AG argues against ballot access for suit filers

LITTLE ROCK — Attorneys for Arkansas Attorney General Leslie Rutledge offered little sympathy Thursday for two men who complained in a May 1 lawsuit coronavirus restrictions have interfered with their efforts to collect signatures to obtain access to this fall’s ballots as independent candidates.

The candidates are Dan Whitfield of Bella Vista, who wants to run for the U.S. Senate, and Gary Fults of Hensley, who wants to run for a seat in the Arkansas House of Representatives.

Both cited social-distancing restrictions in place to combat the spread of the coronavirus that they said prevented them from complying with a requirement to collect and submit the required number of signatures by the May 1 deadline. Calling a 90-day signature-gathering period and the May 1 cutoff arbitrary, they asked that a judge order the placement of their names on the ballot despite their signature numbers coming up short.

To obtain ballot access in Arkansas, independent candidates must submit signatures from at least 3% of the number of voters who participated in the 2018 gubernatorial election in the district for which the candidates are running, up to 10,000 signatures for statewide offices and up to 2,000 signatures in a state House district.

In the 2018 gubernatorial election, 91,509 people voted statewide; 3% would be 26,746 for a statewide office, but the maximum required is 10,000. Attorneys for the state said the parties agree that for Fults to qualify, he would need to collect 286 signatures.

Whitfield, who wants to challenge Republican U.S. Sen. Tom Cotton of Dardanelle, said his signature gathering was going great until Gov. Asa Hutchinson declared a public health emergency on March 11. He said that as a result, he wasn’t able to collect 10,000 signatures by May 1.

Fults said the restrictions kept him from collecting “the mere 286 signatures required” to run for a House seat, state attorneys said in a brief opposing the men’s request.

The attorney general’s office calculated that in Whitfield’s case, the 10,000 signatures he needed to collect represented just 0.58% of the state’s 1,732,161 registered voters.

Attorneys for the state argued that the men blame the pandemic, and not the state, for their impaired ability to collect signatures, which means the injury they cite isn’t “fairly traceable to anything that Arkansas or its elected officials did.”

They noted that the constitution doesn’t require Arkansas to exempt the two men “from plainly constitutional ballot-access requirements,” and said the plaintiffs don’t offer any justification for claiming that the remedy is to simply order them included on the ballot or reduce the state’s signature requirement.

The filing asserted that the ballot-access requirements for independent candidates were adopted in response to a 2018 order in the Eastern District of Arkansas that found the requirements existing at the time to be unconstitutional.

The state also noted that despite the governor declaring a state of emergency on March 11, the order didn’t restrict Arkansans’ ability to travel outside their homes, and that even in a subsequent order issued March 26 that limited gatherings in confined spaces to 10 people, it “did not impose the same broad-based travel restrictions that have become common elsewhere.”

Other independent candidates haven’t struggled to comply with the state’s ballot-access requirements, the attorneys said, noting that “just yesterday,” Secretary of State John Thurston had notified two independent candidates that they qualified for the ballot.

The state’s brief opposing Whitfield’s and Fults’ request that a judge block the state from enforcing the ballot-access requirements argues at length about why the signature requirements for the men aren’t burdensome. It also argues that the state’s 90-day window for collecting signatures “similarly does not impose severe burdens.”

The state included an affidavit from Meghan Cox, “a ballot-access professional” who explained even in other states with more restrictions, “it has been possible to collect signatures using protocols that professional canvassers have developed to protect the safety of both circulators and signers.”

The case is pending before U.S. District Judge Kristine Baker.

Information for this article was contributed by Frank Lockwood of the