FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ARIZONA LIBERTARIAN PARTY;

MICHAEL KIELSKY,

Plaintiffs-Appellants,

v.

KATIE HOBBS, in her official 

capacity as Secretary of State of 

Arizona,

Defendant-Appellee.

No. 17-16491

D.C. No.

2:16-cv-01019-

DGC

OPINION

Appeal from the United States District Court

for the District of Arizona

David G. Campbell, District Judge, Presiding

Argued and Submitted March 12, 2019

San Francisco, California

Filed May 31, 2019

Before: J. Clifford Wallace, A. Wallace Tashima, and 

M. Margaret McKeown, Circuit Judges.

Opinion by Judge McKeown
2 ARIZ. LIBERTARIAN PARTY V. HOBBS

SUMMARY*

Civil Rights / Elections

The panel affirmed the district court’s summary 

judgment in favor of Arizona’s Secretary of State in an 

action brought by the Arizona Libertarian Party challenging, 

under the First and Fourteenth Amendments, a state law 

requiring up to 1% of voters eligible to participate in 

Arizona’s primary to sign a nominating petition for a 

Libertarian candidate to earn a place on the primary ballot.

Applying the balancing framework set forth in Anderson 

v. Celebrezze, 460 U.S. 780 (1983), and Burdick v. Takushi, 

504 U.S. 428 (1992), the panel first held that the State’s 

signature requirement imposed a minimal burden on the 

Libertarian Party’s right to access the primary ballot. 

Accordingly, the panel determined that a less exacting 

scrutiny was appropriate. The panel concluded that 

Arizona’s signature requirements reasonably furthered 

Arizona’s regulatory interest in preventing voter confusion, 

ballot overcrowding, and frivolous candidacies and justified 

the modest burden on the Libertarian Party’s right to ballot 

access. 

The panel rejected the Libertarian Party’s contention that 

the Arizona law infringed upon its right to free association 

by effectively requiring its candidates to solicit signatures 

from non-members. The panel held that any burden on the 

Libertarian Party’s associational freedom was modest, and 

 * This summary constitutes no part of the opinion of the court. It 

has been prepared by court staff for the convenience of the reader.
ARIZ. LIBERTARIAN PARTY V. HOBBS 3

again applying less exacting scrutiny, the panel credited 

Arizona’s important interests to justify the reasonable 

requirements. 

The panel further rejected the Libertarian Party’s 

contention that Arizona’s signature requirement violated 

equal protection, noting that the Libertarian, Democratic, 

and Republican Parties were all subject to the same statutory 

requirements. The panel observed no equal protection issue 

in Arizona’s treatment of the Green Party, a new party that 

was subject to different statutory requirements.

COUNSEL

Oliver B. Hall (argued), Center for Competitive Democracy,

Washington, D.C., for Plaintiffs-Appellants.

Kara M. Karlson (argued) and Joseph E. La Rue, Assistant 

Attorneys General; Mark Brnovich, Attorney General; 

Office of the Attorney General, Phoenix, Arizona; for 

Defendant-Appellee.

OPINION

McKEOWN, Circuit Judge:

Once again, we have before us a challenge to Arizona’s 

requirements to earn a place on the ballot. See, e.g., Ariz. 

Green Party v. Reagan, 838 F.3d 983 (9th Cir. 2016); Nader 

v. Brewer, 531 F.3d 1028 (9th Cir. 2008). The Arizona 

Libertarian Party challenges under the First and Fourteenth 

Amendments a state law requiring up to 1% of voters eligible 

to participate in its primary to sign a nominating petition for 
4 ARIZ. LIBERTARIAN PARTY V. HOBBS

a Libertarian candidate to earn a place on the primary ballot. 

The district court granted summary judgment to the Arizona 

Secretary of State (the “Secretary”), and we affirm.

BACKGROUND

Under Arizona law, there are two types of political 

parties: “established” parties and “new” parties. A party is 

“established” in a jurisdiction if it (i) obtained at least 5% of 

the total votes cast in the prior general election, or 

(ii) maintains membership exceeding 0.66% of registered 

voters in that jurisdiction. Ariz. Rev. Stat. § 16-804 

(applying to state, county, city, and town elections). An 

established party is entitled to “continued representation” on 

the general election ballot. Id. The Libertarian, Democratic, 

and Republican Parties are established statewide.1

Before 2016, to qualify for the primary ballot, an 

established party candidate needed to submit signatures2

exceeding a certain percentage (ranging between 0.5% and 

2%, depending on the office sought) of the party’s registered 

voters in the jurisdiction where he sought election. Ariz. 

