[00:00:00] Speaker 03:
Good morning, Your Honors.

[00:00:01] Speaker 03:
My name is Kara Carlson.

[00:00:02] Speaker 03:
I'm with the Arizona Attorney General's Office representing Arizona Secretary of State Adrian Fontes.

[00:00:08] Speaker 03:
We would like to reserve about five minutes of our time for rebuttal.

[00:00:11] Speaker 03:
Thank you.

[00:00:14] Speaker 03:
This case is fundamentally about three people invoking the machinery of the state to obtain the benefits of a political party without following the laws that govern political parties in Arizona, and then wielding that lopsided power against 30,000 no-labels members and at least five no-labels candidates.

[00:00:36] Speaker 03:
The group of people who assert they act on behalf of no labels in this instance, which I will refer to now as the committee, had a vision for their associational rights.

[00:00:47] Speaker 03:
That vision included becoming a political party pursuant to Arizona Revised Statute 16801.

[00:00:54] Speaker 03:
In other words, their own conception

[00:00:58] Speaker 03:
of how their freedom of association could best be exercised included intentionally and knowingly invoking the machinery of the state to form a political party.

[00:01:10] Speaker 00:
Council, I guess it was something I was curious about.

[00:01:12] Speaker 00:
I was looking at the record.

[00:01:13] Speaker 00:
I couldn't really find it.

[00:01:17] Speaker 00:
Before the party acquired the requisite signatures to become a party under the Arizona law, did no labels advertise its lack of the desire to have down ballot candidates?

[00:01:27] Speaker 00:
Did they advertise that?

[00:01:29] Speaker 03:
No, it came as a surprise to the Secretary of State, for instance, when they received the correspondence that even though no labels decided to become a political party, they had no desire to participate in the democratic process.

[00:01:43] Speaker 00:
Were they required to provide that information, though?

[00:01:47] Speaker 03:
There's no law requiring them to provide that information.

[00:01:50] Speaker 03:
There's no law regulating how someone goes about deciding when they are choosing how to exercise their associational rights, whether they should become a political party or not.

[00:02:04] Speaker 03:
However, once they invoked that machinery of the state, they were then bound by those laws and all those laws again existed

[00:02:12] Speaker 03:
when they made that choice.

[00:02:15] Speaker 00:
But then after they became a political party, after they got the signatures, then it was at that point that the committee then decided?

[00:02:22] Speaker 03:
It was months afterwards the committee was formed in August.

[00:02:29] Speaker 03:
And that was when the committee created their bylaws and said that they determined that they would have no

[00:02:37] Speaker 03:
No other candidates participate in the election.

[00:02:39] Speaker 03:
Now, I understand that my friend on the other side has referenced letters that were sent to the Secretary of State asserting that they didn't want to do this, but there was, again, there was no state party infrastructure.

[00:02:54] Speaker 03:
There were no bylaws.

[00:02:55] Speaker 03:
There was nothing other than a letter from a law firm asserting that this is what the party wanted.

[00:03:01] Speaker 03:
or the party, you know, the committee members, or at least the people who would eventually appoint the committee members, wanted to do.

[00:03:08] Speaker 00:
And how was the public informed of that desire?

[00:03:11] Speaker 03:
They were not.

[00:03:15] Speaker 01:
Ms.

[00:03:15] Speaker 01:
Carlson, I guess I don't take your no labels to be making any argument that there is anything special about the unique national interests with respect to presidential elections.

[00:03:31] Speaker 01:
But you can see that parties get formed all the time, and no labels was entitled under controlling Supreme Court precedent

[00:03:43] Speaker 01:
drop in whatever presidential and vice presidential ticket the national chose without regard to what the state party decided, right?

[00:03:54] Speaker 03:
Correct, but that's not the issue that's being challenged here.

[00:03:57] Speaker 03:
The issue that's being challenged here is

[00:03:59] Speaker 03:
You had three people who were the committee asserting to act on the behalf of No Labels against at least five candidates that we know of who were No Labels members and however many, you know, 30,000 roughly, I mean, the precise number is in the record, but you know, approximately 30,000 people at the time of the general election who weren't allowed to participate.

[00:04:21] Speaker 01:
I think courts, I'm not sure that our court has seen it, but courts have upheld various ideological litmus tests for membership.

[00:04:32] Speaker 01:
And I think in the Alaska party case, actually, we said that there was no such issue presented there, but couldn't no labels have had a platform and required that its members agree to that platform just as the

[00:04:50] Speaker 01:
the Alaska Independence Party had a platform and that that platform says I am committed to only running as a presidential or vice presidential candidate of the party or not at all?

[00:05:00] Speaker 03:
I think that no labels could have done that in another association.

[00:05:05] Speaker 03:
But the issue is when they chose to become a political party, they got certain benefits.

[00:05:11] Speaker 03:
They received ballot access.

[00:05:13] Speaker 03:
They received, you know, ballot access in the way you're talking about the opportunity to select

[00:05:18] Speaker 03:
a vice presidential candidate to get inserted at a time later that served their interests.

[00:05:26] Speaker 01:
But they don't want those benefits.

[00:05:28] Speaker 01:
And typically, when a party comes to us, it's difficult because you have leadership and membership.

[00:05:35] Speaker 01:
And the leadership is the one who's hired the lawyers and are showing up here.

[00:05:38] Speaker 01:
But typically, in expressive association cases, we take whatever the leadership asserts its interests and its expression to be as a given.

[00:05:48] Speaker 01:
that that's its position and so that the outliers are these candidates, not the leaders.

[00:05:53] Speaker 03:
But this is not a typical association case.

[00:05:57] Speaker 03:
This is a ballot access case.

