United States District Court, E.D. Arkansas, Western Division
LIBERTARIAN PARTY OF ARKANSAS, et al. PLAINTIFFS
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
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.
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).
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).
Motion To Exclude Affidavit
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).
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”).
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
Findings Of Fact
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.
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.,
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).
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.”
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;
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).
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.
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).
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).
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).
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).
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).
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).
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.).
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).
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.).
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.).
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
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.
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
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
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.
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.
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
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.
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.
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
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
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.
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.
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.
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.
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.
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
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.
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.
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.
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
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.
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.
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.
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.
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.
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.
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.
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.
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
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
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.
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.
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
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