FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

RALPH NADER; DONALD N. DAIEN, 

Plaintiffs-Appellants, No. 06-16251

v. D.C. No.

JANICE BREWER, in her official  CV-04-01699-FJM

capacity as Secretary of State of OPINION Arizona,

Defendant-Appellee. 

Appeal from the United States District Court

for the District of Arizona

Frederick J. Martone, District Judge, Presiding

Argued and Submitted

April 15, 2008—San Francisco, California

Filed July 9, 2008

Before: Mary M. Schroeder, Richard R. Clifton, and

Consuelo M. Callahan, Circuit Judges.

Opinion by Judge Schroeder

8277
COUNSEL

Robert E. Barnes, Milwaukee, Wisconsin, for plaintiffsappellants Ralph Nader, et al. 

Barbara A. Bailey, Phoenix, Arizona, for defendant-appellee

Janice Brewer, et al. 

OPINION

SCHROEDER, Circuit Judge, 

Introduction

Ralph Nader and one of his supporters in Arizona, Donald

Daien (collectively, “plaintiffs”), appeal from the district

8280 NADER v. BREWER
court’s grant of summary judgment to Janice Brewer, the Secretary of State of Arizona. Plaintiffs alleged that two provisions of Arizona’s statutory election scheme—the

requirement that circulators of nomination petitions be residents of Arizona and the requirement that nomination petitions be filed at least 90 days before the primary election—

violated their rights to political speech and association under

the First and Fourteenth Amendments. The case arose from

Nader’s efforts to appear on the 2004 Arizona generalelection ballot as a presidential candidate. The district court

upheld both petition requirements, holding that the burdens

imposed on the exercise of plaintiffs’ rights were not significant and were sufficiently justified by the state’s interests. 

The district court measured the burdens in terms of the

effect the requirements had on Nader’s ability to get on the

Arizona ballot. The court held that these requirements were

not a material cause of Nader’s failure to get on the ballot in

2004 and the burdens were therefore minimal. 

In this appeal Nader stresses that the burdens of the residency requirement should be measured in terms of the effect

the requirement has on the rights of persons like himself who

live outside Arizona and wish to circulate petitions in that

state. Controlling Supreme Court authority and a persuasive

opinion of the Seventh Circuit support Nader’s position. See

Buckley v. Am. Constitutional Law Found., Inc., 525 U.S. 182

(1999); Krislov v. Rednour, 226 F.3d 851 (7th Cir. 2000).

Controlling Supreme Court authority also requires us to hold

that the burdens imposed by Arizona’s early filing requirement are severe and must be supported by compelling interests. Anderson v. Celebrezze, 460 U.S. 780 (1983). 

Neither the district court nor this court has had the benefit

of much documentation of the state’s needs for the requirements. We conclude, on the basis of this record, when examined after the passage of the considerable amount of time

expended completing the appellate process, that the burdens

NADER v. BREWER 8281
are significant and that the state has not shown the requirements are sufficiently narrowly tailored to further compelling

interests. 

I. Background 

Ralph Nader, a resident of Connecticut, announced his

independent candidacy for President of the United States on

February 22, 2004. Donald Daien is one of Nader’s supporters

and is a registered voter in Arizona who wanted to vote for

Nader and to serve as a presidential elector on Nader’s behalf.

Nader and Daien, along with other supporters, brought this

action in August 2004 against Secretary of State Brewer,

alleging that the residency requirement and the early filing

deadline severely burdened the rights of expressive association and political speech of political candidates, potential petition circulators, and voters, in violation of the First and

Fourteenth Amendments. They sought declaratory and injunctive relief. 

A. Arizona’s Nomination-Petition System 

In Arizona, a person who is not a member of a recognized

political party may gain a place on the ballot by filing nomination petitions containing a prescribed number of signatures.