Rev. Stat. § 16-322(A) (2015). A candidate was permitted 

to submit signatures from party members, members of any 

 1 The Libertarian Party satisfies the voter registration requirement, 

and the Democratic and Republican Parties satisfy both requirements. 

As of January 1, 2019, Arizona had 1.31 million registered Republicans, 

1.17 million registered Democrats, and 32,056 registered Libertarians. 

Ariz. Sec. of State, Voter Registration & Historical Election Data, 

https://azsos.gov/elections/voter-registration-historical-election-data 

(last visited May 7, 2019).

2 A voter may only sign one nominating petition per office per 

election, unless more than one candidate is to be elected to that office. 

Ariz. Rev. Stat. § 16-321(A).
ARIZ. LIBERTARIAN PARTY V. HOBBS 5

new party, or unaffiliated registered voters.3 Id.

§ 16-321(D).

In 2015, the Arizona legislature amended the signature 

requirements for established party candidates. 2015 Ariz. 

Sess. Laws Ch. 293, §§ 2–3 (H.B. 2608). Now, to qualify 

for a primary ballot, an established party candidate must 

submit signatures exceeding a certain percentage of 

“qualified signer[s],” which include the party’s registered 

voters, as well as all new party voters and unaffiliated 

registered voters. Ariz. Rev. Stat. § 16-321(F). The 

amendments reduced the signature threshold for each office 

to between 0.25% and 1%. Id. § 16-322(A). In 2016—the 

first election governed by the amended rules—there 

were significantly fewer Libertarian candidates on the 

primary and general election ballots than in prior elections. 

See generally Ariz. Sec. of State, Historical Election 

Results & Information, https://azsos.gov/elections/

voter-registration-historical-election-data/historical-electionresults-information (last visited May 7, 2019) (collecting 

data for recent Arizona elections).

A “new” party is subject to different rules. A new party 

must first submit a petition for recognition and signatures 

from eligible voters exceeding 1.33% of total votes cast 

statewide in the prior gubernatorial election. Ariz. Rev. Stat. 

§§ 16-801(A), 16-803. After doing so, the party’s 

candidates are eligible to pursue placement on the primary 

and general election ballots for the next four years. Ariz. 

Rev. Stat. § 16-801(B). To retain its recognition and ballot 

 3 As of January 1, 2019, Arizona had 1.25 million unaffiliated 

registered voters. Ariz. Sec. of State, Voter Registration & Historical 

Election Data, https://azsos.gov/elections/voter-registration-historicalelection-data (last visited May 7, 2019).
6 ARIZ. LIBERTARIAN PARTY V. HOBBS

eligibility at the end of the four years, the party must either 

qualify as an established party or file another petition for 

recognition and the accompanying signatures. Id.; see Ariz. 

Rev. Stat. §§ 16-803–04.

To qualify for the primary ballot, a new party candidate 

must submit signatures exceeding 0.1% “of the total vote for 

the winning candidate or candidates for governor or 

presidential electors at the last general election within the 

district.” Ariz. Rev. Stat. § 16-322(C). The Arizona Green 

Party first qualified as a new party in 1990, and, never having 

qualified as an established party, has successfully re-filed 

petitions for new party recognition and the accompanying 

signatures several times, most recently in 2014.4 Since the 

beginning of 2017, Arizona has permitted digital solicitation 

and streamlined submission of voter signatures through an 

online portal. Ariz. Rev. Stat. §§ 16-316–18.

Under Arizona law, 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

Ariz. Rev. Stat. § 16-467.5 The Libertarian Party excludes 

 4 As of January 1, 2019, the Green Party had 6,450 registered 

members in Arizona. Ariz. Sec. of State, Voter Registration & Historical 

Election Data, https://azsos.gov/elections/voter-registration-historicalelection-data (last visited May 7, 2019).

