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Arizona Libertarian Party v. Reagan

United States District Court, D. Arizona

July 7, 2017

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

          ORDER

          David G. Campbell United States District Judge.

         Plaintiffs Arizona Libertarian Party (“AZLP”) and Michael Kielsky, the party's chairman and a candidate for public office, challenge the constitutionality of A.R.S. §§ 16-321 and 16-322 as amended in 2015 by H.B. 2608. Doc. 42. Plaintiffs have filed a motion for summary judgment. Doc. 63. Defendant Michele Reagan, the Arizona Secretary of State (“the Secretary”), has filed a cross-motion for summary judgment. Doc. 69. The motions are fully briefed (Docs. 63, 69, 71, 73), and the Court heard oral argument on June 28, 2017. For the reasons that follow, the Court will deny Plaintiffs' motion and grant the Secretary's motion.

         I. Background.

         Arizona law provides that a party qualifies for continued representation on the general ballot if its registered members compromise at least two-thirds of one percent of total registered voters. A.R.S. § 16-804. A party that does not meet this requirement may qualify to appear on the ballot by filing a petition signed by a number of qualified voters equal to or greater than one and one-third percent of the total votes cast for governor in the immediately preceding general election. A.R.S. § 16-801(A). It is undisputed that AZLP qualifies for continued representation on the general election ballot. Doc. 64 at 2, ¶ 4; Doc. 70 at 2, ¶ 4.[1]

         When a candidate from a continued-representation party wishes to have her name appear on the general election ballot, she must follow one of two paths. The candidate may, on a specified date before her party's primary election, file a nomination petition that includes a specified number of signatures from voters in the relevant jurisdiction. See A.R.S. §§ 16-322(A), 16-314(A). The candidate must then win the primary by receiving more votes than any other candidate from her party. A.R.S. § 16-645(A). Alternatively, she 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).

         H.B. 2608 became effective on July 3, 2015. Doc. 12 at 3. Among other changes, it 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 members of her party.

         H.B. 2608 redefined the pool of eligible signers - referred to in the bill as “qualified signers” - to include (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 redefined pool applies whether a candidate's party holds an open or a closed primary.

         This pool of “qualified signers” is larger than the pool available before H.B. 2608 for candidates whose parties hold closed primaries. Although H.B. 2608 lowered the prescribed percentage of the pool from which candidates must obtain signatures, it actually increased the number of signatures closed-primary 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. In 2016, the new law required an AZLP candidate in district 11 to obtain 220 signatures or write-in votes, a number 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 in the district); 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 state-wide); 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 in Maricopa County).

         Plaintiffs filed a motion for a preliminary injunction, asking the Court to enjoin application of A.R.S. §§ 16-321 and 16-322 to write-in candidates in the 2016 election. They asked 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 Court denied the motion, finding that Plaintiffs had not demonstrated a likelihood of success on the merits. Doc. 34. The Court considered only the constitutionality of the write-in method for achieving ballot access, and did not consider the petition signatures method. On this summary judgment motion, the Court considers Arizona's procedures for candidate ballot access as a whole.

         II. Legal Standard.

         A party seeking summary judgment “bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Summary judgment is appropriate if the evidence, viewed in the light most favorable to the nonmoving party, shows “that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). Summary judgment is also appropriate against a party who “fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.” Celotex, 477 U.S. at 322.

         III. Motion to Strike.

         The Secretary filed a motion to strike certain portions of Plaintiffs' motion for summary judgment and related statement of facts, contending that Plaintiffs failed to disclose witnesses whose declarations were submitted with the motion. Additionally, the Secretary argues that Plaintiffs rely on impermissible hearsay.[2]

         A. Undisclosed Declarants.

         Federal Rule of Civil Procedure 26 requires parties to disclose “the name and, if known, the address and telephone number of each individual likely to have discoverable information - along with the subjects of that information - that the disclosing party may use to support its claims or defenses, unless the use would be solely for impeachment[.]” Fed.R.Civ.P. 26(a)(1)(A)(i). If a party makes an inadequate disclosure, it must supplement or correct the disclosure in a timely manner. Fed.R.Civ.P. 26(e)(1)(A). If a party fails to provide information required by Rule 26(a) or (e), “the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless.” Fed.R.Civ.P. 37(c)(1).

         Plaintiffs' motion for summary judgment relies on declarations from six persons that the Secretary contends were never disclosed under Rule 26(a). Doc. 66 at 9; Doc. 71 at 4. Plaintiffs do not contend that they disclosed these individuals under Rule 26(a), but argue that they were disclosed by alternative means. Doc. 71 at 4. First, Plaintiffs argue that the Secretary identified in her own initial disclosures the following persons as likely to have discoverable information: “Any individual that gathered signatures to run as a Libertarian candidate in the 2016 election cycle, ” and “Any individual running as a write-in candidate in the Libertarian Party in the 2016 election cycle.” Id. The six declarants fall within these descriptions. On March 2, 2017, Plaintiffs responded to the Secretary's Interrogatory No. 1 by stating that they would provide a list of candidates who had advised AZLP of their intention to run. Id. Plaintiffs provided this list on March 9, including contact information for the candidates. Id. On March 17, 2017, the deadline for completion of fact discovery, the Secretary asked Plaintiffs whether they had produced the list of candidates, and Plaintiffs confirmed that they had and resent a direct link to the list.[3] Id. While Plaintiffs contend that this course of events shows that the Secretary knew of the individuals who submitted declarations in support of Plaintiffs' motion for summary judgment, it is insufficient to satisfy Rule 26(a) disclosure requirements for several reasons.

