Libertarian Party of Ark. v. Thurston

394 F.Supp.3d 882

LIBERTARIAN PARTY OF ARKANSAS, et al., Plaintiffs

v.John THURSTON, in his official capacity as Secretary of State for the State of Arkansas, Defendant

Case No. 4:19-cv-00214-KGB

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

Signed July 3, 2019

James C. Linger, Pro Hac Vice, Law Offices of James C. Linger, Tulsa, OK, William Whitfield Hyman, King Law Group, Fort Smith, AR, for Plaintiffs.

Dylan L. Jacobs, Nicholas Jacob Bronni, Christine A. Cryer, Jennifer L. Merritt, Vincent Moore Wagner, Arkansas Attorney General's Office, Little Rock, AR, for Defendants.

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, 113 S.Ct. 2786, 125 L.Ed.2d 469 (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. App'x 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...