5 A state may not keep a party from welcoming unaffiliated voters 

to participate in its primary, Tashjian v. Republican Party of Conn., 

479 U.S. 208, 213–29 (1986), though it may prohibit party members 

from participating in another party’s primary. Clingman v. Beaver, 

544 U.S. 581, 586–97 (2005).
ARIZ. LIBERTARIAN PARTY V. HOBBS 7

such voters, while the Democratic and Republican Parties do 

not.

In April 2016, the Libertarian Party and its chairman 

Michael Kielsky (collectively, the “Libertarian Party”) filed 

this action challenging the primary signature requirements. 

The district court denied the Libertarian Party’s request for 

a preliminary injunction prohibiting enforcement of the 

amended requirements for the 2016 election. The parties 

filed cross-motions for summary judgment, and, in 

July 2017, the district court granted summary judgment to 

the Secretary.

ANALYSIS

The Libertarian Party contends that Arizona’s ballot 

access scheme violates equal protection and infringes upon 

the right to place its candidates on the ballot6 and the right 

to free association.7 Only the rules governing access to the 

primary election ballot are at issue on this appeal—the 

Libertarian Party does not call into question the rules for 

earning a place on the general election ballot. With that in 

mind, we first set forth the balancing framework that guides 

our review and then explain why Arizona’s rules for 

accessing the primary ballot are constitutionally sound.

 6 The Libertarian Party also contends that the statute violates its right 

to create and establish a political party. See Norman v. Reed, 502 U.S. 

279, 288 (1992). This claim merely recites the right to access the ballot 

claim, and it fails for the same reasons. See infra pp.9–14.

7 The Libertarian Party also appeals the district court’s exclusion of 

certain evidence. That issue is moot because summary judgment for the 

Secretary is warranted even if we consider the excluded evidence.
8 ARIZ. LIBERTARIAN PARTY V. HOBBS

I. The Anderson/Burdick Balancing Framework

There is an inevitable tension between a state’s authority 

and need to regulate its elections and the First and Fourteenth 

Amendment rights of voters, candidates, and political 

parties. See Storer v. Brown, 415 U.S. 724, 729–30 (1974). 

To harmonize these competing demands, we look to 

Anderson v. Celebrezze, 460 U.S. 780 (1983), and Burdick 

v. Takushi, 504 U.S. 428 (1992), which provide a “flexible 

standard” for reviewing constitutional challenges to state 

election regulations:

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.”

Burdick, 504 U.S. at 434 (quoting Anderson, 460 U.S. 

at 789). We have described this approach as a “sliding 

scale”—the more severe the burden imposed, the more 

exacting our scrutiny; the less severe, the more relaxed our 

scrutiny. Ariz. Green Party, 838 F.3d at 988. To pass 

constitutional muster, a state law imposing a severe burden 

must be narrowly tailored to advance “compelling” interests. 

Norman, 502 U.S. at 289. On the other hand, a law imposing 

a minimal burden need only reasonably advance “important” 

interests. Timmons v. Twin Cities Area New Party, 520 U.S. 

351, 358 (1997) (quoting Burdick, 504 U.S. at 434).
ARIZ. LIBERTARIAN PARTY V. HOBBS 9

We now consider each of the Libertarian Party’s 

constitutional challenges under the Anderson/Burdick 

balancing framework.

II. Right to Access the Ballot

It was long ago established that a state may condition 

ballot placement on a “preliminary showing of a significant 

modicum of support.” Jenness v. Fortson, 403 U.S. 431, 442 

(1971). And there is no dispute that a state may require a 

candidate to demonstrate support from slightly, but not 

“substantially,” more than 5% of voters without imposing a 

severe burden triggering heightened scrutiny. Storer, 

415 U.S. at 739–40; see Jenness, 403 U.S. at 442; Williams 

v. Rhodes, 393 U.S. 23, 24–25 (1968) (invalidating 

15% requirement). The Libertarian Party contends that 

Arizona law imposes an impermissibly high signature 

burden, reaching as high as 30% for certain candidates. Yet, 

the threshold—and dispositive—question is which pool of 

voters we should consider when measuring this showing.

Under Arizona law, all qualified signers—Libertarian 

Party members, unaffiliated registered voters, and new party 

members—are eligible to participate in the Libertarian Party 

primary and to sign a Libertarian Party nominating petition. 