[00:05:58] Speaker 03:
This is an Anderson Burdick case where you have to weigh the state's interests in having organized elections against and voters' interests in participating as a member of No Labels against the

[00:06:12] Speaker 00:
You know the committee's asserted interests and again here here though the here the district court found that the state's interest was minimal Was that an error?

[00:06:21] Speaker 00:
Yes, how and in what way and what what what's your best case?

[00:06:25] Speaker 03:
establishing that probably Arizona Libertarian Party and Arizona Libertarian Party you had the Libertarian Party deciding that they wanted to restrict their

[00:06:40] Speaker 03:
who their candidates could collect signatures from to be only libertarian members, not libertarians and independents.

[00:06:48] Speaker 03:
Well, when they did that,

[00:06:50] Speaker 03:
that threshold for ballot access for for libertarian candidates went from a constitutional minimum of somewhere between you know a fraction of a percent and two percent depending on the office sought and it skyrocketed to eleven percent to thirty percent that would be absolutely unconstitutional but this court held that

[00:07:11] Speaker 03:
The state was not forcing them to make that choice.

[00:07:14] Speaker 03:
That was a choice that they were making.

[00:07:18] Speaker 03:
That was a choice that the party was taking on.

[00:07:20] Speaker 03:
And the same here.

[00:07:22] Speaker 03:
No labels made the choice.

[00:07:26] Speaker 03:
to become a political party.

[00:07:28] Speaker 03:
With that choice, there was this whole structure of different laws and regulations, because you're affecting other people's rights.

[00:07:37] Speaker 03:
I mean, just think of it in, if we look at it in a democratic way, and the state is permitted, and it is an important interest under controlling Ninth Circuit and Supreme Court case law, to have inter-party decisions

[00:07:57] Speaker 03:
decided in a democratic manner.

[00:07:59] Speaker 01:
And in this case... But the bylaws provide for that, right?

[00:08:02] Speaker 01:
They can have a convention.

[00:08:04] Speaker 01:
There are other means under the bylaws.

[00:08:07] Speaker 01:
And of course, under you, there's only so much the state can do to control those internal procedures.

[00:08:12] Speaker 01:
There are internal procedures for those members to be heard, maybe not right before they want to file, but there is some at least basic responsiveness.

[00:08:21] Speaker 01:
Is there not to the membership of the leaders?

[00:08:23] Speaker 03:
It is extremely limited under the bylaws because they have to, you know, it's only by consent of the members that they may have a, convene a convention.

[00:08:35] Speaker 03:
But more importantly, by putting out, by getting ballot access on the public ballot, right, we are talking about

[00:08:44] Speaker 03:
the public ballot, the public has an interest here because they chose to invoke that machinery.

[00:08:52] Speaker 03:
They could have very easily maintained their own association, decided we only want

[00:09:02] Speaker 03:
this person or another to run.

[00:09:05] Speaker 03:
That's it.

[00:09:05] Speaker 03:
We don't want to run for any other office.

[00:09:07] Speaker 03:
We don't want to water down our brand at all.

[00:09:09] Speaker 03:
We don't want to have, in their terms, Mother Teresa run as our nominee.

[00:09:16] Speaker 03:
And so we are going to run.

[00:09:18] Speaker 03:
And under Arizona law, they could still do that.

[00:09:22] Speaker 01:
In what case have we said that independent status is a sufficient substitute for a party label?

[00:09:29] Speaker 03:
There isn't any, but in this case, the committee is overriding the will of the party when the state.

[00:09:37] Speaker 01:
Well, we don't know.

[00:09:39] Speaker 01:
Where in the record do you have some indication, one way or the other, that the membership, as opposed to we've got five candidates on one side, three party leaders on the other, it's not much to go on.

[00:09:52] Speaker 03:
Right, but we at least know that there were three members of no labels who said one thing and there were five members of no labels who said another and we're dealing with a public ballot.

[00:10:03] Speaker 03:
We're dealing with public elections with that hook with that state interest in mind.

[00:10:09] Speaker 03:
The state has an interest in ensuring that those decisions are made in a democratic manner.

[00:10:14] Speaker 02:
One of the state interests that you assert is the prevention of voter confusion.

[00:10:22] Speaker 02:
And I'm just wondering what's so confusing about what No Labels proposes to do.

[00:10:28] Speaker 02:
I'm not sure I follow.

[00:10:31] Speaker 02:
Go ahead.

[00:10:32] Speaker 03:
Well, there are a couple issues that arise there.

[00:10:35] Speaker 03:
The first one was obviously to become a party.

[00:10:38] Speaker 03:
They went out and they collected signatures from 50,000 people and it ended up being like 41,000 valid Arizona voters to become a political party.

[00:10:50] Speaker 03:
On that petition, one of the lines they had to fill out was that they were going to participate in the 2024 primary, which they did not do.

[00:11:04] Speaker 03:
They received blank ballots because other Arizona law, when people are, for example, early voters, they are entitled to receive a ballot.

[00:11:13] Speaker 03:
And so all of these other statutes then are triggered.

[00:11:19] Speaker 03:
And again, this goes back to once you invoke the machinery of the state, there are all these other interests that cascade down.

[00:11:27] Speaker 03:
There's a state statute that requires

[00:11:29] Speaker 03:
If a party is entitled to representation, each party in Arizona gets a different primary ballot, which means that there were certain no labels voters who were entitled to vote in a city, a nonpartisan primary.

[00:11:44] Speaker 03:
So they received a ballot with their city races, but nothing for no labels, even though it was a no labels ballot.

[00:11:52] Speaker 03:
You had other no labels voters who received an entirely blank ballot.

