Lendall v. Jernigan

• Decision Date: 05 January 1977
• Docket Number: No. LR-76-C-309.,LR-76-C-309.
• Citation: 424 F. Supp. 951
• Parties: Jim LENDALL, Plaintiff, v. George O. JERNIGAN, Jr., Individually and as Secretary of State of the State of Arkansas, Defendant.
• Court: U.S. District Court — Eastern District of Arkansas

424 F. Supp. 951

Jim LENDALL, Plaintiff, v. George O. JERNIGAN, Jr., Individually and as Secretary of State of the State of Arkansas, Defendant.

No. LR-76-C-309.

United States District Court, E. D. Arkansas, W. D.

January 5, 1977.

Jim Lendall, pro se.

Jim Guy Tucker, Atty. Gen., Lonnie A. Powers, Deputy Atty. Gen., Little Rock, Ark., for defendant.

MEMORANDUM OPINION

EISELE, Chief Judge.

This is the third in a series of attacks by the plaintiff upon the laws of the State of Arkansas establishing a filing deadline and petition requirements for persons seeking to run as independent candidates in general elections.

The first suit was filed on October 7, 1974. It challenged the law, in effect at that time, which required the filing of a pledge and also of petitions (signed by not less than 15 percent of the qualified electors of the subdivision involved) within the same period of time allowed for the filing and qualification of candidates for party nominations. By reference the statute required that such filings be between the second Tuesday in March and the first Tuesday in April before the preferential primary. The three-judge district court held the law (as then written) to be "unconstitutional as applied to independent candidates for State, district, county and township offices . . .." See Lendall v. Bryant, 387 F.Supp. 397 (1974).

By Act 700 of 1975, the Arkansas legislature amended the provisions of § 3-105(c) by reducing the percentage of petitioners required to "not less than ten percent of the qualified electors in the county, township or district in which such person is seeking office, but in no event shall more than 2,000 signatures be required for a district office." In statewide races the percentage was also reduced to "ten percent, or 10,000 signatures of qualified electors, whichever is the lesser." Except for the reduction in the number of petitioners, § 3-105(c) was left unchanged.

On June 15, 1976, the plaintiff filed the second suit, LR-76-C-184, challenging the filing deadline for independent candidates which, by reference, is fixed by the statute as "12 o'clock noon on the first Tuesday in April before the preferential primary election." § 3-113(a). As indicated above, that date is also the deadline by which persons might seek to qualify as candidates of political parties in primary elections. In his second suit, plaintiff deliberately refrained from attacking the new petition requirements of the 1975 Act.

The three-judge court in the second case concluded that the filing deadline for independent candidates for district offices, as set forth in § 3-113, Ark.Stats., was unconstitutional, generally for the same reasons that were cited as the bases of the Court's decision in Lendall v. Bryant, supra. The Court concluded its per curiam memorandum opinion with the following statement:

"It is the view of the Court that the General Assembly may wish, in the light of this Court's and other courts' decisions, to reexamine the filing deadlines not only for independent candidates but perhaps also for those who wish to be candidates of political parties. In any event, the Court is here holding only that the presently established filing deadline for independent candidates for district office is unconstitutional. However, we do not wish to indicate by our opinion that we believe the petition requirements enacted by the General Assembly in 1975 would withstand a constitutional attack. See Lendall v. Bryant, supra."

On September 13, 1976, the plaintiff filed this proceeding challenging the ten percent petition requirement established by Act 700 of the Acts of 1975. In his complaint he alleges that he submitted petitions containing approximately 250 signatures, but that the defendant certified only 119 of those signatures and further advised him that a total of 874 such signatures would be required for state Senatorial District No. 3 in Pulaski County, Arkansas.

In all three proceedings, Mr. Lendall, who is not an attorney, has represented himself.

The plaintiff complains that:

". . . The ten percent petition requirement for independent candidates is discriminatory, excessively burdensome, serves no compelling state interest, and is violative of independent candidates and their supporters' exercise of their right to vote and the clear right of access to the ballot. The percentage infringes upon the U.S. Constitution's First Amendment right of assembly and speech and violates the due process and equal protection guarantees made applicable to the states through the Fourteenth Amendment."

Plaintiff seeks a declaration that the provision is unconstitutional.

