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Libertarian Party of Arkansas v. Thurston

United States District Court, E.D. Arkansas, Western Division

July 3, 2019

LIBERTARIAN PARTY OF ARKANSAS, et al. PLAINTIFFS
v.
JOHN THURSTON, in his official capacity as Secretary of State for the State of Arkansas DEFENDANT

          PRELIMINARY INJUNCTION ORDER

          KRISTINE G. BAKER UNITED STATES DISTRICT JUDGE

         Before the Court is a motion for preliminary injunction filed by plaintiffs Libertarian Party of Arkansas (the “LPAR”), Sandra Richter, Michael Pakko, Ricky Harrington, Jr., Christopher Olson, and Michael Kalagias (Dkt. No. 12). Defendant John Thurston, in his official capacity as Secretary of State for the State of Arkansas, responded in opposition (Dkt. No. 17). On June 4, 2019, the Court conducted an evidentiary hearing on the motion (Dkt. No. 28).

         This action is brought under 42 U.S.C. § 1983 seeking a declaration that Arkansas Code Annotated §§ 7-7-101, 7-7-203(c)(1), 7-7-205(a)(2), 7-7-205(a)(4)(B), 7-7-205(a)(6), and 7-7-205(c)(3), as applied to plaintiffs for the 2019-2020 Arkansas general election cycle and for all subsequent general election cycles in the State of Arkansas, violate plaintiffs' associational rights under the First and Fourteenth Amendments, including the Equal Protection Clause of the Fourteenth Amendment. Plaintiffs claim a fundamental right to political association protected by the First Amendment to the United States Constitution, which they contend includes both the right of individuals to associate for the advancement of political beliefs and the right of individuals to vote for the candidates or parties of their choice (Dkt. No. 1, ¶ 21). Plaintiffs also claim that the Arkansas statutory scheme's unnecessarily early petition deadline, coupled with the recently increased high petition signature requirement, unequally and unfairly impacts in a discriminatory manner the right of small, minor, unrecognized political parties in Arkansas who seek petition signatures for party formation in Arkansas (Id., ¶ 28). Plaintiffs seek an injunction prohibiting the State of Arkansas from enforcing Arkansas Code Annotated §§ 7-7-101, 7-7-203(c)(1), 7-7-205(a)(2), 7-7-205(a)(4)(B), 7-7-205(a)(6), and 7-7-205(c)(3) for the 2019-2020 Arkansas general election cycle and for all subsequent general election cycles in the State of Arkansas. Plaintiffs bring a facial and as applied challenge (Dkt. No. 1, at 13, Prayer for Relief ¶ 1). For the reasons discussed below, and to the extent set forth below, the Court grants plaintiffs' motion for preliminary injunction (Dkt. No. 12).

         Also before the Court is a motion to exclude the affidavit of Richard Winger (Dkt. No. 21), to which plaintiffs responded in opposition (Dkt. No. 23). For the reasons stated in this Order, the Court denies the motion (Dkt. No. 21).

         I. Motion To Exclude Affidavit

         As a preliminary matter, the Court will address the State of Arkansas' motion to exclude the affidavit of Richard Winger under Federal Rules of Evidence 104 and 702. Mr. Winger states in his affidavit that he considers himself “an expert in the field of minor political parties, independent candidates, and election and ballot access laws in the United States . . . .” (Dkt. No. 21-1, ¶ 2). The State of Arkansas argues that the Court should evaluate the admissibility of Mr. Winger's opinions in terms of their reliability, relevance, and overall helpfulness to the trier of fact. Fed.R.Evid. 104 and 702; see Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). He asserts that the Court should exclude Mr. Winger's affidavit as unhelpful and inadmissible “because he offers no scientific, technical, or other specialized knowledge that will help the trier of fact to understand the evidence or to determine a fact in issue.” (Dkt. No. 21, at 2-3). Further, the State of Arkansas claims that the Court should exclude the affidavit because the LPAR chose the date of the preliminary injunction hearing and that it should not be permitted to support its request for relief with a purported expert's hearsay affidavit that cannot be subjected to the test of cross-examination. See Wounded Knee Legal Defense/Offense Committee v. Federal Bureau of Investigation, 507 F.2d 1281, 1287 (8th Cir. 1974).

