On November 13, the Arkansas Secretary of State filed his reply brief in Libertarian Party of Arkansas v Thurston, 19-2503. Even though the brief is lengthy, it never mentions that when the state also lost against a 3% (of the last gubernatorial vote) petition for new parties in 1996, the state appealed to the Eighth Circuit. But a few days before the Eighth Circuit hearing, the state asked to withdraw its appeal. The Eighth Circuit agreed only on the condition that the state admit it would have lost in the Eighth Circuit if the appeal had gone ahead.

Furthermore, back then, 150 days were permitted to collect the signatures, and they weren’t due until July of the election year. Now only 90 days are permitted and they are due in September of the year before the election.

The state also continues to cite Libertarian Party of New Hampshire v Gardner for the idea that New Hampshire’s party petition of 3% of the last gubernatorial vote was constitutional, and therefore the Arkansas 3% should also be constitutional. The state does not say (1) that case was only about the restriction on when the petition could start; (2) New Hampshire had (and still has) much easier petition requirements for minor party nominees to appear on the ballot with the party label, aside from the 3% petition.

The state continues to say there are no precedents striking down petitions that required signatures of 3%, ignoring the Michigan Graveline case that the Libertarian Party cited in its last brief. In the 2018 Graveline case, the U.S. District Court and the Sixth Circuit enjoined the requirement for 30,000 signatures for statewide independent candidates. That requirement is less than 1% of the last vote cast. It was enjoined because it had almost never been used. Similarly, in the Arkansas case, no party has ever completed any party petition when it was in excess of 10,000 signatures.