By Jon Sherman | March 8, 2021
Independent voters in Arizona could be facing a substantial and unjustified change in the way they vote. Sen. Michelle Ugenti-Rita’s bill to purge the permanent early voting list, or PEVL, will have a negative impact on voters who choose to remain unaffiliated with any political party. The proposal has already been defeated once in the Senate (SB 1069) but has been revived in a strike-all amendment to SB1485, which is now headed to the Senate floor.
The bill calls for removing registered Arizona voters from the PEVL—which a majority of Arizona voters use—if they do not vote in both the partisan primary election and the general election in two successive elections for which there was a federal, statewide, or legislative race on the ballot. On its face, this proposal is bad policy: why should a registered voter be kicked off this early voter list simply for missing a single special election to fill a vacant state representative’s seat? Such a law would force voters to keep tabs on and vote in every single race above the municipal level in order to continue receiving mail-in ballots as they have for years. That makes no sense, and Arizona would be alone among the fifty states in enacting such a law.
But if this bill is going to move forward, there is a more basic, constitutional problem with it: specifically, it violates independent voters’ First Amendment rights. That may sound like an exaggeration, but bear with me. The First Amendment gives us the right to express ourselves politically and to associate—or not associate—with a group or political party. Independent voters choose not to affiliate themselves with any political party. Under Arizona’s open primary system, they may elect to vote in a party’s primary, but they have never been required to do so.
Forcing an independent voter to vote in a partisan primary election is forcing them to affiliate with one of the two parties, to participate in the nomination of that party’s candidate for U.S. Senator or Governor. These voters will not automatically receive a PEVL ballot in the mail prompting them to vote in the partisan primary elections, but they are still required to request a ballot and vote in those contests if they want to stay on PEVL. This purge bill will force registered voters who are unaffiliated with any political party to choose between maintaining their independent status and staying on the PEVL.
That is unconstitutional. Some independent voters may well want to affiliate with a political party to vote in a primary election, but it would clearly violate the First Amendment to compel them to do so. Numerous U.S. Supreme Court cases have forbidden the government from compelling our speech or association. In 2000, the Supreme Court struck down California’s requirement that parties allow unaffiliated voters to participate in their primaries. Writing for the majority, Justice Scalia noted that “a corollary of the right to associate is the right not to associate.” As recently as 2018, the Supreme Court has reaffirmed in an opinion written by Justice Alito that “[f]reedom of association . . . plainly presupposes a freedom not to associate.” Forcing an independent voter to associate and ultimately register with a political party violates that person’s right to free political expression.
Independent voters are no small segment of the electorate. In Arizona, 1,355,665 registered voters have declared their independence from the Democratic, Republican, and Libertarian parties. That is nearly one third of all registered voters in the state. Many independent voters want to vote in general elections only, as is their constitutional right. To put it more directly, should this bill pass without dropping the requirement to vote in partisan primary elections, independent Arizona voters will be well within their rights to sue to block that blatantly unconstitutional feature.
Jon Sherman is senior counsel for the Fair Elections Center in Washington D.C.
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