this case is nothing like the california democratic party vs jones case that was relied on by the apple lease which struck down california's blanket primary under that system any voter could vote for a candidate in the primary election regardless of party disenfranchised under the previous close primary system the district court or honestly struck down the open primary because it permitted these voters to vote in the after the office of party precinct committeemen the court did not showing them selves with that party moreover the ruling was erroneous because even if the court below is correct the open primary which is set forth in the arizona constitution does not require that this office even be on the primary office of presidential elector depending which election it is and they will receive continued ballot access and the voters who voted for that party are counted whether or not they're independents or or even republicans so that its main concern was with the part with adherence of party opponents voting for the party's election and in the blanket system where anybody a democrat could vote in republican primary and vice versa the system as it is this is a publicly financed primary and a compelling state interest is to increase voter participation and to enfranchise those voters that for whatever reason may not choose to spell out line five of the arizona voter registration form and put the word libertarian or republican or democrat the example that i always go to is an eighteen year old who who registering to vote may not at the time that that individual registers know where his political or her political philosophy rights and and in that case the court found expert testimony sophistical parable evidence which showed that there was a very real risk across as justice scalia said a clear and present danger that it here in service of the parties opponents were going to come in and affect the outcome of the election but that made sense in the california blanket primary where where a democrat could vote in the republican primary where you have a record recognized party members voting in other recognized party members primar arizona primary was designed specifically to avoid that situation to say if you're not register with that otherwise recognize party well you may affiliate yourself with one on for the purposes of the open primary but you may only vote in that primary and that party's primary well i guess i'm not quite understanding maybe you're arguing both whether the argument is that there's no factual showing that the city independents are going to do this or the question is or you're arguing that it's a matter of law parties should be allowed to present evidence at the district court on a rematch on the question of whether or not the allowing of the independents or nonaffiliated voters to vote as to candidates is under way interferes that that would be one option we don't think it is necessary in this but it's so obvious that they don't and here well for one there was the there was an affidavit by the chairman of the written in a party you name on line five of the voter registration forms of two to at the time of the election the mean you can simply reregister right in the party name or they can ask for the open primary ballot and vote in the party's primary i on the parties rights in those cases but they weren't severe enough to justify the state having to show compelling state interest that were narrowly tailored here we think that there are legitimate state interests that establish the need for this open primary that enfranchise voters that increase voter education and voter participation and imposes very limited burden on the parties and and to the extent that it does it is greatly outweighed by the interest in we've not been focusing on the ability of such an affiliated voters to vote on leaders within the libertarian party i think it may be the those are really quite different questions here the libertarian party is recognized by the state has basically three essential functions one is to get the needs to be a recipient of the voter registration information it receives the income tax donations that come from it from the voter registration form an its own structure and that's we believe it's a critical distinction because that's what the court in you i mean she was most concerned with was unduly interfering with the party's internal self governance and to the extent that precinct committee persons vote for the state party chair which is recognized by the state yes you are getting into internal party dynamics but not to the level of interference that was that was  conduct itself or or be we're going to or what its message should be or how it comes about in developing its message where we're simply voting for precinct committee persons who have who have limited authority under the that's recognized by the state again has limited authority it doesn't it's not that it's not necessarily the party that generates the party's platform in the party's message and that's and that's the speech that is so critical and the that th things we're dealing with here well as justice douglas was remarked the first amendment is first for a reason more than that we're dealing with the core of the first amendment political expression organization in connection with the election of candidate restrictions of course strict scrutiny wizened that we maintain applies here it goes without saying that if under any standard stricture scrutiny the statute fails so let me pass on to the other arm of timorous which is that if a lesser infringement is involved an important state regulatory interest which outweigh the infringement may suffice well that raises some interesting questions in this context which is what important state regulatory candidate jumps parties at the last second things like that now the only interest here is that the state of arizona felt that independents who don't belong to any party should have something to do on primary election day when the parties choose their candidates i would submit this is not an important regulatory interest this is not something which can outweigh a very strong first amendment infraction and it's something that could have been addressed much more easily in very simple fashion  someone remarked me the other day paras on a wishes independence something to do on primary day let the let let them choose their own candidates put them in reserve as if they were a party say any independent to get enough signatures on the petition goes on the we speak about independence here but also parties which don't get ballot recognition are entitled to jump ship and vote in any primary they want so you have cases where you have political parties that are it essentially loggerheads in this case one example would be the greens versus the libertarians which on economic issues on social issues are the same but on the economic issues of course of office and the ball under this provision greens can vote a libertarian