Nader v. Brewer
SB1091 is a bill from the Arizona Legislature that defines a strict interpretation of the case. It allows out-of-state circulators for independent presidential candidates. The residency requirement is still in tact for all other petition in Arizona.
The plaintiffs challenged two provisions of Arizona's ballot laws:
- Arizona's residency requirement for petition circulators;
- Arizona's June deadline for submitting signatures for independent presidential candidates. Under Anderson v. Celebrezze, the Nader team believed the June deadline was unconstitutionally early.
The United States Court of Appeals for the Ninth Circuit heard the case on April 15, 2008, and issued its 3-0 ruling on July 9, 2008. The Ninth Circuit agreed with the plaintiffs. Judge Mary M. Schroeder wrote the opinion for the Ninth.
U.S. Supreme Court's role
The day the 9th Circuit released the decision, Arizona Secretary of State Jan Brewer announced that she disagreed with it and intended to ask the U.S. Supreme Court to review the 9th circuit's decision particularly as concerns Arizona's early filing deadline. On November 13, Arizona filed its brief requesting a hearing with the U.S. top court. In early December 2008, the Montana Attorney General's office announced that it intended to file an amicus curiae brief on the side of the Arizona law that the 9th circuit invalidated.
Thirteen states, including Alabama, Alaska, Colorado, Delaware, Florida, Idaho, Michigan, Montana, Ohio, Oklahoma, South Dakota and Wyoming submitted an amicus curiae brief to the court in December 2008, asking the Court to hear Arizona’s appeal. The brief was primarily written by the Montana Attorney General's office.
The court's reasoning
In the decision, the 9th Circuit appellate panel writes, "The residency requirement nevertheless excludes from eligibility all persons who support the candidate but who, like Nader, live outside the state. Such a restriction creates a severe burden on Nader and his out-of-state supporters' speech, voting and associational rights."
Judge Schroeder also writes in the decision that Arizona "did not meet its burden of showing that this residency requirement is narrowly tailored to further the state's compelling interest in preventing fraud."
Although the residency requirement at issue related to collecting signatures for independent presidential candidates, in its decision, the court discussed residency requirements for initiative circulators and candidate circulators as if the issues in both are identical.
Of significant interest is what the 9th Circuit decision says about the decisions of other courts. The last time a federal court upheld a residency requirement was in 2000, in the case of Initiative & Referendum Institute v. Jaeger, when the Eight Circuit gave its blessing to North Dakota's residency requirement for initiative circulators. Judge Schroeder's 9th Circuit ruling has this to say about Jaeger:
"A brief Eighth Circuit opinion came to the opposite conclusion and upheld a residency requirement for initiative-petition circulators. See Initiative & Referendum Institute v. Jaeger. Krislov had been decided a few months earlier, but Jaeger did not cite it. The Tenth Circuit in Chandler did cite Jaeger and disagreed with it. We do not find Jaeger persuasive."
In 1993, Arizona moved its independent petition deadline from September to June. In 2004, in his presidential bid, Nader tried to meet the Arizona deadline, but he came up 550 signatures short.
Denied a spot on the 2004 Arizona ballot, Nader filed a lawsuit in federal court seeking injunctive relief. This was denied not on the merits, which were not addressed, but on the grounds that the lawsuit, which was filed on Auugust 16, 2004, was filed too late.
Least restrictive alternative
Judge Consuelo Callahan is reported to have said that restriction can only be upheld if it necessary for a compelling state interest (strict scrutiny), indicating that it was unlikely that the lower court had applied a strict scrutiny standard. Nader's attorney, Robert Barnes, argued that Arizona's interest in locating a petitioner for the legal service of a subpoena after the petition drive is over can be satisfied by the less restrictive solution of requiring circulators to agree to testify if needed. This is a less restrictive option than making it illegal for non-residents to solicit signatures.
Arizona moved the petition deadline for independent presidential candidates from September to June in 1993. Since that time, none have succeeded in qualifying for the ballot. Judge Clifton is reported to have found this fact significant.
According to Winger, "The attorney for the state noted that eleven independent candidates have qualified in Arizona since 1993, but Judge Clifton asked how many of them were running for a district or county office, for which (as he noted) far fewer signatures are required. The attorney for the state was unable to give any examples of a statewide independent (for office other than president) who has qualified since 1993."
Does Prete apply?
Judge Mary Schroeder asked if the restrictions imposed on Oregon circulations and upheld by the 9th Circuit in Prete v. Bradbury had relevance here. Nader’s attorney noted that Oregon's law doesn't prevent anyone from circulating petitions, as opposed to the Arizona law under review. Barnes also pointed out that in Prete, the plaintiffs failed to assemble factual evidence to show that the Oregon law was burdensome on the initiative process, whereas in the present case, Nader was presenting evidence of the burden of the law being challenged (for example, that no independent presidential candidates had made the Arizona ballot in the 14 years since the law was enacted).
Does the law prevent fraud?
According to Winger:
Judge Clifton asked if anyone had been prosecuted for fraud in the Arizona Nader petition, and the attorney in the state responded, “No, not in Arizona.” However, she mentioned that there had been other petitions in Arizona involving fraud. Judge Clifton expressed the idea that sometimes a state uses fraud as a rationalization.
- Nader v. Brewer
- An analysis of the 2004 Nader ballot access federal court cases (dead link), from the Fordham Urban Law Journal, 2005, by Richard Winger
- 9th circuit court opinion, July 9, 2008
- Arizona Legislature: SB 1091
- Associated Press, "Court refuses to reconsider state ballot rules," March 9, 2009
- Richard Winger "Three Arizona Election Law Bills Advance" Ballot Access News June 25th, 2009
- Ballot Access New: "Huge Ballot Access Victory in 9th Circuit," July 9, 2008
- Yuma Sun, "Federal court opens door for Ralph Nader to run in Arizona," July 9, 2008
- Ballot Access News, "Montana Wants to Help Arizona Defend Early Petition Deadline in U.S. Supreme Court," December 5, 2008
- Ballot Access News, "Arizona Asks U.S. Supreme Court to Hear Nader v Brewer," November 17, 2008
- Ballot Access News, "13 States Ask U.S. Supreme Court to Hear Arizona’s Appeal in Nader Case," December 23, 2008
- Text of the amicus brief in Nader v. Brewer
- Detroit Free Press, "AGs rally on election law appeal to Supreme Court," December 26, 2008
- Brief in Opposition, filed by Ralph Nader February 5, 2009
- Ballot Access News, "Ballot access argument goes well", April 15, 2008