[00:11:56] Speaker 03:
You had the people who had to design, test,

[00:11:59] Speaker 03:
and print and mail at state expense these ballots to voters.

[00:12:05] Speaker 03:
And so I just think that the, and just the common understanding of what a political party is.

[00:12:14] Speaker 03:
The political party exists to allow voters to come together, voters to come together, individuals to come together, and to

[00:12:24] Speaker 03:
act in furtherance of their political ideology.

[00:12:27] Speaker 03:
I'm sorry, go ahead.

[00:12:29] Speaker 00:
Well, going to Judge Thomas's question, though, in terms of the confusion, one of the things that you point out in the argument in your papers is that if, for example, in 2026, these individuals would get a blank ballot again, because there is no primary, is that correct?

[00:12:47] Speaker 00:
And what would happen in 2028?

[00:12:50] Speaker 00:
For these individuals because now at that point they wouldn't have voted for the 2024 election Obviously nothing for the 2026 what what would happen to them in the 2028 right now it is We don't have the data to know yet exactly what would happen because their voter registration membership is right on the cusp of

[00:13:10] Speaker 03:
of being a party entitled to continued representation on the Arizona ballot.

[00:13:16] Speaker 03:
So this might be a situation that continues into perpetuity.

[00:13:21] Speaker 03:
And this is a big issue.

[00:13:23] Speaker 03:
The other state interest that was, did that answer your question before I go on?

[00:13:28] Speaker 00:
Sort of.

[00:13:29] Speaker 00:
So are you saying that, let's assume that the party continues.

[00:13:35] Speaker 00:
In 2028, what would happen to the voters?

[00:13:38] Speaker 00:
That's what I'm interested in.

[00:13:40] Speaker 00:
What's gonna happen to the voters?

[00:13:41] Speaker 00:
Are they gonna be receiving a ballot that's blank?

[00:13:43] Speaker 03:
Yes, they will continue receiving a ballot that is blank unless apparently the party, under the current regulation, unless the party changes its bylaws.

[00:13:54] Speaker 00:
Well, let me back up a little bit.

[00:13:56] Speaker 00:
Or are they not going to receive a ballot?

[00:13:58] Speaker 00:
Because as I understood your argument in your papers, Arizona has a law that indicates that if you fail to vote in two, I think, elections, that there's an issue with those individuals, that they would be taken off of certain roles.

[00:14:12] Speaker 00:
Is that incorrect?

[00:14:14] Speaker 03:
No, that is correct.

[00:14:15] Speaker 03:
You could lose your ability to be on the active early voter list if you don't vote in one of,

[00:14:23] Speaker 03:
in one election in those cycles.

[00:14:26] Speaker 00:
So would that happen to the people in 2028?

[00:14:28] Speaker 03:
Yes, it could.

[00:14:35] Speaker 03:
We do not have the data yet.

[00:14:36] Speaker 03:
Obviously, 2028 is in the future, but it absolutely could.

[00:14:39] Speaker 03:
And that is one of the many, many other issues that has been created here.

[00:14:46] Speaker 01:
Mr. Carlson, what about, so I understand Arizona has at least some partisan elections for judicial offices.

[00:14:55] Speaker 01:
What if there was a law and justice party that in its bylaws and

[00:15:04] Speaker 01:
required, just like the Alaska Independence Party did, that its members subscribe to a tenant that they want to separate politics from the law, and so they are only going to run people in these judicial races, and in order to be a member, you have to forswear running in any other race.

[00:15:26] Speaker 01:
That's their central

[00:15:28] Speaker 01:
expressive association.

[00:15:29] Speaker 01:
That's why they exist and it completely defeats that purpose to have people running in other offices.

[00:15:35] Speaker 01:
Can they not do that?

[00:15:36] Speaker 01:
Do they not have a right to do so in Arizona?

[00:15:38] Speaker 03:
Well, Arizona doesn't have partisan judicial races.

[00:15:42] Speaker 03:
We do have direct election of judges.

[00:15:46] Speaker 01:
I think maybe some JP offices here and there, but assume they do.

[00:15:50] Speaker 03:
Okay.

[00:15:51] Speaker 03:
That's what my next point was.

[00:15:52] Speaker 03:
I could answer that question.

[00:15:59] Speaker 03:
They could limit what the answer to that question is to participate in democracy and to defeat those candidates.

[00:16:09] Speaker 03:
That is the answer.

[00:16:12] Speaker 01:
On how does that work?

[00:16:15] Speaker 01:
So they appear on the primary ballot.

[00:16:17] Speaker 01:
You have a law and justice party member who appears on the primary ballot for a partisan election like governor or attorney general.

[00:16:29] Speaker 01:
And how do they defeat that person?

[00:16:32] Speaker 01:
Because if that person gets one vote and none of the other party members vote for that person, that person advances to the general election on the law and justice ticket, right?

[00:16:42] Speaker 03:
Well, you could run someone else.

[00:16:45] Speaker 03:
I mean, the answer is to run someone else.

[00:16:48] Speaker 01:
Running for an office that they are opposed to, just like here.

[00:16:51] Speaker 01:
I think that's the problem, right?

[00:16:54] Speaker 01:
You can't do that by defeat.

[00:16:57] Speaker 01:
You've still got a candidate for an office that your core expressive association is not to run in.

[00:17:03] Speaker 03:
Right, but the answer is to not become a political party, to have your association in another manner that the state does not regulate and does not have an interest in regulating, that the Supreme Court has repeatedly upheld.

[00:17:16] Speaker 03:
I'm down on time, so I want to reserve.

[00:17:21] Speaker 02:
Okay, do either of you have any other questions now?

[00:17:23] Speaker 02:
Okay, we'll put four minutes on the clock for rebuttal.

