ST. LOUIS — Arkansas’ stringent election requirements to get on the ballot as a third party are likely unconstitutional, the Eighth Circuit ruled Thursday.
Recent amendments to the law at issue nearly tripled the number of signatures needed for a new political party to appear on a ballot.
State law previously dictated that a new party needed 10,000 voter signatures to get on the ballot. Now, parties seeking whole-ballot access need an amount that equals or is greater than 3% of the total votes cast in the state’s last gubernatorial election — which amounts to nearly 27,000.
The Libertarian Party of Arkansas filed the lawsuit challenging the requirements in the Eastern District of Arkansas in March 2019. Arkansas appealed to the Eighth Circuit after U.S. District Judge Kristine G. Baker, a President Barack Obama appointee, granted preliminary injunctive relief, finding that the law was likely unconstitutional.
Attorney James C. Linger, who represented the Libertarian Party, lauded the unanimous decision by the three-judge panel.
“It ends the thing for this election,” Linger said in an interview. “The Libertarian Party will be on the ballot; all their candidates will be on the ballot. If it would have been reversed, they would have lost their candidates and everything for this election.”
The law, amended by the state’s Republican-dominated legislature in January 2019, also imposes a 90-day window to collect the larger number of signatures, which have to be gathered 14 months before the election date.
“The Attorney General is disappointed in the Eighth Circuit’s ruling and is reviewing the decision to determine the next step,” an Arkansas spokeswoman said in an email.
The state argued during a hearing before the Eighth Circuit in December that signature gathering has been made easier with the emergence of social media and that the cost estimate of $55,000 did not make for an undue burden.
The three-judge panel was not swayed.
“We harbor serious doubt that the generalized desire to maintain the integrity of elections and prevent ballot overcrowding can be viewed as a compelling state interest when the prior version of the statute undisputedly succeeded at preventing ballot overcrowding,” Senior U.S. Circuit Judge Michael J. Melloy, a George W. Bush appointee, wrote in the 21-page opinion. “The evidence at the hearing showed that no party previously achieved access during the years in which Arkansas had a 3% requirement, and even during the many years in which Arkansas had a 10,000 signature requirement coupled with a more forgiving deadline, there was no crowding of the ballot.”
Melloy continued, “The state’s own expert witness acknowledged that only one or two new parties had ever qualified by petition under the 10,000 signature requirement. In fact, he opined that a ballot with two major parties and two additional parties appearing on a whole-ballot basis would not be crowded.”
U.S. Circuit Judges Ralph R. Erickson and Jonathan A. Kobes, both Trump appointees, joined Melloy in the opinion.
Arkansas passed similar laws in 1996 and 2006, only to have them both found to be unconstitutional. Linger said the state has been attempting to impose similar restrictions on third parties off and on for decades.
“I think the court did a good job at looking at the combined effect of the law,” Linger said. “What they said is what she (Baker) decided to do was the most conservative course to take on it.”
Linger plans on following up with motions for summary judgment to officially end the matter.
Paul Gronke, a Political Science Professor at Reed College in Portland, Oregon, said the appeal court’s decision is convincing.
“The idea that you can be obligated to collect signatures 400 days before an election, I was sort of stunned that somebody thought that was OK,” Gronke said in an interview. “I am regularly surprised at how creative the existing two parties can be in trying to restrict ballot access.”
Gronke said ballot requirements have been an issue for 120 years. They came from early 20th Century Progressive Era reforms aimed at breaking the monopoly that the major parties and political machines had.
As part of the reforms, primary elections were moved to a state supported process.
“But over time what has happened is that the states, through their regulatory and their legal apparatus, have been maintaining the two-party system and laws have been put in place that restrict the ability of additional parties to enter into the political system,” Gronke said. “I don't think that was the intention of the Progressive Era reforms, but that's where we're at.”
Gronke said the signature requirements added with the short window make it ripe for professional signature gatherers to falsify names. He also noted that the process is expensive, which creates an unlevel playing field between the two major political parties and the smaller third parties.
Gronke said Arkansas’ 3% requirement is one of the higher standards in the country.
“Thresholds are that high for referendum initiatives, but that’s because those are changing the constitution or changing state statutes,” Gronke said. “Here it is simply getting somebody on the ballot and there is nothing wrong with getting additional names on the ballot.”
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