Ariz. Rev. Stat. § 16-341(C), (E), (F), (I). The petitions are

filed for the office of presidential elector rather than for the

presidential candidate; the petitions designate the presidential

candidate and the names of ten individuals who would serve

as electors for that candidate. Id. § 16-341(G), (H). 

The same statute establishes the total number of signatures

required for each political office, which is 3% of the registered voters in the political subdivision for which the candidate is nominated, who are not members of recognized

political parties. Id. § 16-341(E), (F). Each signature must be

witnessed by the petition circulator. Id. § 16-321(D). In 2004,

8282 NADER v. BREWER
the number of signatures required for the office of presidential

elector in Arizona was 14,694. 

Only persons qualified to register to vote in Arizona can

circulate petitions. Id. §§ 16-101, 16-321(D). In order to be

qualified to register to vote, a person must, among other

things, be a resident of Arizona and must have been a resident

at least twenty-nine days before the election (“the residency

requirement”). Id. § 16-101(A)(3). Under this statutory limitation, all non-residents of Arizona, including Nader himself,

are prohibited from circulating petitions in support of Nader’s

candidacy. 

Nomination petitions must be filed with the Secretary of

State’s office no later than 90 days before the primary election

(“the filing deadline”). Id. §§ 16-311(A), (E), 16-341(C). This

places the filing deadline 146 days before the general election.

In 2004, the general election was held on November 2, the

primary election was held on September 7, and the filing

deadline was June 9. 

An Arizona registered voter may challenge the validity of

a candidate’s petitions by bringing an action in superior court.

Id. § 16-351. Such action must be brought within ten business

days of the filing deadline, and the superior court must hear

and decide the action within ten calendar days of its filing. Id.

§ 16-351(A). The decision is appealable only to the Arizona

Supreme Court, and it must be appealed within 5 calendar

days. Id. The Supreme Court must decide the appeal

promptly. Id.

At least 45 days before the general election, the state must

prepare a proof of a sample ballot. Id. § 16-461(A). According to the state’s affidavits, the state also mails ballots to overseas members of the military 45 days before the general

election. Voters can cast early ballots beginning 33 days

before the general election; in 2004, early voting began on

September 30.

NADER v. BREWER 8283
As we construe the data provided by the state, the timeline

for the 2004 election was as follows:

Presidential Preference Election...... February 3

Filing Deadline for Nader.................June 9

Primary Election................................September 7

Deadline to Prepare Proof 

of Sample Ballot................................September 18

First Day of Early Voting.................September 30

General Election................................November 2 

B. Proceedings Below

Nader filed his Arizona presidential nomination petitions

with the Secretary of State on June 9, 2004. Two Arizona voters then filed an action on June 23 in the Superior Court in

Maricopa County, challenging his eligibility. They alleged

that his petitions did not provide the required number of valid

signatures, that the petitions included signatures forged by circulators, that some petitions had been circulated by felons,

and that the petitions contained falsified addresses of circulators. Nader conceded that the petitions did not meet the signature requirements and on July 2, 2004, withdrew his

candidacy for the Arizona ballot. 

In August 2004, plaintiffs brought this action for declaratory and injunctive relief, alleging that the residency requirement and the early filing deadline severely burdened the

rights of expressive association and political speech of political candidates, potential circulators, and voters, in violation of

the First and Fourteenth Amendments, and that neither regulation could survive strict scrutiny. They sought a declaration

that Arizona’s statutory election scheme was unconstitutional

8284 NADER v. BREWER
as applied to them and an injunction barring the enforcement

of the statutory deadlines in the 2004 election. The district

court denied plaintiffs’ motion for preliminary injunctive

relief.

Both sides moved for summary judgment in January of

2006. The state argued that the restrictions did not impose a

severe burden on plaintiffs’ rights. It argued further that even

if the burden imposed was severe, both the residency and filing deadline requirements should survive strict scrutiny. The

state urged that the residency requirement was narrowly tailored to further the state’s interest in preventing fraud in the

election process, in order to ensure that circulators could be

located and subpoenaed in time for petition challenges. With

respect to the filing deadline, the state contended that it was

narrowly tailored to further the state’s administrative and statutory obligations, given the deadlines related to early voting

and sample ballots and the state’s schedule for printing the

ballots. 

