Date: Thu, 16 Aug 2001 21:36:31 -0700
From: mikeh@cybertrails.com ("The Haggard")
Subject: [lpaz-discuss] The Ruling from the PDF file
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Cc: sharps@centerlynx.com ("Andreasen")
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IN THE COURT OF APPEALS

STATE OF ARIZONA

DIVISION ONE

THE ARIZONA LIBERTARIAN PARTY;

ELIZABETH A. BRANDENBURG-ANDREASEN;

ERNEST HANCOCK; THE ARIZONA DEMOCRATIC

PARTY; and THE ARIZONA REPUBLICAN

PARTY,

Plaintiffs-Appellees,

Cross Appellants,

v.

PETER SCHMERAL; KATHERINE GALLANT; and

THE ARIZONA LIBERTARIAN PARTY, INC.,

Defendants-Appellants,

Cross Appellees.

)

1 CA-CV 00-0335

DEPARTMENT C

O P I N I O N

Filed 8-16-01

Appeal from the Superior Court in Maricopa County

Cause No. CV 1999-03904

The Honorable Robert D. Myers, Judge

AFFIRMED IN PART; REVERSED IN PART

BROWN & BAIN, P.A. Phoenix

by John A. Buttrick

Attorneys for Plaintiffs-Appellees,

Cross Appellants Arizona Libertarian Party

and Brandenburg-Andreasen

KIMERER & LAVELLE, P.L.C. Phoenix

by Thomas V. Rawles

Attorneys for Plaintiff-Appellee,

Cross Appellant Hancock

GOODWIN RAUP, P.C. Phoenix

by Marty Harper

Attorneys for Plaintiff-Appellee,

Cross Appellant Arizona Democratic Party

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MARTINEZ & CURTIS Phoenix

by Joseph F. Abate

and

HALLMAN & AFFILIATES Tempe

by Hugh L. Hallman

Attorneys for Plaintiff-Appellee,

Cross Appellant Arizona Republican Party

David T. Hardy Tucson

Attorney for Defendants-Appellants,

Cross Appellees

B E R C H, Judge

 In this opinion, we address a challenge by the Arizona

Libertarian Party and two of its leaders, the Arizona Democratic

Party, and the Arizona Republican Party to the constitutionality of

statutes governing the selection of some internal party leaders.

See Ariz. Rev. Stat. ("A.R.S.")  16-824 to -828 (1996). We

affirm the trial courts ruling that these statutes are

constitutional, but reverse that portion of the judgment holding

that the Libertarian Party did not need to comply with the

statutory process.

BACKGROUND

 By virtue of votes cast for its candidates in the 1994

election, the Arizona Libertarian Party attained continuing ballot

access status. This status entitled the party to receive voluntary

contributions from Arizona taxpayers and a free copy of voter

registration data, but imposed upon the party the obligation to

select party representatives pursuant to a statutory scheme. See

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A.R.S.  16-807 (1996) (contributions), 16-168 (Supp. 2000) (voter

data), 16-821 to -828 (1996) (selection of representatives).

 One branch of the party, represented here by Appellants,

although chafing at the statutory requirements, followed the

statutory scheme in electing its party representatives. Another

faction, believing the statutes to be unconstitutional, simply

disregarded them and selected its leadership at its annual

convention, as it had done in the past. This group is represented

by Appellees.

 As a result of these intra-party elections, the

Libertarian Party had two putative chairs of state committees and

two chairs of Maricopa County Committees. Both sets of party

representatives sought copies of the voter registration and voter

history data from the Maricopa County Recorder, who filed this

declaratory judgment action to determine which was entitled to

receive the information.

