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Arizona Libertarian Party v. Reagan

United States District Court, D. Arizona

July 20, 2016

Arizona Libertarian Party, et al., Plaintiffs,
v.
Michele Reagan, Defendant.

          ORDER

          David G. Campbell United States District Judge

         Plaintiffs challenge the constitutionality of A.R.S. §§ 16-321 and 16-322, as amended in 2015 by H.B. 2608. Plaintiffs seek a preliminary injunction regarding the number of votes required for write-in candidates in the Arizona primary elections to be held next month. Doc. 18. The issues are fully briefed (Docs. 26, 28, 31), and the Court heard oral arguments on July 12, 2016. For the following reasons, the Court will deny Plaintiffs' motion for a preliminary injunction.

         I. Background.

         Plaintiffs are the Arizona Libertarian Party ("AZLP") and Michael Kielsky, the party's chairman and a candidate for public office. Defendant Michele Reagan is the Arizona Secretary of State ("the Secretary"), the officer responsible for administering elections.

         In Arizona, a candidate for public office who wishes to have her name appear on the general election ballot must follow one of two paths. The candidate may file a nomination petition with the Secretary by a specified date before the primary election, A.R.S. § 16-314(A), which includes a specified number of signatures from voters in the relevant jurisdiction, see A.R.S. § 16-322(A). The candidate must then win the primary by receiving the most votes of her party's candidates. A.R.S. § 16-645(A). Alternatively, the candidate may qualify for the general election as a write-in candidate. A.R.S. § 16-312(A). This path also requires the filing of a nomination petition before the primary election, but the petition need not be supported by voter signatures. Instead, the candidate must win the primary election and receive a number of write-in votes "equivalent to at least the same number of signatures required by § 16-322 for nominating petitions for the same office." A.R.S. § 16-645(E).[1]

         H.B. 2608 became effective on July 3, 2015. Doc. 12 at 3. Among other changes, H.B. 2608 altered the pool of persons from which candidates affiliated with a political party can collect signatures for nomination petitions. Under the old system, a candidate could collect signatures only from people who were qualified to vote in the candidate's primary election. See 2015 Ariz. Sess. Laws Ch. 293, §§ 2-3 (H.B. 2608). Thus, if a candidate's party chose to hold an open primary, the candidate could collect signatures from registered party members, registered independents, and unaffiliated voters. If a candidate's party opted for a closed primary, the candidate could collect signatures only from registered party members. H.B. 2608 changed the pool of eligible signers. The pool is now described as "qualified signers, " and includes (1) registered members of the candidate's party, (2) registered members of a political party that is not entitled to continued representation on the ballot under A.R.S. § 16-804, and (3) voters who are registered as independent or having no party preference. A.R.S. § 16-321(F). This new pool of "qualified signers" is larger than the pool available before H.B. 2608 for candidates whose parties hold closed primaries. Thus, although H.B. 2608 lowered the prescribed percentage of the pool that candidates must satisfy, it actually increased the number of signatures some candidates must obtain by increasing the pool of signers against which the percentage is measured. See 2015 Ariz. Sess. Laws Ch. 293, § 3 (H.B. 2608).