By its very terms, the statute never requires signatures from 

more than 1% of these voters. However, by choice, the 

Libertarian Party has barred non-members from voting in its 

primary—under party policy, only members can vote in the 

primary. And it does not want its candidates to solicit 

signatures from non-members; as a consequence, Libertarian 

candidates must submit signatures equal to 11% to 30% of 

party membership in their jurisdiction to qualify for the 

primary ballot. Thus, our dilemma: is the “significant 

modicum of support” measured against all voters eligible 

under state law to sign a nominating petition and participate 
10 ARIZ. LIBERTARIAN PARTY V. HOBBS

in the primary? Or do we factor in a party’s decision to 

exclude certain eligible voters from its primary and instead 

consider the resulting, significantly circumscribed pool?

The Supreme Court has never expressly answered this 

question, but its framework in ballot access cases is 

instructive. The state laws challenged in Norman, Jenness, 

and Williams required candidates and parties seeking 

placement on the general election ballot to submit signatures 

from registered voters equaling a designated percentage of 

the general election electorate.8 The Court’s approach in 

these cases was straightforward: it determined whether the 

required signatures represented a reasonable share of the 

voters eligible to participate in the upcoming election. See 

Norman, 502 U.S. at 295; Jenness, 403 U.S. at 438–40, 442; 

Williams, 393 U.S. at 24–25, 30–34. In American Party of 

Texas9 and Storer, the state laws imposed similar 

requirements, with an additional limitation: a voter who 

participated in another party’s primary or convention or 

signed another candidate’s petition was ineligible to sign a 

nominating petition.10 In both cases, the Court determined 

whether the required signatures represented a reasonable 

 8 The laws challenged in Norman and Williams approximated the 

electorate by reference to the number of voters who participated in the 

preceding general election. Norman, 502 U.S. at 282 n.2; Williams, 

393 U.S. at 24–25. The law challenged in Jenness approximated the 

electorate by reference to the number of registered voters during the 

previous general election. 403 U.S. at 432–33.

9 Am. Party of Tex. v. White, 415 U.S. 767 (1974).

10 Like the laws challenged in Norman and Williams, those at issue 

in American Party of Texas and Storer approximated the electorate by 

reference to the number of voters who participated in the preceding 

general election. Am. Party, 415 U.S. at 774–75 & nn.6–7; Storer, 

415 U.S. at 726–27, 739–40.
ARIZ. LIBERTARIAN PARTY V. HOBBS 11

share of the “available pool” of signers, i.e., voters who had 

not disqualified themselves by participating in another 

primary or convention or by signing a previous petition. 

Storer, 415 U.S. at 739–40; see Am. Party, 415 U.S. at 774–

91.

In each of these cases, the Court asked whether the 

required signatures constituted an unfairly large percentage 

of those voters eligible under state law to offer their 

signatures. There was no adjustment to account for the 

significant portion of this pool comprised of registered 

members of other parties, many of whom, it can be 

reasonably presumed, were unlikely to help nominate a 

competing candidate or party. Nor was there any suggestion 

that a candidate should be limited to seeking signatures from 

voters who have already pledged their support to the 

candidate or his party or cause. Rather, the Court time and 

again affirmed that requiring a demonstration of “significant, 

measurable quantum of community support” does not 

impose a severe burden. Am. Party, 415 U.S. at 782.

We invoked a similar analysis in Nader v. Cronin, 

620 F.3d 1214, 1217 (9th Cir. 2010). And we do so again 

here. Arizona law permits all qualified signers— Libertarian 

Party members, new party members, and registered 

unaffiliated voters—to sign a Libertarian candidate’s 

nominating petition and to vote in the Libertarian primary. 

However, qualified signers who already signed another 

candidate’s nominating petition are excluded from the 

“available pool” of voters able to sign a Libertarian 

candidate’s petition.