In support of its 2006 summary judgment motion, the state

submitted affidavits from Joseph Kanefield, the State Election

Director, and Karen Osborne, the Director of Elections for

Maricopa County, describing the planned schedule for the

2008 election. Osborne explained the procedures that would

be utilized for the optical-scan ballots used in Maricopa and

Pima Counties, which together represent almost 76% of the

state’s registered voters. According to Osborne, Maricopa

County planned to begin the layout of its general-election ballot as soon as the June 11 filing deadline passed. The first

candidates listed on the ballots would be those for the office

of presidential elector. The layout of the remainder of the ballot thus depended on the number of candidates for that office.

The judges and state initiatives, as well as the county, city,

and school ballot propositions, were to be listed on the back

of the ballot. 

Maricopa County’s plan was to print its 2008 ballots in two

stages. It would send the back side of the ballot for printing

NADER v. BREWER 8285
on August 20. The printing of the front side would begin on

September 16, after the candidates for the offices listed on the

front side were determined in the primary election. The

county would receive the completed ballots from the printer

no later than September 24, to allow time for testing and

inspecting the ballots, distribution to early voting sites, and

mailing for early voting, to begin October 2. The affidavit

stated that ballots undergo “Logic” and “Accuracy” tests in

each precinct in October. 

The only explanation for why the names of the presidential

candidates for the general election had to be known in June,

three months before the primary, was that the ballot paper had

to be ordered about five months before the election. According to the election officials’ affidavits, the paper for the ballots would be ordered in late May or early June to ensure

availability. The state’s motion asserted that if it were to find

out later than June that ten presidential electors needed to be

added to the ballot, the ballot would require two pages instead

of one, and, as a result, Maricopa County would be unable to

acquire the additional paper or print the ballots in time.

According to the affidavits, however, there are a total of more

than 400 state and local offices and dozens of other ballot

measures on the general-election ballot. So far as this record

indicates, the candidates for all offices, from presidential electors to local officials, are on the same ballot. The state did not

explain with any specificity how many offices and measures

would appear on a ballot in any given precinct. Nor did the

state explain when the nature and number of initiative measures, school bond measures, and other types of ballot measures, which may vary in number and size, need to be known.

The state’s affidavits did not fully deal with Arizona’s history of moving the filing deadline back. The state legislature

in 1993 moved the filing deadline from a date 10 days after

the primary election to a date 75 days before the primary election. See Act of Apr. 14, 1993, 1993 Ariz. Sess. Laws ch. 98,

sec. 24, § 16-341(C). The legislature in 1999 again moved

8286 NADER v. BREWER
back the deadline, this time to 90 days before the primary

election. See Act of May 13, 1999, 1999 Ariz. Sess. Laws ch.

224, sec. 1, § 16-311(A). The record indicates that the 1999

change was made to allow more time for petition challenges,

but there is no information in the record about the reasons the

deadline was moved in 1993. 

Kanefield’s affidavit dealt with the history of ballot access

by candidates. It declared that since 1994, eight candidates for

the state legislature, one candidate for U.S. Representative in

Congress, one candidate for the U.S. Senate, and one candidate for governor of the state of Arizona have gained access

to the general-election ballot using the procedure provided by

section 16-341. Of these offices, only two are voted on statewide. Since the filing deadline was moved in 1993, no independent presidential candidate has achieved a place on

Arizona’s ballot. 

The state also submitted evidence of five criminal prosecutions that the state has pursued for petition fraud. The state did

not assert that any of the prosecutions had to do with nonresident circulators. 

