LINDA SATTER
ARKANSAS DEMOCRAT-GAZETTE
A federal appeals court agreed in an opinion issued Thursday that legislation passed by Arkansas lawmakers in 2019 to restrict new political parties’ access to election ballots is probably unconstitutional.
The three-judge panel of the 8th U.S. Circuit Court of Appeals in St. Louis upheld a preliminary injunction that U.S. District Judge Kristine Baker issued in July blocking the state from enforcing Act 164 of 2019, which increases burdens for new parties seeking access to statewide election ballots.
A political party is considered “new” until it obtains 3% of the vote in the most recent gubernatorial or presidential race, according to testimony last year by Peyton Murphy, a staff attorney for Secretary of State John Thurston.
The 2019 legislation, which hasn’t been enforced since Baker issued her injunction, requires new political parties to obtain significantly more signatures than have been required over the past decade to obtain access to statewide ballots, imposes a deadline for submitting petitions months in advance of the general election and limits petition-gathering to 90 days.
The Libertarian Party of Arkansas sued in March 2019, shortly after passage of the new restrictions. The party complained that despite past rulings deeming similar Arkansas laws unconstitutional, the state increased the number of valid signatures that new political parties must collect on ballot-access petitions from 10,000 to 3% of the number of votes cast in the last general election. That would have required the party to obtain 26,746 valid signatures to get on the 2020 ballot, but Baker ordered the state to certify the Libertarian Party as a political party and allow it to name candidates for every partisan office if it collected 10,000 signatures.
As a result, “the Libertarians are going to be on the ballot this year,” attorney James Linger of Tulsa, who represents the party, said Thursday. He applauded the panel’s decision, noting that Baker’s injunction was followed by her and the 8th Circuit’s refusal to “stay” its imposition while the state’s appeal was pending, despite requests from the attorney general’s office, representing Thurston.
“The attorney general is disappointed in the 8th Circuit’s ruling and is reviewing the decision to determine the next step,” spokeswoman Amanda Priest said Thursday.
The injunction only halts enforcement of the law until the constitutionality of Act 164 is determined at trial, but Linger said he hopes the matter can be resolved without need for a trial.
“The law is clearly unconstitutional,” said the man who has successfully battled other restrictions implemented by Arkansas legislators over the years to thwart ballot access by independent candidates and any parties that aren’t the standard Democrat and Republican parties.
“The Legislature really should have listened,” he said. “They were warned not to do this. What were they thinking?”
He added, “It was very obvious that this was special legislation directed at the Libertarians.”
In a hearing before Baker last year, Linger called the enactment of the legislation “a Republican deal,” saying the GOP sees the Libertarian Party as a threat because votes for Libertarian candidates are believed to take votes that would otherwise go to Republicans, with whom Libertarians are more closely aligned than Democrats.
Baker said, in imposing the injunction, that she hadn’t seen any evidence to explain the state’s interest in the new requirements. She said the state must show that the legislation is “narrowly drawn” to protect the state’s legitimate interests without infringing on the constitutional rights of the party.
The Libertarians also say the 90-day restriction on collecting signatures is unfair, especially when combined with filing deadlines that allow petition-gathering only during mostly winter months and too far before an election, when voters aren’t thinking about politics as much.
The 90-day restriction is also part of a newer challenge filed by independent candidates. Linger, who represents them as well, said the 90-day restriction that applies to the independent candidates is “even worse” because of a change made early this year requiring the 90 days to begin just before the May 1 deadline for submitting petitions. The independent candidates say that with the onset of the coronavirus pandemic in Arkansas in March and associated social-distancing restrictions, the 90-day timetable made it even more difficult than usual to obtain signatures.
Baker heard testimony in that case in late May and hasn’t yet issued a ruling.
The three-judge panel that participated in Thursday’s opinion was made up of U.S. Circuit Judges Ralph Erickson of Fargo, N.D.; Michael Melloy of Cedar Rapids, Iowa; and Jonathan Kobes of Sioux Falls, S.D.