         The increase is significant for AZLP candidates. For example, an AZLP candidate competing in legislative district 11 in 2012 needed to collect 25 signatures to access the primary ballot or 25 write-in votes to access the general election ballot. Doc. 1 at 36, ¶ 2. Now, an AZLP candidate in district 11 must obtain 220 signatures or write-in votes, which represents 26.12% of registered AZLP members in the district. Id. at 38, ¶ 9. AZLP candidates seeking other Arizona offices face similar increases in both raw numbers and percentages of registered AZLP members. Id. at 36-37, ¶ 3; 38, ¶ 10 (congressional district 1 increased from 60 to 636 signatures or write-in votes, or 25.75% of AZLP members); id. at 40, ¶¶ 2-3 (Arizona Corporation Commission increased from 130 to 3, 023 signatures or write-in votes, or 11.9% of AZLP members); id. at 50, ¶¶ 10-11 (Maricopa County Attorney increased from 88 to 1, 881 signatures or write-in votes, or 11.18% of AZLP members); id. at 52-53, ¶¶ 3, 6 (congressional district 6 increased from 25 to 717 signatures or write-in votes, or 28.1% of AZLP members); id. at 44-45, ¶ 4 (legislative district 18 requires 356 signatures or write-in votes, or 30.53% of AZLP members); id. at 45, ¶ 5 (congressional district 9 requires 675 signatures or write-in votes, or 18.43% of AZLP members); id. at 58, ¶ 4 (congressional district 6 requires 782 signatures or write-in votes, or 22.29% of AZLP members).

         For the upcoming primary elections, candidates were required to file signature-supported nomination petitions by June 1, 2016 in order to have their name printed on the primary ballot. Doc. 10 at 6. Plaintiffs asked the Court to enter a temporary restraining that would have required the Secretary to apply pre-H.B. 2608 signature requirements to these petitions, but the Court denied the motion because it was filed too late in the nomination petition process. Doc. 17 at 3-8.

         The current motion for a preliminary injunction focuses on write-in candidates. Plaintiffs ask the Court to order the Secretary to place write-in candidates on the general election ballot if they win the AZLP primary and receive the number of write-in votes required before the passage of H.B. 2608. Doc. 18 at 5. The primary elections are scheduled for August 30, 2016. Id. at 5. The AZLP will have a closed primary this year, meaning that only registered AZLP members may vote. Doc. 12-1 at 3, ¶ 11.

         II. Legal Standard.

         "A preliminary injunction is an extraordinary remedy never awarded as of right." Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 24 (2008). A plaintiff seeking a preliminary injunction must show that: (1) he is likely to succeed on the merits, (2) he is likely to suffer irreparable harm without an injunction, (3) the balance of equities tips in his favor, and (4) an injunction is in the public interest. Id. at 20. "But if a plaintiff can only show that there are serious questions going to the merits - a lesser showing than likelihood of success on the merits - then a preliminary injunction may still issue if the balance of hardships tips sharply in the plaintiff's favor, and the other two Winter factors are satisfied." Shell Offshore, Inc. v. Greenpeace, Inc., 709 F.3d 1281, 1291 (9th Cir. 2013) (emphasis in original; internal quotation marks and citation omitted). Under this "serious questions" variant of the Winter test, "[t]he elements . . . must be balanced, so that a stronger showing of one element may offset a weaker showing of another." Lopez v. Brewer, 680 F.3d 1068, 1072 (9th Cir. 2012). Regardless of which applies, the movant "carries the burden of proof on each element of either test." See Envtl. Council of Sacramento v. Slater, 184 F.Supp.2d 1016, 1027 (E.D. Cal. 2000) (citing L.A. Mem'l Coliseum Comm'n v. Nat'l Football League, 634 F.2d 1197, 1203 (9th Cir. 1980)).

         III. Analysis.

         Plaintiffs argue that they are entitled to injunctive relief because each of the four Winter factors weighs in their favor. For reasons explained below, Plaintiffs have not shown that they are likely to succeed on the merits. Plaintiffs have raised serious questions regarding the constitutionality of H.B. 2608, but they have not shown that the balance of hardships tips sharply in their favor or that they are likely to suffer irreparable harm.

         A. Likelihood of Success and Serious Questions.

         "The Supreme Court has held that when 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). "In determining the nature and magnitude of the burden" an election procedure imposes, courts "must examine the entire scheme regulating ballot access." Libertarian Party of Wash. v. Munro, 31 F.3d 759, 761-62 (9th Cir. 1994) (citing Mandel v. Bradley, 432 U.S. 173, 177-78 (1977)). "The question is whether ‘reasonably diligent' minor party candidates can ...


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