No. ______
In the

Supreme Court of the United States
__________________
ARIZONA LIBERTARIAN PARTY AND MICHAEL KIELSKY,
Petitioners,
v.
KATIE HOBBS, ARIZONA SECRETARY OF STATE,
Respondent.
__________________
On Petition for Writ of Certiorari to the
United States Court of Appeals
for the Ninth Circuit

__________________

PETITION FOR WRIT OF CERTIORARI
__________________
Oliver B. Hall
Counsel of Record
Center for Competitive Democracy
P.O. Box 21090
Washington, D.C. 20009
(202) 248-9294
oliverhall@competitivedemocracy.org
Counsel for Petitioners

December 9, 2019
Becker Gallagher · Cincinnati, OH · Washington, D.C. · 800.890.5001

 i
QUESTIONS PRESENTED
This Court has long held that states may require a
“showing of a significant modicum of support” as a
prerequisite to granting a candidate or political party
access to the ballot. Jenness v. Fortson, 403 U.S. 431,
442 (1971). In Jenness, this Court upheld the
constitutionality of a statute requiring a showing of
support equal to 5 percent of the voters eligible to vote
for the candidate seeking ballot access, but it has never
upheld a statute requiring a showing of support greater
than that. The questions presented are:
1. May a state require that a candidate seeking to
run in the primary election of a ballot-qualified party
demonstrate support from as much as 30 percent of the
voters eligible to vote in the primary election?
2. May a state require that a candidate seeking to
run in the primary election of a ballot-qualified party
demonstrate support from independent or unaffiliated
voters, who are not eligible to vote in the primary
election?

 ii
LIST OF DIRECTLY RELATED PROCEEDINGS
There are no proceedings that are directly related to
this case.

 iii
TABLE OF CONTENTS
QUESTIONS PRESENTED . . . . . . . . . . . . . . . . . . . i
LIST OF DIRECTLY RELATED PROCEEDINGS . ii
TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . v
OPINIONS BELOW. . . . . . . . . . . . . . . . . . . . . . . . . . 1
JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
RELEVANT CONSTITUTIONAL PROVISIONS. . . 1
INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . 5
REASONS FOR GRANTING THE WRIT. . . . . . . . 21
I.

The Court of Appeals’ Decision Conflicts
With the Settled Law of Other Circuits and
Injects Intolerable Confusion Into a Question
of Exceptional Importance . . . . . . . . . . . . . . 21

II.

The Court of Appeals’ Decision Conflicts
With This Court’s Decision in Jones. . . . . . . 28

III.

This Case Is the Right Vehicle for Answering
the Questions Presented . . . . . . . . . . . . . . . . 30

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
APPENDIX
Appendix A Opinion in the United States Court of
Appeals for the Ninth Circuit
(May 31, 2019). . . . . . . . . . . . . . . . App. 1

 iv
Appendix B Order and Judgment in a Civil Case in
the United States District Court for
the District of Arizona
(July 10, 2017). . . . . . . . . . . . . . . App. 35
Appendix C Order Denying Petition for Rehearing
in the United States Court of Appeals
for the Ninth Circuit
(July 11, 2019). . . . . . . . . . . . . . . App. 80
Appendix D Arizona Statutory Provisions . . . App. 82
§ 16-321 . . . . . . . . . . . . . . . . . . . . App. 82
§ 16-322 . . . . . . . . . . . . . . . . . . . . App. 84

 v
TABLE OF AUTHORITIES
CASES
American Party of Arkansas v. Jernigan,
424 F. Supp. 943 (E.D. Ark. 1977) . . . . . . . . . . . 23
American Party of Texas v. White,
415 U.S. 767 (1974). . . . . . . . . . . . . . 24, 25, 26, 30
Anderson v. Celebrezze,
460 U.S. 780 (1983). . . . . . . . . . . . . . . . 3, 4, 15, 27
Burdick v. Takushi,
504 U.S. 428 (1992). . . . . . . . . . . . . . . . 3, 4, 15, 27
California Democratic Party v. Jones,
530 U.S. 567 (2000). . . . . . . . . . . . . . . . . . . passim
Consumer Party v. Davis,
633 F. Supp. 877 (E.D. Pa. 1986) . . . . . . . . . . . . 24
Cook v. Gralike,
531 U.S. 510 (2001). . . . . . . . . . . . . . . . . . . . . 3, 27
Crawford v. Marion Cnty. Election Bd.,
553 U.S. 181 (2008). . . . . . . . . . . . . . . . . . . . . . . . 4
Dart v. Brown,
717 F. 2d (5th Cir. 1983). . . . . . . . . . . . . . . . . . 4, 5
Greaves v. State Bd. of Elections of North Carolina,
508 F. Supp. 78 (E.D.N.C. 1980) . . . . . . . . . . . . 23
Hatten v. Rains,
854 F.2d 687 (5th Cir. 1988). . . . . . . . . . . . . . . . . 4
Jenness v. Fortson,
403 U.S. 431 (1971). . . . . . . . . . . 21, 22, 23, 25, 26

 vi
Lee v. Keith,
463 F.3d 763 (7th Cir. 2006). . . . . . . . . . . . . . . . 23
Lendall v. Bryant,
387 F. Supp. 397 (E.D. Ark. 1974) . . . . . . . . . . . 23
Lendall v. Jernigan,
424 F. Supp. 951 (E.D. Ark. 1977) . . . . . . . . . . . 23
Norman v. Reed,
502 U.S. 279 (1991). . . . . . . . . . . . . . . . . . . . . . . . 2
Obie v. North Carolina State Bd. of Elections,
762 F. Supp. 119 (E.D.N.C. 1991) . . . . . . . . . . . 23
Republican Party of Ark. v. Faulkner County, Ark.,
49 F. 3d (8th Cir. 1995). . . . . . . . . . . . . . . . . . . . . 4
Socialist Labor Party v. Rhodes,
318 F. Supp. 1262 (S.D. Oh. 1970) . . . . . . . . . . . 24
Stone v. Board of Election Com’rs for City of
Chicago, 750 F.3d 678 (7th Cir. 2014) . . . . . . 4, 27
Storer v. Brown,
415 U.S. 724 (1974). . . . . . . . . . . . . . . . . . . passim
Sweezy v. New Hampshire,
354 U.S. 234 (1957). . . . . . . . . . . . . . . . . . . . . . . . 2
U.S. Term Limits v. Thornton,
514 U.S. 779 (1995). . . . . . . . . . . . . . . . . . . . . . , 53
Washington v. Davis,
426 U.S. 229 (1976). . . . . . . . . . . . . . . . . . . . . . . 15
Williams v. Rhodes,
393 U.S. 23 (1968). . . . . . . . . . . . . . . . . . . . passim

