After a daylong hearing Tuesday on a new law that more than doubles the number of signatures the Libertarian Party must collect in 90 days to get across-the-board access to Arkansas' 2020 ballots, a federal judge took the matter under advisement, indicating a ruling will come in short order.
The party filed a lawsuit March 28 challenging Act 164 of 2019, which had an emergency clause making it effective on Feb. 18, the day Gov. Asa Hutchinson, a Republican, signed it into law.
It increases the number of valid petition signatures that "new political parties" must submit to the secretary of state before Sept. 4 to have their candidates listed by party on ballots for the next election.
Throughout the past decade, new political parties had to submit 10,000 signatures to qualify as a recognized political party in the next election. Now, they must obtain a number of signatures equal to 3% of the votes cast in the last gubernatorial election -- which, for 2020, means 26,746 signatures.
Unless the party obtains 3% of the votes for governor or for president in an election, they are still considered a "new political party" for the next election. This has resulted in the Libertarian Party, and in some cases the Green Party, successfully submitting petitions to obtain ballot access in every election year since 2012, said Peyton Murphy, a staff attorney for Secretary of State John Thurston.
Murphy testified that the Libertarian Party turned in 11,918 valid signatures as a result of its 2016 petition drive, and 12,749 valid signatures in 2018.
The Libertarian Party of Arkansas, currently chaired by Michael Pakko of Roland, has asked U.S. District Judge Kristine Baker to issue an injunction blocking enforcement of the new law, at least until she determines its constitutionality. The party notes that the 3% requirement was struck down in both 1996 and 2006 by federal judges in the Eastern District of Arkansas, and says nothing has changed since then to justify re-instituting it.
Making matters worse this time, says attorney James Linger of Tulsa, are moved-up deadlines for submitting the petitions, resulting in less time to collect signatures and requiring them to be turned in as early as 14 months before the election, before the citizenry is fully geared up for it.
"This was a Republican deal," Linger told the judge, arguing that the Libertarian Party is seen as a threat to the Republican Party, the state's dominant party both in Congress and in the state Legislature. He said votes for Libertarian candidates are believed to take votes that might otherwise go to Republicans, with whom Libertarians are more closely aligned than Democrats.
Pakko testified Tuesday that the party is "collecting signatures as quickly as we can" and as of April 1, has collected 14,500 unverified signatures. If the 90-day petition limit remains in effect, he said, the party would have only until June 28 to turn in raw signatures.
"We could probably collect another 6,000 or 7,000 signatures at the present pace," he testified. "That would give us raw signatures of 22,000 to 23,000," before the secretary's office whittles out those who aren't registered voters.
"It would effectively mean that the Libertarian Party would not be on the ballot in 2020," Pakko testified.
He said he would like the rules for third parties to be like those for initiative petitions, which aren't due until 60 to 90 days before an election and include a 30-day "cure period" to correct deficiencies. He pointed out that initiative petitions have another major advantage -- financial backing by big business.
The state bears the burden of showing that the new legislation is "narrowly drawn" to protect the state's legitimate interests without infringing on the constitutional rights of the party.
Arkansas Solicitor General Nicholas Bronni contends that the state has a duty to ensure that elections run smoothly by regulating elections and requiring that minor political parties demonstrate some "reasonable quantum of voter support" for a place on the ballot. He told Baker on Tuesday that the 2006 and 2016 federal rulings that the plaintiffs rely on are "wrong," and that requiring a party to obtain signatures equal to 3% of the vote is "not severe."
Murphy testified earlier, under questioning by Senior Assistant Attorney General Jennifer Merritt, that he wasn't aware of any efforts to "freeze out" the Libertarian Party, but that the reason legislators moved up filing dates was to participate in Super Tuesday primaries across the country.
He also testified that 90 days is "fairly standard" for independent candidates and political parties to obtain signatures for ballot-access petitions.
Meghan Cox of Phoenix, an expert witness for the state on ballot initiative access and strategy, testified that the petition requirements are "a relatively easy ask" for the Libertarian Party. She described several scenarios by which the party could use eight full-time to 23 part-time canvassers a day to obtain the proper number of signatures within 90 days. She said her group, the Lincoln Strategy Group, could run a successful petition drive for the party for $100,000. Linger scoffed at that, calling it "a lot of money for a minor party."
M.V. Hood III, a political science professor in Georgia, testified on the state's behalf that if the party focused on collecting just 1,000 signatures to get a presidential candidate on the 2020 ballot, as the law allows for presidential candidates only, "they could get on the ballot with the party label, no petitioning required, and nominate candidates for any other position."
He said the party's candidates could also submit 10,000 valid signatures to get on ballots for statewide offices as independents. Though they couldn't use a party label, he said, they can promote themselves as Libertarians.
Hood said his research showed that in Tennessee and Alabama, candidates running as independents and those running under a third-party label got a "statistically indistinguishable" share of the vote.
He also testified that he doesn't think the new process in Arkansas "freezes out" the Libertarian Party, and that the 3% requirement "is an obtainable goal."
Metro on 06/05/2019