The Eighth Circuit will hear Moore v Martin, 15-3558, on Wednesday, December 14, in St. Louis. The hearing is in the Federal Courthouse, 28th floor, at 9 a.m. The issue is the non-presidential independent petition deadline that was in effect in 2014 (when the case was filed) and again in 2018. That deadline is in the first week of March. In August 2015 the U.S. District Court had upheld that deadline.
On December 6, 2016, the panel of the Eighth Circuit judges who are hearing the appeal asked attorneys for both sides to please provide a copy of an unreported court decision from 1976, Lendall v Jernigan. That decision struck down the Arkansas non-presidential independent deadline of April. That 1976 decision was before a 3-judge court. Decisions of three-judge courts are entitled to get a response from the U.S. Supreme Court. In the 1976 Lendall case, after Arkansas lost in the 3-judge court, it appealed to the the U.S. Supreme Court, and in 1977 the U.S. Supreme Court summarily affirmed the decision striking down the April deadline.
Summary affirmances are binding, if the issue is precisely the same. After Arkansas lost the 1976 case, it had changed the deadline to May. But then in 1987 the legislature had forgotten why it had moved the deadline to May, and moved the deadline to January. In 1988 a new lawsuit was filed against the January deadline, and the U.S. District Court struck down the January deadline, pointing out that if the U.S. Supreme Court had already summarily struck down an April deadline for Arkansas, obviously a January deadline is too early.
In response to losing the 1988 case, the state moved the deadline back to May, but in 2013 it again forgot why it had done that, and moved the deadline to March. It is a very hopeful sign that the Eighth Circuit panel wants to see the original 1976 decision. On December 12 the attorney for the plaintiff-candidate furnished a copy of the decision to the panel.