 vii
CONSTITUTION AND STATUTES
U.S. Const. art. I, § 4 . . . . . . . . . . . . . . . . . . . . . . . . . 2
U.S. Const. amend. I . . . . . . . . . . . . . . . . . . . . . . . . . .
U.S. Const. amend. II. . . . . . . . . . . . . . . . . . . . . . . . . .
28 U.S.C. § 1254(1). . . . . . . . . . . . . . . . . . . . . . . . . . . 1
A.R.S. § 16-302 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
A.R.S. § 16-321 . . . . . . . . . . . . . . . . . . . . . . . . . passim
A.R.S. § 16-322 . . . . . . . . . . . . . . . . . . . . . . . . . passim
A.R.S. § 16-645(D) . . . . . . . . . . . . . . . . . . . . . . . . . . 11
A.R.S. § 16-645(E) . . . . . . . . . . . . . . . . . . . . . 9, 11, 20
A.R.S. § 16-801 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
A.R.S. § 16-804(B) . . . . . . . . . . . . . . . . . . . . . . . 6, 8, 9
RULES
Fed. R. Civ. P. 26(a) . . . . . . . . . . . . . . . . . . . . . . . . . 12
Sup. Ct. R. 30.1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
OTHER AUTHORITIES
Arizona Secretary of State, Historical Election
Information, available at https://www.azsos.gov/
elections/voter-registration-historical-electiondata/historical-election-information. . . . . . . . . 8, 9
State of Arizona, 2016 Election Information,
available at https://apps.azsos.gov/election/2016
/Info/ElectionInformation.htm . . . . . . . . . . . . . . . 9

 viii
State of Arizona, 2018 Election Information,
available at https://azsos.gov/2018-electioninformation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
State of Arizona, Historical Election Information,
available at https://azsos.gov/elections/voterregistration-historical-election-data . . . . . . . . . 17
Tribe, American Constitutional Law
(2d Ed.1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 5

 1
PETITION FOR A WRIT OF CERTIORARI
Petitioners Arizona Libertarian Party and Michael
Kielsky respectfully petition for a writ of certiorari to
review the judgment of the United States Court of
Appeals for the Ninth Circuit.
OPINIONS BELOW
The opinion of the United States Court of Appeals
for the Ninth Circuit (Pet. App. 1) is published at 925
F. 3d 1085. The court of appeals’ order denying
Petitioners’ Petition for Rehearing (Pet. App. 80) is not
published. The district court’s opinion is published at
189 F. Supp. 3d 920.
JURISDICTION
The judgment of the court of appeals was entered on
May 31, 2019. Pet. App. 1. A timely petition for
rehearing or rehearing en banc was denied on July 11,
2019. Pet. App. 80. On October 2, 2019, Justice Kagan
extended the time within which to file a petition for a
writ of certiorari to and including December 8, 2019 (a
Sunday), see 19A367, such that the petition is timely
filed on December 9, 2019. See Sup. Ct. R. 30.1. This
Court has jurisdiction pursuant to 28 U.S.C. § 1254(1).
RELEVANT CONSTITUTIONAL PROVISIONS
The First Amendment of the United States
Constitution provides in pertinent part: “Congress shall
make no law . . . abridging the freedom of speech . . . or
the right of the people peaceably to assemble, and to
petition the Government for a redress of grievances.”

 2
The Fourteenth Amendment of the United States
Constitution provides in pertinent part: “No State
shall … deny to any person within its jurisdiction the
equal protection of the laws.”
INTRODUCTION
This Court has long recognized the “virtue of
political activity” by minor political parties, “who
innumerable times have been in the vanguard of
democratic thought and whose programs were
ultimately accepted.” Sweezy v. New Hampshire, 354
U.S. 234, 251 (1957). And it has warned that “the
absence of such voices would be a symptom of grave
illness in our society.” Id. Yet, this Court has not
accepted a petition for a writ of certiorari filed by a
minor political party in 28 years. See Norman v. Reed,
502 U.S. 279 (1991). Meanwhile, partisan state
Legislatures have stepped into the breach, devising
ever more intricate methods of excluding these vital
voices from the electoral process under the guise of the
state’s power to regulate the “Times, Places and
Manner of holding Elections.” U.S. Const. art. I, § 4.
This is one such case.
By means of a statutory scheme that requires
Petitioner Arizona Libertarian Party (“AZLP”) to select
its nominees in primary elections, while making it
practically impossible for Libertarian candidates to
qualify for the primary election ballot, the State of
Arizona has nullified this minor party’s participation in
the political process and silenced the voters it
represents with a swipe of the Governor’s pen. Arizona
has relegated AZLP to a state of electoral purgatory:
the party is ballot-qualified under Arizona law, but it

 3
cannot place its candidates on the ballot. In the rare
cases where states have overstepped their regulatory
powers by making it impossible for Republican or
Democratic party candidates to appear on the ballot, or
by disadvantaging them, this Court has not hesitated
to intervene. See, e.g., U.S. Term Limits v. Thornton,
514 U.S. 779 (1995) (relying on Qualifications Clause to
strike down state constitutional provision imposing
term limit on congressional candidates); Cook v.
Gralike, 531 U.S. 510 (2001) (striking down state
constitutional provision establishing pejorative ballot
labels for congressional candidates who declined to
endorse term limits on ground that it exceeds state’s
power under the Elections Clause). As this Court
explained, “the Framers understood the Elections
Clause as a grant of authority to issue procedural
regulations, and not as a source of power to dictate
electoral outcomes, to favor or disfavor a class of
candidates, or to evade important constitutional
restraints.” Cook, 531 U.S. at 523 (quoting U.S. Term
Limits, 514 U.S. at 833-34).
In contrast with the unequivocal holdings in U.S.
Term Limits and Cook, this Court has concluded that
“no litmus-paper test” exists for analyzing the
constitutionality of state ballot access laws, Storer v.
Brown, 415 U.S. 724, 730 (1974), and that “a more
flexible standard applies.” Burdick v. Takushi, 504
U.S. 428, 434 (1992). It has thus adopted an analytic
framework that requires courts to balance the burdens
that ballot access restrictions impose upon a plaintiff’s
First and Fourteenth Amendment rights against the
interests the state asserts to justify them. See Burdick,
504 U.S. at 434; Anderson v. Celebrezze, 460 U.S. 780,

