FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

RALPH NADER; PETER MIGUEL 

CAMEJO; ROBERT H. STIVER;

MICHAEL A. PEROUTKA; CHUCK No. 08-16444

BALDWIN; DAVID W. PORTER, D.C. No.

Plaintiffs-Appellants,  1:04-cv-00611-

v. ACK-LEK

KEVIN B. CRONIN, Chief Election OPINION

Officer, State of Hawaii,

Defendant-Appellee. 

Appeal from the United States District Court

for the District of Hawaii

Alan C. Kay, District Judge, Presiding

Argued and Submitted

June 17, 2010—Honolulu, Hawaii

Filed September 1, 2010

Before: Betty B. Fletcher, Harry Pregerson, and

Richard R. Clifton, Circuit Judges.

Per Curiam Opinion

13215
COUNSEL

Daniel J. Treuden, The Bernhoft Law Firm, Milwaukee, Wisconsin, for the plaintiffs-appellants.

Aaron H. Schuland, Pearl City, Hawaii, for the defendantappellee.

NADER v. CRONIN 13217
OPINION

PER CURIAM:

Independent candidates for president, denied access to

Hawaii’s ballot for the 2004 election, appeal the district

court’s holding that the relevant provisions governing such

access do not violate the Equal Protection Clause or the First

and Fourteenth Amendments. We have jurisdiction under 28

U.S.C. § 1291 and we affirm.

BACKGROUND

Hawaii law provides two ways for candidates to obtain

access to the ballot for the presidential election. Haw. Rev.

Stat. § 11-113. An independent, or nonpartisan, candidate

must file an application along with a petition “containing the

signatures of currently registered voters which constitute not

less than one per cent of the votes cast in the State at the last

presidential election” sixty days before the election. Id. § 11-

113(c)(2). Political parties that have qualified to place candidates on the primary and general election ballots must file a

sworn application with the chief election officer 60 days

before the general election to have a candidate placed on the

ballot. Id. § 11-113(c)(1). The application must include the

candidate’s name and address, a statement that the candidate

meets the constitutional requirements for the office, and a

“statement that the candidates are the duly chosen candidates

of both the state and the national party, giving the time, place,

and manner of the selection.” Id.

Separate and apart from the rules governing placement on

the ballot for the presidential election, Hawaii provides a

method for parties to achieve “qualified party” status. Id.

§ 11-62. To qualify as a party, the proposed party must submit

a petition 170 days before the next primary declaring the

intention of the signers to form a statewide political party. Id.

§ 11-62(a). The petition must “[c]ontain the name, signature,

13218 NADER v. CRONIN
residence address, date of birth, and other information as

determined by the chief election officer of currently registered

voters comprising not less than one-tenth of one per cent of

the total registered voters of the State as of the last preceding

general election.” Id. § 11-62(a)(3). After a party has achieved

qualified party status by petition for three consecutive general

election cycles, the party “shall be deemed a political party

for the following ten-year period.” Id. § 11-62(d). A party can

be disqualified, however, if certain conditions are not met. Id.

§ 11-61.

None of the appellants who sought ballot access did so as

a member of a party, but rather all followed the procedures for

independent candidates. These candidates had to submit petitions with 3,711 signatures, the equivalent of one percent of

the 371,003 votes cast in the 2000 presidential election, 60

days before the general election to qualify to appear on the

ballot. Ralph Nader and his running mate, Peter Miguel

Camejo, submitted 7,184 signatures, of which 3,124 were

valid, falling short of the required number. Michael A. Peroutka and his running mate, Chuck Baldwin, also submitted

nearly 7,200 signatures. Of those signatures, 3,471 were valid.

As a result, although Nader, Camejo, Peroutka, and Baldwin

submitted petitions by the date required, none of the candidates met the signature requirements of Hawaii Revised Statute § 11-113. Both the Nader/Camejo and Peroutka/Baldwin

campaigns challenged the signature counts through administrative hearings, but did not qualify to appear on the ballot.

Before the general election, the appellants appealed the

administrative decision in both state court and federal court,

the resolution of which is not at issue in this appeal. At the

same time, the appellants challenged the constitutionality of

the provisions in federal court. The district court rejected

these claims, granting summary judgment in favor of

Hawaii’s Chief Election Officer. The candidates appeal that

decision.

