The Sixth Circuit will hear Schmitt v Husted, 19-3196, on Wednesday, June 26.  This is the case on whether election officials can reject a local initiative, even though it has enough valid signatures, because they don’t think it would be legal if it passed.  The U.S. District Court had ruled in favor of the initiative proponents, and then the state appealed.

On May 24, Arkansas filed this brief in Libertarian Party of Arkansas v Thurston, e.d., 4:19cv-214.  This is the case in which the party challenges the new ballot access law passed this year, raising the petition for newly qualifying parties from 10,000 to 3% of the last gubernatorial vote.

The state argues that because the Eighth Circuit in 2010 upheld the 3% vote test for a party to remain on, therefore the petition requirement of 3% must also be constitutional.  But the reason the Eighth Circuit upheld the 3% vote test is that in practice, at the time, the 3% vote test had not kept the plaintiff Green Party from appearing on the ballot as a qualified party in all elections 2006 through the date of that opinion.  Therefore, the court ruled that the 3% vote test was not a severe burden.  The Arkansas vote test, by itself, did not keep any party off the ballot.

The state’s brief does not mention the fact that in all the years in the past when Arkansas had a party petition in excess of 10,000 signatures, no party ever successfully used that petition procedure.  The state does not mention the U.S. Supreme Court opinions that say that a ballot access law is too difficult if no one ever uses it.

No federal court has ever struck down a vote test on the grounds that it was too high.  But many federal courts have struck down petition requirements for a party or a statewide independent to get on the ballot, including courts in Arkansas itself, Georgia, Idaho, Illinois, Kansas, Maryland, Michigan, Mississippi, Nebraska, North Carolina, North Dakota, Ohio, and South Dakota.