The district court in June 2006 granted the state’s motion

for summary judgment and denied plaintiffs’ motion for summary judgment. The district court rejected the state’s threshold position that plaintiffs’ challenge to the requirements as

they applied to the 2004 election was moot, applying the

exception to the mootness doctrine for problems “capable of

repetition, yet evading review.” See Moore v. Ogilvie, 394

U.S. 814, 816 (1969) (internal quotation marks omitted)

(quoting S. Pac. Terminal Co. v. Interstate Commerce

Comm’n, 219 U.S. 498, 515 (1911)). The state does not challenge this conclusion on appeal. 

With respect to the merits of plaintiffs’ claims, the district

court viewed the burden on plaintiffs’ rights as minimal. It

reasoned that even with the residency requirement for petition

NADER v. BREWER 8287
circulators, there were still several million Arizona residents

eligible to vote and hence to circulate petitions. Regarding the

filing deadline, the district court observed that states now hold

their presidential primaries much earlier in the election year

than they did when the Supreme Court held in Anderson, 460

U.S. at 806, that an early filing deadline impermissibly burdened independent voters’ access to candidates of their

choice. The district court reasoned that the Supreme Court’s

concern about maintaining the ability of an independent to

announce a candidacy as a response to developments in

major-party candidates’ campaigns was less valid than it was

when Anderson was decided. The district court concluded that

the filing deadline provided a “reasonably diligent” candidate

enough time to gather the required number of signatures

under the standard this court utilized in Libertarian Party of

Washington v. Munro, 31 F.3d 759, 762 (9th Cir. 1994). 

The district court ruled both restrictions constitutional,

holding that any burden imposed on plaintiffs’ rights by the

residency requirement was justified by the state’s compelling

interest in protecting the integrity of the election process, and

any burden imposed by the filing deadline was justified by the

state’s compelling interest in allowing sufficient time to verify

signatures, permit challenges to petitions, and print and distribute ballots. Because the court did not find that a severe

burden was imposed by the restrictions, it did not hold the

state to the heightened requirement of proving the restrictions

were narrowly tailored to serve compelling state interests. 

On appeal, plaintiffs argue that the court should have

applied strict scrutiny to both restrictions because each

severely burdens plaintiffs’ rights, and that under strict scrutiny, neither is narrowly tailored to further a compelling state

interest. 

II. Analysis

[1] The Supreme Court has held that when an election law

is challenged, its validity depends on the severity of the bur8288 NADER v. BREWER
den it imposes on the exercise of constitutional rights and the

strength of the state interests it serves. In the seminal case of

Anderson, 460 U.S. at 789, the Court held that, in considering

a constitutional challenge to an election law, a court 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.” The Court struck

down Ohio’s March filing deadline for independent presidential candidates because the state’s “minimal” interests did not

justify the “extent and nature” of the burdens imposed by the

deadline. Id. at 806. 

[2] The Court clarified the standard in Burdick v. Takushi,

504 U.S. 428, 434 (1992), when it held that the severity of the

burden the election law imposes on the plaintiff’s rights dictates the level of scrutiny applied by the court. In Burdick, the

Court upheld a prohibition on write-in voting in Hawaii, holding that the limited burden imposed was justified by Hawaii’s

interests in preventing factionalism and the manipulation of

parties’ primary elections through write-in campaigns. Id. at

438-40, 441-42. The Court held that an 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. See id. at 434. It held that a state’s “important regulatory interests” are usually sufficient to justify

election regulations that impose lesser burdens. Id. The Court

recently reaffirmed these principles in Washington State

Grange v. Washington State Republican Party, ___ U.S. ___,

128 S. Ct. 1184, 1191-92 (2008). 

[3] The leading case in our circuit is Libertarian Party,

where we upheld the state of Washington’s filing deadline for

minor-party candidates that was only weeks before the deadline established for major-party candidates. 31 F.3d at 762,

765. We held that the burden on plaintiffs’ rights should be

measured by whether, in light of the entire statutory scheme

regulating ballot access, “reasonably diligent” candidates can

NADER v. BREWER 8289
normally gain a place on the ballot, or whether they will

rarely succeed in doing so. Id. at 761-62 (internal quotation

marks omitted) (quoting Storer v. Brown, 415 U.S. 724, 742

(1974)). To determine the severity of the burden, we said that

past candidates’ ability to secure a place on the ballot can

inform the court’s analysis. See id. at 763. 

