the First and Fourteenth Amendments to the United States Constitution, and 42 U.S.C. § 1983.”

In Arizona, the Green Party last qualified for ballot recognition in 2010. Doc. 16 ¶ 23. At the time, state law required political parties to meet one of two statutory obligations in each successive election cycle to remain on the ballot: Registered party members must (1) cast 5 percent of the total votes cast for governor or presidential electors or (2) compose two-thirds of 1 percent of the total registered electors in the jurisdiction. Á.R.S. § 16-804(A)-(B). In 2011, the Arizona legislature amended its election law to entitle newly qualified parties to representation on the ballot “through the next two regularly scheduled general elections for federal office immediately following recognition ....” Id. § 16-801(B). The Secretary agreed to apply amended A.R.S. § 16-801 to the Green Party and extended ballot representation through the 2012 election cycle based on its 2010 recognition.

In the 2010 gubernatorial election, however, Green Party members failed to cast 5 percent of the total votes. Similarly, they failed to establish enough registered voters as of October 1, 2013, to remain on the ballot for the 2014 election cycle. Doc. 16 ¶¶ 26-27. Thus, on November 20, 2013, the Secretary announced that the Party had lost its recognized status. Id. ¶28. As in 2010, it would have to qualify as a new political party for purposes of the 2014 election cycle.

To qualify, the Green Party needed to file a petition with the Secretary meeting statutory requirements. A.R.S. § 16-801(A) requires the petition to bear the signatures “of qualified electors equal to not less than one and one-third per cent of the total votes cast for governor at the last preceding general election at which a governor was elected.” Section 16-803(A) requires the parties to file the petition with the Secretary “not less than one hundred eighty days before the primary election for which the party seeks recognition.” Thus, the Green Party’s petition needed to include 23,401 signatures and be submitted to the Secretary by February 27, 2014. The Party never filed such a petition.

In 2011 and 2012, the state legislature also amended the procedure for the Secretary and the county recorders with respect to new party recognition. Doc. 16 ¶ 5. Prior to the amendments, new parties filed petitions with each county. The pre-amended statute required each county recorder to verify all the signatures submitted within 30 days. Id. ¶ 8. Once verified, the petitions were submitted to the Secretary at least 140 days prior to the primary for certification. Id. ¶ 6.

The 2011 and 2012 amendments increased the burden on the Secretary and decreased the burden on individual counties. Id. ¶ 5. Section 16-803 now requires the Secretary to do the following within seven business days of receiving new party petitions:

a. Determine the county of the majority of the signers for each sheet, identify the county of majority, eliminate all signatures from counties other than the majority county, and group all of [the] signature sheets by county.

b. Remove all signatures from eligibility for verification where the signature is missing, the residence address or description of residence location is missing, or where the date on which the petitioner signed is missing.

c. Count the number of signatures for verification on the remaining petition sheets and note the number of eligible signatures on each sheet above the majority county designation.

d. Number the remaining petition sheets in consecutive order.

e. Count all remaining petition sheets and signatures not previously removed and issue a receipt to the applicant of this total number eligible for verification. If the number of eligible signatures is below the minimum number required, the process ends here.

f. Select a random twenty percent sample of the eligible signatures.

g.Transmit copies of the selected signatures and petition sheets to the appropriate county recorders for verification within ten business days of receipt.

Id. ¶ 18; see also A.R.S. § 16-803(B)-(G). Once the county recorders certify the signature sheets, within 72 hours the Secretary must total the valid signatures “to determine the percentage of valid signatures in the sample, and then calculate the projected number of valid signatures submitted by the applicant.” Doc. 16 ¶ 20; see also A.R.S. § 16-803(IT). If the total meets the minimum required by § 16-801(A), the party is recognized. A.R.S. § 16-803(1). Thus, the sufficiency of the signatures must be determined within four weeks of filing, which also provides a modest buffer for any litigation arising therefrom.

This new procedure more closely parallels the process used for initiative, referendum, and recall petitions. Doc. 16 ¶ 5. Although the amendments shift the burden from the counties to the Secretary, they did not alter the formula for calculating the number of required signatures; nor did they change the 180-day deadline for filing the petitions. No party has yet to apply for recognition under the new procedures. Id. ¶ 19. In previous years, however, both the Americans Elect Party and the Green Party have satisfied the statutory requirements — including the 180-day deadline — and obtained new party recognition. Id. ¶¶ 23, 44.

