On May 10, the 8th circuit heard oral arguments in Green Party of Arkansas v Martin, 10-3106. The lawsuit challenges the Arkansas law that removes parties from the ballot whenever they go through a statewide election and fail to poll 3% of the vote for the office at the top of the ticket (Governor in midterm years, and President in presidential years). The Green Party has successfully petitioned as a party in 2006, 2008, and 2010. Each petition drive required 10,000 valid signatures and exhausted the party’s funds. The party argues that it polled enough votes for various state and federal offices, each time, to make it obvious that the party has a modicum of support, and that it is irrational for the state to remove it from the ballot.
The three judges were very familiar with the history of the Arkansas law. Even before any attorney mentioned the history of the law, they were already aware that the law, requiring removal of a party for failing to poll a specified share of the vote for either President or Governor, had been passed in 1971, just after the American Party had polled 5.9% for Governor. The 1971 law removed the American Party, because the new law required a vote of 7%. Thus it appears that the 1971 legislation was passed for a discriminatory purpose. Before 1971, any party could be on the ballot in Arkansas just by being organized. The three judges are Michael Melloy and James Gritzner, from Iowa; and Duane Benton from Missouri. They were all appointees of President Bush Jr.