With that legal background, we turn to each of the challenged Arizona election restrictions. 

A. Residency Requirement for Petition Circulators

The first provision at issue here is the requirement that petition circulators be residents of the state. Petition circulators

must be “qualified to register to vote in [Arizona].” Ariz. Rev.

Stat. § 16-321(D). The provision enumerating the requirements for voter registration in turn provides, in relevant part:

“Every resident of the state is qualified to register to vote if

he . . . [w]ill have been a resident of the state twenty-nine

days next preceding the election, . . . .” Id. § 16-101(A)(3). 

[4] Plaintiffs contend that such a residency requirement

unconstitutionally burdens their rights to speech and association because it interferes with substantially more core political

speech than is necessary. The leading decision on qualifications for petition circulators is Buckley, 525 U.S. 182, which

involved a challenge to Colorado’s regulation of initiativepetition circulators. One of the restrictions considered in that

case was a requirement that circulators actually be registered

to vote in the state. Id. at 186. The Court first stated, as it had

done in Meyer v. Grant, that “[p]etition circulation . . . is

‘core political speech,’ because it involves ‘interactive communication concerning political change,’ ” and that First

Amendment protection for such interaction is therefore “ ‘at

its zenith.’ ” Id. at 186-87 (quoting Meyer v. Grant, 486 U.S.

414, 422, 425 (1988)). The Court then determined that the

registration requirement imposed a severe burden on the

speech rights of individuals involved with the initiative pro8290 NADER v. BREWER
cess because it significantly decreased the pool of potential

circulators, which in turn limited the size of the audience that

could hear the initiative proponents’ message. See id. at 192

& n.12, 193-96. 

[5] The state attempted to justify the burden as necessary

to ensure circulators were subject to the state’s subpoena

power, but the Court found that the state’s separate residency

requirement achieved the same end, and agreed with the

Tenth Circuit’s statement that it did so “more precisely.” Id.

at 196-97. The Court expressly did not decide the validity of

the separate residency requirement because it was not challenged in that case. See id. at 197. (Arizona’s residency provision appears similar to the residency requirement described in

Buckley and is, of course, less restrictive than the provision

invalidated in Buckley because the Arizona provision does not

require circulators to be actual registered voters. While the

district court correctly observed that there remain millions of

potential Arizona circulators, the residency requirement nevertheless excludes from eligibility all persons who support the

candidate but who, like Nader himself, live outside the state

of Arizona. Such a restriction creates a severe burden on

Nader and his out-of-state supporters’ speech, voting and

associational rights. Because the restriction creates a severe

burden on plaintiffs’ First Amendment rights, strict scrutiny

applies. This is a conclusion we believe to be mandated by the

Supreme Court in Buckley. The Court held in Buckley that

significantly reducing the number of potential circulators

imposed a severe burden on rights of political expression. See

id. at 194-95. 

This conclusion is also supported by two more recent circuit decisions. In Chandler v. City of Arvada, the Tenth Circuit held that a city ordinance requiring petition circulators to

be residents imposed a severe burden on the speech rights of

initiative proponents. 292 F.3d 1236, 1238-39, 1241-42 (10th

Cir. 2002). It applied strict scrutiny. The court stated that

“[s]trict scrutiny is applicable where the government restricts

NADER v. BREWER 8291
the overall quantum of speech available to the election or voting process . . . .” Id. at 1241-42 (internal quotation marks and

citation omitted). The court specifically ruled that strict scrutiny must be applied when the rights of potential petition circulators are restricted. Quoting from an earlier Tenth Circuit

decision, it said that strict scrutiny must be “ ‘employed

where the quantum of speech is limited due to restrictions on

. . . the available pool of circulators or other supporters of a

candidate or initiative, as in [Buckley] and Meyer.’ ” Id. (quoting Campbell v. Buckley, 203 F.3d 738, 745 (10th Cir. 2000)).