No evidence suggests that, in practice, the statute’s (at 

most) 1% signature requirement even approaches 5% of this 

remaining pool of eligible signers. It falls upon the 

Libertarian Party to demonstrate that Arizona imposes a 
12 ARIZ. LIBERTARIAN PARTY V. HOBBS

severe burden, and it has failed to do so here. The party’s 

policy choice to exclude all non-members from its primary 

and its preference to obtain signatures only from party 

members do not change the calculus. To hold otherwise 

would permit a party to determine the number of signatures 

required by manipulating its nominating petition and

primary voting requirements. At the same time, the 

Libertarian Party’s proposed rule would incentivize parties 

to have fewer registered members and therefore artificially 

reduce the signature requirements. Just as important: where, 

in this scheme, is the offensive state action? There is no 

question that the signature requirement would be 

constitutional if the Libertarian Party permitted nonmembers to vote in its primary. A political party cannot 

manipulate its internal preferences and processes to 

transform a constitutional statute into an unconstitutional 

one.11

Crucially, Arizona law does not impose any other 

requirements, such as a strict time period for signature 

collection, that might nonetheless render the 1% requirement 

“an impossible burden” or “an impractical undertaking.” 

Storer, 415 U.S. at 740 (requiring 1,000 canvassers to collect 

14 signatures each day for 24 days likely imposes a modest 

burden); see Clingman, 544 U.S. at 589–90 (limiting a 

party’s internal structure, decision-making processes, and 

ability to communicate with the electorate likely imposes a 

 11 Neither of the cases cited by the Libertarian Party persuades us 

otherwise. One addressed a law that made it “impossible either 

absolutely . . . or practically” for a candidate to meet a signature 

requirement. See Consumer Party v. Davis, 633 F. Supp. 877, 883 (E.D. 

Pa. 1986). The other struck down signature requirements because they 

imposed disparate requirements on similarly situated parties that were, 

the state conceded, impossible to justify. In re Candidacy of Indep. Party 

Candidates v. Kiffmeyer, 688 N.W.2d 854, 859–61 (Minn. 2004).
ARIZ. LIBERTARIAN PARTY V. HOBBS 13

severe burden); Timmons, 520 U.S. at 363 (same); Anderson, 

460 U.S. at 790–94 (requiring an independent candidate to 

file several months before party conventions imposes severe 

burden); Am. Party, 415 U.S. at 778–81 (requiring all 

signatures to be notarized and submitted in 55-day period 

does not impose severe burden); Jenness, 403 U.S. at 434, 

438 (permitting 180 days for collection of nominating 

signatures and requiring submission of signatures five 

months before election does not impose severe burden); 

Williams, 393 U.S. at 24–25 & n.1 (conditioning minor 

party’s ballot access on formation of statewide and countylevel party committees, participation in a national party 

convention, and submission of nominating signatures by an 

early deadline exclusively from voters who never voted in a 

previous election imposes significant burden). To the 

contrary, Arizona permits candidates to solicit and submit 

signatures through an easy-to-use and streamlined online 

portal. A candidate collecting hand-written signatures must, 

in practice, collect more than the minimum number of 

signatures required because, inevitably, some will be 

deemed ineligible. In contrast, signatures submitted through 

the online portal are instantaneously verified, thereby 

reducing the need to submit signatures above the threshold.

The limited evidence describing the Libertarian Party’s 

modest efforts to mobilize voters and several candidates’ 

unsuccessful write-in campaigns fails to establish that, in 

practice, Arizona law “imposes insurmountable obstacles” 

to getting on the primary ballot. Am. Party, 415 U.S. at 784. 

Nor does the simple fact that the Libertarian Party had more 

candidates on past primary and general election ballots 

reflect such an obstacle under the amended rules. See Munro 

v. Socialist Workers Party, 479 U.S. 189, 196–97 (1986). 

Accordingly, we apply “less exacting” scrutiny because 

Arizona law imposes a minimal burden on the Libertarian 
14 ARIZ. LIBERTARIAN PARTY V. HOBBS

Party’s right to access the primary ballot. Timmons, 

520 U.S. at 358; see Cronin, 620 F.3d at 1218.

We now turn to whether Arizona has an “important 

regulatory interest” that justifies this modest burden. 

