Judge Moody Hears Case: Should Independents Have To File Early?

Eastern District Judge James Moody said today he will decide within a couple of weeks whether an Arkansas law unconstitutionally discriminates against independent candidates. That same law also affects third party candidates.

In Moore v. Martin, the plaintiffs allege that Act 1356 of 2013 discriminates against independent candidates because it requires them to present their required signatures when they file for office, instead of afterwards. In 2014, that meant independents were required to file with their signatures no later than March 3, months before the Republican and Democratic primaries. Previous law required them to present signatures by May 1. For statewide offices, they must collect signatures equal to 3% of qualified electors or 10,000 signatures, whichever is lesser.

Moore’s attorney, James Linger of Tulsa, argued in court today that courts previously have ruled that early deadlines for independent candidates are unconstitutional. In 1976, a three-judge district panel ruled in Lendall v. Jernigan that an April signature deadline for independents was unconstitutional, a decision that was affirmed by the U.S. Supreme Court.

According to documentation provided to the court by Richard Winger, publisher of Ballot Access News, between 1891 and 1955, Arkansas independent candidates needed only 50 signatures for any office, and the petition deadline was 20 days before the general election.

Linger pointed out that in 2012, before the law was passed, seven independent candidates were on the ballot in legislative races. Those include Moore, who won 39% of the vote. In 2014 after the law was passed, only one candidate ran as an independent for the Legislature – the result, Linger said, of the higher hurdle created by the law.

Moore said he was running for lieutenant governor that year but never circulated petitions.

Arguing for Secretary of State Mark Martin, attorney A.J. Kelly said the plaintiffs don’t have standing because they did not try to collect signatures and because the 2014 elections have already passed. He said that getting on the ballot is relatively easy in Arkansas and that the one candidate who did run for the Legislature as an independent proved it was possible.

Kelley argued that administering elections is difficult and that the secretary of state’s office needs time to verify signatures and distribute ballots to overseas voters.

Of the 135 legislators, only one is an independent, state Rep. Nate Bell of Mena, who recently announced he had left the Republican Party. Ironically, he was one of two sponsors of Act 1356 of 2013.

Linger said afterwards that the case affects the 2018 election, not the upcoming 2016 one. The Legislature this year voted in special session to move Arkansas’ 2016 primary elections to March 1 to coincide with other Southern states, which means independent candidates must present their signatures in November – a year before the actual election. He said a favorable ruling by Moody could lead to a lawsuit regarding this year’s elections, though he hasn’t been hired to represent anyone yet.

“If the court were to rule that a March deadline was too early for independent candidates, you can imagine what a November deadline is going to be,” he said.

The law affects third parties much as it does independent candidates. The Libertarian Party of Arkansas has already submitted its signatures, which are being verified by the secretary of state’s office. But the party’s chairman, Dr. Michael Pakko, who attended the hearing today, said his party will have to select its entire slate of candidates by convention in November, months before the primary.

“It’s a whole year in advance that you have to have someone commit to running for office, and it’s sometimes difficult to know what kind of circumstances you’re going to be in a year later,” he said.

Pakko said Moody’s upcoming ruling on Act 1356 could affect third parties because they are included in the law. He said the party could consider legal action on its own based on the ruling.