         Rule 26(a) requires a party to identify “each individual” it “may use to support its claims or defenses.” Fed.R.Civ.P. 26(a)(1)(A)(i); see also Ollier v. Sweetwater Union High Sch. Dist., 768 F.3d 843, 863 (9th Cir. 2014); Robert Kubicek Architects & Assocs., Inc. v. Bosley, No. CV-11-01945-PHX-JAT, 2013 WL 998222, at *1 (D. Ariz. Mar. 13, 2013). The disclosure must include the name of the individual, the individual's address and phone number, and the subject of the information in the individual's possession. Fed.R.Civ.P. 26(a)(1)(A)(i). The obvious purpose of the rule is to enable the opposing party to prepare to deal with the individual's evidence in the case. See Ollier, 768 F.3d at 862-63 (“After disclosures of witnesses are made, a party can conduct discovery of what those witnesses would say on relevant issues, which in turn informs the party's judgment about which witnesses it may want to call at trial, either to controvert testimony or to put it in context.”).

         Plaintiffs argue that because the Secretary identified a broad class of individuals as having relevant information (those who attempted to run for office as AZLP candidates in 2016), and requested that Plaintiffs identify those individuals, Rule 26(a) was satisfied. But the purpose of Rule 26(a)'s initial disclosure requirement is not merely to apprise the opposing party of the existence of individuals with relevant information, it is to tell the opposing party which individuals the disclosing party “may use to support its claims or defenses.” Fed.R.Civ.P. 26(a)(1)(A)(i). The fact that a party has identified individuals as having relevant information does nothing to inform that party of whether the opposing party may use the individuals as witnesses in the case.

         The list Plaintiffs provided included the names of 27 people, their phone numbers and email addresses. Doc. 67-1 at 23-26. Plaintiffs did not disclose the nature of any relevant information these individuals might have, or whether Plaintiffs were considering using them as witnesses in this case. The Secretary received the list, apparently with other discovery documents, less than two weeks before the discovery deadline and with only a few days to schedule depositions.

         Because the Secretary was not told that Plaintiffs may use the six declarants to support their claims, and the declarants were not identified until it was too late to depose them, the Court concludes that Plaintiffs failed to satisfy their initial or supplementary disclosure obligations under Rule 26(a) and (e). See L-3 Commc'ns Corp. v. Jaxon Eng'g & Maint., Inc., 125 F.Supp.3d 1155, 1169 (D. Colo. 2015) (“a party's collateral disclosure of information . . . must [be] in such a form and of such specificity as to be the functional equivalent of a supplemental discovery response; merely pointing to places in the discovery where the information was mentioned in passing is not sufficient”); see also Wallace v. U.S.A.A. Life Gen. Agency, Inc., 862 F.Supp.2d 1062, 1067 (D. Nev. 2012) (finding a party's identification of an individual in response to the opposing party's interrogatories insufficient to satisfy the disclosure requirements of Rule 26(a) because, among other reasons, the party did not identify the individual as someone with information that the party may use in establishing its case).

         Plaintiffs also argue that the Secretary misstates the duty imposed by Rule 26(a) when she contends that Plaintiffs were required to identify which “candidates the Plaintiffs intended to call as witnesses.” Doc. 71 at 6 (quoting Doc. 66 at 7). As Plaintiff notes, a party must identify trial witnesses only thirty days before trial unless otherwise ordered by the court. Fed.R.Civ.P. 26(a)(3)(B). But this is an additional disclosure requirement. It does not affect the party's separate obligation to identify in its initial disclosures all individuals with relevant information whom the party “may use to support its claims or defenses.” Fed.R.Civ.P. 26(a)(1)(A)(i). As the commentary to the Federal Rules makes clear, “‘[u]se' includes any use at a pretrial conference, to support a motion, or at trial.” Steven S. Gensler, Federal Rules of Civil Procedure, Rules and Commentary Rule 26 (Feb. 2017).

         To avoid preclusion, Plaintiffs have the burden of showing that their failure to disclose the six declarants was substantially justified or harmless. Fed.R.Civ.P. 37(c)(1); R & R Sails, Inc. v. Ins. Co. of Pennsylvania, 673 F.3d 1240, 1246 (9th Cir. 2012). Plaintiffs provide no explanation for their failure to include the declarants in their initial or supplemental Rule 26(a) disclosures, and therefore have not shown that it was substantially justified. Because Plaintiffs' failure to disclose the six declarants impeded the ability of the Secretary to depose those declarants and obtain additional evidence to counter their declarations, the Court concludes that it was not harmless. See Ollier, 768 F.3d at 863. The Court accordingly will grant the Secretary's motion to strike.[4]

