TASHIMA, Circuit Judge:
In 2011, the Arizona Legislature enacted a law requiring the voter registration form distributed by the Arizona Secretary of State to list the two largest parties (as measured by number of registered voters) on the form, as well as provide a blank line for "other party preferences." The Arizona Green Party, Arizona Libertarian Party, and three of their members (together, "Plaintiffs") brought this action, alleging that the new voter registration form violated their First and Fourteenth Amendment rights. The district court concluded that the amended voter registration form survived constitutional scrutiny and granted the State's motion for summary judgment. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
In 2011, the Arizona Legislature amended the statute that dictates the content of the voter registration form provided by the State (the "Registration Form"). See 2011 Ariz. Legis. Serv. Ch. 339 § 1 (West) (codified at Ariz.Rev.Stat. § 16-152(A)). The amended statute provides, in relevant part:
Ariz.Rev.Stat. § 16-152(A)(5). Prior to the 2011 amendment, Arizona law required only that voter registration forms include a blank space for "[t]he registrant's party preference." See Ariz.Rev.Stat. § 16-152(A)(5) (2010). As of January 1, 2011, the two parties with the highest number of registered voters in Arizona were the Republican Party, with approximately 35.8 percent, and the Democratic Party, with approximately 31.6 percent. The next largest party was the Libertarian Party, with approximately 0.78 percent of registered voters.
In response to the amendment, the Arizona Secretary of State revised box 14 on the Registration Form. In its current form, box 14 appears as follows:
The blank line under the "Other" checkbox is approximately 0.9 inch long. The Registration Form also provides the following instructions regarding box 14:
Under Arizona law, qualified electors
Section 16-152(A)(5) applies only to the first of these three options-that is, only the Secretary of State is required to provide checkboxes for the two largest parties on the Registration Form. See Ariz.Rev. Stat. § 16-152(E) (providing that the content regulations set forth in § 16-152(A) "do[] not apply to registrations received from the department of transportation"). Like the Secretary of State's form before the amendment to § 16-152(A)(5), the second and third options allow a registrant to indicate party preference by entering any party's name, including a major party.
Under Arizona law, there are two ways for a party to get its preferred candidate on the ballot.
After these first two federal election cycles, a party may continue to be represented by an official party ballot during a primary election and accorded a ballot column in the succeeding general election (that is, the party is entitled to "continuing ballot access") in one of two ways. First, a party is entitled to continuing ballot access if its candidate receives "not less than five per cent of the total votes cast for governor or presidential electors" at the "last preceding general election" for certain specified offices. Ariz.Rev.Stat. § 16-804(A). Second, a party is entitled to continuing ballot access if, on certain dates prescribed by statute, the party "has registered electors in the party equal to at least two-thirds of one per cent of the total registered electors in such jurisdiction." Ariz.Rev.Stat. § 16-804(B). A party that loses continuing ballot access may get it back the same way a new party would gain access to the ballot: it must submit another petition signed by a number of qualified electors equal to one and one-third (1 1/3) percent of the total votes cast for governor at the last preceding general election at which a governor was elected. See Ariz. Rev.Stat. § 16-801(B).
When Plaintiffs filed their complaint, five parties had continuing ballot access: Republican, Democratic, Green, Libertarian, and Americans Elect. During the pendency of this appeal, the Arizona Green Party lost its continuing ballot access.
Plaintiffs' complaint, filed against defendant Ken Bennett, as Arizona Secretary of State, alleges that § 16-152(A)(5) violated their First and Fourteenth Amendment rights. Plaintiffs sought an order from the district court enjoining the State from issuing voter registration forms that failed to "treat equally the four parties with Statewide continuing ballot access." On the parties' cross-motions for summary judgment, the district court denied Plaintiffs' motion and granted the State's motion. Plaintiffs timely appeal.
This Court reviews the constitutionality of a statute de novo. See Chamness v. Bowen, 722 F.3d 1110, 1116 (9th Cir.2013).
