On September 10, the Arkansas Secretary of state filed this brief in Libertarian Party of Arkansas v Thurston in the Eighth Circuit. This is the case over the 2019 law that increased the number of signtures for a newly-qualifying party from 10,000 signatures, to 3% of the last gubernatorial vote, or 26,745 signatures.

The state lists a series of precedents that supposedly upheld petition requirements similar to the new Arkansas law. However, most of them were not precedents on how many signatures are needed to get on the ballot; they were precedents on how a party remains on the ballot. The federal case law on requirements to get on the ballot is entirely different from the requirements for how a party stays on the ballot. No federal court has ever struck down a numerical requirement for a party to stay on the ballot. That is because the federal courts feel that as long as the requirements for a party to get on the ballot are reasonable, it doesn’t matter how difficult it is to stay on the ballot, because parties can always re-petition again.

Yet the Arkansas government brief claims because the Eighth Circuit previously upheld the vote test in Arkansas for a party to stay on the ballot (3% for president and governor), therefore a 3% petition must be constitutional. The Eighth Circuit already rebutted that idea in the Green Party case on how a party stays on the ballot. The Arkansas government brief also cites a decision of the Alaska Supreme Court, upholding the requirement for a party to stay on, without mentioning that the Alaska petition requirements to get on are 1% of the last vote cast.

The brief also mentions the North Dakota Libertarian Party case that upheld the requirement that a qualified party must have a large voter turnout in its open primary if it wants to nominate legislative candidates. The government brief tries to argue this is a relevant precedent on how a party gets on the ballot, but it is not.

The brief does not mention that the Eighth Circuit already affirmed the Reform Party of Arkansas ruling striking down an Arkansas law that required 3% of the last gubernatorial vote. That happened in 1997.

The brief claims that Arkansas is permissive because it lets all registered voters sign the petition for a new party, but all states let any registered voter sign such a petition, except for Texas, which bars primary voters.

The brief cites the New Hampshire Libertarian case which upheld a start date of January of the election year. The start date was the only issue in that case. Yet the Arkansas government brief claims that the case upheld a 3% petition for a new party to get on the ballot, an issue that was not in the case. Furthermore New Hampshire, although it does have a 3% petition for party status, also has a far easier method for the candidates of new or previously unqualified parties to appear on the ballot (petitions of 3,000 signatures for statewide office, which is only about four-tenths of 1% of the last vote cast). Arkansas has no such procedures, except for President.

The brief refuses to grapple with the fact that when Arkansas had a 3% petition requirement in the past (1977 through 1996), no party ever managed to qualify, not even the Reform Party in its strongest year, 1996. The U.S. Supreme Court has twice said that if a law is so difficult that it is almost never used, it is probably too hard.