Arkansas Defends Ballot-Access Rules at Eighth Circuit

An attorney for the state argued it was an independent Senate candidate’s own fault he did not meet a signature collection requirement and the case should be dismissed as moot since the 2020 election is over.

A roll of stickers awaiting distribution to early voters sits on a table at the Pulaski County Courthouse Annex in Little Rock, Ark., in 2018. (AP Photo/Kelly P. Kissel)

(CN) — An Arkansas Senate candidate who hoped to run as an independent in last year’s election urged an Eighth Circuit panel on Thursday to find the state’s ballot-access requirements unconstitutional, describing the signature-gathering process as “a serious problem” and insisting that the issue is not moot now that the election has passed.

Dan Whitfield wanted to challenge Republican U.S. Senator Tom Cotton in the November general election, but as an independent candidate. Under the state’s election laws, this required him to obtain at least 10,000 signatures in a 90-day fixed petitioning period ending May 1.

But the task was too much for Whitfield, who claims the process became unfeasible once the Covid-19 pandemic crept up on the state, and because of the short petitioning period allowed by Arkansas election laws.

“Mr. Whitfield, as the record shows, put out a great effort in this case and he had many volunteers and expended money,” his attorney James Linger of Tulsa, Oklahoma, told the three-judge panel Thursday. “He did not expect the pandemic and it was devastating what happened here.”

Linger argued that because a pandemic could occur again and affect future elections, the appellate panel should not find the case moot. He said that Whitfield, a progressive, has not made a decision on his plans for the next election cycle, although his campaign website and Twitter account describe him as a Democratic candidate for Senate in 2022.

Dylan Jacobs, an assistant solicitor general for the state, said it was Whitfield’s own fault for failing to meet the state’s signature-collection requirement and that a “reasonably diligent independent candidate” could have collected the required signatures in the allotted time period.

Either way, Jacobs argued, the election is over “and there is no relief that this court could order to change that.”

“His only alleged injury, which is exclusion from the 2020 ballot, is no longer redressable by a court and that renders this case moot,” Jacobs said, adding that Arkansas is not required to create exemptions for candidates to account for situations like pandemics or bad weather.

“Covid-19 didn’t change that,” Jacobs said.

The state argued Thursday and in court documents that it was Whitfield’s decision to stop gathering signatures after Arkansas Governor Asa Hutchinson declared a state of emergency in March 2020, despite no action on the state’s part restricting his petitioning and signature gathering.

“I don’t think 90 days is really all that small amount of time,” Jacobs said in response to a judge’s question. “Though your honor may consider 90 days to be relatively short, Arkansas’ signature requirement for independent candidates amounts [to] 0.5% of the eligible pool, which is significantly below the upper threshold that this court has recognized.”

The case made its way to the St. Louis-based Eighth Circuit after U.S. District Judge Kristine Baker, a Barack Obama appointee found that, while the Covid-19 pandemic presented some burden, evidence demonstrated “that a reasonably diligent candidate could have complied with Arkansas law.”

A Sixth Circuit ruling in August rejected a similar claim that Covid-19 rendered Ohio’s ballot-access laws for initiative petitions severely burdensome.

Whitfield, who came up with only about 6,500 signatures and suspended his campaign in October after losing challenges to appear on the ballot, is likely to challenge Senator John Boozman, a Republican, next year. Cotton is not up for reelection until 2026.

Thursday’s panel consisted of U.S. Circuit Judges Raymond Gruender and Duane Benton, both appointed by George W. Bush, and Steven Grasz, a Donald Trump appointee.

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