Nader v. Brewer, 531 F.3d 1028 (9th Cir. 2008) is a 2008 decision by the Ninth Circuit ruling that certain Arizona voting regulations were unconstitutional under the First Amendment to the United States Constitution.
The original lawsuit was filed by Robert Barnes on behalf of Ralph Nader, Peter Camejo, Donald N. Daien, and Kendle H. Greenlee against Jan Brewer in her official capacity as Secretary of State of Arizona.
The Supreme Court of the United States declined to hear an appeal on March 9, 2009.
Background
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. Judge Mary M. Schroeder wrote the opinion of the court, holding that both Arizona laws were not narrowly tailored to meet a compelling state interest, and were therefore unconstitutional.
Procedural posture
Appeal to the Supreme Court
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.
On February 5, 2009, Nader's attorneys filed their response brief with the U.S. Supreme Court.
Ninth Circuit opinion
In the decision, the Ninth Circuit panel wrote:
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 wrote 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 were identical.
Of significant interest is what the Ninth Circuit decision says about the decisions of other courts. The last time a federal court upheld a residency requirement was in 2001, 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 Ninth Circuit ruling has this to say about Jaeger:
Arizona's law
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 August 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.