PHOENIX — A federal appeals court on Friday upheld a 2011 Arizona law designed by Republicans to slow the tide of people not registering with their party.
The 9th U.S. Circuit Court of Appeals acknowledged that the statute says voter registration forms can specifically list the names of only the two parties with the highest number of members, and list them in the order of most adherents. That means the Republicans and Democrats.
And anyone who wants to register as a Libertarian or otherwise has to fill in that party’s name on a line that’s less than an inch long.
But Judge Wallace Tashima, writing for the three-judge panel, said that differentiation was not enough of a burden on minor parties — or those who want to sign up for them — to make it illegal.
At issue is a provision tucked into a larger proposal on changes to state election laws pushed during the legislative session by the Arizona Republican Party.
Until 2011, all those registering to vote were given a blank line to insert their preferred party choice.
Former state Sen. Frank Antenori, R-Tucson, who sponsored the legislation, said the result was that many people were simply leaving the space blank. What that meant, he said, is they were being registered as independent, unaffiliated with any party at all.
There are now more independents than registered members of any one party. Antenori said some people probably wanted to list themselves with a party but just forgot.
But Antenori said there was insufficient space on the form to list all four parties that were recognized at the time — there are now five — along with the option to remain independent. So the decision was made to list just the two parties with the largest registration.
Attorney David Hardy, representing the Libertarian Party, charged that that wasn’t fair.
He said those who might want to register with the Green or Libertarian parties might look at the revised form and conclude they “must not be real political parties or do not have ballot access, and thus there is no purpose to registering in them.” And the number of registrants is important, as Arizona law links continued representation on the ballot to adherents as well as votes cast in the last election.
Tashima, however, said Hardy failed to convince the court that the new law actually is a substantial burden to Libertarians.
“Plaintiffs failed to adduce any evidence — statistical, anecdotal or otherwise — that the registration form has, in fact, encouraged voters to register for the major parties over minor ones,” the judge wrote. Nor was the judge convinced that listing Republicans and Democrats alone would suggest that they are the only “real parties.”
“The alleged psychological effects that the registration form has on registering voters is sheer speculation,” Tashima wrote.
On the other side of the equation, the judge said giving special treatment to the parties with the overwhelming number of registrants “reduces the potential that an election official will incorrectly register a voter who wishes to affiliate with one of the state’s two most prominent parties.”
And Tashima pointed out that who is a recognized political party can change: The Green Party, for example, lost its official access to the ballot for one election and then gained it back. The judge said that could require the state to spend money to reprint the registration forms each time the official list changed.
Hardy said there has been no decision whether to appeal to the full appellate court.