 4
789 (1983). Under this analysis, restrictions that
impose “severe” burdens are subject to strict scrutiny,
whereas lesser burdens are subject to less exacting
review. See Burdick, 504 U.S. at 434.
Courts of appeals have struggled to apply this
“Anderson-Burdick” analysis with consistency. See,
e.g., Republican Party of Ark. v. Faulkner County, Ark.,
49 F. 3d 1289, 1296 (8th Cir. 1995) (“The Supreme
Court has not spoken with unmistakable clarity on the
proper standard of review for challenges to provisions
of election codes”); Hatten v. Rains, 854 F.2d 687, 693
(5th Cir. 1988) (“The Supreme Court has never stated
the level of scrutiny applicable to ballot access
restrictions with crystal clarity”). As the Seventh
Circuit observed, the lower courts’ difficulty is
exacerbated by the fact that the Anderson-Burdick
analysis “can only take us so far,” because “there is no
‘litmus test for measuring the severity of a burden that
a state law imposes,’ either.” Stone v. Board of Election
Com'rs for City of Chicago, 750 F.3d 678, 681 (7th Cir.
2014) (quoting Crawford v. Marion Cnty. Election Bd.,
553 U.S. 181, 191 (2008)). In the absence of such
standards, one noted scholar has opined that this
Court’s ballot access jurisprudence, “as a
pronouncement of doctrine … is positively Delphic.”
Tribe, American Constitutional Law § 1320 (2d
Ed.1988). Notwithstanding such uncertainty, lower
courts have generally adhered to a critical limitation
gleaned from this Court’s decisions: in regulating
access to the ballot, states may not require that a
candidate or party demonstrate support from more
than 5 percent of the voters eligible to vote for the
candidate or party. See, e.g., Dart v. Brown, 717 F.2d

 5
1491, 1506 (5th Cir. 1983) (“requirements as high as
five percent are not unconstitutional per se, but
requirements substantially in excess of five percent
probably are”) (quoting L. Tribe, American
Constitutional Law, 784 (1978)).
In this case, the Ninth Circuit has plunged the
lower courts into deeper confusion by upholding a
statutory scheme that requires candidates who seek to
run in AZLP’s primary to demonstrate support from as
much as 30 percent of the eligible voters.
Compounding the confusion, the Ninth Circuit
expressly concluded that such a requirement only
imposes “a minimal burden” on Petitioners’ First and
Fourteenth Amendment rights. But the legislation at
issue disfavors a class of candidates – those who seek
the nomination of the AZLP – and targets them with
surgical precision, eliding them from Arizona’s ballot as
effectively as the impermissible qualification this Court
struck down in U.S. Term Limits. Only review by this
Court can provide the guidance needed for the lower
courts to subject such laws to the proper level of
scrutiny, and to protect the most precious
constitutional rights of the voters, candidates and
parties who must labor under them in the absence of
this Court’s intervention.
STATEMENT OF THE CASE
1. The State of Arizona requires that political
parties select their nominees by primary election. See
A.R.S. § 16-302. In 2015, Arizona amended the
statutory provisions that establish the requirements it
imposes on candidates who seek to run in the primary
election of a political party that is qualified to place its

 6
nominees on the general election ballot. See A.R.S.
§§ 16-321, 16-322. Prior to their amendment, §§ 16-321
and 16-322 enabled candidates to appear on the
primary ballot by submitting nomination petitions with
a number of signatures defined as a percentage of their
party’s registered voters in the relevant jurisdiction.
As amended, however, the provisions define the
signature requirements as a percentage of all “qualified
signers” in the relevant jurisdiction – a pool that
includes more than one million independent and
unaffiliated voters, even though such voters are
ineligible to vote in the primary election of any party
that holds a closed primary. Pet. App. 37, 59.
Petitioner AZLP has 32,056 members. Pet. App. 4
& n.1. By virtue of the size of its membership, AZLP is
ballot-qualified: it is entitled to “continued
representation as a political party” on Arizona’s
general election ballot. A.R.S. § 16-804(B); Pet. App. 4.
AZLP also elects to hold a closed primary, as it is
permitted to do under Arizona law and the decisions of
this Court. Pet. App. 7; see California Democratic
Party v. Jones, 530 U.S. 567 (2000). As applied to
AZLP – though not to the Republican Party or the
Democratic Party, which are the only other ballotqualified parties in Arizona – the amendments to §§ 16321 and 16-322 drastically increased the number of
signatures required of a candidate seeking to run in its
primary election, in most cases by a factor of 20 to 30.
The requirements for candidates seeking to run in the
Republican or Democratic primaries, by contrast,

 7
increased only slightly for most offices, and in many
cases they decreased.1
The signature requirements that §§ 16-321 and 16322 now impose on Libertarian candidates are greater,
by several orders of magnitude, than the highest such
requirement this Court has ever upheld. To comply
with them in 2016, Libertarian candidates needed to
obtain signatures amounting to as much as 30 percent
of the eligible voters (i.e., registered Libertarians) in
the jurisdiction. For several offices, the signature
requirement amounted to more than 20 percent of the
eligible voters, and in no case was it equal to less than
11 percent of the eligible voters. Yet this Court has
never upheld a signature requirement greater than 5
percent of eligible voters. See Storer, 415 U.S. at 739.
Although candidates seeking access to AZLP’s
primary ballot are permitted to obtain signatures from
independent and unaffiliated voters in their
jurisdictions, in addition to registered Libertarians, see
A.R.S. § 16-321, those voters are not eligible to vote in
AZLP’s primary election. Candidates seeking to run in
AZLP’s primary election thus face a choice between two
unconstitutional alternatives: either they obtain
signatures exclusively from registered Libertarians, in
which case they must comply with unconstitutionally
burdensome signature requirements, or they obtain
1

The amendments to §§ 16-321 and 16-322 had a negligible as
applied to the Republican and Democratic parties, because the
amendments increased the size of the pool of voters who could sign
a candidate’s nomination petitions, but decreased the percentage
of that larger pool whose signatures a candidate is required to
obtain.

 8
signatures from nonmembers – a form of compelled
association that not only violates Petitioners’ rights
under Jones, but also lacks any rational basis. Arizona
has no legitimate interest in requiring that Libertarian
candidates demonstrate support from independent
voters who are not eligible to vote for them, and who
have no reason or incentive to support the candidates’
effort to obtain AZLP’s nomination.
The Hobson’s choice that Arizona imposes on
Petitioners under §§ 16-321 and 16-322 has had
predictable results. In election cycles preceding the
2015 amendments to those provisions, AZLP routinely
placed dozens of candidates for county, state and
federal office on Arizona’s general election ballot – as
would be expected of a party that is ballot-qualified
under Arizona law. See A.R.S. § 16-804(B); see also
Arizona Secretary of State, Historical Election
Information, available at https://www.azsos.gov/electio
ns/voter-registration-historical-election-data/historicalelection-information.
In the first election cycle
thereafter, however, that record of historical success
came to an immediate and near-complete halt. In
2016, only one candidate was able to comply with the
increased signature requirements that now apply
under §§ 16-321 and 16-322. In 2018, no Libertarian
candidates were able to comply those requirements.
See State of Arizona, 2018 Election Information,
available at https://azsos.gov/2018-election-information.
Further, despite the diligent efforts of many others who
sought AZLP’s nomination by running in the primary
election as write-in candidates, not one was permitted
to appear on the general election ballot in 2016 or 2018,
even though each of them won their primary races,