 The trial court held that Appellees were the

representatives entitled to receive the registry on behalf of the

party, a result that Appellants contest. The trial court based its

ruling on alleged procedural irregularities in the vote at

Appellants state convention. It also affirmed the

constitutionality of the statutory scheme for selecting party

leadership. Because we concur that the challenged statutes do not

impermissibly burden the First Amendment rights of free speech and

1 The trial court allowed the parties to file a realigned

complaint naming Michael Voth, Ernest Hancock, the ALP, the Arizona

Democratic Party, and the Arizona Republican Party as Plaintiffs,

and the Maricopa County Recorder, Peter Schmeral, Katherine

Gallant, and the Arizona Libertarian Party, Inc., as Defendants.

Elizabeth A. Brandenburg-Andreasen was later substituted for

Michael Voth. The County Recorder deposited the voter data with

the court and was dismissed from the action.

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association and must be followed by those claiming rights as

parties with continuing status, we affirm but modify the ruling of

the trial court on these points. We address Appellants challenges

to the trial courts rulings regarding the votes at the state

convention in a separate memorandum decision. See Fenn v. Fenn,

174 Ariz. 84, 85, 847 P.2d 129, 130 (App. 1993); ARCAP 28(g).

ANALYSIS

A. Are the Challenged Statutes Mandatory or

Permissive?

6 Appellees, joined by the intervenor Democratic and

Republican Parties,1 challenge the constitutionality of A.R.S. 

16-824 to -828, the statutes that set forth the system for

selecting party representatives, as unduly burdening the freedoms

of speech and association guaranteed by the First Amendment to the

United States Constitution. They note, however, that these

statutes may not impermissibly infringe these rights if the court

construes the statutes as permissive rather than mandatory. We

therefore first address whether the statutes Appellees challenge

are mandatory, for if the statutes are merely permissive and may be

ignored, we may avoid the constitutional issue. Aitken v. Indus.

2 The other challenged statutes are similarly couched in

mandatory terms. Section 16-825.01 describes when vacancies in the

state committee "shall" exist and how such vacancies "shall" be

filled. Section 16-826(A) requires that the state committee

"shall" meet in the state capitol during a certain time and must

organize by electing "a chairman, a secretary, and a treasurer."

The statute also charges that notice "shall" be given of the time

and place of the meeting. Section 16-827 specifies that the state

executive committee "shall" consist of specified persons and

requires that the chairman of the state committee "shall" serve as

the ex officio chairman of the executive committee. The

legislature knows how to use non-mandatory language when it wishes

to do so. Another provision of section 16-827 provides that state

committee bylaws "may" provide for additional voting members or ex

fficio members of the executive committee, and section 16-828

provides that a political party "may" allow the use of proxies at

its meetings. Using "shall" language, the statute then sets

minimum regulations for proxies.

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Commn, 183 Ariz. 387, 389, 904 P.2d 456, 458 (1995) (admonishing

courts to avoid deciding cases on constitutional grounds if

possible to do so).

7 Two of the challenged statutes set forth, in seemingly

mandatory terms, the statutory system for selecting chairs of the

state and county committees. A.R.S.  16-824(A) (county), 16-825

(state). Section 16-824 requires that the county committee "shall"

meet, directs generally when it must do so and that notice of the

time and place of such meeting "shall" be given, and requires that

the chair of the county committee "shall" be an ex officio member

of the state committee. Section 16-825 directs the composition of

the state committee. Id. ("The state committee of each party shall

consist" of required members.) (emphasis added).2
8 The pyramid-shaped system for selecting party

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representatives is founded, however, on section 16-821, which

Appellees have not challenged. That statute requires that members

of political parties "shall" choose county precinct committeemen

and "shall" choose one additional precinct committeeman for each

125 voters registered in the party in the precinct. Although

Appellees challenge only A.R.S.  16-824 to -828 and not 16-821,

the later-numbered sections apply only after the party has elected

precinct committeemen as set forth in section 16-821, and Appellees

base two arguments on the language of section 16-821.

9 First, Appellees note that party members cannot be forced

to vote for precinct committeemen. Thus they argue that section

16-821 is not mandatory, despite its seemingly mandatory terms. In

addition, they reason, paragraph B of section 16-821 provides a

means for appointing precinct committeemen to fill vacant

positions, which may occur, among other ways, if a precinct

committeeman position is not filled in a primary election.