The 180-day deadline is tied to the primary election. In 2009, the state legislature moved the primary ten weeks ahead of the general election. Id. ¶ 29. This allowed more time to complete the following tasks between the primary and general elections: processing provisional and early ballots, conducting hand counts, audits, recounts, or contests, canvassing the election results, issuing certificates of nomination, creating the general election database, preparing general election ballots, including translations, programming and testing equipment, and. issuing early ballots. Id. ¶ 41.

The Court takes judicial notice that Arizona’s 2014 primary election will occur on August 26, 2014. The state has offered undisputed evidence that the following tasks must be completed before that time, as required by statute:

• By March 1, 2014, calculate candidate signature requirements as required by A.R.S. § 16-322(B). “This is the minimum number of signatures a person must obtain in order to qualify for the primary election or in order to qualify as a candidate for nomination other than by primary.” Id. ¶ 81.

• Between April 28 and May 28, 2014, candidates for the primary ballot and independents seeking nomination apart from a primary must file nominating petitions as required by A.R.S. § 16-311(A) (requiring filing “not less than ninety nor more than one hundred twenty days before the primary election”) and § 16-341(C). Id. ¶ 33.

• By May 28, 2014, county recorders must mail notification to eligible voters on the permanent early voting list and inform voters how to designate a political party ballot if they are not members of a party that is recognized for the primary as required by A.R.S. § 16-544(D) (requiring notifications mailed “[n]ot less than ninety days before any polling place election scheduled in March or August”). Id. ¶ 35.

• By June 11, 2014, electors must file any actions challenging a nomination as required by A.R.S. § 16-351(A). Id. ¶ 37.

• By July 12, 2014, county recorders must mail ballots to uniformed services and overseas voters as required by A.R.S. § 16-543(A) (requiring ballots to “be transmitted no later than the forty-fifth day before the election”). This requires counties to finalize ballots with their printers by June 27, 2014. Id. ¶ 38.

• On July 24, 2014, testing begins on electronic ballot tabulating systems. “Testing must be done within seven days of the beginning of early voting, and ten business days prior to election day,” as required by A.R.S. § 16-449(A). Id. ¶ 39.

• On July 31, 2013, early voting begins as required by A.R.S. § 16-542(C) (requiring early ballots requested thirty days before the election to be “distributed on the twenty-sixth day before the election”) and A.R.S. § 16-544(F) (same deadline for mailing early ballots to eligible voters on the permanent early voting list). Id. ¶ 40.

II. LEGAL STANDARD

A motion for summary judgment tests whether the opposing party has sufficient evidence to merit a trial. Summary judgment should be granted if the evidence shows there is no genuine dispute about any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). On motions for summary judgment, the nonmoving party’s evidence is presumed true, and all inferences from the evidence are drawn in the light most favorable to the nonmoving party. Eisenberg v. Ins. Co. of North America, 815 F.2d 1285, 1289 (9th Cir.1987); Baldwin v. Trailer Inns, Inc., 266 F.3d 1104, 1117 (9th Cir.2001). “The court need consider only the cited materials, but it may consider other materials in the record,” Fed.R.Civ.P. 56(c)(3), as long as the evidence is admissible or can be produced in admissible form. See Fed.R.Civ.P. 56(c)(2). Conclusory and speculative testimony in affidavits and moving papers is insufficient to raise genuine issues of fact and to defeat summary judgment. Thornhill Publ’g Co., Inc. v. GTE Corp., 594 F.2d 730, 738 (9th Cir.1979).

Here, Plaintiffs have offered no evidence, and thus none to controvert the material facts presented by Defendant. The evidence then, including the timeline above, is not in dispute. The question is whether on those facts either party is entitled to judgment as a matter of law.