 9
because they were required to receive a number of
write-in votes equal to the number of signatures they
would have been required to obtain on a nomination
petition. See Arizona Secretary of State, Historical
Election Information, available at https://www.azsos.go
v/elections/voter-registration-historical-election-data/
historical-election-information; see also A.R.S. § 16645(E).
Only one other political party is formally organized
under Arizona law – the Arizona Green Party
(“AZGP”). Because AZGP is not ballot-qualified under
§ 16-804(B), it must submit a petition to qualify as a
new party pursuant to A.R.S. § 16-801. Once it does so,
AZGP also must select its nominees by primary
election, but it need not comply with the signature
requirements that § 16-322 imposes on the
Libertarians. See A.R.S. § 16-801. Instead, § 16-322
imposes a separate, and much lower, signature
requirement for parties that are not ballot-qualfied.
See A.R.S. § 16-322(C). As a result of this lower
signature requirement, AZGP’s nominees were
permitted to appear on the general election ballot in
2016, while AZLP’s nominees for the same offices were
excluded from the general election ballot, despite
outpolling the AZGP candidates by wide margins. See
State of Arizona, 2016 Election Information, available
at https://apps.azsos.gov/election/2016/Info/ElectionInfo
rmation.htm. And in 2018, AZGP’s candidates once
again appeared on Arizona’s general election ballot,
while AZLP’s candidates were excluded.
2. Petitioners commenced this action on April 12,
2016, by filing their four-count complaint asserting

 10
violations of their First and Fourteenth Amendment
rights. Petitioners alleged, inter alia, that §§ 16-321
and 16-322 violate the Libertarians’ freedoms of
speech, petition, assembly and association by imposing
impermissibly burdensome signature requirements on
them, and, by compelling them to associate with
nonmembers for purposes of selecting their own
partisan nominees. Petitioners also alleged that §§ 16321 and 16-322 violate their right to equal protection of
the law, by imposing severe and unequal burdens that
fall on Libertarian candidates alone. Petitioners
supported these claims with the declarations of eight
Libertarian candidates and AZLP’s Chair, each of
whom attested to the specific burdens the challenged
provisions imposed on them as candidates seeking
access to AZLP’s primary ballot, including their
difficulty in obtaining support from independent voters
who are ineligible to vote for them, as well as a
declaration from AZGP’s Chair.
As the 2016 election cycle approached, the
Libertarians filed two motions for preliminary relief,
the first on behalf of candidates who were seeking to
appear on AZLP’s primary election ballot, and the
second on behalf of candidates who were seeking to run
in AZLP’s primary election as write-in candidates.
Petitioners supported these motions with additional
declarations from Petitioner Kielsky, AZLP’s Chair,
who attested to the crippling burdens the increased
signature requirements were imposing on Libertarian
candidates, and to the fact that AZLP had recruited no
fewer than 15 candidates to run in its primary election,
but none of them had come close to complying with the
requirements, and that consequently, at least a dozen

 11
had committed to run as write-ins. The district court
denied both motions. In doing so, it failed to address
the complete lack of evidence that Arizona had any
legitimate interest in adopting the new requirements
imposed by §§ 16-321 and 16-322, nor did it identify
any state interest that is served by applying the
requirements to write-in candidates.
As a result, no Libertarian candidate appeared on
AZLP’s 2016 primary election ballot, and all 14
candidates who ran in AZLP’s primary election as
write-ins were excluded from the general election ballot
because they failed to receive enough votes to satisfy
the minimum vote requirement imposed by § 16645(E). By contrast, AZGP ran 10 write-in candidates
in its 2016 primary, and all 10 appeared on Arizona’s
general election ballot, because they did not need to
comply with the minimum vote requirement imposed
by § 16-645(E), but only needed to obtain a “plurality”
of votes in their respective races. See A.R.S. § 16645(D). AZGP’s write-in candidates were included on
the general election ballot, while AZLP’s write-in
candidates for the very same offices were excluded,
even though in each case the Libertarian candidates
received far more votes.
Following the 2016 general election, the parties
filed cross-motions for summary judgment. Petitioners
submitted seven more declarations in support of their
motion – a fourth declaration from Petitioner Kielsky,
as well as six more declarations from write-in
candidates who ran in AZLP’s 2016 primary, won their
races, but were excluded from the general election
ballot. These declarations provided detailed evidence

 12
of the diligent efforts that Libertarian candidates made
to comply with the increased requirements imposed by
§§ 16-321 and 16-322. Although Respondents had
identified, in their own initial disclosures, all write-in
candidates who ran in AZLP’s 2016 primary election as
persons who may have discoverable information, and
Petitioners timely provided Respondents with the name
and contact information for each of these witnesses, the
district court granted Respondents’ motion to strike
their evidence on the ground that they were not
formally disclosed under Fed. R. Civ. P. 26(a). Pet.
App. 41. In a footnote, the district court acknowledged
that it was required to make a finding of “willfulness,
fault or bad faith” before excluding such evidence, if
that sanction would “amount to dismissal of a claim” –
a finding the district court did not and manifestly could
not make2 – but, the district court reasoned, “the
Court’s exclusion of the six declarations does not
amount to dismissal of [Petitioners’] claim[s],” because
inclusion of the evidence “would not result in a
different outcome.” Pet. App. 45 n.4. The district court
thus began its analysis of the parties’ motions for
summary judgment by excluding virtually all the
evidence Petitioners submitted in support of theirs –
and most important, the evidence bearing upon the
severity of the burden imposed by §§ 16-321 and 16322.

2

On the contrary, Petitioners demonstrated good faith by
consenting to extend the deadline for taking discovery for the sole
purpose of accommodating Respondents’ failure to notice
depositions prior to that deadline.