According to Appellees, this statute provides two examples of

instances in which "shall" cannot be deemed to be mandatory and

instead must be interpreted as permissive. Thus, argue Appellees,

the provisions in A.R.S.  16-824 to -828 also should be

interpreted as being permissive.

0 We find this analysis strained. In interpreting

statutes, we strive to give words their ordinary, common-sense

meaning. Ordinarily, the use of the word "shall" indicates a

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mandatory directive from the legislature. Ins. Co. of N. Am. v.

Santa Cruz Superior Court, 166 Ariz. 82, 85, 800 P.2d 585, 588

(1990); Matter of Guardianship of Cruz, 154 Ariz. 184, 185, 741

P.2d 317, 318 (App. 1987). We acknowledge that "shall" may be

interpreted as indicating desirability, preference, or permission,

rather than mandatory direction, e.g., Mountain States Tel. & Tel.

Co. v. Ariz. Corp. Commn, 160 Ariz. 350, 360, 773 P.2d 455, 465

(1989); Hampton v. Glendale Union High School Dist., 172 Ariz. 431,

434, 837 P.2d 1166, 1169 (App. 1992), if the context and purpose of

the legislation indicate that the term should be so construed. See

Ariz. Downs v. Ariz. Horsemens Found., 130 Ariz. 550, 554, 637

P.2d 1053, 1057 (1981); State v. Sanchez, 119 Ariz. 64, 68, 579

P.2d 568, 572 (App. 1978). But we are not persuaded that the

context requires such a construction here.

1 A common-sense and contextualized reading of the statutes

before us imposes upon a political party entited to continued

representation the obligation to select its representatives in a

certain manner. That party members cannot be forced to vote does

not negate the partys obligation to attempt to fill positions

through statutorily prescribed means.

2 The challenged statutes serve an important public

purpose. By setting forth the procedures for selecting party

leaders, the statutes provide the means by which government

officials can determine the identity of the legal representatives

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of political parties so that the government officials may perform

their statutory duties. See A.R.S.  16-168(C). To deliver

precinct registers to "each county or state chairman who is

eligible to receive copies of precinct registers," the county

recorders must be able to ascertain who those representatives are.

Id. The legislature facilitated this determination by providing a

statutory method for choosing these party leaders. We conclude

that the legislature intended that the parties follow these

statutes and that the use of the word "shall" in the statutes at

issue indicates that adherence to those statutes be mandatory, not

permissive. Michael J., Jr. v. Michael J., Sr., 198 Ariz. 154,

157-58, 7 P.3d 960, 963-64 (App. 2000) (court construes statutes to

give effect to legislative intent). Appellees suggest that other

methods exist by which parties could identify their

representatives. While that may be true, we leave the choice to

the legislature, as long as the method selected comports with the

constitution, an issue we resolve in the following section.

B. Constitutionality of A.R.S.  16-824 to -828

3 Appellees argue on cross-appeal that, if determined to

mandatorily apply, A.R.S.  16-824 to -828 are unconstitutional.

Legislative enactments, however, are presumed to be constitutional.

Kotterman v. Killian, 193 Ariz. 273, 284,  31, 972 P.2d 606, 617,

cert. denied, 528 U.S. 921, and cert. denied sub nom. Rhodes v.

Killian, 528 U.S. 810 (1999). The burden of demonstrating

3 Statutes that do not regulate the content of speech, but

rather place only an incidental burden on First Amendment rights do

not run afoul of the First Amendment if they further "an important

or substantial governmental interest; if the governmental interest

is unrelated to the suppression of free expression; and if the

incidental restriction on alleged First Amendment freedoms is no

greater than is essential to the furtherance of that interest."

Martin v. Reinstein, 195 Ariz. 293, 320-21,  98, 987 P.2d 779,

806-07 (App. 1999) (citing United States v. Albertini, 472 U.S.