In Krislov, the Seventh Circuit held that an in-district residency requirement, which operated as an in-state residency

requirement for a candidate for the U.S. Senate, severely burdened candidates’ rights to association and ballot access. 226

F.3d at 855-56, 857, 860-62. The court explained, 

What is particularly important in this case [in assessing the severity of the burden] . . . is the number of

people the . . . requirements exclude from gathering

signatures and thus disseminating the candidates’

political message . . . . [The residency requirement]

places a substantial burden on the candidates’ First

Amendment rights by making it more difficult for

the candidates to disseminate their political views, to

choose the most effective means of conveying their

message, to associate in a meaningful way with the

prospective solicitors for the purposes of eliciting

political change, to gain access to the ballot, and to

utilize the endorsement of their candidacies which

can be implicit in a solicitor’s efforts to gather signatures on the candidates’ behalf. 

Id. at 860, 862 (citing Buckley, 525 U.S. at 193 n. 15). 

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,

8292 NADER v. BREWER
241 F.3d 614, 617 (8th Cir. 2001). 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. See

Chandler, 292 F.3d at 1244. We do not find Jaeger persuasive. 

[6] The state contends here that if the standard is strict scrutiny, then the restriction is justified by the state’s compelling

interest in preventing fraud in the election process. It points

to the evidence it presented of past election fraud in Arizona.

A state’s interest in ensuring the integrity of the election process and preventing fraud is compelling. See Purcell v. Gonzalez, 549 U.S. 1, 4 (2006) (per curiam). We therefore agree

with Arizona that the state’s interest in preventing election

fraud is a compelling one. The state, however, bears the burden of proving that a regulation is narrowly tailored. See

ACLU of Nev. v. Heller, 378 F.3d 979, 997 (9th Cir. 2004).

The state contends that this restriction is narrowly tailored

to ensure that circulators are subject to the state’s subpoena

power, and that the state can locate them within the ten-day

period allotted for petition challenges. Plaintiffs argue that

requiring circulators to submit to jurisdiction by agreement

would achieve the same end and would be more narrowly tailored to further the state’s interest in preventing fraud. 

[7] Federal courts have generally looked with favor on

requiring petition circulators to agree to submit to jurisdiction

for purposes of subpoena enforcement, and the courts have

viewed such a system to be a more narrowly tailored means

than a residency requirement to achieve the same result. See

Chandler, 292 F.3d at 1242-44 (holding that city residency

requirement was “substantially broader than necessary” to

ensure the integrity of the petition process in part because the

city could instead require circulators to submit to jurisdiction

of the city for subpoena enforcement); Krislov, 226 F.3d at

866 n.7 (invalidating residency requirement and suggesting

agreement to submit to jurisdiction as permissible restriction

NADER v. BREWER 8293
to further state’s interest in preventing fraud); Frami, 255 F.

Supp. 2d at 970 (noting that requiring petition circulators to

agree to submit to jurisdiction for subpoena enforcement was

a “less onerous method[ ]” than a residency requirement for

serving the state’s interest in ensuring circulators were subject

to the state’s jurisdiction). Cf. Kean v. Clark, 56 F. Supp. 2d

719, 733 (S.D. Miss. 1999) (holding that a residency requirement was narrowly tailored, but without considering any

“consent to jurisdiction” alternative). 