 13
3. Turning to the merits, the district court began
its analysis with a fundamental mischaracterization of
the basis for Petitioners’ claims. According to the
district court, this case does not present a challenge to
the requirements that Arizona imposes on candidates
seeking access to AZLP’s primary election ballot, but
rather to the “two-step process” that such candidates
must follow to appear on Arizona’s general election
ballot. Pet. App. 54. The district court thus concluded
that Petitioners did not use “the correct math” to
support their claims. Pet. App. 53. Although §§ 16-321
and 16-322 establish the requirements for appearing on
Arizona’s primary election ballot, the district court
determined that the burden they impose should be
measured not as a percentage of eligible voters in that
election, but as a percentage of “qualified signers” as
those provisions define the term. Pet. App. 64. Despite
conceding that every Supreme Court and lower federal
court case analyzing the constitutionality of ballot
access laws measures the burden that such laws
impose “as a percentage of eligible voters,” the district
court insisted that such a standard was inapposite
here, because this case arises from a closed primary.
Pet. App. 60. This factual difference, in the district
court’s view, made the percentage of eligible voters
required by §§ 16-321 and 16-322 immaterial to its
analysis of their constitutionality.
Having excluded Petitioners’ evidence and
jettisoned the standard that every other federal court
has followed in reviewing the constitutionality of ballot
access laws, the district court had little trouble
upholding §§ 16-321 and 16-322 as “reasonable and
nondiscriminatory” regulations. Pet. App. 76. The

 14
burden the provisions impose on Petitioners is
“reasonable,” the district court found, “whether the
percentage requirement is calculated on the basis of
qualified signers or the general electorate.” Pet. App.
73. “In both instances,” the district court reasoned, the
burden imposed “is well below the 5% requirement
upheld by the Supreme Court.” Pet. App. 73-74. The
district court reached this conclusion notwithstanding
its express acknowledgment that, when the burden is
calculated using the standard applicable in every other
ballot access case – eligible voters – the percentage
required is as high as 30 percent. Pet. App. 72.
Further, because the district court found the signature
requirements established by §§ 16-321 and 16-322 to be
facially permissible, it found no need to address
Petitioners’ evidence relating to the severity of the
burdens they impose. Pet. App. 70. The district court
thus upheld the requirements without any analysis of
whether a “reasonably diligent” candidate could “be
expected to satisfy” them. See Storer, 415 U.S. at 742.
The district court also found §§ 16-321 and 16-322
to be “nondiscriminatory” for “reasons discussed
above,” but it failed to specify those reasons. Pet. App.
76. Whatever they might be, the district court did not
address the arguments and evidence that Petitioners
advanced in support of their equal protection claims.
Instead, the district court acknowledged that §§ 16-321
and 16-322 “could be viewed as having a greater impact
on AZLP than on other Arizona political parties,” but
nonetheless concluded that Petitioners’ equal
protection claims fail because they did not allege that
the amendments were “enacted with a discriminatory
intent.” Pet. App. 77. To support this conclusion, the

 15
district court cited not to Anderson or Burdick, which
do not require an allegation of discriminatory intent,
but to a Title VII case alleging racial discrimination.
Pet. App. 77 (citing Washington v. Davis, 426 U.S. 229
(1976)).
The district court also rejected Petitioners’ claim
that §§ 16-321 and 16-322 violate their freedom of
association under Jones. Unlike Jones, the District
Court observed, this case does not involve “the legallymandated participation of other parties” in AZLP’s
primary election. Pet. App. 72. Libertarian candidates
are thus able to obtain all the signatures required by §§
16-321 and 16-322 “without looking outside their
party.” Pet. App. 72. The district court conceded that
this would require candidates to obtain support from as
much as “30% of the registered AZLP voters in any
relevant jurisdiction,” but reasoned that if Petitioners
found this “too daunting a task, they can work to
increase their party membership.” Pet. App. 72.
4. The Ninth Circuit affirmed the district court’s
decision. It began its analysis by summarily rejecting
Petitioners’ appeal from the district court’s exclusion of
their evidence. That issue is “moot,” the court of
appeals concluded, “because summary judgment for
[Respondents] is warranted even if we consider the
excluded evidence.” Pet. App. 8 n.7. But like the
district court, the court of appeals gave no indication
that it had in fact considered that evidence, except to
characterize it as “limited” and only sufficient to show
Petitioners’ “modest efforts” to comply with §§ 16-321
and 16-322. Pet. App. 15. The court of appeals thus
concluded as a matter of law that §§ 16-321 and 16-322

 16
impose “a minimal burden” on Petitioners’ First and
Fourteenth Amendment rights, without addressing
Petitioners’ evidence to the contrary. Pet. App. 15.
The Ninth Circuit did not adopt the district court’s
reasoning that Petitioners’ challenge to §§ 16-321 and
16-322 was tantamount to a challenge to the “two-step
process” for accessing Arizona’s general election ballot,
such that the burden imposed by the signature
requirements the provisions establish need not be
measured as a percentage of voters eligible to vote in
AZLP’s primary election. Neither, however, did the
court of appeals accept Petitioners’ argument that the
burden imposed by §§ 16-321 and 16-322 must be
measured as a percentage of that pool of eligible voters.
Instead, the court of appeals concluded that the burden
must be measured as a “percentage of those voters
eligible under state law to offer their signatures.” Pet.
App. 12 (emphasis original). Thus, the court of appeals
expressly concluded that it was proper to measure the
burden that Arizona’s primary election ballot access
requirements impose as a percentage of the voters
eligible to vote in AZLP’s primary election, combined
with the more than one million independent and
unaffiliated Arizona voters who are not eligible to vote
in AZLP’s primary election. Because the signature
requirements established by §§ 16-321 and 16-322 do
not amount to more than 5 percent of that “pool of
eligible signers,” the court of appeals found that
Petitioners had “failed” to demonstrate that the
provisions impose a “severe burden” on their First and
Fourteenth Amendment rights. Pet. App. 13.

 17
Applying the “less exacting” scrutiny applicable to
laws that impose “minimal” burdens, the court of
appeals readily accepted Arizona’s asserted interests in
“preventing voter confusion, ballot overcrowding and
frivolous candidacies” as sufficient justification for the
requirements imposed by §§ 16-321 and 16-322. Pet.
App. 15-16. The court of appeals thus declined to
address Petitioners’ uncontested evidence
demonstrating that, far from overcrowded, AZLP’s
primary election ballot almost invariably features
candidates running uncontested for AZLP’s
nomination. See generally, State of Arizona, Historical
Election Information, available at https://azsos.gov/ele
ctions/voter-registration-historical-election-data. Nor
did the court of appeals address the complete lack of
evidence to support Respondents’ assertion that §§ 16321 and 16-322 were reasonably tailored to prevent
“voter confusion” or “frivolous” candidacies. Perhaps
most important, the court of appeals disregarded
Petitioners’ argument that Arizona has no rational
basis for requiring that candidates seeking to run in
AZLP’s primary election demonstrate support from
independent and unaffiliated voters who are not
eligible to vote for them, and who have no reason or
incentive to support their effort to obtain AZLP’s
nomination.
The court of appeals also rejected Petitioners’ claim
that §§ 16-321 and 16-322 violate their freedom of
association under Jones. This claim, the court of
appeals reasoned, turns on the answer to two
questions: first, whether Arizona’s statutory scheme
“forces” Petitioners to associate with nonmembers; and
second, “whether such forced association creates a risk

