Ariz. independents can’t vote in Libertarian primary

Tuesday, October 2, 2007

TUCSON, Ariz. — In a ruling that could eventually affect the statewide open-primary system, a federal judge last week barred independent voters from casting ballots in the Libertarian Party primary.

Arizona opened its primary elections in 2002, allowing independent voters and those belonging to parties not on the ballot to choose a party at the polls. The number of registered independents and unaffiliated voters in the state has since doubled, to about 28%.

The ruling issued Sept. 25 by U.S. District Judge Raner C. Collins came in a case filed by the Libertarian Party, which argued that the state’s open primary threatened its right to free association.

Collins agreed, ruling the state’s primary system placed a “severe burden” on the party.

“Arizona’s primary system has created a clear and present danger of a party’s candidate being chosen by people other than party members,” Collins wrote in Arizona Libertarian Party v. Brewer. “A political party’s right to choose its own nominees is a core associational activity and the mandatory inclusion of unaffiliated persons with the political party may seriously distort the party’s decision. … Due to the potential distortion forced on the Libertarian [P]arty by the mandatory inclusion of those not affiliated with the party, Arizona’s primary system imposes a severe burden on the [party].”

The ruling was an affirmation of the right of a political party to choose its own fate, said David Hardy, the Libertarians’ lawyer in the case.

“This is the flip side of free association,” Hardy said. “If you have the right to associate, you have the right not to associate.”

Arizona Secretary of State Jan Brewer said she didn’t know whether the state would appeal Collins’ ruling.

She also said the case didn’t directly affect Republicans or Democrats because they were not part of the lawsuit. She said the Republican and Democratic parties would have to file their own lawsuits to bar independents from voting in their primaries.

Collins had ruled in favor of the Libertarian Party after it sued in 2002, but a federal appeals court sent the case back to him, saying Libertarians needed to prove to the court they were harmed by the open primary.

They provided this example: In 2002 in Flagstaff, Andy Fernandez ran for Congress as a Libertarian on a platform promising universal health care. Libertarians usually strongly oppose large government programs, but an influx of independent voters nearly tipped the vote his way.

A spokeswoman for the state Democratic Party said party officials wouldn’t seek a closed primary.

The state Republican Party did not respond to a request for comment. But Pima County GOP Chairwoman Judi White said she would prefer that independents pick a side.

“They have no party structure. No party headquarters. I think they need to step up and join one of the recognized parties,” she said.

Only registered party members will be allowed to vote in the state’s Feb. 5 Presidential Preference Election, which follows different rules than the statewide primaries in September.

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