Nader v. Cronin

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
 NADER v. CRONIN 13217

COUNSEL

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

Aaron H. Schuland, Pearl City, Hawaii, for the defendant-
appellee.
13218 NADER v. CRONIN
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 candi-
dates 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,
 NADER v. CRONIN 13219
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 peti-
tions 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. Per-
outka 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 candi-
dates met the signature requirements of Hawaii Revised Stat-
ute § 11-113. Both the Nader/Camejo and Peroutka/Baldwin
campaigns challenged the signature counts through adminis-
trative 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.
13220 NADER v. CRONIN
DISCUSSION

We review de novo questions of law, including constitu-
tional 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 Sen-
ators and Representatives,’ and the Court therefore has recog-
nized 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 vot-
ers” 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 exer-
cise of constitutional rights and the strength of the state inter-
ests 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 inter-
est.” Id. at 1035 (citing Burdick, 504 U.S. at 434). A state may
justify election regulations imposing a lesser burden by dem-
onstrating 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. Candi-
 NADER v. CRONIN 13221
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 indepen-
dent candidates demonstrate “a significant modicum of sup-
port” 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 candi-
dates 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 dem-
onstrate 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 unrea-
sonable burden on the candidate. . . .”), aff’d 388 F.3d 137,
137-38 (5th Cir. 2004) (affirming “[e]ssentially for the rea-
sons as well stated in the district court’s memorandum opin-
ion”).

[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. Inde-
pendent 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 reg-
istered 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
13222 NADER v. CRONIN
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 avail-
ability 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 reg-
ulatory scheme as a whole. In arguing otherwise, appellants
gloss over important facts. For instance, in addition to quali-
fying 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 regard-
less 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’ constitu-
tional rights, Washington need demonstrate only that its elec-
 NADER v. CRONIN 13223
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 elec-
tion machinery, avoid voter confusion, and assure that the
winner is the choice of a majority, or at least a strong plural-
ity, 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 neces-
sarily “similarly situated,” see Van Susteren v. Jones, 331
F.3d 1024, 1027 (9th Cir. 2003) — the appellants’ equal pro-
tection argument here relies on the premise that Hawaii law
imposes a higher burden on independent candidates for presi-
dent 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 “inher-
ently more burdensome.” See id. at 441, See Erum v. Caye-
tano, 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 can-
not 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 bur-
densome than the other.”). Accordingly, Hawaii’s regulatory
scheme governing access to the presidential ballot does not
violate the Equal Protection Clause.
13224 NADER v. CRONIN
CONCLUSION

Because independent presidential candidates are not affili-
ated with any party, they cannot receive their party’s nomina-
tion or be asked to show support from a national party.
Hawaii therefore has imposed a reasonable one percent signa-
ture 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 presiden-
tial ballot access scheme is constitutional.

AFFIRMED.