[00:17:25] Speaker 02:
Thank you.

[00:17:25] Speaker 02:
Thank you.

[00:17:33] Speaker 02:
Mr. Pappas, when you're ready.

[00:17:34] Speaker 02:
Thank you.

[00:17:56] Speaker 04:
Good morning, Your Honors, and may it please the Court.

[00:17:59] Speaker 04:
I'm Andrew Pappas on behalf of the No Labels Party of Arizona.

[00:18:04] Speaker 04:
So let me begin where Ms.

[00:18:06] Speaker 04:
Carlson left off with Judge Johnson's hypothetical about the Law and Justice Party.

[00:18:11] Speaker 04:
Our position, of course, is that party absolutely has an expressive right to decide the structure of the association that best enables it to pursue its political goals.

[00:18:21] Speaker 04:
Because that's what the Supreme Court said in you.

[00:18:23] Speaker 04:
That's what the Supreme Court said in Tashkian.

[00:18:26] Speaker 04:
That is the right that No Labels is trying to vindicate here.

[00:18:29] Speaker 01:
But so here's a twist from that hypothetical that I don't think applies to you.

[00:18:34] Speaker 01:
You gathered 50,000 signatures under of state approved form that you don't didn't challenge that promise these voters a primary and you didn't give them a primary and it wasn't only until after you organized.

[00:18:50] Speaker 01:
in August, several months after your recognition, that you decided to change your expressive beliefs.

[00:18:57] Speaker 01:
And I don't think you changed it in a way to say that in order to be a member, you have to subscribe to president and vice president in the way that the Alaska Independent Party did you?

[00:19:09] Speaker 01:
I mean, you don't have that litmus test that whether or not it's required or permitted by Arizona law or the Constitution, you don't have that here.

[00:19:18] Speaker 04:
So as an initial matter, Your Honor, I don't think that the Supreme Court's case law requires that sort of unique ideological test in order for a party to vindicate its associational rights.

[00:19:30] Speaker 04:
But in terms of the other questions, Your Honor asked, with regard to the new party petition form, no labels used a form that was prescribed by the Secretary.

[00:19:37] Speaker 04:
It did not promise anyone that it was going to participate.

[00:19:40] Speaker 04:
in a primary election used the form that parroted the statutory language.

[00:19:45] Speaker 01:
Why didn't you challenge it at that point?

[00:19:46] Speaker 01:
I guess the concern here is that there's a bait and switch of the voters, that the form which you didn't challenge, you gathered the signatures under that, and there's nothing in the record to tell us anything else about these 40,000, 50,000 voters in Arizona, except that they subscribed to this form that said there shall be a primary election.

[00:20:10] Speaker 04:
Well, it's true that there's nothing in the record, but I don't think the absence of that factual record could in any way doom the party's associational rights.

[00:20:19] Speaker 04:
Moreover, the Supreme Court has been clear in cases like you that a party does not consent to the violation of its constitutional rights.

[00:20:26] Speaker 04:
And that's what we're talking about here, is the vindication of the party's constitutional rights.

[00:20:31] Speaker 04:
Judge Mendoza asked the question about when it was that no labels made this organizational choice.

[00:20:40] Speaker 04:
And that's not in the record either, Your Honor.

[00:20:43] Speaker 04:
But what is in the record is that as early as June of 2023, more than seven weeks before the first statement of interest was filed by any purported no-labels candidate, the party informed the Secretary of State to confirm that it would only be seeking the offices of President and Vice President and would not be running

[00:21:05] Speaker 04:
candidates for any down ballot races.

[00:21:07] Speaker 00:
Council, here we're having to determine what the burden is on the party.

[00:21:12] Speaker 00:
One of the things, and I'm playing Anderson Burdick, we have to figure out what the burden is.

[00:21:16] Speaker 00:
One of the things I guess I'm wondering is whether or not the Alaska case doesn't actually answer this particular question in terms of the burden to the party, this associational rights burden that you've indicated.

[00:21:31] Speaker 00:
There, we said that we are skeptical that such a conflict imposes a severe burden on the party's associational rights.

[00:21:39] Speaker 00:
We said, instead of having its nominee selected or screened by party leadership, the party's nominee is selected democratically by registered party voters.

[00:21:48] Speaker 00:
The burden on the party's associational right is further lessened because the Supreme Court has long protected the party's First Amendment right to state whether a candidate adheres to the tenets of the party

[00:21:59] Speaker 00:
or where the officials believe that the candidate is qualified, et cetera, et cetera.

[00:22:05] Speaker 00:
So why isn't the burden lessened by the fact that you all can go out, put out a statement saying, hey, by the way, these candidates, they're not really part of our party.

[00:22:18] Speaker 00:
We're distancing ourselves from them.

[00:22:20] Speaker 00:
Why isn't that sufficient?

[00:22:23] Speaker 00:
in this burden analysis?

[00:22:25] Speaker 04:
Well, first, Your Honor, Alaskan Independence Party is distinct from this case in important ways.

[00:22:30] Speaker 04:
The first and most important way is that in that case, the parties already had decided to nominate candidates for office.

[00:22:36] Speaker 04:
Their bylaws authorized it.

[00:22:39] Speaker 04:
This case deals, and what they were trying to do was pre-screen the pool of candidates, as in the passage that Your Honor read, they're trying to pre-screen candidates

[00:22:49] Speaker 04:
to narrow the ultimate choice.

[00:22:52] Speaker 04:
That's not what we're talking about here.

[00:22:55] Speaker 00:
I guess I understand your point, but I guess what I'm saying is why isn't the burden that you're saying that you have in this situation lessened given the fact that you're still able to come out and say, hey, those folks, they're not part of the party?