675, 687-88, 105 S. Ct. 2897, 2906 (1985), which quotes United

States v. OBrien, 391 U.S. 367, 377, 88 S. Ct. 1673, 1679 (1968)).

4 The parties briefs mentioned the phrase "free speech" in

passing, but did not develop the argument that the statutes at

issue violate protections against interference with their right to

freely express their political message. We therefore do not

address the argument. State v. $5,500.00 in United States

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unconstitutionality rests on the party challenging a statute, and

we resolve any doubts in favor of constitutionality. Id.

Moreover, we have a duty to construe statutes to give them a

"reasonable and constitutional meaning." Ariz. Downs, 130 Ariz. at

554, 637 P.2d at 1057 (citing Stewart v. Robertson, 45 Ariz. 143,

40 P.2d 979 (1935)).3

4 As noted above, once a political party in Arizona becomes

entitled to continued representation, see A.R.S.  16-804(B) (Supp.

2000), the challenged statutes require that the party be organized

and select its leadership in a particular way. A.R.S.  16-824 to

-828; see also A.R.S.  16-821 to -823 (organizational statutes

not challenged). Appellees contend that this state-designated

organizational structure unconstitutionally burdens the freedoms of

speech and association guaranteed by the First Amendment to the

United States Constitution.4

Currency, 169 Ariz. 156, 158 n.7, 817 P.2d 960, 962 n. (App.

1991).

The attorney general has been notified of Appellees

claim that the challenged statutes are unconstitutional, see

A.R.S.  12-1841 (Supp. 2000), but has not appeared in these

proceedings to defend the statutes.

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5 The statutory scheme in question starts with A.R.S.  16-

821, which requires the election of precinct committeemen.

However, Appellees have not challenged this statute or the

following two. Nevertheless, they maintain that because section

16-821 forms the foundation for the statutes tat follow, it

renders constitutionally infirm the statutes they have challenged.

As they note, one must be selected pursuant to section 16-821 as a

precinct committeeman to be entitled to vote at county and state

committee meetings and to serve as a county committee officer, a

state committeeman, or a state officer. This, Appellees argue,

unconstitutionally restricts the pool of potential internal party

officers, limits those who can vote in the internal elections for

party officers, and interferes with the party members ability to

associate freely.

6 The First Amendment does protect the freedom to join with

others to further common political beliefs. California Democratic

Party v. Jones, 530 U.S. 567, 574, 120 S. Ct. 2402, 2408 (2000).

This freedom of association applies to partisan political

organizations and, as a result, the "government, structure, and

activities [of political parties] enjoy constitutional protection."

-11-

Timmons v. Twin Cities Area New Party, 520 U.S. 351, 358, 117 S.

Ct. 1364, 1369 (1997); Tashjian v. Republican Party of Connecticut,

479 U.S. 208, 214, 107 S. Ct. 544, 548 (1986). This freedom

encompasses the right to decide who represents the party and, to

some extent, the process for electing those persons. Eu v. San

Francisco County Democratic Central Comm., 489 U.S. 214, 229-30,

109 S. Ct. 1013, 1023-24 (1989) (holding that a state may not

dictate the internal affairs of a political party). The First

Amendments freedom to associate applies to sate governments as

well as to the federal government. Democratic Party of United

States v. Wisconsin ex rel. LaFollette, 450 U.S. 107, 121, 101 S.

Ct. 1010, 1019 (1981). Indeed, freedom to associate to advance

"beliefs and ideas is an inseparable aspect of the liberty

assured by the Due Process Clause of the Fourteenth Amendment."

NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 460, 78 S. Ct.

1163, 1171 (1958).

7 Despite these protections, however, the United States

Supreme Court has recognized that a state "indisputably has a

compelling interest in preserving the integrity of its election

process." Eu, 489 U.S. at 231, 109 S. Ct. at 1024. "[I]t is also

clear that States may, and inevitably must, enact reasonable

regulations of parties, elections, and ballots to reduce electionand

campaign-related disorder." Timmons, 520 U.S. at 358, 117 S.