Timmons, 520 U.S. at 358 (quoting Burdick, 504 U.S. 

at 434). Arizona’s asserted interests in preventing voter 

confusion, ballot overcrowding, and frivolous candidacies 

are important interests that have justified equally, if not 

more, burdensome general election ballot restrictions. See

Munro, 479 U.S. at 194–95. These interests are also 

important in the primary context, given the “obvious and 

strong interconnection” between primary and general 

elections, which together operate as a “single instrumentality 

for choice of officers.” Pub. Integrity All., Inc. v. City of 

Tucson, 836 F.3d 1019, 1026 (9th Cir. 2016) (quoting Smith 

v. Allwright, 321 U.S. 649, 660 (1944)); see Storer, 415 U.S. 

at 735 (A primary election “functions to winnow out and 

finally reject all but the chosen candidates.”). Conditioning 

primary ballot placement on a demonstration of significant 

community support advances Arizona’s interests in the 

administration of its primary and general elections. See 

Anderson, 460 U.S. at 788–89; see also Jenness, 403 U.S. 

at 442; Munro, 479 U.S. at 193–94.

Because we neither require “a particularized showing of 

the existence of voter confusion, ballot overcrowding, or the 

presence of frivolous candidacies,” Munro, 479 U.S. at 194–

95, nor proof that ballot rules are “the only or the best way 

to further the proffered interests,” Dudum v. Arntz, 640 F.3d 

1098, 1114 (9th Cir. 2011), Arizona has easily met its 

burden. The primary signature requirements reasonably 

further Arizona’s important regulatory interests and 

therefore justify a modest burden on the Libertarian Party’s 

right to ballot access.
ARIZ. LIBERTARIAN PARTY V. HOBBS 15

III. Right to Free Association

The Libertarian Party contends that Arizona law 

infringes upon its right to free association by effectively 

requiring its candidates to solicit signatures from nonmembers. Although the Constitution protects a political 

party’s right to not associate with non-members, that right 

has its limits. U.S. Civil Serv. Comm’n v. Nat’l Ass’n of 

Letter Carriers, AFL-CIO, 413 U.S. 548, 567 (1973). We 

first ask whether Arizona in any way “forces” the Libertarian 

Party to associate with non-members. Cal. Democratic 

Party v. Jones, 530 U.S. 567, 577, 581–82, 586 (2000). If 

so, we then consider whether such forced association creates 

a “risk that nonparty members will skew either primary 

results or candidates’ positions.” Ariz. Libertarian Party, 

Inc. v. Bayless, 351 F.3d 1277, 1282 (9th Cir. 2003). We 

answer both questions in the negative.

Unlike the state laws at issue in Jones and Bayless, 

Arizona law permits political parties to exclude nonmembers from voting in their primaries. At their option, 

Libertarian candidates may use signatures from non-party 

members to qualify for the primary ballot—but Arizona law 

does not require them to do so. Soliciting non-member 

signatures would seemingly prove helpful in placing more 

candidates on the primary ballot, but it is the Libertarian 

Party’s modest membership, not a “state-imposed restriction 

on [its] freedom of association,” that imposes upon it this 

“hard choice.” Jones, 530 U.S. at 584.12

 12 In Jenness, the Supreme Court noted that, for an independent or 

minor party candidate seeking “signatures of 5% of the eligible 

electorate[,] . . . the way is open [because] Georgia imposes no 

suffocating restrictions whatever upon the free circulation of nominating 
16 ARIZ. LIBERTARIAN PARTY V. HOBBS

We acknowledge, without deciding, that there may be 

some point where the ratio between party members and 

required signatures constitutes de facto forced association 

with non-members. For example, if the signature 

requirement exceeded the number of party members, then a 

candidate necessarily would, as a matter of arithmetic, have 

to solicit non-member signatures to qualify for the ballot. 

But we face no such situation here. Libertarian candidates 

can qualify for the primary ballot with signatures from 11% 

to 30% of party members in their jurisdictions, and no 

evidence suggests it is impossible to do so as a practical 

matter. Even if collecting these signatures is difficult, we 

expect “[h]ard work and sacrifice by dedicated volunteers” 

in the operation of “any political organization.” Am. Party, 

415 U.S. at 787. Such expectations do not in any way 

“force” Libertarian candidates or voters to associate with 

non-members.

Nor has the Libertarian Party demonstrated that the 

solicitation and submission of some non-member signatures 

“will skew either primary results or candidates’ positions.” 