Very few of the facts are in dispute, although the parties argue that different inferences should be drawn therefrom. The parties stipulated that the plaintiff, Mr. Jim Lendall, meets the eligibility requirements of the Arkansas Constitution for election to the Arkansas Senate. It was further stipulated that a total of 8,531 persons voted for governor in state Senatorial District No. 3 in Pulaski County, Arkansas, at the general election held in November, 1974, and that, therefore, 853 petitioners' signatures would be required to meet the ten percent provision of § 3-105(c). In this connection, it should be pointed out that the provision in the statute stating, "but in no event shall more than 2,000 signatures be required for a district," in no way helps petitioner because the ten percent would be considerably less than the 2,000 figure. (Note: there are other "districts" — for offices other than that of state Senate — in which the 2,000 limit might be of advantage to the independent candidate.) It was further agreed that the 853 signatures had to be gathered, according to the statute, within 60 days prior to the filing deadline (the first Tuesday in April).

According to the plaintiff's testimony, he gathered some 250 signatures in a seven-day period. The Secretary of State determined that only 119 of those signatures were valid.

Plaintiff's Exhibit 1 shows that only one independent candidate qualified for national, state or district office for the November 2, 1976, general election, and that one was for the office of Prosecuting Attorney in Pulaski County. Further, the exhibit demonstrates that Arkansas, below the state level, is still a one-party state. Over 90 percent of the candidates for district office were in fact unopposed in the general election.

The background of these three proceedings was explained in Lendall v. Bryant, supra, as follows:

"Candidates who run for public office in general elections in Arkansas fall into three categories: (1) The nominees of recognized political parties who, if opposed for party nomination, must run in party primaries in order to obtain nomination. (2) Qualified independent candidates whose names appear on the printed general election ballots along with the names of party nominees. (3) Write-in candidates whose names must be written on the ballots by the voters or by persons authorized by law to assist illiterate or handicapped voters.

"Candidates for State and district offices, including seats in the Legislature, are required to file political practice pledges with the Secretary of State, and candidates for party nominations are generally required to file party loyalty pledges with party officials.

"Recognized political parties in Arkansas are required to conduct primary elections for nominations for offices with respect to which two or more persons seek nomination. Two primaries may be required; the first is known as the preferential primary, and the second is known as the general primary. If there are more than two candidates for a single office, and if none of them receives a majority of votes cast in the preferential primary, the two receiving the highest number of votes must run against each other in the general primary.

"The preferential primary is held two weeks before the general primary, and the date for the general primary is now fixed by law as the second Tuesday in June of each even numbered year. Persons seeking to run in a primary must qualify by filing the necessary pledges and paying the necessary fees between the second Tuesday in March and the first Tuesday in April before the preferential primary. Section 3-113(a), (c) and (d)."

387 F.Supp. at 399-400.

After analyzing the situation, the three-judge court stated:

"We recognize at the outset of discussion that any State imposed restrictions on the right of qualified electors to cast their ballots for the candidates of their choice and to run for office are constitutionally suspect and can be upheld only to the extent that they are necessary to promote a compelling State interest. Dunn v. Blumstein, 1972, 405 U.S. 330, 92 S.Ct. 995, 31 L.Ed.2d 274; Kramer v. Union Free School District, 1969, 395 U.S. 621, 89 S.Ct. 1886, 23 L.Ed.2d 583; Williams v. Rhodes, 1968, 393 U.S. 23, 89 S.Ct. 5, 21 L.Ed.2d 24.

"But, we must also recognize that the State has a valid and compelling interest in the fairness, efficiency, and orderly operation of its election machinery, and in the integrity of the electoral process on which democratic government depends. Subject to the constitutional limitation above mentioned, a State may regulate and to some extent restrict the access of independent candidates to the ballot to prevent such things as unreasonable ballot congestion, voter confusion, and fraudulent or frivolous candidacies. However, the measures adopted by the State must not go beyond what the State's compelling interests actually require, and broad and stringent requirements or restrictions with respect to would-be independent candidates cannot stand where more moderate ones would do as well. American Party of Texas v. White, 1974, 415 U.S. 767, 94 S.Ct. 1296, 39 L.Ed.2d 744; Storer v. Brown, 415 U.S. 724, 94 S.Ct. 1274, 31 L.Ed.2d 714 supra; Rosario v. Rockefeller, 1973, 410 U.S. 752, 93 S.Ct. 1245, 36 L.Ed.2d 1; Dunn v. Blumstein, 1972,

...