Ct. at 1369; see also Bush v. Gore, 531 U.S. 98, 104, 121 S. Ct.

5 The concurring opinion of Chief Justice Rehnquist, with

which Justices Scalia and Thomas join, recites the article II basis

of the "broad power" of state legislatures to determine the manner

of selecting presidential electors. Bush, 531 U.S. at 113, 121 S.

Ct. at 534 (citing U.S. Const. art. II,  1, cl. 2; McPherson v.

Blacker, 146 U.S. 1, 13 S. Ct. 3 (1892)). Although Bush v. Gore

discusses the states authority to direct the method for selecting

presidential electors, the state legislatures authority in state

election processes is equally obvious.

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525, 529 (2000) (noting that "the State legislatures power to

select the manner for appointing electors is plenary").5 This

regulatory authority arises from the broad power granted to the

states to prescribe the time, place, and manner of holding

elections for federal offices and from state authority over the

election process for state offices. Tashjian, 479 U.S. at 217, 107

S. Ct. at 550. Thus, "[n]either the right to associate nor the

right to participate in political activities is absolute." United

States Civil Service Commn v. Natl Assn of Letter Carriers, 413

U.S. 548, 567, 93 S. Ct. 2880, 2891 (1973).

8 A court called upon to decide whether a state election

law violates First Amendment associational rights must weigh the

"character and magnitude"  that is, the quality and extent  of

the burden the law imposes on those rights against the interests

that arguably justify the burden. Timmons, 520 U.S. at 358, 117 S.

Ct. at 1370. If the statutes severely burden protected rights, we

will uphold them only if they are narrowly tailored and advance a

compelling state interest. Id. Lesser burdens are subject to less

exacting review and will survive challenge if they further a

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states "important regulatory interests." Id. We must therefore

determine the nature and scope of the burden on Appellees rights,

then apply the appropriate test. We examine the burden in light of

Supreme Court decisions analyzing similar facts and statutorily

imposed burdens.

9 In Marchioro v. Chaey, 442 U.S. 191, 99 S. Ct. 2243

(1979), the Supreme Court considered a Washington statute that

required each major political party to have a state committee

consisting of two persons from each county in the state. Like its

Arizona counterpart, the Washington statute gave the state

committee the power to call conventions, fill vacancies on the

party ticket, and provide for the nomination of presidential

electors and for the election of delegates to national conventions.

See id. at 193, 99 S. Ct. at 2245. The Court noted that the party

rules made the state convention rather than the state committee the

governing body of the party. Id.

0 In addressing the contention that the statutory

restriction on the composition of the state committee violated the

right to freedom of association, the Court observed that the

requirement that political parties form committees composed of

specified representatives is common in the election laws of the

states. Id. at 195, 99 S. Ct. at 2246. The Court reasoned that

the requirements further the states interest in ensuring fair,

orderly, and honest elections:

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These laws are part of broader election

regulations that recognize the critical role

played by political parties in the process of

selecting and electing candidates for state

and national office. The States interest in

ensuring that this process is conducted in a

fair and orderly fashion is unquestionably

legitimate; "as a practical matter, there must

be a substantial regulation of elections if

they are to be fair and honest and if some

sort of order, rather than chaos, is to

accompany the democratic processes." That

interest is served by a state statute

requiring that a representative central

committee be established, and entrusting that

committee with authority to perform limited

functions, such as filling vacancies on the

party ticket, providing for the nomination of

Presidential electors and delegates to

national conventions and calling statewide

conventions. Such functions are directly

related to the orderly participation of the

political party in the electoral process.