Bayless, 351 F.3d at 1282. We decline to embrace such a 

speculative conclusion. Any burden on the Libertarian 

Party’s associational freedom is modest, so we again apply 

less exacting scrutiny and, as above, credit Arizona’s 

important interests to justify these reasonable requirements. 

See Timmons, 520 U.S. at 358.

 

petitions.” 403 U.S. at 438. The Court identified various limitations on 

signature collection that could be, but were not, imposed under Georgia 

law. Id. at 438–39. That a minor party candidate would likely obtain 

signatures from non-party members was presupposed by the Court, not

as a bug of this system, but as a positive feature. Id.
ARIZ. LIBERTARIAN PARTY V. HOBBS 17

IV. Equal Protection

Finally, the Libertarian Party contends that the signature 

requirements violate equal protection because they impose 

lesser burdens on other parties.13 The Libertarian, 

Democratic, and Republican Parties are all established 

parties subject to the same statutory requirements. 

Although, on its face, Arizona law treats them identically, 

we look to see whether the requirements provide “a real and 

essentially equal opportunity for ballot qualification.” Am. 

Party, 415 U.S. at 788. That standard is clearly satisfied 

here. A Libertarian candidate vying for the primary ballot 

actually faces a significantly lower burden than his 

Democratic and Republican counterparts. For example, a 

statewide Libertarian candidate needs to submit 

approximately 3,200 signatures, compared to 6,000 and 

6,400 signatures for the Democratic and Republican 

competitors, respectively. See Ariz. Rev. Stat. 

§ 16-322(A)(1); Ariz. Sec. of State, Voter Registration & 

Historical Election Data, https://azsos.gov/elections/voterregistration-historical-election-data (last visited May 7, 

2019).14

That a Libertarian candidate must submit signatures 

representing a higher percentage of his party membership 

than a Democratic or Republican candidate is a consequence 

 13 Despite their differences, we assume, without deciding, that the 

Libertarian Party is similarly situated to the Democratic, Republican, and 

Green Parties and that the Equal Protection Clause applies. See Cronin, 

620 F.3d at 1218.

14 Of course, the signature ratio between parties varies within each 

political subdivision, as voters are not perfectly distributed throughout 

the state. The statewide figures are sufficiently representative for our 

purposes.
18 ARIZ. LIBERTARIAN PARTY V. HOBBS

of the Libertarian Party’s modest size, not a fatal flaw of the 

statutory scheme. The Supreme Court has indicated that an 

analogous imbalance lacks constitutional significance. In

Illinois State Board of Elections v. Socialist Workers Party, 

the Court struck down on equal protection grounds a state 

law requiring local candidates to submit substantially more 

signatures to qualify for the ballot than statewide candidates. 

440 U.S. 173, 186–87 (1979). The remedy: imposing the 

same, 25,000 signature requirement for both local and 

statewide candidates, even though the eligible voter pool for 

statewide candidates was six times larger than the pool for 

certain local candidates. See id. at 183–87. If such an 

outcome comports with equal protection, then surely so does 

the situation here.

Even if we assume that the signature requirements 

impose a marginally higher burden on the Libertarian Party, 

that additional burden is far from severe. Cf. Williams, 

393 U.S. at 25 (striking down state law that imposed 

“substantially smaller burdens” on certain parties, while 

making it “virtually impossible” for others to place a 

candidate on the ballot). Under less exacting scrutiny, we 

again conclude that the same important regulatory interests 

justify the signature requirements. In setting the threshold 

for a “significant modicum of support,” Jenness, 403 U.S. at 

442, a state must use either an absolute number of voters or 

a percentage of some group. Not only is it mathematically 

impossible to craft a statute where the burden on each party 

is identical under both measurements, Arizona has no 

obligation to seek such precision. See Dudum, 640 F.3d 

at 1114 (recognizing regulations need not be “narrowly 

tailored”). Nor was Arizona required to replicate or fold in 

the preexisting burdens on each party when it amended the 

ballot access rules in 2015. Cf. Ohio Democratic Party v. 

