A federal judge will hear arguments beginning at 9 a.m. next Tuesday on whether to enjoin the state from enforcing new legislation that the Libertarian Party of Arkansas says makes it difficult for members of third parties to get on the ballot in the state.
The party filed a lawsuit March 28 challenging Act 164 of 2019, which was signed into law by Gov. Asa Hutchinson in February. It increased the number of petition signatures required of "new political parties" from 10,000 to 3 percent of the votes cast in the most recent gubernatorial election.
That requires Libertarian Party candidates to obtain 26,746 signatures to get on the 2020 ballot.
The lawsuit also challenges provisions of several recently enacted laws that the party says are unconstitutional, and it asks U.S. District Judge Kristine Baker to impose a preliminary injunction that would block Secretary of State John Thurston from enforcing the contested provisions until the constitutionality of the laws are decided.
Upon filing the lawsuit, party Chairman Michael Pakko said: "We told our legislators that they were re-establishing a standard that had been overturned in federal court back in 2006, but they passed it anyway. We have clear precedent on our side."
He was referring to Green Party of Arkansas v. Daniels, a case in which the court invalidated a 3 percent requirement that was later replaced by the 10,000-signature standard.
In 1996, the 3 percent requirement was struck down in the case Citizens to Establish a Reform Party in Arkansas v. Priest.
"It is truly outrageous that twice a federal court has struck down the 3%, and yet the state has done it a third time," a ballot-access expert, Richard Winger, was quoted by the party as saying. Winger was also quoted in the party's news release as saying, "That makes this case unique in the whole country's history of ballot access litigation."
In a response filed Friday, the Arkansas attorney general's office urged Baker to deny the injunction request, saying the U.S. Constitution recognizes the states' role in ensuring that elections run smoothly and "endows the states with the duty to regulate the 'times, places and manner of holding elections.'"
The state argues that Arkansas, like most states, exercises that duty by requiring minor political parties to first demonstrate "some reasonable quantum of voter support" through the petition process.
By increasing the percentage required to obtain across-the-board ballot access this year, the state argues, new political parties in Arkansas "must now make a showing of voter support comparable to the showing that Arkansas has long required of established political parties."
The state notes that "courts of all levels of the federal and state judiciaries have upheld laws similar to Arkansas's modicum-of-support requirement against constitutional challenge."
Addressing another complaint of the Libertarian Party, that Act 545 of 2019 shifts primary elections from May to March in presidential election years, the state argues that "this deadline and others changed as a result of Arkansas's desire to have an earlier presidential primary and not of any attempt to freeze minor parties out of Arkansas politics."
The party contends that the state "added insult to injury" by moving the deadlines. Pakko said in a news release that "prospective challengers to the established incumbents shouldn't have to form parties and select candidates over a year before the general election."
"The modicum-of-support requirement is not the only avenue open for the Libertarian Party," attorneys for the state said in their response. "And the petition-filing deadline did not arise from an arbitrary scheme to sandbag the Libertarian Party's chances at electoral success. Rather, that deadline is a function of the constellation of other deadlines in Arkansas' election laws."
Among the party's options for obtaining ballot access is to qualify as a political party, allowing the party to "put forward a full slate of candidates for each general election, including the ability to place a candidate on the ballot for every partisan office up for a vote at that election," the attorney general's office argues.
The state's attorneys note that under Arkansas law, a "political party" is "any group of voters that at the last preceding general election polled for its candidate for Governor in the state or nominees for presidential electors at least 3% of the entire vote cast for the office."
Any political party that fails to maintain the 3% requirement "shall cease to be a political party" under state law. The attorneys noted that the 8th U.S. Circuit Court of Appeals in St. Louis, which has jurisdiction over federal courts in Arkansas, rejected the Green Party's constitutional challenges to the cutoffs.
Arkansas also allows a "political group" to show the required modicum of support through performance in the presidential race, the state argues. Although the term "political group" isn't defined by Arkansas law, "a political group that wishes to have candidates for President and Vice President of the United States printed on the Arkansas ballot must submit a petition to the Secretary [of State] with the signatures of 1,000 qualified electors," the response states.
"In short," the state argues, "any political group can obtain presidential ballot access with a 1,000-signature petition and will subsequently become a political party if the group's presidential nominee obtains three percent of the vote. Once that happens, it will have the same power to nominate a full slate of candidates as any other party in Arkansas."
Metro on 05/29/2019
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