[00:23:10] Speaker 00:
As the official party coming out making a statement,

[00:23:13] Speaker 00:
saying that?

[00:23:13] Speaker 04:
Well, I think, Your Honor, because it would necessarily divert No Labels Arizona from its message if the message on the one hand is our whole organizational purpose is to run a unity ticket for president and vice president.

[00:23:27] Speaker 04:
And then to say on the other hand, now we understand there are the other candidates out there who are trying to run for office with our party insignia and we have to distance ourselves from them.

[00:23:36] Speaker 04:
We have to devote resources.

[00:23:38] Speaker 04:
And I'll point out, Your Honor, that the Secretary stipulated- I guess I wonder why this

[00:23:42] Speaker 02:
isn't the kind of top-down decision-making that we said in AIP that can be prevented?

[00:23:52] Speaker 02:
I mean, why don't no-labels party members get a say in what offices the party fulfills?

[00:23:58] Speaker 02:
Why can that be in the hands of just three people when, you know, here at least we know we have five other people?

[00:24:04] Speaker 04:
Well, so I don't think that that sort of numerical comparison is

[00:24:09] Speaker 04:
Available here for the reason that those three people that that is Carlson is referred to as the committee Do speak for the the party through its bylaws through the party's own internal But they were never informed of that when you obtained the signatures were they your honor that I?

[00:24:25] Speaker 04:
There is nothing in the record on that point I can tell you that well is there something in the record saying that you informed them and

[00:24:31] Speaker 04:
There is nothing on the record one way or the other.

[00:24:34] Speaker 04:
This case was tried on stipulated facts in order to get it tried on an expedited basis.

[00:24:42] Speaker 04:
So there's nothing in the record on that point.

[00:24:44] Speaker 02:
But again- The first time the state was informed that no labels didn't wish to fill any other offices, it was after the party was formed.

[00:24:52] Speaker 04:
The first letter that's in the record is the June, I think it's June 2nd, 2023 letter that the party sent to the Secretary of State.

[00:25:00] Speaker 04:
They've suggested, or they've tried to insinuate that the committee doesn't speak for the party.

[00:25:05] Speaker 04:
But, Your Honor, the Secretary of State accepted the party chair's representation in a letter that the party was not going to participate in the presidential preference election.

[00:25:18] Speaker 04:
That was the mechanism by which the party informed the state that it was not going to participate in the PPE, but is instead going to choose candidates through a convention.

[00:25:27] Speaker 04:
So the idea that they'll accept the party chair's representations for some purposes, but not others, I think is entirely.

[00:25:33] Speaker 02:
Yeah, but I guess back to my question, which I think you were trying to answer is, I mean,

[00:25:39] Speaker 02:
It does seem a little bit akin to me to Alaska Independence Party in the sense that the party members here are being deprived of the opportunity to say, hey, here's how we want our party to look.

[00:25:53] Speaker 02:
It seems to me that under our precedent, Supreme Court precedent, that what the state can't do is govern your internal affairs.

[00:26:02] Speaker 02:
But we're talking about here about the voters' rights.

[00:26:06] Speaker 02:
So go ahead.

[00:26:08] Speaker 04:
A few responses.

[00:26:09] Speaker 04:
The first is that the party's core associational purpose in this instance was to put forward a unity ticket for president and vice president and not to run candidates for any other office.

[00:26:21] Speaker 04:
And so it interferes with the party's message.

[00:26:23] Speaker 04:
And it forces the party to allocate resources differently.

[00:26:26] Speaker 00:
Well, here's the thing.

[00:26:27] Speaker 00:
You mentioned that in an argument now twice, and you mentioned it in your papers.

[00:26:33] Speaker 00:
Where in the record have you indicated what that expense is, what those resources are?

[00:26:40] Speaker 00:
Have you quantified that in the record?

[00:26:42] Speaker 00:
Because I haven't found that.

[00:26:44] Speaker 04:
Your honor, it's not quantified in the record, but the Secretary of State stipulated, he did not contest that No Labels Arizona would have to stray from its objectives and allocate resources differently if it were forced to nominate candidates for offices that the party was not seeking.

[00:27:00] Speaker 04:
This is a 2ER 099, 0099.

[00:27:05] Speaker 04:
The Secretary stipulated to that.

[00:27:07] Speaker 01:
Mr. Pavis, could No Labels decide that it is only going to run employees of No Labels Incorporated in its elections and say that is the definition of our party, that is our core belief?

[00:27:26] Speaker 04:
I think that could be a harder case, Your Honor, and I could see some independent constraint.

[00:27:32] Speaker 04:
I think what we're talking about here goes straight to the party's message and mission.

[00:27:37] Speaker 01:
Well, they all do.

[00:27:38] Speaker 01:
I mean, I guess that's the problem with this case is that we don't have a case out there, let me know if we're missing it, that suggests that a party as such

[00:27:46] Speaker 01:
gets to pick and choose the offices for which it runs.

[00:27:51] Speaker 01:
So your rights there are derivative from a general expressive association right to define your party's platform and message.

[00:27:59] Speaker 01:
But we don't have any cases that tell.

[00:28:03] Speaker 01:
And there are some cases, although not in our court, with respect to some particularly controversial candidates that parties want to distance themselves from.

[00:28:10] Speaker 01:
But no case that gives the party leadership

[00:28:13] Speaker 01:
a veto over candidates, particularly where we have this recognized right of endorsement or disassociation.

[00:28:19] Speaker 04:
But what we're talking about in this case, Your Honor, is not a veto over particular candidates.