"Restrictions on voting can burden equal protection rights as well as `interwoven
"At the same time," however, "`States retain the power to regulate their own elections.'" Dudum, 640 F.3d at 1106 (quoting Burdick v. Takushi, 504 U.S. 428, 433, 112 S.Ct. 2059, 119 L.Ed.2d 245 (1992)). "Common sense, as well as constitutional law, compels the conclusion that government must play an active role in structuring elections." Id. at 1103 (quoting Burdick, 504 U.S at 433, 112 S.Ct. 2059). The Constitution itself "provides that States may prescribe `the Times, Places and Manner of holding Elections for Senators and Representatives.'" Burdick, 504 U.S. at 433, 112 S.Ct. 2059 (quoting U.S. Const. art. I, § 4, cl. 1 (brackets omitted)). And, "[t]o achieve these necessary objectives, States have enacted comprehensive and sometimes complex election codes." Anderson, 460 U.S. at 788, 103 S.Ct. 1564. Moreover, every law regulating elections, "whether it governs the registration and qualifications of voters, the selection and eligibility of candidates, or the voting process itself, inevitably affects — at least to some degree — the individual's right to vote and his right to associate with others for political ends." Id.
Thus, in order to "resolve the tension between a [party's] First Amendment rights and the state's interest in preserving the fairness and integrity of the voting process," the "Supreme Court developed a balancing test." Rubin v. City of Santa Monica, 308 F.3d 1008, 1014 (9th Cir. 2002). "In considering a constitutional challenge to an election law, we must weigh the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments against the precise interests put forward by the State as justifications for the burden imposed by its rule." Nader v. Cronin, 620 F.3d 1214, 1217 (9th Cir.2010) (per curiam) (internal quotation marks omitted).
Accordingly, "the severity of the burden the election law imposes on the plaintiff's rights dictates the level of scrutiny applied by the court." Id. (quoting
In cases "previously examining differing treatments of minor and major political parties," we have held that, "in determining the nature and magnitude of the burden that the state's election procedures impose on the minor party, we must examine the entire scheme regulating ballot access." Cronin, 620 F.3d at 1217 (quoting Libertarian Party of Wash. v. Munro, 31 F.3d 759, 761-62 (9th Cir.1994) (internal quotation marks and brackets omitted)).
Plaintiffs have failed to make any such showing. Section 16-152(A)(5) does not directly inhibit the ability of any party to gain access to the ballot, nor does it articulate different criteria for major and minor parties who seek to get their candidates on the ballot. All new political parties (and parties that have lost continuing ballot access) are required to comply with the same criteria to get their candidate on the ballot. See Ariz.Rev.Stat. § 16-801. Moreover, all political parties, major and minor alike, are entitled to continuing ballot access if: (1) their candidates garner at least five percent of the "total votes cast for governor or presidential electors" at the "last
Acknowledging that § 16-152(A)(5) does not directly burden their ability to get their preferred candidate on the ballot, Plaintiffs instead assert that the statute indirectly "restrict[s] the availability of political opportunity," Munro, 31 F.3d at 762, by encouraging voters to register with the two major parties over all others. This encouragement, Plaintiffs contend, affects their ability to get their preferred candidate on the ballot, because continuing ballot access is linked (at least partially) to the number of voters who are registered with the party.
Plaintiffs have failed, however, to adduce any evidence that § 16-152(A)(5) actually encourages individuals to register for major parties instead of minor ones. As an initial matter, Plaintiffs have failed to show how many new voters actually use the Registration Form to register, as opposed to using one of the other three alternative means, which do not require use of the Registration Form. Without some assessment of how many voters actually use the Registration Form, we cannot even begin to gauge the impact it may have had on party registration rolls.