Id. at 195-97, 99 S. Ct. at 2246-47 (quoting Storer v. Brown, 415

U.S. 724, 730, 94 S. Ct. 1274, 1279 (1974)). The Court thus found

that the statute did not impose substantial and hence impermissible

burdens on the partys right to govern its affairs. Id. at 199, 99

S. Ct. at 2248.

1 Appellees claim that the case before us is not like

Marchioro, but rather resembles Eu v. San Francisco County

Demcratic Central Comm., 489 U.S. at 214, 109 S. Ct. at 1013. In

Eu, the plaintiff political party challenged sections of the

California Election Code that dictated the size and composition of

the state central committees, set forth rules governing the

selection and removal of committee members, fixed the maximum term

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of office for the chair of the state central committee, required

that the chair rotate between the residents of northern and

southern California, specified the time and place of committee

meetings, and limited the dues the parties could impose on members.

Id. at 218-19, 109 S. Ct. at 1017-18. The official governing

bodies required by statute were responsible for conducting the

partys campaigns. Id. at 216-17, 109 S. Ct. at 1016-17.

2 In Eu, the Court noted that freedom of association

"encompasses a political partys decisions about the identity of,

and the process for electing, its leaders" as well as the

determination of the best structure for the party. Id. at 229, 109

S. Ct. at 1023. The Court concluded that the laws at issue unduly

burdened the rights of political parties because "[b]y requiring

parties to establish official governing bodies at the county level,

California prevents the political parties from governing themselves

with the structure they think best. And by specifying who shall be

the members of the parties official governing bodies, California

interferes with the parties choice of leaders." Id. at 230, 109

S. Ct. at 1024. The Court did not find persuasive the states

contention that the challenged laws served a compelling "interest

in the democratic management of the political partys internal

affairs." Id. at 232, 109 S. Ct. at 1025. Therefore, the Court

held the challenged California election laws unconstitutional. Id.

at 233, 109 S. Ct. at 1025.

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3 When a state regulates the internal processes of

political parties, it must act within limits imposed by the

Constitution. Jones, 530 U.S. at 573, 120 S. Ct. at 2407.

Unfortunately, "[n]o bright line separates permissible electionrelated

regulation from unconstitutional infringements on First

Amendment freedoms," Timmons, 520 U.S. at 359, 117 S. Ct. at 1370;

no "litmus-paper test" separates valid from invalid restrictions.

Tashjian, 479 U.S. at 213, 107 S. Ct. at 548.

4 In examining the challenged statutes before us, we

recognize that they do restrict associational rights. We conclude,

however, that Arizonas statutes are more like the statutes upheld

by the Court in Marchiolo than the statutes struck down by the

Court in Eu. The statutes at issue do not force political parties

to assign vital internal functions  such as the formation of its

platform, the conduct of its campaigns, or the selection of

campaign strategy  to the committees created by statute. Instead,

the state committee chairman, statutory committees, or relevant

precinct committeemen (1) choose replacement candidates for those

candidates who die or resign before an election, A.R.S.  16-343

(1996), (2) receive funds contributed to the party by citizens

using the state income tax form, A.R.S.  16-807, (3) receive a

free copy of voter registration data, A.R.S.  16-168(C), and (4)

appoint candidates to serve as the partys presidential electors.

A.R.S.  16-344 (Supp. 2000). We therefore conclude that the

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statutory requirements do not unduly or impermissibly burden

Appellees rights, but rather serve the states important

regulatory interests.

5 The first and fourth of these functions relate directly

to the voting process, for which the state is responsible. See

Burdick v. Takushi, 504 U.S. 428, 433, 112 S. Ct. 2059, 2063 (1992)

(noting that states legitimately play a major role in structuring

and monitoring the election process); see also Tashjian, 479 U.S.

at 217, 107 S. Ct. at 550. The second and third are ministerial

functions by which political parties receive money or information

to which they are entitled by state law. None of these functions

implicates the internal workings of political parties, and

receiving state funds and voter data does not strike us as

particularly burdensome.

6 Appellees claim that A.R.S.  16-824 to -828 restrict

who may serve as legislative district, county, and state party

officers. This is true, however, only in the sense that any

election precludes others from holding an office for which another

has been chosen. The party is restricted, as are all parties in

all elections, by who can win the seat. The statutes do not

prohibit any qualified candidate from running for any of these

positions. They merely require that the candidates qualify

themselves for county and state offices by being selected as

6 Section 16-821 does contain a geographical distribution

requirement. Again, however, we note that Appellees have not

challenged the constitutionality of section 16-821.