primary so your if your logical opponent and believe the state's jones the road map to making the challenge jones or rather extraordinary case jones involved a party which frankly had a lot of money to do the sort of surveying that sort of thing requires if you look at other cases first of all cases such as tashkin or whatever there's no statistical analysis that underlies them but they still strike down state measure as violet of the first amendment when we're dealing with the first level of i don't think it's incumbent upon a person to demonstrate by statistical means of scientific studies that his freedom of expression or association is being impaired or what the outcome of this and when that came up in the california democratic party case u s supreme court yes there is a lot of statistical stuff and down at the end the court says that the argument is essentially well the potential for malicious cross over those one party subverting the other is minimal and the potential for a friendly crossover affecting election is unlikely to affect an election except in the rarest of cases and the supreme court's this one one election is enough we're not going to buy that argument so after citing all that it basically doesn't depend upon it and voters turn out for the primary so we're talking where the election of precinct committeemen you name it could be determined by one person who showed up at the it doesn't exactly endorse enormous the local support however on the other hand it does suggest that elections can be better i think the opposing affidavits pointed out there was one contested primary for the u s house of representatives and it was when it went by a landslide of seventy votes the reason was there were like one hundred fifty on one side and two hundred twenty on the other so with four hundred thousand independents and others in the state it's not like there was a small another on the one hand he says well if they there wouldn't be enough to effect an election there would be no practical result in the body politic at all just gives the independents something futile to do on election day well if he makes  argument and it's successful he may get out of the scrutiny but then he bounces over to the other question the important state regulatory interests which are still strongest outweigh the first amendment and now the argument is this consists of the total benefit of this legislation is that it permits some people to do a futile act on election day i respectfully suggest that's not enough to justify an infringement of the first amendment that's not enough to justify allowing this sort of intrusion into the private affairs of a political association which is asking in this aspect nothing better from the state than to leave it alone and let its own people choose its leadership and choose standard bearers the one of the questions that arises also is fundamentally what are what are the people are being allowed in vote in the primary here and there are people who own arms or don't want to belong to a party don't want to become a libertarian that there was a meeting of for energy and i asked whether they were following the parliamentary rules or roberts but it so basically there are people who just don't want to associate with the party organization and be recognized as such and people who is your own of course i don't count for getting this ballot status because after all when you go into a state that's for ballot status based on registration the answer is they're not affiliated with you and then at the same time basically people who are refusing to fill it with those to give us the strength that might give us on the ballot are being are coming in to vote in the primary to choose leadership of the party and its candidates for no apparent reason other than wiling sort of like to meddle in your affairs i respectfully suggest that that is not a valid interest regulatory interest a stretch of the state sufficient to justify this democrats of the greens republicans have the peeing and i would not at all consider it impossible that one of the major parties should decide to deal with this pet store on the side is draining off my votes by making sure that they get for their candidates  white house personnel office just why you voted in the democratic primary and it was exactly that i've heard and practiced before that one over and made sure that they got the worst possible candidate and i would not at all regard that is impossible in this context  if i had a million dollars for the surveying just how you would even figure it out but the i think that sort of risk using come at any time the state chooses to essentially hand the leadership of political party to a group of there probably that would be your honor but i have to go out and do the research before argue them i mean obviously at some point there will be a an outer limit as to that sort of thing inside that limit it might be reasonable regulation of an election  i can't say where that line would be drawn but one interesting thing is the contrast between i don't know if i'm pronouncing any of these names correctly for some reason all election cases sing of names that you know you simply cannot puzzle out but the dissent position here if you could have a blanket primary and force outsiders upon them if accepted leads to an anomalous result which is the party can the first amendment protects a party allowing outsiders in but does not protect the party from from having outsiders thrust upon it with the result that the first amendment essentially protects the parties ability to a very from its purpose but does not protect its ability to adhere to its fundamental purpose and i think that's a valid criticism of the state's position here as well in some of your honor's we're dealing with the very core of the first amendment political association and our political rights we're dealing with a political party that has a fundamental basis not shared by the other parties that differs from in that respect and would ask nothing better than to be left alone in its own primary to choose so i'm officially and as a countered countervailing standards of which the state co s perhaps even need strict scrutiny the state proposed that independent should be given something to do on election primary election day as i've said i don't believe that meets important regulatory standards is not something designed to ensure the honesty or fairness of elections and i don't think it weighs against the first amendment in th emphasize is that the libertarian party does know of the independents that vote in its primary and when i say dependent you know i mean people that might be with a small party not recognized and they can then reach out to those folks try to bring them into their fold so they do know where they are they don't know how they voted and the last thing that i would emphasize is that in this case one of the plane ran for governor in the libertarian party primary in one of the very few contested