TUCSON (CN) - A voter-registration form that requires Arizona registrants to write in the names of smaller political parties has possibly burdened "not one single person," an attorney for the state told the 9th Circuit on Thursday.
Much of the hearing on the Arizona Libertarian and Green Parties' challenge to the state's written voter-registration form centered on burden, or the lack thereof.
The forms at issue, enacted by the state Legislature in 2011, feature the names of the Republican and Democrat Parties with a checkbox next to them, while the three other parties with ongoing ballot access in Arizona - The Libertarian Party, The Green Party, and Americans Elect - are not listed by name. Those wishing to register with one of those parties must write in the name and check a box marked "other."
Arizona said the new forms would increase efficiency and cut costs. With the ability of smaller parties to qualify for ballot access often uncertain, including them in "other" prevents the need to reprint registration forms each election cycle.
A federal judge shot down the equal-protection challenge to the forms by the Arizona Libertarian Party and the Arizona Green Party, bringing the issue Thursday to the 9th Circuit's special sitting at the University of Arizona.
Noting that the Libertarian Party has been on the ballot in Arizona for more than 20 years, the plaintiffs' attorney David Hardy told the three-judge appeals panel that the forms seem to reflect the state's view that "some parties are more stable than others."
"Under this statute, neither party could ever prove their stability," Hardy said. "They could be on the ballot for 50 years, bring in social scientists to demonstrate that they will certainly be on the ballot for the next 50 years, and they still could not get listed on the voter registration forms."
For Hardy, the forms also prevent "parties that aren't in the top two from ever getting in the top two."
"They cannot treat as unequal parties that by the law are equal," Hardy said.
Picking up the issue of burden that would become the focus of much of the hearing, Judge A. Wallace Tashima asked if the plaintiffs' complaints about the forms weren't "quite minor."
Isn't this a case where the "burden is minimal?" Judge Marsha Berzon added.
Arguing for the state, attorney Robert Ellman took the burden issue further.
"You're talking about an extraordinarily marginal number of people," Ellman said. "Even if everyone in Arizona used the paper form, it would only have an effect on people who intend to designate a party preference for the Green or Libertarian party, and are ready, willing and able to check a box, but not ready or willing to write the word Green or Libertarian on a line. And it is very possible that there is not one single person in Arizona who fits that description."
Ellman also pointed out that the plaintiffs had not offered any evidence in the case to show that registrants had indeed been burdened by the forms.
"You could come forward as the plaintiffs with recognizable evidence to demonstrate that there was some effect and there is none," he said. "There are no affidavits or declarations from anyone stating that they attempted to register as a Libertarian or Green Party member but could not do so, or that they thought they had and in fact had been mistakenly registered as a Democrat or Republican."
On rebuttal, Hardy said that the "central question in this case is ... why don't they just put four boxes on the registration form instead of two?"
I don't believe that question was ever answered," he said.
Judge Margaret McKeown then asked him straight out, "what is the burden?"
"It isn't that significant ... you check the box, you write it in ... but the point is the differentiation between the two, since this is equal protection," Hardy said.
"So the burden is basically not much," McKeown said, leading Hardy to admit, ""It is not much, your honor."
Read the Top 8
Sign up for the Top 8, a roundup of the day's top stories delivered directly to your inbox Monday through Friday.