         In opposition to the motion, the LPAR explains certain circumstances that surrounded the submission of Mr. Winger's affidavit and his inability to attend the preliminary injunction hearing in this matter (Dkt. No. 23, at 1-3). Further, the LPAR represents to the Court that Mr. Winger has previously been recognized as an expert witness and that his testimony was relied upon by the district court in Citizens to Establish a Reform Party in Arkansas v. Priest, 970 F.Supp. 690 (E.D. Ark. 1996), and Green Party of Arkansas v. Daniels, 445 F.Supp.2d 1056 (E.D. Ark. 2006) (“Green Party II”).

         The Court denies the motion to exclude Mr. Winger's affidavit. Hoehne v. Kerns, 47 Fed.Appx. 796, 797 (8th Cir. 2002) (unpublished per curiam); Wounded Knee, 507 F.2d at 1286-87. The Court will admit the affidavit and, given that Mr. Winger was not available for cross examination at the hearing on the request for a preliminary injunction, give to it the weight the Court determines appropriate.

         II. Findings Of Fact

         The parties stipulated to certain facts (Dkt. No. 22) and then appeared before the Court for a hearing on the motion for preliminary injunction on June 4, 2019. The facts below are taken from those stipulations and from the testimony and exhibits presented at that hearing, as well as the other exhibits in the record.

         1. The parties jointly stipulated to the following facts:

a. Three percent of the total vote cast for Governor of Arkansas in the November 2018 general election is 26, 746 votes (Dkt. No. 22, ¶ 2).
b. The next preferential primary election and non-partisan general election in Arkansas will be held on March 3, 2020, and the next general primary election in Arkansas will be held on March 31, 2020 (Id., ¶¶ 3-4).
c. The next general election and non-partisan runoff election in Arkansas will be held on November 3, 2020 (Id., ¶ 5).
d. Pursuant to Arkansas Code Annotated § 7-7-205(a)(6), the current petition signature deadline for political party recognition in Arkansas is September 5, 2019, which is 60 days before the party filing period (Id., ¶ 6).

         2. The laws governing the certification requirements for new political parties are found at Arkansas Code Annotated § 7-7-205, which was amended by Act 164, effective February 18, 2019. Per Act 164, any group wishing to form a new political party must file a petition with the Arkansas Secretary of State containing “the signatures of registered voters in an amount that equals or exceeds three percent (3%) of the total votes cast for the Office of Governor in the immediately preceding general election for Governor.” 2019 Ark. Acts 164, § 2; Ark. Code Ann. § 7-7-205(a)(2). In this Order, the Court refers to this as the “three percent requirement.”

         3. To be placed on the ballot with a party label, a political party must be certified by the Arkansas Secretary of State. See Ark. Code Ann. §§ 7-7-101-102; 7-5-207(d)(1).

         4. Prior to the passage of Act 164, a petition for a new political party in Arkansas needed the signatures of “at least ten thousand (10, 000) registered voters in the state.” Ark. Code Ann. § 7-7-205(a)(2) (amended February 18, 2019).

         5. The laws governing the timing of the filing of a new political party petition are found at Arkansas Code Annotated § 7-7-203, which was amended by Act 545 of 2019. Prior to the passage of Act 545, the “party filing period” was a one-week period “ending at 12:00 noon on the first day in March and beginning at 12:00 noon one (1) week prior to the first day in March.” Ark. Code Ann. § 7-7-203(c)(1). Per Act 545, however, § 7-7-203(c)(1) was amended to state that “[f]or years in which the office of the United State[s] will appear on the ballot at the general election, ” the party filing period begins “at 12:00 noon on the first Monday in November preceding the general primary election and end[s] at 12:00 noon on the seventh day thereafter.” 2019 Ark. Acts 545, § 2.

         6. A new party petition must be filed at least 60 days before the party filing period. Ark. Code Ann. § 7-7-205(a)(6). Furthermore, the signatures on the filed petition must not be more than 90 days old at the time the petition is filed. Ark. Code Ann. § 7-7-205(a)(4)(B). Throughout this Order, the Court refers to this as the “90-day window.” 7. A new political party that files a petition with the enough signatures and is certified must nominate its candidates “by convention” rather than by primary election for the first general election after certification of a sufficient petition. Ark. Code Ann. § 7-7-205(c)(2)(A).

