By Steve Brawner
© 2015 by Steve Brawner Communications, Inc.
The unspoken question in Judge James Moody’s Eastern District courtroom Monday was, how much trouble should the election process undergo to accommodate candidates who aren’t going to win anyway, and also to accommodate Arkansans who want to vote for them?
The case, Moore v. Martin, involves two Marks. One is Mark Moore of Pea Ridge, an independent candidate – not a member of any party – who collected 39 percent of the vote in a two-person state legislative race in 2012 and wanted to run for lieutenant governor in 2014. The other is Mark Martin, who as secretary of state is the official in charge of elections, thereby making him the defendant.
The case concerns Act 1356 of 2013, which requires independent candidates to submit their required number of signatures when they file for election. In 2014, that meant they had to qualify by March 3, two months before the Republicans and Democrats held their primaries to choose their candidates. Under previous law, independents could file and then had until May 1 to collect their signatures – 3 percent of qualified voters with a maximum of 10,000 in state races and 2,000 in others. Because the Legislature moved the 2016 primary elections to March, independents this time must collect signatures by November. That’s November 2015, for an election that will occur in November 2016.
Moore says Act 1356 is unfair and unconstitutional. In non-2016 years, independent candidates must collect signatures door to door long before the election in the dead of winter. As a result, argued his attorney, James Linger of Tulsa, the number of independent legislative candidates dropped from seven in 2012 to one in 2014. Court precedent is largely on Moore’s side. In 1976, a three-judge district panel ruled in another Arkansas case, Lendall v. Jernigan, that an April signature deadline for independents was unconstitutional. That decision was affirmed by the U.S. Supreme Court.
Martin’s attorney, A.J. Kelly, argued that Moore doesn’t have standing – he can’t sue – because he didn’t try to collect signatures in 2014. He pointed out that one legislative candidate did qualify, so the law doesn’t restrict access for those who really want it. Finally, he said an early deadline is justified because it takes time to review signatures to make sure overseas Arkansans can be mailed a ballot before the election.
Watching the proceedings were the chairmen of the Libertarian Party and the Constitution Party. Act 1356 also gives third parties early deadlines. The Libertarians already have submitted their signatures and plan to hold their convention in November to nominate candidates – again, for an election that won’t occur until the next November.
Judge Moody said he’ll render a decision within a couple of weeks. If he bases it on the merits, it’s hard to see how Moore loses. There’s too much court precedent on his side, and there’s no reason to have such an early deadline for submitting signatures. According to 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. I don’t know why legislators voted for Act 1356, but the practical effect is to reduce the chances of anyone challenging their two big parties. But Moody could decide for Martin based on a procedural or technical matter.
A Gallup poll released in July found that 46 percent of Americans consider themselves to be independents. However, the reality is that many who say they are independent reliably vote for one party or the other. Even though the Constitution doesn’t mention political parties, for many structural and psychological reasons, our system gravitates toward having two of them. And so this case is about opening up the process for candidates who probably aren’t going to win.
On the other hand, at one time, the United States had two major political parties, and the Republican Party wasn’t one of them. Our society values giving people choices, in letting ideas flourish, in freedom of speech, and in giving the little guy a chance. Some candidates want to run as neither Republicans nor Democrats. Some voters would like the chance to vote for them. In a nation where consumers have dozens of choices in the cereal aisle, why pass laws that reduce the choices at the ballot box?
So is having more candidates and a more robust debate worth the trouble? We ought to lean toward saying yes, regardless of what a judge decides in this particular case.
Steve Brawner is an independent journalist in Arkansas. Email him at firstname.lastname@example.org. Follow him on Twitter at @stevebrawner.