9th Circuit Rules Against Libertarians; Montgomery Gets Better Arizona Supreme Court Chance

Published: Monday, June 3, 2019 - 11:38am
Updated: Monday, June 3, 2019 - 12:30pm
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STEVE GOLDSTEIN: We begin today's Show with a ruling by the 9th U.S. Circuit Court of Appeals that still leaves Arizona Libertarians with an uphill battle to get their candidates on the state's primary ballots. The 2015 state law raised signature requirements, making it harder for Libertarians to have their voices heard and potentially affect election outcomes. With us to talk about that and more is Howie Fischer of Capital Media Services. Howie, Good morning.

HOWIE FISCHER: Good morning, and I'm not at Buckingham Palace.

GOLDSTEIN: Are you a Libertarian, though, is the question, and do Libertarians feel like they have not been treated fairly based on either the state law or this ruling by the Ninth Circuit?

FISCHER: Oh, definitely. And you have to understand that the Republicans made no secret of what they were trying to do when they passed this law. You had J.D. Mesnard who was then the speaker of the House and even before saying, look, we would have won the new CD 9 if we didn't have a Libertarian in the race, that Vernon Parker would have won and not Kyrsten Sinema. They also said that Ann Kirkpatrick would have been beaten down in CD 2 if in fact you didn't have a Libertarian in that race. So what they've done is made it harder for Libertarians to get on the ballot in the first place. And it was successful. I mean, this is the first time I think in decades we didn't have a Libertarian on the ballot running for governor.

GOLDSTEIN: So Howie, does it not matter — you're going to talk about letter of the law vs. spirit of the law, clearly when the Ninth Circuit looks at this, they're looking at the letter — knowing what we know, then, knowing that Mesnard and others didn't want Libertarians on the ballot — does that matter in any way will it affect how laws are written in the future?

FISCHER: Well, here's the deal. Motive matters on certain things. For example the Ninth Circuit has struck down certain laws where they've said this was done for racial overtones. It was done to keep Hispanics from voting, to keep blacks from voting or certain other groups. Politics is fair game. And essentially what the Ninth Circuit did is they ignored that and said, look, as a matter of law, the law is fair. It says that every party has to get 1% of the people who are registered either in their party or as independents. Now if you're a Republican or Democrat, that's real easy. If you're a Libertarian, the number of signatures required can be close to 30% of your members. And theoretically, again, Libertarians can go out and get independents, but Libertarians don't let independents actually vote in the primary, and they're not too anxious to have independents decide who should be their nominees. So that's why they went to court.

LAUREN GILGER: Another couple of questions for you on another story this morning, Howie. Maricopa County Attorney Bill Montgomery is once again looking for a seat on the Arizona Supreme Court, and it looks like his odds might be a little better this time around. Tell us about what's going on here.

FISCHER: Well last time out, well let's back up a step. The commission on appellate court appointments screens nominees pursuant to the Constitution. This isn't like the president being able to name anyone he wants. The governor has to name from the Commission, and the commission has to put up a certain number of people. Can't be all from one party. Last time, they sent up several names — Bill Montgomery was not among them. He got five "yes" votes and seven "nay" votes. There were a lot of people. There was one who was unanimous pick. There were two a couple more who were like one vote against and two votes against. But here's what's changed: That 5-7 vote, of the people who voted against him, three of them are now gone been replaced by other people. Which suggests that perhaps a different panel might reach a different conclusion. You also have the fact that if he gets to the governor, we know that Clint Bolick, who is one of the governor's picks to Supreme Court, has lobbied the governor to pick Bill Montgomery originally for the U.S. Senate. So we know that he's got some backing of existing court nominees. What does the governor think? You know, the governor's keeping his own counsel and saying, look, let me see the names that are sent. But I'd say that his chance of getting nominated this time are a hell of a lot better than they were last time.

GOLDSTEIN: Howie, finally, the timing is interesting because when the finalists came up last time — and as you mentioned Montgomery wasn't on them — there was also a time where the governor was criticizing how the county attorney's office had handled a particular case involving an officer. This time the governor is mum. Do you read anything else into that?

FISCHER: Well I think that the governor is probably generally allied with Bill Montgomery on most issues — the law and order issues, the issues that Bill Montgomery's fought in terms of legalization of marijuana, things like that. It's hard to know. You have to see who else is on the list. You know, the presumption is that he'll name a Republican. He did name one independent, who was Clint Bolick, but Clint was an independent sort of a name only. So we'll have to see the other Republicans that are on list assuming Bill Montgomery makes the list. Now again, remember, the commission has to send up more than one party, so let's say they have three Republicans on the list. They need two Democrats or a Democrat and independent. If there aren't enough Democrats and independents they nominate — they only send up one Democrat and one independent — they can only send up two Republicans. So that also changes the calculus on this thing in terms of how many people they can send up.

GILGER: All right. That is Howie Fisher with Capital Media Services. Howie, thanks as always.

FISCHER: You're welcome.

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