[8] The state responds that petition circulators could conceivably be spread throughout the country, and that given the

narrow timeframe for petition challenges in Arizona, such a

“consent to jurisdiction” system would be unworkable. The

state does not provide any evidence, however, to support this

contention, observing only that professional petition circulators can be “nomadic.” Nor did the state ever contend that its

history of fraud was related to non-resident circulators, a history that might justify regulating non-residents differently

from residents. See Krislov, 226 F.3d at 866 n.7 (“[I]f the use

of non-citizens were shown to correlate with a high incidence

of fraud, a State might have a compelling interest in further

regulating noncitizen circulators.”); Frami, 255 F. Supp. 2d at

970 (holding a residency requirement was not narrowly tailored to serve the state’s interest in preventing fraud because

defendant had “not even alleged that the state has experienced

problems in the past with non-resident petition circulators or

that such circulators are more likely to engage in fraud than

in-state . . . circulators.”). 

[9] We conclude that the state did not meet its burden of

showing that this residency requirement is narrowly tailored

to further the state’s compelling interest in preventing fraud.

On the basis of the record before us, the requirement cannot

be sustained.

B. Filing Deadline

The second provision at issue is the requirement that petitions be filed 90 days before the primary election. Plaintiffs

8294 NADER v. BREWER
argue that this deadline imposes a severe burden on their

speech, association and voting rights and that the state has not

shown that the deadline is narrowly tailored to further a compelling interest. 

[10] In Anderson, the Supreme Court struck down Ohio’s

March filing deadline for an independent presidential candidate’s nomination petition. 460 U.S. at 806. In evaluating the

severity of the burden imposed, the Court observed that the

deadline deprived independent candidates of their ability to

respond to developments in the course of the campaigns of the

major-party candidates. See id. at 791-92, 791 n.12. The Court

observed that particular independent candidacies, and voter

support for those candidacies, sometimes occur as a reaction

to the particular nominees of the major parties. See id. It also

found that collecting 5,000 signatures far in advance of the

general election was difficult, since interest levels were low

and volunteers were difficult to recruit. See id. at 792. The

Court concluded that none of the state’s asserted interests justified the “extent and nature” of the burden imposed by the

March filing deadline. Id. at 806. 

In this case, the district court concluded that Anderson was

not controlling. The court reasoned that Arizona’s 2004 presidential preference election was held well in advance of the filing deadline, that the major parties’ candidates and platforms

were well-known, and the level of public interest was high by

then. The district court dismissed the significance of the concerns in Anderson because they were not present in the 2004

election. 

The 2004 election, however, may not have been representative of future elections, where the major party candidates may

not be determined so far in advance of the filing deadline.

Anderson remains binding Supreme Court authority. We conclude that the concerns expressed in Anderson may well

remain significant, and in any event, we are not free to disregard them. 

NADER v. BREWER 8295
[11] The historical evidence of ballot access in Arizona further supports this conclusion. See Libertarian Party, 31 F.3d

at 763 (looking to historical experience to support conclusion

that ballot-access scheme did not severely burden minor-party

candidates’ rights). Since 1993, when Arizona changed its filing deadline from 10 days after the primary election to 75

days before the primary election, no independent presidential

candidate has appeared on Arizona’s ballot. This experience

suggests that the regulations impose a severe burden that has

impeded ballot access. 

The state tries to maintain that this record supports the early

deadline for presidential candidates, because independent candidates for other offices have gained ballot access. Yet candidates for president are national candidates and thus situated

differently from candidates for state offices, or even other federal offices in Arizona; presidential candidates in Arizona are

required to file more signatures than candidates for local

offices. Evidence regarding independent candidacies for other

offices is not particularly persuasive and certainly not conclusive in this case. 

The state relies upon Libertarian Party. There we upheld

a Washington statute requiring minor-party candidates to

obtain 200 signatures for statewide offices or 25 signatures

for other offices by July 4 of the election year. Libertarian

Party, 31 F.3d at 760-61. The case thus involved a comparatively small number of signatures and a date closer to the

major parties’ conventions. For those reasons we concluded

that only a de minimis burden was imposed. See id. at 763.