[00:28:24] Speaker 04:
What we're talking about is a party's institutional decision

[00:28:28] Speaker 04:
what offices to pursue in the first place.

[00:28:31] Speaker 01:
And that choice has to belong to the party.

[00:28:35] Speaker 01:
What case recognizes that that is a definition of a political party, that they get to pick and choose, that the leadership gets to pick and choose as opposed to the membership?

[00:28:44] Speaker 04:
Well, Your Honor, I think political parties get to define themselves under this court's case law and the Supreme Court's case law.

[00:28:49] Speaker 01:
So it will only run no-labels employees.

[00:28:52] Speaker 04:
And that doesn't mean that they aren't necessarily subject to other legal constraints and other circumstances.

[00:28:58] Speaker 04:
And all these cases obviously turn on their facts.

[00:29:00] Speaker 02:
But what are those?

[00:29:02] Speaker 02:
What are those limits going to be?

[00:29:03] Speaker 02:
I mean, could no-labels, you know,

[00:29:07] Speaker 02:
change its, but assume no labels wanted to run for three offices, but then didn't like the candidate who was running for the leadership, didn't like the candidate running for one of those offices.

[00:29:16] Speaker 02:
Could it change its bylaws at that point?

[00:29:19] Speaker 04:
I think that would be a harder case, Your Honor.

[00:29:21] Speaker 04:
I think what we're talking about here, though, is the upstream decision.

[00:29:24] Speaker 04:
But why would that be a harder case?

[00:29:26] Speaker 04:
Because I think that gets closer into the Alaskan independence territory, where the party is trying to pre-screen particular candidates and not choosing the offices it wants to run for.

[00:29:36] Speaker 04:
You know, Your Honor's law and justice hypothetical, I think, is illustrative.

[00:29:40] Speaker 04:
The mine safety example that we provided in the district court, and again here, I think, is also illustrative.

[00:29:45] Speaker 04:
Imagine, you know, in Arizona we elect a state mine inspector.

[00:29:49] Speaker 04:
A party wants to focus entirely on mine safety issues.

[00:29:52] Speaker 04:
I think it's easy to see why that party should be able to pursue a narrow fork focus.

[00:29:57] Speaker 01:
But that party didn't exist in Arizona until August and it was qualified in March.

[00:30:02] Speaker 01:
I think that's the basic, these are all hypotheticals that assume that these beliefs existed and were put into practice into bylaws prior to the qualification.

[00:30:11] Speaker 01:
You were qualified as a party for a primary and then only a few months later decided maybe you'd put up only a presidential candidate.

[00:30:20] Speaker 04:
Your Honor, first of all, there's nothing in the record that suggests that this was some sort of post hoc determination.

[00:30:28] Speaker 04:
It's true that the party got

[00:30:29] Speaker 04:
political party status in March.

[00:30:32] Speaker 04:
But the secretary did not stipulate, did not suggest, and in fact stipulate to the contrary, that no labels was established for the purpose of placing presidential... But why would the secretary think anything else?

[00:30:45] Speaker 01:
Because nowhere in the history of the reported cases here do we have a party, either in Arizona or elsewhere, attempting to get a ticket to ride for one trip only.

[00:30:56] Speaker 04:
Well, I don't think the court necessarily wants to inquire into the sincerity of a party's motives, but I think if the secretary wanted to test that factual— Not that it's sincere or not, it's whether it's your constitutional right.

[00:31:07] Speaker 04:
Well, I think if the secretary wanted to test that factual assertion, the secretary had the opportunity to do so.

[00:31:13] Speaker 04:
He chose not to.

[00:31:13] Speaker 04:
Instead, he chose to stipulate that it was our only current objective to pursue the presidency and vice presidency.

[00:31:19] Speaker 04:
that to accomplish this objective, No Labels wishes not to use its ballot line.

[00:31:24] Speaker 01:
But you don't dispute with the timing.

[00:31:26] Speaker 01:
You don't dispute the timeline that it was qualified in March and limited to presidential candidates in August.

[00:31:33] Speaker 04:
Well, that is not the timeline, Your Honor.

[00:31:36] Speaker 01:
What are we missing from the record?

[00:31:38] Speaker 04:
Well, so it is true that the party obtained political party recognition in March.

[00:31:43] Speaker 04:
The party first sent a letter to the secretary in June, sent another letter in August.

[00:31:49] Speaker 04:
It sent another letter after that in August.

[00:31:51] Speaker 04:
There has never been any... Now, it's true that there isn't a news article in the record.

[00:31:57] Speaker 04:
You know, if the court thinks that this case needs further factual development to establish that no labels throughout the entire period was seeking the

[00:32:05] Speaker 04:
the offices of president and vice president, then I suppose the court could remand for that.

[00:32:10] Speaker 01:
Well, it just goes to Judge Mendoza's question that I think is pretty important to me, too.

[00:32:14] Speaker 01:
It's like, how did the voters know that this is what they were getting into?

[00:32:18] Speaker 01:
And the record, all we have in the record is five, three, and then 50,000 saying, we're going to have a primary.

[00:32:23] Speaker 04:
Well, as Carlson pointed out, there's no requirement under Arizona law that the party communicate with its voters in any particular way.

[00:32:31] Speaker 04:
In fact, in you, again, the Supreme Court said

[00:32:35] Speaker 04:
The state doesn't get to dictate the way in which a political party communicates with its adherents.

[00:32:39] Speaker 00:
They were looking at setting limits on how long folks could be on committees within the party.

[00:32:45] Speaker 00:
California was getting really in.

[00:32:47] Speaker 00:
I think how you deal with AIP to me seems to be sort of the harder challenge for you.

[00:32:54] Speaker 00:
AIP doesn't necessarily answer everything, but why isn't that just instructive?

