IN THE SUPREME COURT
STATE OF ARIZONA
KANYE WEST; DONALD ANGLIN;
KRISTIN ANGLIN; KELLI
WHITEHEAD; BRITTANI QUALE;
WILLIAM QUALE; RACHEL
WALLACE-SASSARINI; PATRICK
WALLACE-SASSARINI; KEITH
GILBERT; MARILYN TUCK; MICHELE
VRABEL; MARK RENBERG,

Supreme Court
No. CV-20-0249
Maricopa County
Superior Court
Case No. CV2020-010553

Appellants,
v.
RASEAN CLAYTON,
Appellee.

MEMORANDUM

FENNEMORE CRAIG, P.C.
Timothy J. Berg (No. 004170)
Keith J. Miller (No. 029885)
2394 E. Camelback Road
Suite 600
Phoenix, Arizona 85016
Telephone: (602) 916-5000
Email: tberg@fclaw.com
Email: kjmiller@fclaw.com
Attorneys for Appellants

Timothy A. La Sota PLC
Timothy A. La Sota (No. 020539)
2198 E. Camelback Road
Suite 305
Phoenix, Arizona 95016
Email: tim@timlasota.com
Attorneys for Appellants

1

 The Judgment is unprecedented in its holding and would lead to catastrophic
consequences for all future independent candidates for President if not reversed by
this Court. Never before, to undersigned counsel’s knowledge, has any court found
that a presidential candidate should be kept off the ballot solely on the basis of his
or her voter registration. The Judgment prevents the electors for independent
candidates for President and Vice President from appearing on the November 2020
general election ballot, despite the fact that the campaign has already submitted
nearly 58,000 signature of Arizona voters who want to see his name appear on the
ballot.
I.

KANYE WEST IS ELIGIBLE UNDER A.R.S. § 16-341(A)
Kanye West is fully eligible to appear on the ballot. He is not a member of

any Arizona recognized party and A.R.S. § 16-341(A) was never meant to bar
potential presidential nominees.
A.

The Arizona Republican Party is Not a New or “Recognized” Party
under A.R.S. § 16-341(A)

The trial court found that “no statutory definition, legislative history or case
explains what the legislature meant by ‘political party that is recognized pursuant to
this title.’” Minute Entry at 4 (emphasis added). However, the legislative history and
the precise terms chosen by the drafters, clearly elucidate the meaning of the term.
The critical language was added by a 1997 bill, SB 1003 (2nd Special
Session). The Legislature modified an existing statute that, several subsections later,
referred to an elector’s membership in “a political party that is qualified to be
represented by an official party ballot at the next ensuing primary election and
accorded representation on the general election ballot.” A.R.S. § 16-341(E) (prior
version, after 1997 amendments). The language in then subsection E is clear and
today would encompass the Arizona Democrat Party, the Arizona Libertarian Party,
and the Arizona Republican Party. Appellee claims that the phrase “party recognized
2

 pursuant to this title,” added into subsection A in 1997 has precisely the same
meaning as the language quoted above. But if this were the Legislature’s intent, why
would it have introduced an entirely new phrase to capture an identical concept? If
it had meant to describe the same set of parties in subsection A as in subsection E,
the Legislature would have made the phrasing coordinate. France v. Industrial
Commission of Arizona, 248 Ariz. 369, ¶14 (App. 2020) (“[W]hen the legislature
chooses different words within a statutory scheme, we presume those distinctions
are meaningful and evidence an intent to give a different meaning and consequence
to the alternate language.”).
Indeed, what the Legislature did in its 1997 Amendment was to limit access
for registered members of “new” parties, that is parties that utilized the “petition for
recognition” process provided for in A.R.S. §§ 16-801 through 803 in that current
cycle. Registered members of the “qualified to be represented parties,” addressed in
A.R.S. § 16-804 were not so limited. This distinction between members of freshly
“established” parties and members of “new” parties is fairly typical of the
Legislature and has been upheld by the Ninth Circuit. Arizona Libertarian Party v.
Hobbs, 925 F.3d 1085, 1088 (9th Cir. 2019) (“Under Arizona law, there are two
types of political parties: ‘established’ parties and ‘new’ parties.”). A similar
example of this disparate treatment is that an established party member may not vote
in another party’s primary, but it is up to the established parties to decide whether
new party members or unaffiliated voters can participate in their primaries. See
A.R.S. § 16-467(B).
The language chosen in the 1997 Amendment to subsection A manifestly
limited its restrictions to “recognized” or “new” party members, and as neither Mr.
West nor any of his designated electors are (or ever have been) members of such a
party, its prohibitions simply do not apply.

3

 B.

