Arizona Libertarian Party v. Ken Bennett

concurring:

I concur in the panel’s judgment: Arizona’s voter registration form passes constitutional muster. I write separately because I believe the rational basis review and burden-shifting standards articulated in Libertarian Party of Washington v. Munro, 31 F.3d 759 (9th Cir.1994), and applied by the panel in this ease, are inconsistent with the Supreme Court’s approach to analyzing voting rights challenges.

The majority opinion discusses at length how political parties in Arizona gain access to the ballot and states that “[t]he relevant inquiry ‘is whether “reasonably diligent” minor party candidates can normally gain a place on the ballot.... ’” Maj. Op. at 619 (quoting Munro, 31 F.3d at 762 ). But this is not a ballot access case. This case focuses instead on the state’s voter registration process, specifically the form that lists only the two major political parties and simply leaves a blank for a prospective voter to identify any other party. This is, of course, a change from the prior voter registration form that identified no specific parties and simply provided a write-in line for party preference. The essence of the minority parties’ claim is that they are burdened…

Opinion by Judge TASHIMA; Concurrence by Judge McKEOWN.

OPINION

In 2011, the Arizona Legislature enacted a law requiring the voter registration form distributed by the Arizona Secretary of State to list the two largest parties (as measured by number of registered voters) on the form, as well as provide a blank line for “other party preferences.” The Arizona Green Party, Arizona Libertarian Party, and three of their members (together, “Plaintiffs”) brought this action, alleging that the new voter registration form violated their First and Fourteenth Amendment rights. The district court concluded that the amended voter registration form survived constitutional scrutiny and granted the State’s motion for summary judgment. We have jurisdiction under 28 U.S.C. § 1291 , and we affirm.

I.

A. Section 16-152(A)(5) and the Registration Form

In 2011, the Arizona Legislature amended the statute that dictates the content of the voter registration form provided by the State (the “Registration Form”). See 2011 Ariz. Legis. Serv. Ch. 339 § 1 (West) (codified at Ariz.Rev.Stat. § 16-152(A)). The amended statute provides, in relevant part:

Ariz.Rev.Stat. § 16-152(A)(5). Prior to the 2011…

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ARIZONA LIBERTARIAN PARTY; No. 13-16254

ARIZONA GREEN PARTY; JAMES

MARCH; KENT SOLBERG; STEVE DC No. LACKEY, 4:11 cv-0856 Plaintiffs-Appellants, CKJ

v.

OPINION

KEN BENNETT, Secretary of State, Defendant-Appellee.

Appeal from the United States District Court for the District of Arizona Cindy K. Jorgenson, District Judge, Presiding

Argued and Submitted January 29, 2015—University of Arizona, James E. Rogers College of Law, Tucson, Arizona

Filed April 24, 2015

Before: A. Wallace Tashima, M. Margaret McKeown, and Marsha S. Berzon, Circuit Judges.

Opinion by Judge Tashima; Concurrence by Judge McKeown SUMMARY*

Civil Rights

The panel affirmed the district court’s summary judgment in an action brought by the Arizona Green Party, the Arizona Libertarian Party, and three of their members alleging that Arizona’s voter registration form violates their First and Fourteenth Amendment rights.

In 2011, the Arizona Legislature enacted a law requiring the voter registration form distributed by the Arizona…