NADER v. CRONIN 13219
DISCUSSION

We review de novo questions of law, including constitutional rulings, resolved on summary judgment. Long Beach

Area Chamber of Commerce v. City of Long Beach, 603 F.3d

684, 689 (9th Cir. 2010).

[1] “The Constitution provides that States may prescribe

‘[t]he Times, Places and Manner of holding Elections for Senators and Representatives,’ and the Court therefore has recognized that States retain the power to regulate their own

elections.” Burdick v. Takushi, 504 U.S. 428, 433 (1992)

(quoting U.S. Const. Art. I, § 4, cl. 1). In fulfilling this role,

states “invariably impose some burden upon individual voters” in creating election laws. Id. “The Supreme Court has

held that when an election law is challenged, its validity

depends on the severity of the burden it imposes on the exercise of constitutional rights and the strength of the state interests it serves.” Nader v. Brewer, 531 F.3d 1028, 1034 (9th

Cir. 2008). In considering a constitutional challenge to an

election law, we “must weigh ‘the character and magnitude of

the asserted injury to the rights protected by the First and

Fourteenth Amendments’ against ‘the precise interests put

forward by the State as justifications for the burden imposed

by its rule.’ ” Id. (quoting Anderson v. Celebrezze, 460 U.S.

780, 789 (1983)). Therefore, “the severity of the burden the

election law imposes on the plaintiff ’s rights dictates the

level of scrutiny applied by the court.” Id. (citing Burdick,

504 U.S. at 434). “[A]n election regulation that imposes a

severe burden is subject to strict scrutiny and will be upheld

only if it is narrowly tailored to serve a compelling state interest.” Id. at 1035 (citing Burdick, 504 U.S. at 434). A state may

justify election regulations imposing a lesser burden by demonstrating the state has “important regulatory interests.” Id.

(citing Burdick, 504 U.S. at 434). 

[2] On its own, the burden on independent presidential

candidates seeking access to Hawaii’s ballot is low. Candi13220 NADER v. CRONIN
dates need obtain the signatures of only one percent of the

number of voters in the previous presidential election. They

have until 60 days before the general election to submit the

required signatures. We have little trouble concluding that, in

isolation, the burden on independent candidates for president

and vice-president is minimal. See Jenness v. Fortson, 403

U.S. 431, 442 (1971) (upholding requirement that independent candidates demonstrate “a significant modicum of support” by filing a petition with signatures from five percent of

the number of voters registered in the last election for the

office sought); see also Am. Party of Texas v. White, 415 U.S.

767 (1974) (upholding requirement that independent candidates file a petition signed by one to five percent of registered

voters depending on the office sought and capping the

requirement at 500 signatures for district office); Nader v.

Connor, 332 F.Supp.2d 982, 987 (W.D.Tex. 2004)

(“Requiring that an independent presidential candidate demonstrate that voters equal in number to one percent of those

who voted for president in the last presidential election favor

placing the candidate on the ballot, does not place an unreasonable burden on the candidate. . . .”), aff’d 388 F.3d 137,

137-38 (5th Cir. 2004) (affirming “[e]ssentially for the reasons as well stated in the district court’s memorandum opinion”).

[3] Appellants argue, however, that we must examine the

burden as compared to the burden for qualifying as a party,

relying on the disparity in the signature requirements. Independent candidates for president must obtain valid signatures

from registered voters totaling one percent of the number of

ballots cast in the previous presidential election. Haw. Rev.

Stat. § 11-113(c)(2). Groups seeking to qualify as new parties

need signatures from only one-tenth of one percent of all registered voters. Id. § 11-62(a)(3). 

In previously examining differing treatments of minor and

major political parties, we decided that “[i]n determining the

nature and magnitude of the burden that [the state’s] election

NADER v. CRONIN 13221
procedures impose on the [minor party], we must examine the

entire scheme regulating ballot access.” Libertarian Party of

Wash. v. Munro, 31 F.3d 759, 761-62 (9th Cir. 1994). “The

[appellants] have the initial burden of showing that [the

state’s] ballot access requirements seriously restrict the availability of political opportunity.” Id. at 762. Such an analysis

is particularly important where, for instance, restrictions on

who may sign a petition exist, where the timeframe in which

to obtain the signatures is particularly short, or where the

deadline for filing the petition is particularly early. Appellants

do not rely on any facts along those lines here and, indeed,

Hawaii does not impose such restrictions.