 18
that nonparty members will skew either primary
results or candidates’ positions.” Pet. App. 17 (citation
and quotation marks omitted). The court of appeals
answered both questions in the negative.
As to the first question, the court of appeals found
no forced association because Libertarian candidates
are not required by statute or otherwise compelled to
solicit signatures from nonmembers, and because they
“can qualify for the primary ballot with signatures from
11% to 30% of party members in their jurisdictions,
and no evidence suggests it is impossible to do so as a
practical matter.” Pet. App. 18. Here, the court of
appeals disregarded a fact it had previously
acknowledged, that statutes requiring a demonstration
of support from “substantially” more than 5 percent of
eligible voters impose “a severe burden triggering
heightened scrutiny.” Pet. App. 10 (citing Williams v.
Rhodes, 393 U.S. 23, 24-25 (1968) (invalidating 15
percent requirement)). As to the second question, the
court of appeals summarily rejected the “speculative
conclusion” that the necessity of obtaining
nonmembers’ signatures would “skew” AZLP’s primary
election results or Libertarian candidates’ positions,
Pet. App. 18, but once again, the court of appeals failed
to address Petitioners’ uncontested evidence (which
was not excluded) that Libertarian candidates had in
fact experienced great difficulty obtaining signatures
from nonmembers, and that such difficulty incentivized
them “to curry favor with persons whose views are
more ‘centrist’ than those of the party base.” Jones,
530 U.S. at 581.

 19
The court of appeals thus found that §§ 16-321 and
16-322 only impose a “modest” burden on Petitioners’
associational rights, and it applied “less exacting
scrutiny” to hold that Arizona’s asserted interests are
sufficient to justify them. Pet. App. 18.
Finally, the court of appeals rejected Petitioners’
claim that §§ 16-321 and 16-322 violate their right to
equal protection. First, the court of appeals found that
a Libertarian candidate seeking to run in the primary
election “actually faces a lower burden than his
Democratic and Republican counterparts.” Pet. App.
19 (emphasis original). “A statewide Libertarian
candidate needs to submit approximately 3,200
signatures, compared to 6,000 and 6,400 signatures for
the Democratic and Republican competitors,
respectively,” the court of appeals reasoned. Pet. App.
19. That the Libertarian requirement translated to
approximately 10 percent of the voters eligible to vote
in AZLP’s primary election, whereas the Democratic
and Republican requirements amounted to
approximately 0.5 percent of the voters eligible to vote
in their primary elections “lacks constitutional
significance,” the court of appeals concluded. Pet. App.
19; Pet. App. 1 n.1 (citing partisan registration figures).
The court of appeals did not address the fact that the
amendments to §§ 16-321 and 16-322 had unequally
impacted Petitioners, in that they increased the
signature requirements for Libertarian candidates by
approximately 20 to 30 times, while leaving the
requirements for Democrats and Republicans
essentially unchanged.

 20
The court of appeals also found no equal protection
violation arising from the drastic disparity between the
requirements that Arizona imposes on Petitioners and
those it imposes upon “new” parties like AZGP. In
particular, the signature requirements for a candidate
seeking to appear on the primary election ballot of a
new party are a tiny fraction of those that apply to
Libertarian candidates. See A.R.S. § 16-322(C).
Further, a new party’s write-in candidates are
exempted from the minimum-vote requirement that
applies to Libertarian write-in candidates under § 16645(E). Instead, a new party’s write-in candidates may
appear on Arizona’s general election ballot provided
that they receive a mere “plurality” of votes in AZGP’s
primary. As a result, in 2016, no Libertarian write-in
candidate was permitted to appear on Arizona’s
general election ballot, whereas all Green write-in
candidates did, even though in each case the
Libertarian candidate received many more votes than
the Green candidate. Pet. App. 22 & n.16. The court
of appeals declined to address this inequity, or
Petitioners’ claim that it lacked justification in any
legitimate state interest, on the ground that Petitioners
“disclaim[ed] any challenge to Arizona’s general
election ballot access requirements.” Pet. App. 22 n.16.
Petitioners, however, did not “disclaim” their challenge
to the minimum vote requirement imposed by § 16645(E), but pressed it vigorously on appeal, and
expressly argued that §§ 16-321 and 16-322 are “most
clearly unconstitutional as applied to write-in
candidates.” Reply Br. of Petitioners, Dckt. No. 31, at
20.

 21
REASONS FOR GRANTING THE WRIT
I.

The Court of Appeals’ Decision Conflicts
With the Settled Law of Other Circuits and
Injects Intolerable Confusion Into a
Question of Exceptional Importance.

For nearly as long as this Court has adjudicated
constitutional challenges to state ballot access laws,
lower courts have recognized an upper limit on the
“modicum of support” that a state may require of
candidates and political parties seeking access to its
ballot. See Jenness, 403 U.S. at 442. That limit is
rooted in this Court’s observation that the “somewhat
higher” signature requirement upheld in Jenness – 5
percent of the voters eligible to vote for the candidate
seeking access to the ballot – was permissible because
it was “balanced” by the fact that the state did not
impose many other restrictions. See id. (citing
Williams v. Rhodes, 393 U.S. 23, 47 n.10 (Harlan, J.,
concurring)). As Justice Harlan’s concurrence in
Williams makes explicit, the 5 percent requirement
upheld in Jenness was in fact higher than at least 46
other state requirements. See Williams, 393 U.S. at 47
n.10 (Harlan, J.).
In Storer, this Court implicitly affirmed the
conclusion that Jenness represents the upper limit on
the modicum of support that a state ballot access law
may require. See Storer, 415 U.S. 724. Storer involved
a challenge to California’s requirement that
independent candidates obtain signatures equal in
number to 5 percent of the total vote in the last general
election. See id. A majority of this Court found that
this percentage was not unconstitutional on its face,

 22
but remanded for a determination of whether the
requirement was impermissibly burdensome given that
partisan primary voters were ineligible to sign the
candidates’ petitions. See id. Exclusion of those voters
might make California’s signature requirement
“substantially more than 5% of the eligible pool,” the
majority reasoned, which “would be in excess,
percentagewise, of anything the Court has approved.”
Id.
Three Justices dissented in Storer on the ground
that remand was unnecessary, because the record
demonstrated that the exclusion of primary voters
resulted in a requirement that independent candidates
demonstrate support from 9.5 percent of the eligible
voters. See id. at 764 (Brennan, J. dissenting). Thus,
Justice Brennan wrote, the available evidence left “no
room for doubt that California’s statutory requirements
are unconstitutionally burdensome.” Id. at 763.
Despite dividing on the need for remand, however, both
the majority and dissent in Storer reaffirmed what
Jenness had established: states may not require that
candidates seeking ballot access show support from
substantially more than 5 percent of the eligible voters
in an election. See id. at 739, 763-64; Jenness, 403 U.S.
at 442.
Even prior to Storer and Jenness, this Court had
made clear that the First and Fourteenth Amendments
limit the showing of support that states may require of
candidates seeking ballot access. See Williams, 393
U.S. 23 (striking down Ohio statute requiring
signatures equal in number to 15 percent of the vote in
the preceding gubernatorial election). In Williams, the