[00:33:00] Speaker 00:
And on this notion of not having political parties sort of top-down select the individuals and not have a democratic process to do so.

[00:33:11] Speaker 04:
Well, first, Your Honor, again, AIP is distinguishable in material ways.

[00:33:17] Speaker 04:
In that case, the parties had already decided to nominate candidates.

[00:33:21] Speaker 04:
The question was whether they could prescreen

[00:33:23] Speaker 04:
particular candidates.

[00:33:24] Speaker 04:
That is not the issue in this case.

[00:33:26] Speaker 04:
No labels Arizona agrees that if it wanted to nominate candidates for offices

[00:33:32] Speaker 04:
for which a direct primary is required, its candidates would absolutely be required to participate in that primary.

[00:33:38] Speaker 04:
This case involves the upstream decision whether to nominate candidates in the first place.

[00:33:43] Speaker 04:
And in AIP, the parties already had decided to nominate candidates.

[00:33:47] Speaker 04:
You can look at footnote one of that opinion, which points out that the bylaws in that case authorized the parties to seek

[00:33:53] Speaker 04:
offices for which they were eligible.

[00:33:56] Speaker 04:
This is different.

[00:33:56] Speaker 04:
And again, this case doesn't involve the same kinds of philosophical objections that AIP involved.

[00:34:02] Speaker 04:
This case is simply about the party's core associational right to determine the structure of the association that best allows it to pursue its political goals.

[00:34:11] Speaker 04:
Its only political goals as the party is stipulated were to pursue the presidency and vice presidency, and the party structured itself to pursue that.

[00:34:20] Speaker 04:
I think the seventh circus decision in Schultz is instructive here.

[00:34:24] Speaker 04:
Not perfectly on point, but instructive here.

[00:34:28] Speaker 04:
Because Ms.

[00:34:28] Speaker 04:
Carlson has suggested that by invoking the machinery of the state, I think is how she phrased it, the party got this binary choice.

[00:34:35] Speaker 04:
Either it could be forced to run candidates for all offices or none.

[00:34:42] Speaker 04:
That comes awfully close to what the Seventh Circuit was dealing with in Schultz.

[00:34:48] Speaker 04:
And the party doesn't face that binary choice.

[00:34:50] Speaker 04:
Judge Johnstone, I think, asked Ms.

[00:34:52] Speaker 04:
Carlson the question, which of the cases says that running an independent candidate is an adequate alternative?

[00:34:59] Speaker 04:
In fact, the case law says precisely the opposite.

[00:35:02] Speaker 04:
Washington State Grange says the opposite.

[00:35:05] Speaker 04:
Jones says the opposite.

[00:35:06] Speaker 04:
It is not an alternative for the party to simply run an independent candidate

[00:35:11] Speaker 04:
who by words on a ballot affiliates himself or herself with the party.

[00:35:17] Speaker 01:
One potential key difference with Scholes, and there might be factual distinctions too, is that that party, once it challenged the state law upfront, it said, we are a party that wants to run people for a few offices, and we are going to challenge the Illinois law before the qualification process.

[00:35:41] Speaker 01:
So that there be none of this concern about bait and switch with respect to

[00:35:46] Speaker 01:
getting qualified first and then saying, oh, well, we're in for this party thing in Arizona.

[00:35:52] Speaker 01:
Sign us up.

[00:35:53] Speaker 01:
And then a couple months later, say, but we want to change the rules.

[00:35:58] Speaker 01:
Doesn't that make a difference?

[00:36:00] Speaker 01:
This case would be at least a little less hard had you challenged it before you asked all these Arizonans to support you in the primary.

[00:36:08] Speaker 04:
I don't think so, Your Honor.

[00:36:10] Speaker 04:
I don't, again, under you, the case law is clear that a party does not

[00:36:14] Speaker 04:
does not consent to the violation of its constitutional rights and its constitutional rights that the party is trying to vindicate in this case.

[00:36:21] Speaker 04:
The party followed state procedure to obtain ballot access.

[00:36:25] Speaker 04:
It didn't make a promise to any voter in that process that it was going to be running candidates for all offices, state, federal, and so on.

[00:36:32] Speaker 04:
And again, what we're talking about here is the party's associational right

[00:36:37] Speaker 04:
to make the institutional decision, what its political goals are, and how best to pursue them.

[00:36:43] Speaker 04:
And the state simply doesn't get to micromanage that process.

[00:36:47] Speaker 04:
You know, there are other hypothetical situations.

[00:36:49] Speaker 04:
I mean, unfortunately, insurance issues have become top of mind for a lot of Californians, and the state elects an insurance commissioner.

[00:36:57] Speaker 04:
If you wanted to have an insurance-only party in this state that focused just on electing a really good insurance commissioner,

[00:37:05] Speaker 04:
That should not be any of the state's concern.

[00:37:08] Speaker 04:
A party should be able to structure itself in that way.

[00:37:10] Speaker 04:
And what the Secretary is suggesting is that new parties that are particularly vulnerable, especially in their infancy,

[00:37:17] Speaker 04:
have to be forced to run candidates all up and down the ballot if they want to have ballot access at all.

[00:37:23] Speaker 01:
Why isn't it enough?

[00:37:24] Speaker 01:
You say that independent status isn't enough.

[00:37:26] Speaker 01:
Why is the Alaska Independence Party solution that I believe we endorsed not enough to say, nope, this is not a presidential candidate, we're not behind this person?

[00:37:38] Speaker 04:
Well, again, that requires the allocation of resources and it requires the party to divert itself from its message and mission.

[00:37:46] Speaker 01:
I don't think these cases speak so much in terms of the allocation of resources as just basically the association or disassociation.

