Shared from the 2018-01-27 Arkansas Democrat-Gazette eEdition

State’s March 1 petition deadline struck

Federal judge rules for independent candidate, says law unconstitutional

A 2013 Arkansas law requiring independent candidates for office to submit ballot-access petitions by March 1 has been declared unconstitutional.

The ruling of U.S. District Judge James Moody Jr. on Thursday applies to Mark Moore of Pea Ridge, who hopes to submit enough signatures on a petition to have his name placed on the Nov. 6 general election ballot as a candidate for lieutenant governor.

While the federal judge found that the law itself is unconstitutional, a spokesman for Secretary of State Mark Martin said Friday that Martin will review the ruling to see how it affects other candidates on a “case by case basis.”

“Diligent candidates have not had any difficulty meeting the March 1 deadline, as hundreds of judicial and prosecutorial petitions have shown,” spokesman Chris Powell said in an email.

Moore was one of three men who sued the state in 2014 in federal court, saying the March 1 deadline was too soon for independent candidates to adequately obtain enough signatures and it required them to collect signatures in colder weather. Previously, independent candidates had until May 1 to gather signatures, but in 2013, the state Legislature changed the date to March 1.

The petition process starts 90 days before the filing period. Under the March 1 deadline, independent candidates could have started collecting signatures Dec. 1. The May 1 deadline means signatures can be collected starting Jan. 31 — six days after Moody’s ruling.

While independents must gather signatures — in Moore’s case 3 percent of the number of votes cast in the 2014 election for governor up to 10,000 signatures — to be placed on general-election ballots, Democratic and Republican candidates pay a filing fee to their state parties to file for state or federal office. The preferential primary election in Arkansas this year is May 22.

Moody dismissed the lawsuit in August 2015, saying Martin, a Republican, had provided a compelling reason for the moved-up deadline and that the restrictions in Act 1356 of 2013 were narrowly tailored to advance the state’s interests in timely certifying candidates and petitions.

Deputy Secretary of State A.J. Kelly, who is legal counsel for Martin, presented testimony in 2015, and again in a hearing in December, in an effort to show the March 1 deadline was necessary to manage the office’s multiple duties.

The hearing in December was prompted by the 8th U.S. Circuit Court of Appeals’ reversal of Moody’s earlier dismissal, as it affected Moore — the only one of the three potential candidates to pursue an appeal. The 8th Circuit panel, saying Martin hadn’t adequately justified the earlier deadline, also directed Moody to conduct another, more thorough hearing to see if Martin could overcome those deficiencies.

Moody let Moore and his attorney, James C. Linger of Tulsa, know Dec. 15, three days after the second hearing, that he expected to find the law unconstitutional this time but that his written order had not yet been prepared. Moore said he wanted to wait on the actual language of the ruling before “going much further.”

Linger said Thursday from his Tulsa office, “Perhaps the Arkansas Legislature will get on the ball and get the law changed.”

He said ballot-access litigation has been going on for 40 years, and the state has “been slapped down three or four times on this. … It’s like they won’t learn … or they just don’t have an institutional memory. I’ve never seen a state that just keeps doing the same thing.”

While Moody’s ruling applies only to Moore, “I would think the secretary of state would not try to enforce the law before May 1,” Linger said, noting that the law itself has been deemed unconstitutional, which would mean “it’s unconstitutional for everybody.”

Kelly didn’t immediately return a reporter’s call.

Powell, Martin’s spokesman, said his office encourages all independent candidates to be “diligent in meeting the March 1 deadline.”

According to Moody’s order, which cited testimony in the hearings, two independent candidates were on the ballot in 2016, but neither sought a statewide office; in 2014, one independent was on the ballot but not for a statewide office; and in 2012, 12 independent candidates filed, documents to get on the ballot but only eight succeeded, and none were for statewide office. In 2010, 22 candidates filed documents, but only 10 made it on the ballot, and of those, just one was seeking a statewide office.

Information for this article was contributed by John Moritz of the Arkansas Democrat-Gazette.

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