                  FOR PUBLICATION
  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

RALPH NADER; DONALD N. DAIEN,          
              Plaintiffs-Appellants,
                                             No. 06-16251
                 v.
JANICE BREWER, in her official                D.C. No.
                                           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
8280                  NADER v. BREWER


                        COUNSEL

Robert E. Barnes, Milwaukee, Wisconsin, for plaintiffs-
appellants 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
                       NADER v. BREWER                     8281
court’s grant of summary judgment to Janice Brewer, the Sec-
retary of State of Arizona. Plaintiffs alleged that two provi-
sions of Arizona’s statutory election scheme—the
requirement that circulators of nomination petitions be resi-
dents of Arizona and the requirement that nomination peti-
tions 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 general-
election 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 signifi-
cant 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 resi-
dency 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 require-
ment are severe and must be supported by compelling inter-
ests. 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 require-
ments. We conclude, on the basis of this record, when exam-
ined after the passage of the considerable amount of time
expended completing the appellate process, that the burdens
8282                    NADER v. BREWER
are significant and that the state has not shown the require-
ments 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 associa-
tion and political speech of political candidates, potential peti-
tion circulators, and voters, in violation of the First and
Fourteenth Amendments. They sought declaratory and injunc-
tive 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 nomi-
nation 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 regis-
tered voters in the political subdivision for which the candi-
date 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,
                        NADER v. BREWER                        8283
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 limita-
tion, 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). Accord-
ing to the state’s affidavits, the state also mails ballots to over-
seas 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.
8284                     NADER v. BREWER
   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 vot-
ers 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 cir-
culators, that some petitions had been circulated by felons,
and that the petitions contained falsified addresses of circula-
tors. Nader conceded that the petitions did not meet the signa-
ture requirements and on July 2, 2004, withdrew his
candidacy for the Arizona ballot.

   In August 2004, plaintiffs brought this action for declara-
tory and injunctive relief, alleging that the residency require-
ment and the early filing deadline severely burdened the
rights of expressive association and political speech of politi-
cal candidates, potential circulators, and voters, in violation of
the First and Fourteenth Amendments, and that neither regula-
tion could survive strict scrutiny. They sought a declaration
that Arizona’s statutory election scheme was unconstitutional
                       NADER v. BREWER                      8285
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 fil-
ing deadline requirements should survive strict scrutiny. The
state urged that the residency requirement was narrowly tai-
lored 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 stat-
utory 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 bal-
lot 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 bal-
lot 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
8286                    NADER v. BREWER
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. Accord-
ing to the election officials’ affidavits, the paper for the bal-
lots 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 elec-
tors 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 mea-
sures, school bond measures, and other types of ballot mea-
sures, which may vary in number and size, need to be known.

   The state’s affidavits did not fully deal with Arizona’s his-
tory 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 elec-
tion. See Act of Apr. 14, 1993, 1993 Ariz. Sess. Laws ch. 98,
sec. 24, § 16-341(C). The legislature in 1999 again moved
                        NADER v. BREWER                      8287
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 candi-
date 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 state-
wide. Since the filing deadline was moved in 1993, no inde-
pendent presidential candidate has achieved a place on
Arizona’s ballot.

   The state also submitted evidence of five criminal prosecu-
tions that the state has pursued for petition fraud. The state did
not assert that any of the prosecutions had to do with non-
resident circulators.

   The district court in June 2006 granted the state’s motion
for summary judgment and denied plaintiffs’ motion for sum-
mary judgment. The district court rejected the state’s thresh-
old 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 chal-
lenge 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
8288                   NADER v. BREWER
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 bur-
dened 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 dis-
tribute 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 scru-
tiny, 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 bur-
                        NADER v. BREWER                       8289
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 justi-
fications for the burden imposed by its rule.” The Court struck
down Ohio’s March filing deadline for independent presiden-
tial 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 dic-
tates the level of scrutiny applied by the court. In Burdick, the
Court upheld a prohibition on write-in voting in Hawaii, hold-
ing 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 com-
pelling state interest. See id. at 434. It held that a state’s “im-
portant 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 dead-
line 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
8290                    NADER v. BREWER
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 chal-
lenged Arizona election restrictions.

