Nader and Ballot Access in Hawaii

The Ninth Circuit today affirmed a Hawaii district court’s grant of summary judgment in favor of the Elections Commissioner who denied Independent Candidates for President Ralph Nader and Michael Peroutka access to Hawaii’s ballot for the 2004 presidential election. Nader and Peroutka appealed the ruling arguing that Hawaii’s ballot access laws violated the Equal Protection Clause and/or the First and Fourteenth Amendments. The Hawaiian framework requires either a certain number of signatures or filing a petition 170 days before a primary to form a “qualified party” in order to be on the ballot.

The court quickly rejected the appeal. Under its first amendment analysis the court found that “[t]he Constitution (U.S. Const. Art. I, § 4, cl. 1) provides that States may prescribe‘[t]he Times, Places and Manner of holding Elections for Senators and Representatives,’” and the Supreme Court has recognized that States retain the “power to regulate their own elections.” Burdick v. Takushi, 504 U.S. 428, 433 (1992) (slip opinion pg. 5). The court found that under this authority states can apply some restrictions to ballot access but will only apply strict scrutiny where the “magnitude of the asserted injury” warranted such review. It held that strict scrutiny did not apply to the plaintiff’s because the burden placed was de minimis.

The court also summarily dismissed the equal protection argument, calling it “unpersuasive” under existing authority. The opinion doesn’t make much new law. It largely relies on Supreme Court authority and its own factual analysis in determining how onerous the Hawaiian framework is. Third party candidates aren’t barred from the ballot, but in the future are reminded to follow the framework and not rely on the courts.