         B. Hearsay.

         The Secretary also asks the Court to strike evidence provided by Plaintiff Kielsky regarding the efforts of another individual to obtain ballot access, contending that this evidence is inadmissible hearsay. Doc. 66 at 10. Plaintiffs' motion for summary judgment cites to Kielsky's third declaration for the proposition that “only one candidate qualified to appear on AZLP's primary ballot in 2016, and he did so only by working on his petition drive full-time for approximately 70 days.” Doc. 63 at 12 (citing Doc. 18 at 22, Third Kielsky Dec., ¶ 6). These statements were made with respect to candidate Gregory Kelly. Id. The Secretary contends that the only way Kielsky could know that Kelly worked full-time for a specific number of days is if he was told this information, as it is impossible for him to have this information through personal observation of the candidate. Doc. 66 at 10.

         Plaintiffs do not argue that Kielsky's statement is offered for something other than the truth of the matter asserted, or that Kielsky acquired this information from first-hand observation. Plaintiffs assert that he obtained this information through contemporaneous reports “submitted directly to Plaintiff Kielsky in his capacity as Chair of AZLP, which have been submitted into the record.” Id. They argue that Kielsky “is competent to testify to all matters relating to” his position as Chair of AZLP. Doc. 71 at 7 n.2.

         Competency is not the question. The Secretary's objection is based on hearsay, and Plaintiffs provide no basis for finding that Kielsky's statements regarding Mr. Kelly's signature-collection efforts are not hearsay or fall within a hearsay exception. Plaintiffs assert that the record upon which Kielsky relied has been placed in the record, and cite to the Second Declaration of Michael Kielsky (id.), but the second declaration merely attaches an email from Mr. Kelly stating that he has devoted 45 days (not 70 days) to “getting on the ballot” (Doc. 10 at 26). Nothing about the email suggests a solution to the hearsay problem. It clearly is an out-of-court statement offered for the truth of the matter asserted, and Plaintiffs identify no rule that would permit its admission at trial or in support of their summary judgment motion.[5]

         The Secretary also asks the Court to strike a statement first contained in Plaintiffs' reply brief. Doc. 73 at 6. Plaintiffs quote a letter from a supporter sent to Kielsky, stating that the supporter “couldn't interest any independents (other than family) to sign” his nomination petitions. Doc. 71 at 18 (quoting Doc. 10 at 28). This too is hearsay, and Plaintiffs have identified no basis on which it is admissible.

         IV. Constitutional Analysis.

         Plaintiffs argue that A.R.S. §§ 16-321 and 16-322 violate the First and Fourteenth Amendments. Doc. 42. Specifically, Plaintiffs contend that the provisions place an impermissible burden on them under the Supreme Court's ballot access jurisprudence and in violation of their rights to freedom of speech, petition, assembly, and association for political purposes. Doc. 42 at 21-22, ¶ 59 (Count I); Doc. 63 at 4. Plaintiffs also argue that the provisions violate their rights to freedom of association and equal protection of the laws. Doc. 42 at 22-25 (Counts II and IV); Doc. 63 at 4, 13-16.[6]

         “States have a major role to play in structuring and monitoring the election process, ” but this power is not without limits. California Democratic Party v. Jones, 530 U.S. 567, 572 (2000). “Restrictions upon the access of political parties to the ballot impinge upon the rights of individuals to associate for political purposes, as well as the rights of qualified voters to cast their votes effectively, and may not survive scrutiny under the First and Fourteenth Amendments.” Munro v. Socialist Workers Party, 479 U.S. 189, 193 (1986). “A court considering a challenge to a state election law must weigh the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments that the plaintiff seeks to vindicate against the precise interests put forward by the State as justifications for the burden imposed by its rule, taking into consideration the extent to which those interests make it necessary to burden the plaintiff's rights.” Burdick v. Takushi, 504 U.S. 428, 434 (1992) (quotation marks and citation omitted); accord. Nader v. Brewer, 531 F.3d 1028, 1034 (9th Cir. 2008).

         Thus, the validity of a state election law is determined by applying a “balancing and means-ends fit analysis.” Pub. Integrity All., Inc. v. City of Tucson, 836 F.3d 1019, 1024 (9th Cir. 2016). If the First and Fourteenth Amendment rights “are subjected to ‘severe' restrictions, the regulation must be ‘narrowly drawn to advance a state interest of compelling importance.' But when a state election law provision imposes only ‘reasonable, nondiscriminatory restrictions' upon the First and Fourteenth Amendment rights of voters, ‘the State's important regulatory interests are generally sufficient to justify' the restrictions.” Burdick, 504 U.S. at 434 (quoting Norman v. Reed, 502 U.S. 279, 289 (1992)). There is no litmus-paper test for separating valid and invalid election restrictions. Courts must make hard judgments based on the facts and circumstances of each case. Storer v. Brown, 415 U.S. 724, 730 (1974). In this case, the Court must balance Arizona's interest in ensuring a modicum of support for general election candidates against the burden imposed on Plaintiffs' First and Fourteenth Amendment rights by A.R.S. §§ 16-321 and 16-322.

         A. The Burden on Plaintiffs.

         1. Relevant ...


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