U.S. Ninth Circuit - The FindLaw 9th Circuit Court of Appeals Opinion Summaries Blog

Some Kind of Miracle: Arizona Wins a Voter Registration Case

For the first time in awhile, Arizona seems to be getting a break when it comes to its voter registration laws. The state had been slapped down in the Supreme Court after requiring proof of citizenship for voter registration just two years ago. Last year, they lost a similar suit in the 10th Circuit over federal registration forms (no, they didn't move -- they just joined Kansas in that lawsuit).

Turns out the third time's a charm for the Grand Canyon state. The Ninth Circuit has upheld their vote registration form against allegations that it unconstitutionally discriminated against third parties.

No Room for Third Parties on Arizona Registration Form

The victory comes after Arizona changed its voter registration form in 2011. In the past, voters were expected to write in their party preference when registering. What, if any, party they listed was up to them. In 2011, however, the state passed a law requiring the form to list the two largest parties by number of registered voters on the form, with a third space for "Other" followed by a small space (0.9 inches long) to specify which other party.

Several third party advocates found that to put too much emphasis on Republicans and Democrats. Since ballot access is conditioned, in part, on the number of voters registered to a party, a registration system which funnels voters to two parties could negatively impact smaller political groups. The state's Libertarian and Green parties sued, arguing that the change violated their First and Fourteenth Amendment rights to equal protection and association.

But Can You Show it Matters?

As the Ninth Circuit noted, voting rights lawsuits that make First and Fourteenth Amendment claims are addressed using a single framework -- weighing the injury asserted against the state's interest in the fairness and integrity of its voting system. As with other constitutional analysis, the greater the burden on protected rights, the stricter the scrutiny.

Here, however, the minority parties could not show that the change imposed even a de minimus burden on their rights. Since a "reasonably diligent" minor party can obtain ballot access, the measure does not discriminate against third parties. The court was unwilling to go along with the minority parties' presumptions -- that most voters used the state registration form and that listing two parties, instead of none or all, narrowed registrants choices -- without even any anecdotal evidence to support them.

For third parties, the ruling means that they will once again remain on the margins of American politics -- though perhaps they could gather some evidence before their next lawsuit. For Arizona's voter registration system, it marks a long awaited judicial win. Whether it will be the last one in awhile is still undecided -- the state's petition for cert in its federal registration form lawsuit is still being considered by the Supreme Court.

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