Mr. West is Not a Registered Member of Any Arizona Party

Even if the Arizona Republican Party were a “recognized” party for the
purposes of A.R.S. § 16-341(A), Mr. West would still be eligibile. He is a registered
voter associated with the Wyoming Republican Party1, a party which is not a
registered party in Arizona. Accordingly, Mr. West is not, nor ever has been, “a
registered member of a political party that is recognized pursuant to [Title 16 of the
Arizona Revised Statutes].” A.R.S. § 16-341(A). Therefore, Mr. West is eligible to
be “nominated . . . other than by primary election.” Id. The Supreme Court of
Pennsylvania reached exactly this conclusion in rejecting a challenge to the
candidacy of 2004 Independent Vice Presidential candidate Peter Miguel Camejo
who was a registered member of the Green Party in the state of California. In re
Nader, 580 Pa. 22, 46, 858 A.2d 1167, 1181 (2004) (abrogated on other grounds by
In re Vodvarka, 636 Pa. 16, 140 A.3d 639 (2016)) (finding Pennsylvania had no
“interest in prohibiting candidates who are members of a party in another state from
running as independents in this Commonwealth.”)
Arizona History is replete with presidential candidates whose Presidential
party is different than the one listed on their home state political registration. The
1968 Arizona ballot for President featured the Democratic Governor of Alabama as
the American Independent Party candidate. The 1980 Arizona ballot for President
featured a Republican Congressman from Illinois as an Independent candidate. The
2016 and 2020 Arizona Democratic primary ballots featured an Independent Senator
from Vermont. None of these candidates were held to their home state affiliation and
neither should Mr. West.

1

Wyoming requires voters to affiliate with a political party in order to participate in
partisan primary elections. See Wyo. Stat. Ann. § 22-5-212. Therefore, what Plaintiff
suggests is necessary for Mr. West to appear on the ballot in Arizona would disenfranchise
him in his home state of Wyoming.
4

 A.R.S. § 16-341(A) simply does not apply to bar independent Presidential
candidates. The very first words of subsection A demonstrate the problem with doing
so:
Any qualified elector who is not a registered member of a political
party that is recognized pursuant to this title may be nominated as a
candidate for public office otherwise than by primary election or by
party committee pursuant to this section.
A.R.S. § 16-341(A) (emphasis added). A “qualified elector” is defined as “[a] person
qualified to register to vote pursuant to § 16-101 and who is properly registered to
vote.” A.R.S. § 16-121. In turn, a person qualified to register to vote a must be a
“resident of the state” of Arizona. A.R.S. § 16-101. Mr. West—not a resident of
Arizona and, therefore, not a qualified elector in this state—would not be subject to
the statute, nor would anyone else except residents of Arizona. Read in this manner,
the qualified elector requirement of Section 16-341(A) would prevent anyone who
is not a resident of Arizona from running as an independent candidate for President
in Arizona. Recognizing that it makes no sense to read the statute as limited to
Arizona residents, Plaintiff argues that despite this fact West must be subject to the
non-registration requirement or he cannot use the statute. In effect, they would read
“qualified elector” out of the statute as applied to presidential candidates. This
solution simply doesn’t work since it expands the scope of the stature beyond its
possible application. Rather, subsection A must be read in a way that avoids this
absurd result, and, therefore, subsection A must apply the registration requirement
only to offices for which the candidate will be “residents of the state” of Arizona,
i.e., those other than the Presidency and Vice Presidency. Where a candidate for
president is a member of a party in another state, the statute does not bar his
candidacy.
Indeed, construing the Arizona statute to prevent some persons registered in
another state from appearing as an independent candidate on the Arizona ballot, but
5

 not others would run afoul of the sort of constitutional concerns that led the Ninth
Circuit to invalidate other aspects of Arizona’s presidential nomination system.
Nader v. Brewer, 531 F.3d 1028, 1036 (9th Cir. 2008) (invalidating a residency
requirement which created a “severe burden on Nader and his out-of-state
supporters' speech, voting and associational rights”). The two parties in Minnesota,
for example, are denominated “Republican” and “Democratic-Farmer-Labor”
(“DFL”), which does not exist as a recognized party in Arizona. It would be absurd
if Section 16-341(A) were to bar a Minnesota Republican like Tim Pawlenty from
an independent candidacy, but not the Minnesota DFL’s Amy Klobuchar.
II.

KANYE WEST’S DESIGNATED ELECTORS ARE ELIGIBLE
UNDER A.R.S. § 16-341(A)
While the minute order does not appear to rely Elector the disqualification, it

notes that “ [t]he status of his presidential electors, too is problematic.” However,
the Electors have registered as independents and there is nothing in the controlling
statute, 16-341, which requires that in order to serve as Presidential Electors for Mr.
West’s ticket, the Arizona residents must not have been registered as members of a
“recognized political party” at any time prior to the filing of the nominating petitions.
A.

