United States District Court, D. Arizona
G. Campbell United States District Judge
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
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.
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. §
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).
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).
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.
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.
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)).
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.
Likelihood of Success and Serious Questions.
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