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precinct committeemen. See A.R.S.  16-821.6 And as the Supreme

Court has observed, that states may require the use of primaries is

"too plain for argument." Jones, 530 U.S. at 572, 120 S. Ct. at

2407 (quoting American Party of Texas v. White, 415 U.S. 767, 781,

94 S. Ct. 1296, 1306 (1974)).

7 The statutes also dictate where the state committee

meeting must be held, A.R.S.  16-826(A) (in state capitol), and

generally when it must be held. Id. ("committee shall meet . . .

no earlier than ten days after the last county meeting of the party

and . . . no later than the fourth Saturday in January following a

general election"). Although Appellees have challenged section 16-

826 generally, they have not argued that these particular

restrictions are burdensome or unreasonable. Finding the record

silent on this point and having been shown no burden that this

statute imposes on constitutionally protected rights, we presume

that these requirements pass constitutional muster. See Kotterman,

193 Ariz. at 284,  31, 972 P.2d at 617.

8 In reviewing the challenged statutes, we find no

provisions that prevent political parties from forming other

committees and choosing other officers to manage internal party

matters or from holding conventions or other meetings to determine

party policy and platform. In deciding Marchioro, the Supreme

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Court relied on the similar fact that the Washington statutory

scheme did not prohibit the political partys convention from

creating an entirely new committee to perform political functions

it had assigned to the statutorily created state cmmittee. 442

U.S. at 199, 99 S. Ct. at 2248.

9 Finally, and significantly, Appellees claim that the

requirement that they elect precinct committeemen pursuant to

statute violates a Libertarian Party bylaw that prohibits use of

taxpayer-funded elections to elect precinct committeemen and

therefore it devitalizes the partys political message. We have

two responses. First, the provisions for selecting precinct

committeemen are contained in A.R.S.  16-821, which Appellees have

chosen not to challenge. Therefore, this issue is not properly

before us. Second, Appellees brief contains an avowal that the

party has changed its bylaws to conform to state law, thus allowing

the party to participate in taxpayer-funded elections to elect

precinct committeemen. The requirements for electing precinct

committeemen therefore no longer violate Libertarian Party bylaws.

0 In summary, unlike the statutes in Eu, Arizonas statutes

do not limit terms of office or the persons who may serve in party

positions nor do they require that the party leadership alternate

between or among leaders from particular parts of the state. The

challenged statutes do not restrict the ability of political

parties and their members to endorse, support, or vote for

7 That section 16-825.01 was added in 1986 does not change

our analysis.

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particular persons; they do not limit a partys access to the

ballot; they do not determine a partys policy; and, while they do

affect a partys structure for some purposes, they do not

necessarily regulate a partys internal governance. See Timmons,

520 U.S. at 363, 117 S. Ct. at 1372. We therefore affirm the trial

courts ruling that A.R.S.  16-824 to -828 are constitutional.

C. Prospective Application of the Law

1 The statutes at issue were passed in 1979.7 The

Libertarian Party acquired continued representation status

following the 1994 election. We conclude that by 1997, the date of

the earliest party meeting contested in this case, the party was

well aware of the existing law and had the obligation to follow it.

We therefore reverse that portion of the trial courts opinion

holding that Appellees needed to comply with the law only

prospectively.

CONCLUSION

2 In light of the foregoing, we conclude that A.R.S.  16-

824 to -828 do not impermissibly burden the First Amendment rights

of political parties in Arizona. We therefore affirm the judgment

upholding the constitutionality of A.R.S.  16-824 to -828. We

reverse that portion of the judgment suggesting that any party

could, with impunity, ignore existing and presumptively

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constitutional Arizona law.

REBECCA WHITE BERCH, Presiding Judge

CONCURRING:

JEFFERSON L. LANKFORD, Judge

E. G. NOYES, JR., Judge