         8. Certificates of nomination for those nominated at a new party convention “shall be filed with the [Arkansas] Secretary of State or the county clerk no later than 12:00 noon on the date of the preferential primary election.” Ark. Code Ann. § 7-7-205(c)(2)(B)(ii).

         9. In the event a new political party is certified, placed on the ballot, and receives three percent of the total votes cast for the office of Governor or nominees for presidential electors at the first general election after the new political party is certified, then the new political party shall nominate its candidates in a party primary as set forth in Arkansas Code Annotated § 7-7-101 et seq. Ark. Code Ann. § 7-7-205(c)(4).

         10. Candidates who wish to be placed upon the ballot as an independent with no political party affiliation in the county, township, or district in which the person is seeking office may do so by filing a petition “signed by not less than three percent (3%) of the qualified electors in the county, township, or district in which the person is seeking office, but in no event shall more than two thousand (2, 000) signatures be required for a district, county, or township office.” Ark. Code Ann. § 7-7-103(b)(1)(A). If the independent candidate is seeking a statewide office or any office for which a statewide race is required, that candidate's petition must either have 10, 000 signatures or meet the three percent requirement, whichever is lesser. Ark. Code Ann. § 7-7-103(b)(1)(B).

         11. Additionally, any political group or independent candidate “desiring to have the names of its candidates [or candidate] for President and Vice President printed on the ballot shall file a petition with the [Arkansas] Secretary of State by noon on the first Monday of August of the year of the election, ” and the petition must contain the signatures of 1, 000 registered voters of Arkansas. Ark. Code Ann. § 7-8-302(5)(B).

         12. Richard Winger, an individual who considers himself an expert in the field of minor political parties, independent candidates, and election and ballot access laws in the United States, has presented an affidavit in this case (Dkt. No. 21-1, ¶ 2). Mr. Winger has testified as an expert witness in two prior ballot access challenges in the Eastern District of Arkansas (Id., ¶ 4).

         13. Mr. Winger asserts that, prior to 1971 in Arkansas, no petition was needed for a political party to be placed on the general election ballot for all offices (Id., ¶ 6). He further asserts that, in 1971, the Arkansas General Assembly imposed a petition requirement on political parties that had not polled as much as 7% of the vote in the last election. He states that no new political party ever succeeded in satisfying the 7% requirement (Id.).

         14. Mr. Winger further asserts that, between 1977 and 2007, with the three percent requirement in force, no new political party successfully petitioned for ballot access without court intervention, even with 150 days in which to collect petition signatures (Dkt. No. 21-2, ¶ 6).

         15. Mr. Winger states that only three independent candidates have successfully gathered the 10, 000 valid signatures necessary to run for statewide office as an independent (Id.).

         16. Mr. Winger maintains that, from 2007 through 2018, when Arkansas law allowed a new political party to be recognized with 10, 000 valid signatures, only one new political party qualified by petition in 2008, 2010, 2016, and 2018 (Id., ¶ 8). In 2012 and 2014, only two new political parties qualified by petition (Id.).

         17. Mr. Winger further asserts that, in 2016, only 34 of Arkansas' 100 state House seats had a contested election (Dkt. No. 21-2, ¶ 8). Additionally, Mr. Winger asserts that, in three out of the four United States congressional races held in 2016 in Arkansas, the only candidates on the ballot were nominees from the Republican Party and the LPAR (Id.).

         18. Michael Pakko, the present chair of the LPAR, testified that the LPAR is currently a nonprofit organization dedicated to putting the LPAR on the ballot again. He testified that, prior to the law passed in late February 2019, the law was that 10, 000 valid signatures of Arkansas voters were required to establish a new political party with a deadline of 60 days prior to the candidate filing period and a 90-day petitioning window of the party's choosing. Mr. Pakko also testified that, prior to late February 2019, the LPAR had started fundraising and announced an intent to seek to become a new political party once again before 2020.

         19. Mr. Pakko also testified about the “retention requirement.” He testified that retention conditions depend on the year and that, when the presidential election is taking place, the requirement is to obtain three percent of the votes in the presidential election and, in other races, it is three percent of the vote in the gubernatorial election.