Moreover, even if we were to assume that a significant number of voters used the Registration Form, 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. Plaintiffs suggest that the Registration Form discourages voters from registering with minor parties by sending "a message to the future voter" that there are only "two [real] political parties in this State," and that "[r]egistering for any other party is a show of eccentricity" that must be "grudgingly tolerate[d]." However, Plaintiffs failed to introduce even an iota of evidence in support of this assertion. The alleged psychological effects that the Registration Form has on registering voters is sheer speculation.
In sum, by failing to adduce evidence that the Registration Form actually discourages or prevents voters from registering with minor parties, Plaintiffs have failed to meet their "initial burden of showing that [Arizona's] ballot access requirements seriously restrict the availability of political opportunity." Munro, 31 F.3d at 762. At most, § 16-152(A)(5) imposes a de minimis burden on Plaintiffs' First and Fourteenth Amendment rights.
Where, as here, a state election law imposes only a de minimis burden on a party's First and Fourteenth Amendment rights, the State "need demonstrate only that [the statute at issue] is rationally related to a legitimate state interest." Cronin, 620 F.3d at 1218 (quoting Munro, 31 F.3d at 763 (internal quotation marks omitted)).
Plaintiffs have failed to meet their burden. Section 16-152(A)(5) is rationally
Although election officials also have an interest in correctly registering applicants who wish to associate with smaller political parties, there are, as the State notes, countervailing concerns about providing checkboxes for smaller political parties that are not present with the two largest parties. For example, smaller political parties lose their status as recognized political parties under Arizona law much more frequently than the major parties do. If Arizona was required to provide checkboxes for all political parties entitled to continuing ballot access, as Plaintiffs suggest, the State would be required to change, and reprint, the Registration Form each time a party lost, or gained, continuing ballot access.
In sum, we conclude that Plaintiffs have failed to meet their burden of demonstrating
Judge McKEOWN, Circuit Judge, concurring:
I concur in the panel's judgment: Arizona's voter registration form passes constitutional muster. I write separately because I believe the rational basis review and burden-shifting standards articulated in Libertarian Party of Washington v. Munro, 31 F.3d 759 (9th Cir.1994), and applied by the panel in this case, are inconsistent with the Supreme Court's approach to analyzing voting rights challenges.
The majority opinion discusses at length how political parties in Arizona gain access to the ballot and states that "[t]he relevant inquiry `is whether "reasonably diligent" minor party candidates can normally gain a place on the ballot....'" Maj. Op. at 730-31 (quoting Munro, 31 F.3d at 762). But this is not a ballot access case. This case focuses instead on the state's voter registration process, specifically the form that lists only the two major political parties and simply leaves a blank for a prospective voter to identify any other party. This is, of course, a change from the prior voter registration form that identified no specific parties and simply provided a write-in line for party preference. The essence of the minority parties' claim is that they are burdened because the revised form advantages the major parties. By not being listed, the minority parties claim they are unable to compete for voter registrations on an equal footing.
The starting point for analyzing an election law challenge is the Supreme Court's opinion in Burdick v. Takushi, 504 U.S. 428, 112 S.Ct. 2059, 119 L.Ed.2d 245 (1992). The Court succinctly stated the applicable standard: "A court considering a challenge to a state election law must weigh the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments that the plaintiff seeks to vindicate against the precise interests put forward by the State as justifications for the burden imposed by its rule, taking into consideration the extent to which those interests make it necessary to burden the plaintiff's rights." Id. at 434, 112 S.Ct. 2059 (internal quotation marks and citations omitted).
In Munro, we summarized Burdick as follows: "If the burden is severe, the challenged procedures will pass muster only if they are narrowly tailored to achieve a compelling state interest. If the burden is slight, the procedures will survive review as long as they have a rational basis." 31 F.3d at 761 (citing, but not quoting, Burdick, 504 U.S. at 434, 112 S.Ct. 2059). According to Munro, in the event plaintiffs can only demonstrate a "slight" or "de minimis" impairment of their rights, they then bear "the burden of demonstrating that the regulations they attack have no legitimate rational basis." Id. at 763. The panel recognizes that the standard articulated in Munro is in tension with Supreme Court precedent, but applies it nonetheless. Maj. Op. at 732-33 & n. 12.