Nominees for Presidential Electors for an Independent Candidate
Do Not Need to be Registered as Unaffiliated Candidates at the time
the Petitions are first circulated.

Nothing in the text of A.R.S. §16-341(A) sets a deadline when a candidate for
presidential elector must not be registered as a member of a registered party.
Plaintiffs below argued that the provisions of A.R.S. §16-311(A) require that the
electors no longer be registered as Republicans “ on the date of the first petition
signature on the candidate’s petition.” This argument fails for several reasons.
First, the terms of 16-311(A) do not apply here on their face. The sentence
relied upon by Plaintiff provides: [a] candidate for partisan political office shall be
6

 continuously registered with the political party of which the person desires to be
a candidate” for the requisite period. The statute has no application here. The
electors who have re-registered as unaffiliated are not seeking to be the candidate of
a political party; they are running as unaffiliated electors and the statute does not
apply to them by its plain terms. Nothing in the terms of 16-311(A) requires an
elector who becomes unaffiliated to do so prior to petition circulation. It rather bars
a person who is not a member of a registered political party from circulating a
petition to be a candidate for that party.
Second, section 16-311(A) deals with qualifications for partisan primary
elections. It does not deal with the ability of electors to get on the ballot for an
independent presidential candidate which is governed by 341(A). If the legislature
intended to impose a limit on eligibility under 16-341(A), it would have included
that eligibility requirement in that section or the article in which it appears, not in an
article dealing with entirely separate issues.
B.

Nominees for Presidential Electors Need Not File Statements of
Interest Under A.R.S. § 16-341(I).

The trial court did not reach the issue of 16-341(I). Presidential Electors are
exempt from the requirement to file a Statement of Interest under A.R.S. § 16341(I)(3). Subsection I, part 3 expressly excludes Candidates from the requirement
to file a Statement of Intent prior to collecting valid signatures. However, because
signatures are collected on behalf of the Electors who will appear on the ballot and
not the Candidates on their own behalf, the only way to allow subsection I, part 3 to
have any force at all is if it applies to both Candidates and their Presidential Electors
on whose behalf the signatures are collected. Just as the nominees and nominated
slate of electors for the recognized parties are not required to file statements of intent,

7

 neither the Candidates nor their designated Presidential Electors are required to do
so in this context.
Supporting this interpretation is the Secretary of State’s handbook which
provides the following exhaustive list of the requirements for an independent
candidate. See Ariz. Sec’y of State, Running for U.S. President in Arizona –
Candidate

Guide

(Sept.

13,

2019)

available

at

azsos.gov/sites/default/files/Running%20for%20President%20Handbook.pdf.
There is no listing of any requirement to file Statements of Intent.
III.

KANYE WEST AND HIS ELECTORS CANNOT BE BARRED
UNDER THE FEDERAL CONSTITUTION
Applying constitutional avoidance, this Court should not interpreting Arizona

statues in a manner that would cause them to violate protections of the Federal
Constitution or that undermines the public’s interest in voting for their chosen
presidential candidate .
A.

A.R.S. § 16-341(A) Cannot Be Construed to Add Additional
Unconstitutional Qualifications to Federal Office.

State law cannot add qualifications for holding federal office beyond those set
forth in the Constitution. See generally U.S. Term Limits, Inc. v. Thornton, 514 U.S.
779 (1995) (striking down a state constitutional provision which barred persons who
served certain number of terms in Congress from being on the ballot). Just last year,
a district court struck down a California regulation requiring Presidential candidates
to disclose federal tax returns. Griffin v. Padilla, 408 F.Supp.3d 1169, 1177–79
(E.D.Cal., 2019). This principle has also be expressly recognized by Arizona Courts:
“A state legislature is without power to add ‘qualification’ requirements to a federal
office.” State ex rel. Pickrell v. Senner, 92 Ariz. 243, 246 (1962); see also Adams v.
Comm’n on Appellate Court Appointments, 227 Ariz. 128, 135, ¶ 31 (2011) (“the
state has no power to disqualify candidates from serving in federal office”).
8