[00:37:54] Speaker 04:
So Schultz does specifically talk about the allocation of resources, and uses that as a reason why there is such a heavy burden on the party.

[00:38:01] Speaker 00:
Well, but in Schultz, I mean, they required people to have a candidate for each and every one of the positions.

[00:38:06] Speaker 00:
They were requiring parties.

[00:38:08] Speaker 00:
Here, it's sort of the opposite, right?

[00:38:10] Speaker 00:
You're saying we don't want any of that.

[00:38:12] Speaker 04:
Well, what we're saying in this case, Your Honor, is that

[00:38:15] Speaker 04:
Like the party in Schultz, this party should not be forced to nominate candidates for offices.

[00:38:20] Speaker 02:
But this is not being foisted upon the party by the state.

[00:38:23] Speaker 02:
It's the party voters who want to run for these offices.

[00:38:28] Speaker 04:
There were five candidates who filed statements of interest seeking those offices.

[00:38:33] Speaker 04:
They do not get to decide.

[00:38:35] Speaker 04:
Individual party members don't get to decide for the party any more than the secretary does.

[00:38:39] Speaker 04:
I'm saying one individual party member or five individual party members.

[00:38:43] Speaker 04:
The party has ordained

[00:38:45] Speaker 04:
through its constitution and bylaws what its own decision-making process is.

[00:38:49] Speaker 04:
And the state doesn't get to interfere with that under you.

[00:38:53] Speaker 04:
Again, this goes straight to the core associational purpose of the party that it has decided to achieve through a particular structure.

[00:39:04] Speaker 04:
The structure is unique.

[00:39:05] Speaker 04:
I agree.

[00:39:06] Speaker 04:
But the party has the constitutional right to make that decision for itself.

[00:39:13] Speaker 02:
OK.

[00:39:13] Speaker 02:
Do either of you have any other questions?

[00:39:15] Speaker 02:
OK.

[00:39:16] Speaker 02:
Thank you very much for your argument.

[00:39:17] Speaker 02:
Thank you.

[00:39:29] Speaker 03:
Thank you.

[00:39:31] Speaker 03:
I want to start out with a quote from AIP from page 1178.

[00:39:35] Speaker 03:
I'm sorry, the Alaskan Independence Party.

[00:39:37] Speaker 03:
I think I heard one of the judges refer to it as AIP as well.

[00:39:40] Speaker 03:
Quote, the state's interest in enhancing the democratic character of the election process overrides whatever interest the party has in designing its own rules for nominating candidates.

[00:39:53] Speaker 03:
The party may constitutionally be compelled to participate in a primary.

[00:39:59] Speaker 03:
That is what Arizona

[00:40:01] Speaker 03:
is requires of all political parties.

[00:40:06] Speaker 03:
The key difference, for example, between Schultz and Arizona law is that in in requiring a full slate of candidates, Illinois,

[00:40:17] Speaker 03:
required, you know, you had every single candidate for every single office had to go through every single process to qualify for the ballot, which included collecting signatures.

[00:40:30] Speaker 03:
It included getting people's name out there.

[00:40:32] Speaker 03:
So it included, like it required the party to not only recruit and field and raise money for every single office if it wanted to have any candidate at all.

[00:40:44] Speaker 03:
That is not anything like what Arizona is doing here.

[00:40:50] Speaker 03:
It is just not applicable.

[00:40:53] Speaker 03:
The other thing I heard my friend argue a lot about was that

[00:40:56] Speaker 03:
the party would have to divert its message.

[00:40:59] Speaker 03:
That is what happens with political parties in the democratic process when you have different people running for different offices.

[00:41:07] Speaker 03:
For example, the Green Party in Arizona this year had someone who was absolutely opposed to what the Green Party stood for.

[00:41:16] Speaker 03:
They ran, they got on the ticket, and the Green Party came together as a party and ran a write-in.

[00:41:21] Speaker 03:
to defeat that person on the ballot.

[00:41:24] Speaker 03:
That is the democratic process.

[00:41:26] Speaker 03:
When you choose to become a political party, you bring on, you assume those burdens.

[00:41:33] Speaker 03:
They assume whatever burden they have here, knowingly and voluntarily.

[00:41:38] Speaker 03:
There were ways for them to exercise their associational rights differently, and they did not avail themselves of that.

[00:41:48] Speaker 03:
And it should not now be on the state

[00:41:51] Speaker 03:
to have to figure out how we jive this with equal treatment of other candidates and other parties.

[00:41:59] Speaker 03:
Because what if other parties decide for whatever reason they don't want to run different races?

[00:42:06] Speaker 03:
They don't want to run certain candidates.

[00:42:08] Speaker 03:
We have to look at the rights of voters.

[00:42:10] Speaker 03:
We have to look at the expense and the effort that the state has to go through mandated by state statute.

[00:42:16] Speaker 03:
No statute has been struck down here as unconstitutional and this court as recently as 2019 in Arizona Libertarian Party upheld in fact Arizona's ballot access scheme for candidates and has upheld previously our ballot access scheme for political parties and independent candidates.

[00:42:36] Speaker 03:
So when you have all these alternatives both under Anderson Burdick and under the winter factors Arizona's interests

[00:42:45] Speaker 03:
override and that is from this court and the United States Supreme Court, not from me.

[00:42:52] Speaker 02:
Thank you.

[00:42:53] Speaker 02:
Thank you.

[00:42:54] Speaker 02:
We thank both counsel this morning for their very helpful arguments in this difficult case.

[00:42:58] Speaker 02:
We are in recess until tomorrow morning and this case is submitted.

[00:43:02] Speaker 02:
Thank you.