This understanding of the Supreme Court's approach to analyzing voting rights cases is faithfully reflected in our recent decision in Dudum v. Arntz, 640 F.3d 1098 (9th Cir.2011). There, we concluded that San Francisco's instant runoff voting system imposed an "extremely limited burden[]" on the plaintiffs. Id. at 1117. We nonetheless evaluated whether the government's purported interests were "substantial enough to justify" that minimal burden. Id. at 1114-17. This language can be read as a variation on the "sufficiently weighty" requirement. Other cases have likewise eschewed resort to traditional rational basis analysis when evaluating the constitutionality of laws that impose "nonsevere burdens" on voting rights. See, e.g., Lemons v. Bradbury, 538 F.3d 1098, 1104 (9th Cir.2008) (upholding regulation imposing a "minimal burden on plaintiffs' rights" with respect to signature verification in the referendum process); Rubin v. City of Santa Monica, 308 F.3d 1008, 1017 (9th Cir.2002) (weighing the government's "important regulatory interest in predictable and administrable election rules" against challenge to regulation on how candidates are identified on the ballot). Indeed, neither party in this case argued that rational basis review was the appropriate standard for analyzing the minority parties' claims.
Munro, like the majority opinion, suffers another deficiency — it places the burden on the plaintiffs vis-a-vis the state's purported interests. In a situation where there is only a slight burden on a party's constitutional rights, Munro instructs that that party "bear[s] the burden of demonstrating that the regulations [it] attack[s] have no legitimate rational basis." 31 F.3d at 763. This turns Burdick's balancing standard on its head and relieves the state of its burden of putting forward "interests `sufficiently weighty to justify the limitation.'" Crawford, 553 U.S. at 191, 128 S.Ct. 1610 (quoting Norman, 502 U.S. at 288-89, 112 S.Ct. 698). It is no accident that in introducing the balancing standard, the Court counseled lower courts that they "must weigh the character and magnitude" of plaintiffs' asserted injury "against the precise interests put forward by the State." Burdick, 504 U.S. at 434, 112 S.Ct. 2059 (internal quotation marks omitted).
It may well be that the semantic distinction between the balancing test and the rational basis standard articulated in Munro makes little difference in many cases. See Christopher S. Elmendorf, Structuring Judicial Review of Electoral Mechanics: Explanations and Opportunities, 156 U. Pa. L.Rev. 313, 330 (2007) ("For now, suffice it to say that the Supreme Court typically applies something like rational basis review in [voting rights cases where the burden is nonsevere], but that the rationality standard may not be quite so lax as the one applied to ordinary economic and social legislation."). However, it is
Any effort to apply the balancing standard to this case is hamstrung by a lack of evidence. It is remarkable that both parties rely principally on generalizations, i.e. a claimed burden, or platitudes, i.e. efficiency, rather than evidence. Other than the registration form itself and statistics that show an ambiguous decline in voter registrations across all political parties, the minority parties have not presented any evidence that demonstrates the burden on their rights.
In light of the poorly developed record in this case, I conclude that the voter registration form passes constitutional muster. The form is constitutional, however, not because the minority parties have "failed to meet their burden" of demonstrating it "ha[s] no legitimate rational basis," Maj. Op. at 732. Rather, the voter registration form is constitutional because, even on the thin record we have before us, the state's asserted interests in reducing printing costs and easing administrative efficiency are "sufficiently weighty to justify" the speculative burden on the plaintiffs' rights. See Crawford, 553 U.S. at 191, 128 S.Ct. 1610.
I recognize that Munro has never been officially overruled or abrogated. However, in my view, to the extent Munro prescribes a different standard than what the Supreme Court articulated in Burdick and reiterated in Crawford, we should fix it.