Nader v. Brewer
From Ballotpedia
Nader v. Brewer is a lawsuit filed by Ralph Nader, Peter Camejo, Donald N. Daien, and Kendle H. Greenlee against Janice Brewer, in her official capacity as Secretary of State of Arizona. In their lawsuit, 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.[1]
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, and disagreed with the lower federal court that had upheld Arizona's law.
Judge Mary M. Schroeder wrote the opinion. The day the 9th Circuit released the decision, Arizona Secretary of State Jan Brewer announced that she disagrees with it and wants to appeal it to the U.S. Supreme Court.[2]
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The court's reasoning on residency requirements
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."
Background
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.
Report on the April 15 hearing
According to Richard Winger, the focus of the judicial panel was primarily on Nader's challenge of Arizona's residency requirement.[3]
Least restrictive alternative/strict scrutiny
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.
Historical facts about success of independent candidates in making the ballot
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.
External links
- Nader v. Brewer
- An analysis of the 2004 Nader ballot access federal court cases, from the Fordham Urban Law Journal, 2005, by Richard Winger
- 9th circuit court opinion, July 9, 2008