         20. Mr. Pakko testified that the LPAR was able to meet the 10, 000-signature requirement in 2012, 2014, 2016, and 2018. He also stated that the LPAR's 2018 gubernatorial candidate gained 2.9 percent of the vote, which was as close as the LPAR had ever come to meeting the three percent requirement. Mr. Pakko testified that, if the gubernatorial candidate had met the three percent requirement, then the LPAR would have been declared a political party and granted the same status as the Republicans and the Democrats. If the LPAR had met the three percent requirement, Mr. Pakko testified that it would have had to select its nominees for the next election in a preferential primary.

         21. Mr. Pakko testified that, in the alternative, if the LPAR did not meet the three percent requirement and had to petition for ballot access, the law requires it to nominate its candidates by convention. He also testified that, in the event the LPAR is recognized for the 2020 election, it would nominate its candidates at a convention. Mr. Pakko explained that, under current law, a nominating convention must be held prior to the preferential primary.

         22. Mr. Pakko testified that he became aware of Senate Bill 163-later passed as Act 164 of 2019-due to calls from reporters. As a result, he began to lobby the General Assembly by attending hearings of both the Senate and House Government Affairs Committee, writing emails to state Senators, and organizing a letter-writing campaign for LPAR members to contact their state Representatives. He further testified that he spoke to members of the General Assembly and informed them that the proposed law seemed to conflict with precedent and appeared to be a targeted action against the LPAR.

         23. Mr. Pakko explained that there is some perception that the LPAR draws votes away from the Republican Party, though he noted that he has not seen documented evidence of this phenomenon. According to Mr. Pakko, the Senate Bill 163 was passed in the state Senate almost exactly along partisan political lines, with all the Republicans Party senators voting for the bill and only one Democratic Party senator voting for it. He noted that the situation in the state House was more complicated but that support was overwhelmingly Republican while the Democratic caucus overwhelmingly voted against Senate Bill 163.

         24. He also testified that the House version of Senate Bill 163 contained an emergency clause, but the emergency clause did not initially pass. A second vote was required to pass the emergency clause. Mr. Pakko explained that, if the emergency clause had not been passed, the LPAR likely would have been able to achieve ballot access before the law took effect.

         25. Mr. Pakko also testified about his experience in the past with petition drives. He noted that he has personally collected signatures and that the 10, 000-signature requirement is a challenging endeavor. He testified that there are limited venues for canvassing for signatures and that significant manpower is required to collect 10, 000 signatures in 90 days. He admitted that this is difficult to accomplish with a volunteer effort alone, so some professional canvassers are paid for with donated money.

         26. Mr. Pakko testified that the Green Party of Arkansas (“GPA”) was not able to comply with the 10, 000-signature requirement that has now been eliminated. Specifically, the GPA was unable to get the 10, 000 signatures required to be on the ballot either in 2016 or in 2018.

         27. Mr. Pakko testified that, as of June 4, 2019, the LPAR's petition drive had received approximately 15, 700 signatures. He further testified that validity checks are suggesting that the LPAR has somewhere around 74 to 75 percent valid signatures, which indicates that they have approximately 10, 880 valid signatures. He noted that this number of signatures is barely sufficient under the old law. He also noted that the Arkansas Secretary of State determines the validity of the signatures.

         28. Mr. Pakko stated that the LPAR began its petition drive in April 2019 because they wanted to get started early enough to avoid the hot summer months. He further testified that they wanted to make sure that they started the petition drive in time to petition on college campuses. He also noted that the LPAR wanted to petition at times when people are in town and not on vacation during the summer months.

         29. Mr. Pakko further testified that inclement weather impedes the petition process. Specifically, he testified that, if it is raining or if there is other inclement weather, those are wasted days for the petition process. He noted that the number of signatures goes up and down with the weather.

         30. Mr. Pakko explained that each of the LPAR's past petition drives has required at least $30, 000.00 in cash plus a considerable volunteer effort. He further explained that the LPAR is financed mostly from independent small donors across the state and across the nation.

         31. Mr. Pakko also testified that he has experience, as chair of the LPAR, with petition drives that are closer to the primary and general elections. He stated that the interest in an election increases as you get closer to it. As for petition drives that are farther from an election, Mr. Pakko testified that it is more difficult to get people to stop and take some time out of their day on something that is not as imminent as it might be if the petitions were being collected closer to election time. He did concede that people are still willing to sign a petition.