 23
Court held Ohio’s entire ballot access scheme
unconstitutional on equal protection grounds, because
in its totality, it practically guaranteed a monopoly to
the two major parties. See id. at 32, 34. Justice
Harlan wrote separately, however, to emphasize that
Ohio’s 15 percent signature requirement also “violates
the basic right of political association assured by the
First Amendment.” Id. at 41 (Harlan, J. concurring).
“Even when regarded in isolation,” Justice Harlan
therefore concluded, Ohio’s 15 percent requirement
“must fall.” Id. at 46.
Lower courts have consistently applied Williams,
Jenness, Storer and the other decisions of this Court to
invalidate ballot access laws that require a showing of
support from more than 5 percent of the eligible voters
in an election. See, e.g., Lee v. Keith, 463 F.3d 763 (7th
Cir. 2006) (striking down Illinois law requiring showing
of support equal to 10 percent of last vote); Obie v.
North Carolina State Bd. of Elections, 762 F. Supp. 119
(E.D.N.C. 1991) (striking down North Carolina law
requiring showing of support equal to 10 percent of
registered voters); Greaves v. State Bd. of Elections of
North Carolina, 508 F. Supp. 78 (E.D.N.C. 1980)
(striking down North Carolina law requiring showing
of support equal to 10 percent of last gubernatorial
vote); Lendall v. Jernigan, 424 F. Supp. 951 (E.D. Ark.
1977) (striking down Arkansas law requiring showing
of support equal to 10 percent of last gubernatorial
vote); American Party of Arkansas v. Jernigan, 424
F. Supp. 943 (E.D. Ark. 1977) (striking down Arkansas
law requiring showing of support equal to 7 percent of
last gubernatorial vote); Lendall v. Bryant, 387
F. Supp. 397 (E.D. Ark. 1974) (striking down Arkansas

 24
law requiring showing of support equal to 15 percent of
last gubernatorial vote); Socialist Labor Party v.
Rhodes, 318 F. Supp. 1262 (S.D. Oh. 1970) (striking
down Ohio law requiring showing of support equal to 7
percent of last gubernatorial vote); see also Consumer
Party v. Davis, 633 F. Supp. 877, 891-92 (E.D. Pa.
1986) (holding Pennsylvania’s primary election
statutory scheme “unconstitutional as applied to the
Consumer Party and its members because it makes it
effectively impossible for the Party to place candidates
on the general election ballot). To be sure, these courts
acknowledge this Court’s admonition that “no litmuspaper test” can distinguish valid ballot access
requirements from those that are unconstitutionally
burdensome. Storer, 415 U.S. at 730. At the same
time, they recognize what the court of appeals failed to
recognize here: where this Court has never upheld a
ballot access statute that requires a showing of support
greater than 5 percent of the eligible voters, it is not
the province of lower courts to make new law by
upholding a statute that requires a showing of support
as high as 30 percent of the eligible voters – a figure so
high as to be presumptively unconstitutional under this
Court’s prior decisions. See Williams, 393 U.S. at 46
(Harlan, J., concurring); Storer, 415 U.S. at 739, 76364; cf. American Party of Texas v. White, 415 U.S. 767,
783 (1974) (finding that a statute requiring “1% of the
vote for governor at the last general election … falls
within the outer boundaries of support the State may
require before according political parties ballot
position”).
The Ninth Circuit’s decision in this case injects
significant confusion into the important question of

 25
what limit exists on the modicum of support a state
may require of candidates and political parties seeking
access to its ballot. Not only did the court of appeals
dramatically depart from the settled law in other
circuits, by upholding a statute that requires a showing
of support from as much as 30 percent of the voters
eligible to vote in AZLP’s primary election, but also, the
court of appeals expressly rejected the “eligible voter”
standard by which this Court and every other federal
court have measured the burden imposed by such
statutes. The court of appeals concluded that the
burden imposed by §§ 16-321 and 16-322 should be
measured as a percentage of “qualified signers” as that
term is statutorily defined – meaning not only the
32,056 voters eligible to vote in AZLP’s primary
election, but also the more than 1 million independent
and unaffiliated voters who are not eligible to vote in
that election. Pet. App. 12-13.
The court of appeals compounded the confusion its
adoption of this novel standard creates by
characterizing it as consistent with this Court’s
decisions in Williams, Jenness, Storer, American Party
of Texas and the Ninth Circuit’s own prior decisions.
Pet. App. 12. It is not. Neither this Court nor the
Ninth Circuit itself has ever held that a state may
require a candidate seeking ballot access to
demonstrate support from voters who are not eligible
to vote for the candidate – much less that the burden
imposed by such a statute should be measured as a
percentage of those ineligible voters. Yet, the court of
appeals found, “in each of these cases” the dispositive
question was “whether the required signatures
constitute[s] an unfairly large percentage of those

 26
voters eligible under state law to offer their signatures.”
Pet. App. 12 (emphasis original). That is incorrect.
The court of appeals’ formulation obscures the
critical difference between Arizona’s statutory scheme
and those of every other state in the cases it cites.
Arizona stands alone in requiring that candidates
demonstrate support from voters who are not eligible
to vote for them. See Jenness, 415 U.S. at 433 (defining
the modicum of support required of an independent
candidate as a percentage of voters eligible to vote for
the candidate); Storer, 415 U.S. 726-27 (same);
American Party of Texas, 415 U.S. at 777 (defining the
modicum of support required of a political party as a
percentage of voters eligible to vote for the party).3
Thus it is immaterial, under this Court’s precedent,
that Arizona defines the modicum of support required
by §§ 16-321 and 16-322 as a percentage of voters who
are not eligible to vote in the election the provisions
regulate. The dispositive question is how much
support a candidate must show from eligible voters as
a prerequisite to appearing on the ballot.
3

The court of appeals further confused the issues raised here by
failing to acknowledge the distinction between these cases, which
arose from challenges to general election ballot access
requirements, and the instant case, which arises from a challenge
to primary election ballot access requirements. Because Jenness,
Storer and American Party of Texas involved general election ballot
access requirements, the “voters eligible under state law to offer
their signatures” were coextensive with the voters eligible vote in
the election. Pet. App. 12. Here, by contrast, Arizona has defined
the “voters eligible under state law to offer their signatures” to
include more than 1 million independent and unaffiliated voters,
who are not eligible to vote in AZLP’s primary election. Pet. App.
12.

