United States District Court, D. Arizona
G. Campbell United States District Judge.
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
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.
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).
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.
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.
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).
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
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.
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.
Motion to Strike.
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.
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).
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. 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.
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
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.
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.
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).
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).
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.
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.
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.
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.
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.
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,
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).
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
The Burden on Plaintiffs.