         32. Mr. Pakko testified that he did not see any reason why a small new party would need to participate in a primary election, and he noted that he did not know if the LPAR would have much participation in a primary election. He also noted that, when a new party is recognized and a nominating convention is held, the first time a LPAR candidate appears on a ballot is in the first ballot of the general election. He explained that potential LPAR candidates must file with the state during the candidate filing period and notify the LPAR that they are interested in seeking the nomination of the LPAR.

         33. Mr. Pakko testified about the process for an independent candidate to be placed on a ballot. He testified that an independent candidate may do so by collecting 10, 000 petition signatures. He further testified that an independent candidate only appears on the general election ballot. Mr. Pakko testified that independent candidates are listed as independent and cannot have party labels listed on the ballot.

         34. Mr. Pakko testified that he does not see any reason why the deadlines have been accelerated for new political parties that obtain ballot access by collecting signatures. He explained that, because the LPAR does not participate in the primaries, there is no reason for the LPAR candidates to have to provide paperwork during the party filing period. Rather, he testified that the only effective deadline or practical deadline for the LPAR is to have LPAR candidates selected in time that the candidates can be printed on the ballots, which occurs much later in the process.

         35. Mr. Pakko further testified about the process for a new political party to have a candidate placed on the ballot for President of the United States. According to Mr. Pakko, any group that seeks to have a candidate for President appear on the ballot must collect only 1, 000 signatures. He testified that the deadline for such signatures is sometime in the middle of the year of the election. Mr. Pakko stated that he did not understand why this rule existed for the President but for no other public offices.

         36. Mr. Pakko also testified that the Arkansas Secretary of State will not accept petitions for ballot access that are not facially sufficient. Mr. Pakko explained that he does not believe that the Arkansas Secretary of State will accept the LPAR's petition for ballot access if it contains less than 26, 746 signatures.

         37. Mr. Pakko testified that he understood that population increase was one justification for the increased signature requirement, but he testified that he pointed out to a state House committee that, from 2007 to the present, the population of Arkansas has increased by six percent and that, to index properly for population growth, the signature requirement would need to be increased only to 10, 600 signatures.

         38. Mr. Pakko also testified that in 2018, of the 100 members of the state House, 54 members were unopposed, even with the LPAR on the ballot. He testified that, had it not been for the LPAR, 59 percent of the state House races would have been uncontested. Mr. Pakko further stated that, in 2016, the LPAR was the only opposition in three out of four of Arkansas' federal congressional races. Mr. Pakko explained that, if the LPAR is not able to gain ballot access as a new political party, the LPAR's only recourse would be to only place a presidential candidate on the ballot, but he noted that this would not allow the LPAR to run candidates in races for the General Assembly or county and township offices.

         39. Mr. Pakko further testified that the LPAR is collecting signatures as quickly as the LPAR can and that if the LPAR was to count every signature collected from April 1, 2019, then June 28, 2019, would be the 90-day deadline to turn in those signatures to the Arkansas Secretary of State. Mr. Pakko noted that it would not be feasible to attain valid 26, 746 signatures given where the LPAR is after two months of working as hard as possible. He elaborated that, in the time before June 28, 2019, the LPAR could probably collect another 6, 000 to 7, 000 signatures, which would give the LPAR a raw signature count of approximately 22, 000 or 23, 000. He noted, however, that the more quickly the LPAR collects signatures, the higher the invalid numbers are going to be.

         40. Mr. Pakko stated that, to satisfy the three percent requirement, the LPAR would require an infusion of more resources in the form of more canvassers and financing.

         41. Mr. Pakko also discussed the difference between a new political party petitioning for ballot access and an initiative petition. He noted that an initiative petition is due approximately 60 or 90 days before the election, so sometime during the summer of the year of the election. He also testified that there is no limitation on how long signatures for an initiative petition may be collected. Further, he testified that there is a cure period for initiative petition proponents to collect more signatures if there is an insufficient number of signatures on an initiative petition. He noted that a handful of initiatives have been able to get on the ballot in each election.