We explained why the restrictions were much less burdensome than those in Anderson. See id. at 762. We pointed out

that collecting such a small number of signatures just four to

five weeks before the selection of major-party candidates was

not particularly difficult. See id. We also deemed it significant

that the plaintiffs challenging the regulation had all been able

to announce and file on time, and that they could not identify

8296 NADER v. BREWER
any candidates who had been denied ballot access because of

Washington’s procedures. Id. at 763. 

In Anderson, by contrast, where the plaintiff was forced to

file petitions in March, five months before the major-party

candidates were to be decided, 460 U.S. at 790-91, and had

been unable to get his name on the ballot, id. at 782-83, the

early filing deadline was struck down, id. at 806. Nader’s predicament is like that of the plaintiff in Anderson. Here, the

signature requirement is greater and the deadline tighter than

in Libertarian Party. Unlike the candidates in Libertarian

Party, independent presidential candidates in Arizona have

not been able to get on the ballot. The Sixth Circuit’s opinion

in Libertarian Party of Ohio v. Blackwell, 462 F.3d 579, 590-

91 (6th Cir. 2006), contains a good discussion of the various

circuit court decisions in cases considering and striking down

early filing deadlines in state elections. 

[12] For these reasons we must conclude that the Arizona

deadline imposes a severe burden on plaintiffs’ rights.

Because a severe burden is imposed, strict scrutiny applies to

the filing deadline as well. See Anderson, 460 U.S. at 792,

795, 806. 

[13] The state next contends that even under strict scrutiny,

the filing deadline is constitutional because it is necessary in

order for the state to meet its various deadlines for petition

challenges, sample ballots, early voting ballots and overseas

military personnel, as well as for the layout and printing of

ballots. 

[14] When we examine the timeline, however, together

with the relatively small impact of the presidential election on

the overall length of Arizona’s general-election ballots, we

cannot say that the state has justified the early filing deadline.

The state asserts that Arizona’s general election ballots

include over 400 different federal, state, and local elected

offices and dozens of local ballot measures. The state conNADER v. BREWER 8297
tends in effect that it can accommodate all the other offices

and initiatives, but not the addition of ten electors for the

office of President. This does not appear on its face to be an

internally consistent position. The state has not explained

when and how it learns of the number of other offices and initiatives that must be placed on the general-election ballot. Presumably, the results of the September primary election would

have some effect on the length of the general-election ballot

as well, but the state has not documented the process in sufficient detail to determine what effect it would or would not

have. The state made the conclusory assertion that it must

order the ballot paper by early June to ensure availability, but

it has not provided documentation or any other evidence supporting this conclusion. 

[15] There is thus no satisfactory explanation in the record

as to why the state needs the full amount of time between the

filing deadline for independent candidates, which in 2004 fell

on June 9, and its first statutory deadline of printing a sample

ballot 45 days before the general election, which in 2004 fell

on September 18, to prepare the ballots for the general election. In light of the state’s ability to put together the generalelection ballot after the primary in September, and its failure

adequately to demonstrate why the petition filing deadline

must be so early, the state has on this record failed to show

that the deadline is narrowly tailored to further compelling

administrative needs. 

Conclusion

Election cases are difficult. The historical background for

such litigation changes rapidly. The district court was faced

with a serious challenge to ballot-access requirements that

have proved difficult for courts to evaluate, given both the

state’s compelling interests in preventing fraud and providing

orderly election administration, and the Constitution’s mandate for free political expression and participation that require

such ballot-access restrictions to survive strict judicial scru8298 NADER v. BREWER
tiny. Although the district court did not agree with plaintiffs

that the requirements constituted serious impediments to the

exercise of their constitutional rights, we conclude that the

burdens are serious and the restrictions are not sufficiently

narrowly tailored to serve the state’s compelling interests. The

state was given every opportunity to meet the heavy burden

that the district court or a higher court might eventually determine that it must shoulder under strict scrutiny. On the basis

of the record before us, the state did not do so. 

The judgment of the district court is REVERSED and

REMANDED with instructions to enter summary judgment

in favor of plaintiffs. 

NADER v. BREWER 8299