[4] Appellants here have failed to show Hawaii’s election

scheme imposes a severe burden on independent candidates

for president even in light of an examination of Hawaii’s regulatory scheme as a whole. In arguing otherwise, appellants

gloss over important facts. For instance, in addition to qualifying as a party 170 days before the primary, Haw. Rev. Stat.

§ 11-62, qualified party candidates must show they are “the

duly chosen candidates of both the state and the national

party.” Id. § 11-113(c)(1) (emphasis added). Moreover, the

one percent signature requirement applies only to independent

candidates running for president. Other statutory provisions

govern independent candidates in state races. The provisions

for establishing qualified party status, however, apply regardless of the office sought. Therefore, even in comparison to the

requirements placed on minor party candidates, we cannot say

that the burden on independent candidates for president

imposes a severe burden. As a result, strict scrutiny does not

apply.

[5] Having determined the level of scrutiny we will apply

to appellants’ claims, we turn now to the specific challenges.

The state need demonstrate only a legitimate state interest.

Libertarian Party of Wash., 31 F.3d at 763 (“Because there is

at most a de minimis burden on the Libertarians’ constitutional rights, Washington need demonstrate only that its elec13222 NADER v. CRONIN
tion schedule is rationally related to a legitimate state

interest.”). The Supreme Court consistently has held that

states have “a legitimate interest in regulating the number of

candidates on the ballot . . . to prevent the clogging of its election machinery, avoid voter confusion, and assure that the

winner is the choice of a majority, or at least a strong plurality, of those voting, without the expense and burden of runoff

elections.” Bullock v. Carter, 405 U.S. 134, 145 (1972). These

interests justify Hawaii’s one-percent requirement imposed on

independent candidates for president.

[6] We find appellants’ Equal Protection Clause argument

unpersuasive as well. If we assume that the Equal Protection

Clause analysis applies — a question that is not without doubt

given that partisan and independent candidates are not necessarily “similarly situated,” see Van Susteren v. Jones, 331

F.3d 1024, 1027 (9th Cir. 2003) — the appellants’ equal protection argument here relies on the premise that Hawaii law

imposes a higher burden on independent candidates for president than on candidates chosen as the nominee of a qualified

party. The Supreme Court addressed a similar argument in

Jenness. Appellants’ argument, however, relies on “a premise

that cannot be uncritically accepted.” Jenness, 403 U.S. at

440. As in Jenness, Hawaii has created alternative means for

obtaining access to the presidential ballot that are not “inherently more burdensome.” See id. at 441, See Erum v. Cayetano, 881 F.2d 689, 695 (9th Cir. 1989), overruled on other

grounds as recognized in Lightfoot v. Eu, 964 F.2d 865, 868

(9th Cir. 1992). Therefore, Hawaii’s scheme does not violate

equal protection. See Jenness, 403 U.S. at 440-41 (“We cannot see how Georgia has violated the Equal Protection Clause

of the Fourteenth Amendment by making available these two

alternative paths [winning the primary of a political party, or

circulating nominating petitions as an independent candidate],

neither of which can be assumed to be inherently more burdensome than the other.”). Accordingly, Hawaii’s regulatory

scheme governing access to the presidential ballot does not

violate the Equal Protection Clause.

NADER v. CRONIN 13223
CONCLUSION

Because independent presidential candidates are not affiliated with any party, they cannot receive their party’s nomination or be asked to show support from a national party.

Hawaii therefore has imposed a reasonable one percent signature requirement on independent candidates who wish to

appear on the presidential ballot. The one percent signature

requirement does not impose a severe burden on independent

candidates for president either alone or in comparison to the

route qualified party candidates must take. Nor does this

scheme run afoul of the Equal Protection Clause. Therefore,

we affirm the district court’s holding that Hawaii’s presidential ballot access scheme is constitutional.

AFFIRMED.

13224 NADER v. CRONIN