On April 15, the 9th circuit held oral arguments in Nader v Brewer, a case filed in 2004 which challenges two Arizona election laws: (1) the law making it illegal for anyone who doesn’t live in Arizona to circulate an independent candidate petition; (2) the early June petition deadline, the 2nd earliest in the nation for independent presidential candidates.
The hearing went well for the plaintiffs. The court spent much more time talking about issue (1). Judge Consuelo Callahan seemed to say she feels that restriction can only be upheld if it necessary for a compelling state interest (the “strict scrutiny” test), and seemed dubious that the U.S. District Court (which had upheld both laws) had applied strict scrutiny.
The attorney for Nader, Robert Barnes, argued that if the purpose of the out-of-state ban is to make it possible for the state to find a circulator who has been accused of fraud, a better and less restrictive solution is to require all circulators to voluntarily agree to be subpoened, even if they not Arizona residents. Judge Callahan seemed to feel that the U.S. District Court had not explained why that isn’t a less restrictive answer to the problem. The attorney for the state said it is cumbersome and expensive to do this, but neither Judge Callahan, nor Judge Richard Clifton, seemed sympathetic to that response.
Judge Clifton found it significant that ever since Arizona moved the independent petition deadline from September to June, in 1993, no independent presidential candidate has qualified in Arizona. 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.
Judge Mary Schroeder seemed sympathetic to the state’s position, and asked about a 9th circuit decision, Prete v Bradbury, which upheld an Oregon law making it illegal to pay circulators on a per-signature basis. Nader’s attorney, speaking from memory, was able to quote parts of the Prete decision, specifically that the Oregon law did not prevent any individual from circulating a petition, and also pointing out that the Prete decision was worded carefully to say that the plaintiffs in Prete had presented almost no evidence showing a burden, and that the Prete decision might someday have a different outcome if stronger evidence is submitted.
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.
A decision is likely sometime late in 2008.