         42. Mr. Pakko conceded that gathering signatures for a ballot access petition has different requirements than gathering signatures for an initiative petition. Specifically, he conceded that the canvasser's signature and a notary are not required when gathering signatures for a ballot access petition. He admitted that a canvasser for a ballot access petition does not have to be a registered voter. He also admitted that signatures for a ballot access petition can come from anywhere in the state.

         43. Mr. Pakko explained that there is a form for gathering signatures for a ballot access petition. Mr. Pakko stated that the form says that the undersigned seek to form a political party to appear on the general election ballot in 2020 and that there is a space for ten signatures per page on the form. He also stated that the person signing the petition must identify the date on which the person is signing the form. Mr. Pakko also testified that all the canvassers are Libertarians and that some of them are from out of state. He noted that some of the canvassers are being compensated at the low end of the scale because they believe in the LPAR's cause. Specifically, he noted that they have five paid canvassers.

         44. As for volunteer canvassers, Mr. Pakko testified that approximately 150 individuals are assisting with canvassing. Mr. Pakko admitted that he has asked more than 150 individuals to assist with canvassing. Mr. Pakko also described a form on the LPAR's website that anyone can use to sign the petition, though he noted that only half a dozen responses have come from this method.

         45. Mr. Pakko testified that the paid canvassers are not going door-to-door but instead are going to public places to obtain signatures. He stated that the paid canvassers go to government buildings, public festivals, farmers' markets, and other gatherings on public property. He noted that four of the paid canvassers are in Little Rock, though they travel to other parts of the state, and another is in Fort Smith. Mr. Pakko did not know for certain if his canvassers would attend certain events in the future. Mr. Pakko did admit that he and other canvassers gathered signatures at the Toad Suck Days festivals and that signatures were collected at the Bentonville Film Festival. Mr. Pakko stated that he did not believe any canvassers had been sent to the Magnolia Blossom Festival. Mr. Pakko explained that a common issue at large events is that there are many participants from out of state. Mr. Pakko said that he believes the LPAR has canvassers at Oaklawn in Hot Springs, Arkansas. Mr. Pakko noted that his canvassers have had some problems collecting signatures at license offices, college campuses, public libraries, and post offices due to purported restrictions on access.

         46. Mr. Pakko also stated that the paid canvassers are not employees but are instead independent contractors who use their judgment as to where they can collect the most signatures. He noted that the paid canvassers look at event calendars and ask for input from local people regarding events. The paid canvassers choose the most productive venue they can find. Mr. Pakko admitted that he does consult with the paid canvassers.

         47. As for searching for volunteers, Mr. Pakko stated that the LPAR utilizes Facebook and Twitter, though it does not have a presence on Craigslist or Nextdoor. Mr. Pakko also testified that the LPAR has a website where volunteers can sign up to canvass.

         48. The Court also heard testimony from Michael Kalagias, a registered voter in Arkansas and a past LPAR candidate. Mr. Kalagias testified that he once received more than three percent of the vote in a race for the state House, though he failed to meet the three percent threshold in a race for a federal congressional seat. Mr. Kalagias is the chair of the Benton County Libertarian Party and is an affiliate for the state party for Benton County, Arkansas.

         49. Mr. Kalagias testified that he has petitioned for signatures and that the Walmart shareholders meeting is a difficult place for him to gather signatures due to the number of non-Arkansas residents who attend the meeting. Mr. Kalagias also testified that the weather has impacted the current petition drive; specifically, he noted that the Bentonville First Friday festival was cancelled due to weather. He explained that his role as a firefighter had impacted his ability to petition in the 90-day window.

         50. Mr. Kalagias also testified about his experience canvassing far in advance of an election. He testified that people are not as interested in canvassing until an election is near. Specifically, he testified about an incident where he sought permission to canvass a farmer's market and was told that the market would prefer to wait to host political events like canvassers until closer to the political season. Mr. Kalagias explained that this is not helpful for the LPAR's volunteers.

         51. Mr. Kalagias also testified that something unforeseen would have to occur for the LPAR to collect the signatures necessary to satisfy the three percent requirement. He noted that the LPAR does not get many financial contributions, which makes it difficult for them to afford canvassers. He further noted that most of the LPAR's time and resources are spent on ballot ...


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