  A.   Residency Requirement for Petition Circulators

   The first provision at issue here is the requirement that peti-
tion 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 require-
ments 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 associa-
tion because it interferes with substantially more core political
speech than is necessary. The leading decision on qualifica-
tions for petition circulators is Buckley, 525 U.S. 182, which
involved a challenge to Colorado’s regulation of initiative-
petition 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 com-
munication 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 pro-
                       NADER v. BREWER                      8291
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 chal-
lenged in that case. See id. at 197. (Arizona’s residency provi-
sion 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 nev-
ertheless 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 cir-
cuit decisions. In Chandler v. City of Arvada, the Tenth Cir-
cuit 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
8292                   NADER v. BREWER
the overall quantum of speech available to the election or vot-
ing process . . . .” Id. at 1241-42 (internal quotation marks and
citation omitted). The court specifically ruled that strict scru-
tiny must be applied when the rights of potential petition cir-
culators 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. (quot-
ing Campbell v. Buckley, 203 F.3d 738, 745 (10th Cir. 2000)).

  In Krislov, the Seventh Circuit held that an in-district resi-
dency requirement, which operated as an in-state residency
requirement for a candidate for the U.S. Senate, severely bur-
dened 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 assess-
    ing 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 signa-
    tures 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 conclu-
sion and upheld a residency requirement for initiative-petition
circulators. See Initiative & Referendum Institute v. Jaeger,
                        NADER v. BREWER                       8293
241 F.3d 614, 617 (8th Cir. 2001). Krislov had been decided
a few months earlier, but Jaeger did not cite it. The Tenth Cir-
cuit in Chandler did cite Jaeger and disagreed with it. See
Chandler, 292 F.3d at 1244. We do not find Jaeger persua-
sive.

   [6] The state contends here that if the standard is strict scru-
tiny, 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 pro-
cess and preventing fraud is compelling. See Purcell v. Gon-
zalez, 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 bur-
den 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 tai-
lored 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
8294                   NADER v. BREWER
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 require-
ment was narrowly tailored, but without considering any
“consent to jurisdiction” alternative).

   [8] The state responds that petition circulators could con-
ceivably 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 circula-
tors can be “nomadic.” Nor did the state ever contend that its
history of fraud was related to non-resident circulators, a his-
tory 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 tai-
lored 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 peti-
tions be filed 90 days before the primary election. Plaintiffs
                       NADER v. BREWER                     8295
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 com-
pelling interest.

   [10] In Anderson, the Supreme Court struck down Ohio’s
March filing deadline for an independent presidential candi-
date’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 jus-
tified 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 presi-
dential preference election was held well in advance of the fil-
ing 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 con-
cerns in Anderson because they were not present in the 2004
election.

   The 2004 election, however, may not have been representa-
tive 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 con-
clude that the concerns expressed in Anderson may well
remain significant, and in any event, we are not free to disre-
gard them.
8296                    NADER v. BREWER
   [11] The historical evidence of ballot access in Arizona fur-
ther 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 fil-
ing 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 can-
didates for other offices have gained ballot access. Yet candi-
dates for president are national candidates and thus situated
differently from candidates for state offices, or even other fed-
eral 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 conclu-
sive 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 compara-
tively 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 burden-
some 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
                        NADER v. BREWER                      8297
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 pre-
dicament 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 con-
8298                    NADER v. BREWER
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 ini-
tiatives that must be placed on the general-election ballot. Pre-
sumably, 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 suffi-
cient 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 sup-
porting 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 elec-
tion. In light of the state’s ability to put together the general-
election 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 man-
date for free political expression and participation that require
such ballot-access restrictions to survive strict judicial scru-
                       NADER v. BREWER                      8299
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 deter-
mine 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.
