AZ Green Party Faces Tough Slog in Ninth Cir.

     (CN) — A Ninth Circuit panel expressed doubt Wednesday over the Arizona Green Party’s claim that a 180-day signature-gathering deadline makes it unconstitutionally difficult for minor parties to qualify for the primary ballot.
     During oral arguments, the three-judge panel pointed to the Green Party’s lack of evidence showing that Arizona’s election rules cause a substantial burden.
     The party, which has about 4,300 registered members, sued the state in 2014 after it failed to gather more than 20,000 signatures by the deadline to make the general primary ballot.
     Arizona law requires new parties hoping to appear on the general primary ballot for two successive election cycles to submit nominating signatures by Feb. 28, 180 days before the vote. The party argued that the deadline violates the First and 14th Amendments by creating an unusually high hurdle.
     A federal judge in Phoenix granted summary judgment to the state, and the Green Party appealed.
     Arguing for the political party on Wednesday in San Francisco, attorney Julia Damron said that while the Arizona Green Party has qualified for the 2016 ballot and the 2020 ballot, “the live controversy is ongoing.”
     “This law is still on the books and is affecting political parties as we speak that are trying to qualify for ballot access for elections going forward,” Damron told the judges.
     Circuit Judge M. Margaret McKeown noted an absence of evidence in the record to show that the rule illegally burdens minor political parties.
     “Normally if you have to show a severe burden, which you’ve indicated that you think it is a severe burden, then there’s some kind of evidence to show what the severe burden is other than platitudes and statements,” McKeown said. “That’s where I found that the record comes up a little short in terms of actually any evidence that we would be looking at that would have a court be able to link that to a severe burden.”
     Damron acknowledged that the “evidence is a little paltry on this point,” adding, “However, I would point to the fact that the Green Party was not able to get on the ballot for 2014,” she said.
     Countering that the 2014 election cycle is now moot, McKeown asked, “Are we supposed to use the 2014 evidence, as paltry as it is, for a foundation to say that the 180 days is basically per se unconstitutional?”
     Circuit Judge Michelle Friedland picked up the argument, saying that it was unclear whether the party was “differently situated or not.”
     And Senior District Judge Joan Lefkow, sitting on the panel by designation from the Northern District of Illinois, asked how the court should decide whether a 180-day deadline is too long, as opposed to different deadline nearer to the vote.
     “It’s difficult to draw a bright line as to what is too early,” Damron answered. “However, courts have found that establishing deadlines that are shorter than 180 days are too long.”
     Friedland asked, “But wasn’t that because of actual evidence of what had happened in that state and how hard it was to get on the ballot? Here we don’t have anything to weigh on the other side. You haven’t offered anything to weigh against what the state is saying about how much time they need to do all the procedures to get the ballot in order.”
     Damron said that similar cases don’t have “a lot of evidence on the record.”
     She added, “Some cases have much less evidence on the record, including just the evidence that a party was not able to get on the ballot.”
     Representing the state, Arizona Assistant Attorney General James Driscoll-MacEachron pounced on the Green Party’s perceived lack of evidence.
     “There is a complete absence of a burden in this case,” he said. “It was their burden to put forth evidence that there is a severe burden on the rights of minor parties and voters in this instance. They have not done so in this case.”
     Lefkow asked him to explain the state’s reasons for the 180-day deadline, which was adopted in 2000.
     “The population of Arizona has increased a great deal, and there are a number of additional laws that do affect the primary process, for example early voting is a much bigger part of the voting process in Arizona, and that begins 26 days before the primary” he said, adding that voters serving overseas in the military must received their ballots 45 days prior to the primary.
     “Each date builds back on the date before,” Driscoll-MacEachron said. “There’s actually not much slack in this schedule, and it’s not only enough to satisfy a rational-basis review, but even a more searching level of review — although I would reiterate that there’s no evidence of a severe burden put on the party in this instance.”
     Lefkow asked the state’s attorney what evidence the Green Party could have presented to show a substantial burden.
     “I think in this instance that they would have difficult time putting forth evidence that did show a severe burden, but the kinds of evidence that other courts have looked at includes thing like a documented difficulty in collecting signatures, the effect of early deadlines, a history of third parties being unable to get onto the ballot because of the deadline, specific facts that show that this deadline was in fact burdening,” he said.
     “We don’t contest in any way that the rights of association and the right to vote are critical and important rights in our democracy. But the question isn’t the importance of the right, but the degree of the burden. So there needs to be evidence not just that rights are involved, but how those rights are specifically burdened. Frequently expert witnesses are used in these cases; one wasn’t put forward here. And again, I would say that they probably would have had a difficult time to actually demonstrate a burden here.”
     The panel did not indicate how or when it would rule.

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