On September 20, the Eighth Circuit heard Libertarian Party of Arkansas v Martin, 16-3794. The issue is the deadline for a newly-qualifying party to hold its nominating convention. The U.S. District Court had struck down the old law that said newly-qualifying parties must nominate all their non-presidential nominees several months before the major party primaries. Afterwards, the 2017 session of the legislature had passed a new law, letting such parties nominate up until primary day. However, the convention parties had to submit their certificates of nomination by noon on primary day. Here is the link to hear the oral argument.

The state had appealed the U.S. District Court decision. A few days before the Eighth Circuit hearing, the judges had asked both sides to discuss whether the case is now moot. The state spoke first and said the case is moot. One of the judges asked about the possibility that if the case is moot, and never subject to appellate review, what will happen if the legislature in the future repeals the new law and makes the deadline more restrictive again? The attorney for state said there is no evidence that that would happen. The attorney for the state only used up seven minutes of his time, even though he was entitled to fifteen minutes.

Then the attorney for the Libertarian Party spoke. He argued passionately that the new law does not carry out the U.S. District Court opinion, because forcing the newly-qualifying party to submit the names of its convention nominees by noon on primary day (a Tuesday) does not really give such a party the chance to make its nominations at the same time that the major parties are making their nominations. A convention on Tuesday would need to work very quickly in the morning, to give the party time to drive to various county seats and the state capitol to submit the certificates. In reality, the convention would need to be several days earlier. The attorney for the Libertarian Party also said that no one in the legislature consulted with the Libertarian Party when it drafted the 2017 law.

In rebuttal, the attorney for the state said that the new law is exactly what the party had asked for. During rebuttal, one judge asked the attorney for the state about the Arkansas history of evading constitutional ballot access wins. Arkansas had had its independent candidate petition deadline struck down in 1975, and 1977, and 1988, and again virtually struck down early in 2017. These repeated lawsuits were necessary because even after the state lost the case, it would forget about the old decision and re-enact the unconstitutional deadline. In response, the attorney for the state acknowledged this history, but said it was only a history related to independent candidates, not minor parties. The time for both sides then expired. Actually, though it was not brought up at the oral argument, the Arkansas legislature had treated minor parties the same way. The deadline for minor party petitions was struck down in 1977, and again in 1996, and yet again in 2006, because, just as with independent candidates, the state would lose a case but then after a few years re-enact the same bad laws all over again, for minor parties as well.