Thursday, July 10, 2008
Court Strikes Early Filing Law for Independent Candidates
By KENNETH OFGANG, Staff Writer
An Arizona law that requires independent candidates to file their petitions by early June in order to appear on the November ballot is unconstitutional, as is a requirement that all petition circulators be qualified to vote in the state, the Ninth U.S. Circuit Court of Appeals ruled yesterday.
The court struck down the provisions in a suit brought by Ralph Nader, who withdrew as an independent presidential candidate in the state after his petitions were challenged in 2004, and his supporters.
Arizona requires that an independent candidate obtain the signatures of at least three percent of all voters not affiliated with a recognized political party. In 2004, this amounted to a little more than 14,000 signatures; today it is over 21,000.
In addition to limiting the pool of potential circulators to residents who are, or are eligible to become, registered voters, the law requires that the signatures be filed at least 90 days before the state’s September primary. In 2004, the primary was on Sept. 7, so the filing deadline was June 9.
The law establishes an expedited schedule for hearing challenges to petitions, so that the legal process can be completed more than 45 days before the general election, when the sample ballot must be prepared and overseas military ballots mailed. Early voting for all others begins 33 days before the election.
Four years ago, Nader’s supporters filed their signatures at the deadline, but challengers contended that the number of valid signatures were insufficient, that some signatures were forged, that some petitions had been circulated by felons, and that some circulators’ addresses were falsified.
Nader withdrew rather than fight the challenge in court. He and his backers subsequently challenged the requirements that all circulators be residents and registered voters, along with the filing deadline.
U.S. District Judge Frederick J. Martone of the District of Arizona rejected the suit, ruling that any burdens on free speech and association rights were reasonable in light of the state’s legitimate interests in protecting the integrity of its process and getting the general election ballots printed on time.
In a separate suit, Nader and others sued the Democratic Party and others, claiming a conspiracy to keep him off the Arizona ballot. That action was dismissed last month by another federal judge, who noted that Nader had lost similar suits in four other states.
The Ninth Circuit, however, yesterday reversed Martone’s decision and ordered that summary judgment be entered in favor of the plaintiffs.
Judge Mary M. Schroeder, writing for the Ninth Circuit, said the residency requirement could not survive Buckley v. Am. Constitutional Law Found., Inc. (1999) 525 U.S. 182, which struck down a similar requirement for initiative circulators in Colorado on the ground that it burdened “core political speech” and restrained dissemination of the plaintiffs’ message by limiting the number of circulators.
While the Colorado requirement was more restrictive, in that circulators had to actually be registered voters rather than merely being eligible to register, the effect was practically the same, Schroeder concluded.
“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,” the judge wrote. “Such a restriction creates a severe burden on Nader and his out-of-state supporters’ speech, voting and associational rights.”
The judge rejected the state’s attempt to distinguish the cases on the ground that the tight deadlines for hearing petition challenges necessitate that circulators be available to testify, rather than having them move back to wherever they live. The state, she wrote, had a less restrictive alternative—it could have required that circulators living out of the state consent to Arizona’s potential exercise of subpoena powers.
Schroeder similarly rejected the June filing deadline, saying the state failed to offer an adequate explanation as to why it needs to ascertain the identities of independent candidates in the early summer when the rest of the general election ballot isn’t known until after the September primary.
The jurist distinguished Libertarian Party of Washington v. Munro (9th Cir. 1994) 31 F.3d 759, in which the court upheld a requirement that minor party candidates file 200 signatures, if running statewide, or 25 if running for local office, by July 4. The free speech burden in that case was held “de minimis,” the judge explained, because the number of signatures was small and the deadline was closer to the time that major parties were selecting their candidates, she explained.
Nader is again running for president this year as an independent. He is already slated to appear on the Arizona ballot, joining the candidates of the Democratic, Republican, Green, and Libertarian parties, after his supporters filed more than 50,000 signatures last month.
The case is Nader v. Brewer, 06-16251.
Copyright 2008, Metropolitan News Company