III. ANALYSIS

In regulating its elections, Arizona “has the undoubted right to require candidates to make a preliminary showing of substantial support in order to qualify for a place on the ballot, because it is both wasteful and confusing to encumber the ballot with the names of frivolous candidates.” Anderson v. Celebrezze, 460 U.S. 780, 788 n. 9, 103 S.Ct. 1564, 75 L.Ed.2d 547 (1983); see also Kannarr v. Hardy, 118 Ariz. 224, 225, 575 P.2d 1250, 1251 (1978) (noting that the U.S. Supreme Court had upheld “[sjtatutes requiring a showing of a minimum amount of support for a political party before allowing the party to have or continue official status on the ballot”). This right trades off, however, with the “tendency of ballot access restrictions to limit the field of candidates from which voters might choose.” Anderson, 460 U.S. at 786, 103 S.Ct. 1564 (quotation marks omitted). Here, Plaintiffs challenge the balance Arizona strikes with its 180-day filing deadline.

“[W]hen an election law is challenged, its validity depends on the severity of the burden it imposes on the exercise of constitutional rights and the strength of the state interests it serves.” Nader v. Brewer, 531 F.3d 1028, 1034 (9th Cir.2008). “If the burden is severe, the challenged procedures will pass muster only if they are narrowly tailored to achieve a compelling state interest. If the burden is slight, the procedures will survive review as long as they have a rational basis.” Libertarian Party of Wash. v. Munro, 31 F.3d 759, 761 (9th Cir.1994) (citation omitted). Importantly, “the mere fact that a State’s system ‘creates barriers ... tending to limit the field of candidates from which voters might choose ... does not of itself compel close scrutiny.’ ” Burdick v. Takushi, 504 U.S. 428, 433, 112 S.Ct. 2059, 119 L.Ed.2d 245 (1992) (quoting Bullock v. Carter, 405 U.S. 134, 143, 92 S.Ct. 849, 31 L.Ed.2d 92 (1972)). The standard is more “flexible.” Id. at 434, 112 S.Ct. 2059. Indeed, “when a state election law provision imposes only reasonable, nondiscriminatory restrictions ..., the State’s important regulatory interests are generally sufficient to justify the restrictions.” Id. (quotation marks omitted).

The Green Party must demonstrate that the statute imposes a severe burden. Munro, 31 F.3d at 762. The ballot access requirements impose a severe burden if, taken together, they “seriously restrict the availability of political opportunity.” Id. “The question is whether ‘reasonably diligent’ minor party candidates can normally gain a place on the ballot, or if instead they only rarely will succeed.” Id.

Plaintiffs have not made this initial showing. They made the following allegations in their complaint:

• They would not be able to collect sufficient signatures by February 27, 2014.

• The petition requirements “are so onerous for third parties such as the Arizona Green Party that they must begin each campaign to regain ballot status immediately following the conclusion of the previous election cycle.”

• The February deadline “can greatly increase the costs 'minor parties incur collecting the required number of signatures for their qualifying petitions.”

• The February deadline is “not designed to allow a reasonably] diligent minor party organization to qualify for ballot access.”

• “Requiring minority political parties to gather signatures on their petitions so early, when the mind of the general public and the attention of the media is not focused on the general elections, i[s] unduly burdensome.”

Doc. 1 at 4. Critically, however, Plaintiffs never offered any evidence to support these assertions. For example, Plaintiffs have offered nothing to prove their allegation that the February deadline can increase the costs to minor political parties. More importantly, they have not offered any evidence that- here the February deadline did increase Plaintiffs’ costs. Further, the 180-day deadline is fifteen years old. Doc. 15 at 12. Although the legislature has amended the statutes recently to. shift some of the burden from the counties to the Secretary, Doc. 16 at 2, as noted above both the pre-amended and post-amended scheme required petitioning parties to file 180 days before the primary. Doc. 15 at 12. But Plaintiffs have not offered any evidence that the early deadline has ever precluded another minor party from qualifying. See Munro, 31 F.3d at 763 (“In fact, the Libertarians cite no instance in which any candidate ever has been denied access to the Washington ballot, or otherwise has been disadvantaged, because of the procedures they assail.”). Plaintiffs cite to the perils of early filing deadlines in general, but they offer no evidence demonstrating that Arizona’s deadline imposes any particular hardship — let alone a severe burden — on Green Party supporters or other minor parties. Cf. Anderson, 460 U.S. at 788 n. 9, 103 S.Ct. 1564 (