 27
The importance of this question to the proper
adjudication of constitutional challenges to ballot
access laws is paramount. As the Seventh Circuit has
observed, when courts apply the Anderson-Burdick
analysis to such laws, “much of the action takes place
at the first stage” of the inquiry – the court’s
determination as to the severity of the burden imposed
– because that determines the level of scrutiny that
applies. See Stone, 750 F.3d at 681. It is critical,
therefore, that this Court provide the lower courts with
sufficient guidance to measure that burden. The Ninth
Circuit’s adoption of an improper standard in this case,
and its erroneous insistence that this Court applies the
same improper standard, demonstrates the urgent
need for this Court’s intervention.
Although the Ninth Circuit’s opinion appears to be
in conflict with the controlling precedent of every other
circuit, this Court should not postpone resolution of
that conflict to allow it to develop further. See Cook,
531 U.S. at 518 n.10 (granting certiorari despite the
absence of a circuit split due to the importance of the
question presented). Arizona’s statutory scheme
provides a template for other states to evade the
constitutional limitations established by this Court’s
precedent, just as Arizona has thus far done, merely by
redefining the method by which they define the
“modicum of support” they require of candidates and
parties seeking access to their ballots. If this Court
does not answer the questions presented, they will be
free to do so, putting the most precious constitutional
rights of their citizens at peril.

 28
II.

The Court of Appeals’ Decision Conflicts
With This Court’s Decision in Jones.

Because the signature requirements imposed by
Sections 16-321 and 16-322 are all but insurmountable
when measured as a percentage of Libertarians alone,
candidates seeking to run in AZLP’s primary ballot
have no real choice but to obtain signatures from both
Libertarians and independent and unaffiliated voters.
But this does not lessen the burden that Arizona’s
statutory scheme imposes on Petitioners. It just
exposes them to another burden – opening their
candidate selection process to nonmembers – that is
equally severe. See Jones, 530 U.S. at 581-82 (“We can
think of no heavier burden on a political party’s
associational freedom” than forcing it “to adulterate
[its] candidate-selection process … by opening it up to
persons wholly unaffiliated with the party”).
As this Court explained:
a corollary of the right to associate is the right
not to associate. Freedom of association would
prove an empty guarantee if associations could
not limit control over their decisions to those
who share the interests and persuasions that
underlie the association’s being. … In no area is
the political association’s right to exclude more
important than in the process of selecting its
nominee. That process often determines the
party’s positions on the most significant public
policy issues of the day, and even when those
positions are predetermined it is the nominee
who becomes the party’s ambassador to the

 29
general electorate in winning it over to the
party’s views.
Jones, 530 U.S. at 574-75 (citations and quotation
marks omitted). These concerns are implicated here
because candidates cannot realistically appear on the
AZLP primary ballot unless they obtain support from
voters who do not belong to the AZLP. Arizona’s
primary system thus “encourages candidates … to
curry favor with persons whose views are more
‘centrist’ than those of the party base.” Id. at 580.
The court of appeals attempted to distinguish Jones
on the ground that, unlike the statutory scheme held
unconstitutional in that case, §§ 16-321 and 16-322
permit parties like AZLP “to exclude non-members
from voting in their primaries.” Pet. App. 17. Thus, in
the court of appeals’ view, this case does not involve a
“state-imposed restriction on [Petitioners’] freedom of
association.” Pet. App. 17 (citing Jones, 530 U.S. at
584). “Libertarian candidates can qualify for the
primary ballot with signatures from 11% to 30% of
party members in their jurisdiction,” the court of
appeals reasoned, “and no evidence suggests it is
impossible to do so as a practical matter.” Pet. App. 18.
The fatal flaw in the court of appeals’ reasoning is
that it fails to grapple with the fact that Libertarian
candidates can avoid the compelled association imposed
on them by §§ 16-321 and 16-322 only if they assume
the burden of complying with unconstitutional
signature requirements, while they can avoid the
burden of complying with the unconstitutional
signature requirements only if they obtain the support
of nonmembers. This is not merely a “difficult”

 30
scenario, as the court of appeals describes it, but a
choice between two unconstitutional alternatives. Pet.
App. 18. Thus, the court of appeals’ exhortation that
“we expect ‘hard work and sacrifice by dedicated
volunteers’” misses the point. Pet. App. 18 (quoting
American Party of Texas, 415 U.S. at 787). This Court
did not suggest in American Party of Texas – or in any
other case – that minor political parties are expected to
work hard enough to overcome unconstitutional ballot
access requirements.
The court of appeals’ reasoning thus fails to resolve
the clear conflict between this case and Jones. The
false choice between two unconstitutional alternatives
that §§ 16-321 and 16-322 impose upon Petitioners
involves compelled association, in violation of Jones, as
surely as if it were statutorily mandated. This Court
should grant certiorari to resolve that conflict.
III.

This Case Is the Right Vehicle
Answering the Questions Presented.

for

This case is an ideal vehicle for resolving the
questions presented. Both questions were squarely
raised in the proceedings below, and the essential facts
necessary to decide them are undisputed.
There is no dispute between the parties that, as
applied in 2016, §§ 16-321 and 16-322 required that
candidates seeking to appear on AZLP’s primary
election ballot were required to obtain signatures equal
in number to between 11 and 30 percent of the voters
eligible to vote for them. Pet. App. 10. Nor is there
any dispute that the only way a Libertarian candidate
could avoid such burdensome requirements was to

 31
solicit support from independent or unaffiliated voters,
who are not eligible to vote in AZLP’s primary election.
Pet. App. 10. Thus, the Ninth Circuit addressed its
decision directly to the questions presented by this
petition: (1) whether Arizona may require that a
candidate seeking to run in the primary election of a
ballot-qualified party demonstrate support from as
much as 30 percent of the voters eligible to vote in the
primary election?; and (2) whether Arizona may require
that such a candidate demonstrate support from
independent or unaffiliated voters, who are not eligible
to vote in the primary election? With respect to each
question, the court of appeals squarely held in the
affirmative. Consequently, the important issues raised
in this case are ripe for review by this Court.
CONCLUSION
For the foregoing reasons, the petition for a writ of
certiorari should be granted.
Respectfully submitted,
Oliver B. Hall
Counsel of Record
CENTER FOR COMPETITIVE DEMOCRACY
P.O. Box 21090
Washington, D.C. 20009
(202) 248-9294
oliverhall@competitivedemocracy.org
Counsel for Petitioners