 In Campbell v. Hull, 73 F. Supp. 2d 1081, 1084 (D. Ariz. 1999), the Arizona
District Court invalidated several provisions of the predecessor to 16-341 and cite
eight cases supporting the proposition that the Constitution does not permit states to
require voters to change their party affiliation in order to sign petitions to nominate
independents or minor party candidates. Id. at 1091-92 (citing, inter alia, Libertarian
Party of Nebraska v. Beermann, 598 F.Supp. 57, 63 (D.Neb.1984) (noting that
“many voters have no desire to change basic political affiliations, but neither do they
vote a straight political ticket in general elections”).
Plaintiff argues that the burden placed on both the Candidate and the Electors
by their interpretation of 16-341 is insubstantial in comparison to the burden
previously upheld in Storer v. Brown, 415 U.S. 724 (1974). However, the authority
of Storer and its application here is substantially undercut by the above decisions
which have repeatedly invalidated restrictions imposed by states on the process
whereby independent candidates can appear on the ballot.
Indeed, any “burden that falls unequally on new or small political parties or
on independent candidates impinges, by its very nature, on associational choices
protected by the First Amendment.” Anderson v. Celebrezze, 460 U.S. 780, 793
(1983).
B.

A.R.S. § 16-341(A) Does Not Prevent Individuals from Changing
Their Mind and Supporting an Independent Candidate.

In a fact pattern that echoes that found impermissible in Campbell v. Hull,
Plaintiff requests that this Court interpret A.R.S. § 16-341 to prevent the Defendant
Electors casting their lot with an independent candidate. Plaintiff argues that if the
Electors were registered as Republicans when they the first petitions were circulated,
they cannot, unlike voters under Campbell, change their registration and serve as
Electors for a third party. This reading of 16-341 tramples the electors’ freedom of
association rights ; they would be forbidden to support their preferred candidate
9

 today because they supported someone else yesterday. Any state interests of “party
stability” are not sufficiently compelling to justify this burden on free association.
See Eu v. San Francisco County Democratic Cent. Comm., 489 U.S. 214, 227
(1989).
IV.

THE TRIAL COURT ERRED IN ENTERING THE INJUNCTION
FOR OTHER REASONS.
The manner in which Plaintiff chose to file this litigation impinges on the

Defendant’s due process rights . While Plaintiff filed this suit within the statutory
deadline , Defendants have been severely limited in their ability to defend this action
based on the late date that Plaintiffs filed this suit and the looming deadline for the
printing of ballots.
A.

There is Insufficient Time for This Matter to Be Fairly Considered
By the Courts.

There is simply insufficient time for this matter to proceed to a conclusion in
a manner consistent with due process. “[T]he short time period allotted for actions
challenging nomination petitions may not [be permitted to] deprive a defendant of
his or her opportunity to present [a] case in opposition to that of the plaintiff.”
Mandraes v. Hungerford, 127 Ariz. 585, 587-88 (1981). Plaintiff is “compelling the
court to ‘steamroll through delicate legal issues in order to meet’ the ballot printing
deadlines.” Mathieu v. Mahoney, 174 Ariz. 456, 459 (1993).
Election contests, including nomination petition challenges, “are purely
statutory and dependent on statutory provisions for their conduct.” Van Arsdell v.
Shumway, 165 Ariz. 289, 291 (1990). Thus, if the time available is insufficient, no
matter whose fault it is, the challenge may not proceed.
B.

Plaintiff Failed to Name Several Indispensable Parties.

Pursuant to A.R.S. § 16-351(C), the “board of supervisors and the recorder of
each county . . . responsible for preparing the ballots that contained the challenged
10

 candidate’s name” are “indispensable parties to the action and shall be named and
serves as defendants.” However, here, Plaintiff has named, e.g., the “Maricopa
County Board of Supervisors,” who are not a jural entity. See, e.g., Smillie v.
Maricopa County Sheriff’s Dep’t, CV 11-1320-PHX-NVW, 2011 WL 13175977, at
*2 (D. Ariz. Dec. 28, 2011) (“Defendants Maricopa County Sheriff’s Department
and Maricopa County Board of Supervisors are dismissed as non-jural entities ”).
The judgment must be vacated because Plaintiff filed to name the actual members
of the boards of supervisors and county treasurers.
C.

Plaintiff’s Action is Barred By Laches

Plaintiff could have brought this action earlier, but waited until the last minute
with ballot printing deadlines looming. Plaintiff knew at least since August 20, 2020
that nomination petitions in support of Mr. West’s candidacy were circulating, but
waited for a week-and-a-half to file this action.
VI.

CONCLUSION
The Court should vacate the judgment and order the Secretary of State to

accept the petitions (which they are currently refusing to do absent a stay or reversal)
and process the signatures submitted on behalf of Kanye West.
DATED this 4th day of September, 2020.
FENNEMORE CRAIG, P.C.
By: /s/ Timothy J. Berg
Timothy J. Berg
Keith J. Miller
Timothy A. La Sota PLC
Timothy A. La Sota
Attorneys for Appellants

11