Husted, 834 F.3d 620, 623 (6th Cir. 2016) (rejecting an 
ARIZ. LIBERTARIAN PARTY V. HOBBS 19

argument “creat[ing] a ‘one-way ratchet’ that would 

discourage states from” increasing ballot access, “lest they 

be prohibited by federal courts from later modifying their 

election procedures in response to changing 

circumstances”). Arizona’s choice to set the threshold as a 

percentage of qualified signers for each established party 

was neither discriminatory nor unreasonable.

Arizona opted to apply these signature requirements for 

all parties that have a significant membership and therefore 

exempt such parties from the quadrennial party-wide recertification requirements imposed on new parties. This 

policy affords significant benefits to all established parties 

and furthers the state’s interests in avoiding voter confusion, 

minimizing clutter on the primary and general ballots, and 

eliminating frivolous candidacies.15

We likewise observe no equal protection issue in 

Arizona’s treatment of the Green Party, a new party subject 

to different statutory requirements. When, as here, we 

“examin[e] differing treatments of [different types of 

political parties], . . . [i]n determining the nature and 

magnitude of the burden that [the state’s] election 

procedures impose on the [complaining party], we must 

examine the entire scheme regulating ballot access.” 

Cronin, 620 F.3d at 1217 (internal quotations and citation 

omitted). Equal protection is violated when one set of 

 15 The Libertarian Party’s reliance on Kiffmeyer is, once again, 

unpersuasive. There, two minor political parties were subject to the same 

ballot access rules; under those rules, one party had all of its candidates 

placed on the general election ballot, and the other had none on the ballot, 

even though the latter received significantly more votes in the primary. 

Kiffmeyer, 688 N.W.2d at 859–61. Minnesota conceded that these rules 

were arbitrary and lacked any “rational . . . purpose.” Id. at 861.
20 ARIZ. LIBERTARIAN PARTY V. HOBBS

requirements is “inherently” or “invidiously” more 

burdensome than the other. Am. Party, 415 U.S. at 781; 

Jenness, 403 U.S. at 440–41; Cronin, 620 F.3d at 1218–19.

The Libertarian Party’s chief complaint is that Green 

Party candidates qualified for the 2016 primary ballot with 

significantly fewer signatures than Libertarian candidates 

for the same races.16 This argument fails to account for the 

significant quadrennial re-filing burden placed on the Green 

Party to retain its new party status. Every four years, the 

Green Party, which currently boasts less than 

6,500 members, must submit more than 20,000 signatures 

for its candidates to be eligible to pursue placement on the 

ballot. That is, signatures from three times more voters than 

it has registered members. Meeting the re-filing 

requirements is “an all-consuming endeavor” for the Green 

Party, which relies on “a core group of about 10 volunteers” 

to work “every weekend on Saturdays and Sundays for 

several hours each” for more than a year. It is only once this 

step is complete that the modest individual candidate 

signature thresholds apply. Thus, it is obvious that the 

primary ballot signature requirements for the Libertarian 

Party are not “inherently” or “invidiously” more 

burdensome than those imposed on the Green Party. Am. 

Party, 415 U.S. at 781; Jenness, 403 U.S. at 440–41. To be 

sure, “[t]he procedures are different, but the Equal Protection 

 16 The Libertarian Party also complains that a write-in new party 

candidate automatically qualifies for the general election ballot by 

winning his primary, while a write-in established party candidate only 

qualifies for the general election ballot if he wins his primary with votes 

equaling the number of signatures needed to qualify for the primary 

ballot. See Ariz. Rev. Stat. § 16-645(D)–(E). Because the Libertarian 

Party expressly disclaims any challenge to Arizona’s general election 

ballot access requirements, we do not consider this argument.
ARIZ. LIBERTARIAN PARTY V. HOBBS 21

Clause does not necessarily forbid the one in preference to 

the other.” Am. Party, 415 U.S. at 781–82.

CONCLUSION

Arizona has no “constitutional imperative to reduce 

voter apathy or to ‘handicap’ an unpopular [party] to 

increase the likelihood that [its] candidate[s] will” qualify 

for the primary ballot. Munro, 479 U.S. at 198. The state’s 

signature requirements are reasonable restrictions that 

impose, at most, a modest burden on the Libertarian Party’s 

First and Fourteenth Amendment rights, while directly 

advancing Arizona’s important regulatory interests. The 

district court correctly granted summary judgment to the 

Secretary.

AFFIRMED.