Whitfield v. Thurston

• Decision Date: 24 June 2020
• Docket Number: Case No. 4:20-cv-00466-KGB
• Citation: 468 F.Supp.3d 1064
• Parties: Dan WHITFIELD and Gary Fults, Plaintiffs v. John THURSTON, in his official capacity as Secretary of State for the State of Arkansas, Defendant
• Court: U.S. District Court — Eastern District of Arkansas

468 F.Supp.3d 1064

Dan WHITFIELD and Gary Fults, Plaintiffs

v.John THURSTON, in his official capacity as Secretary of State for the State of Arkansas, Defendant

Case No. 4:20-cv-00466-KGB

United States District Court, E.D. Arkansas, CENTRAL DIVISION.

Signed June 24, 2020

James C. Linger, Pro Hac Vice, Law Offices of James C. Linger, Tulsa, OK, William Whitfield Hyman, King Law Group, Fort Smith, AR, for Plaintiffs.

Dylan L. Jacobs, Nicholas Jacob Bronni, Michael Allen Mosley, Vincent Moore Wagner, Arkansas Attorney General's Office, Little Rock, AR, for Defendant.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

Kristine G. Baker, United States District Judge

Plaintiffs Dan Whitfield and Gary Fults bring this action against John Thurston, in his official capacity as Secretary of State for the State of Arkansas, seeking declaratory and injunctive relief under 42 U.S.C. § 1983, alleging the violation of rights plaintiffs claim are guaranteed by the First and Fourteenth Amendments to the United States Constitution, to challenge the constitutionality of three provisions of Arkansas law: Arkansas Code Annotated §§ 7-7-101, 7-7-103, and 7-7-203(c)(1) (Dkt. No. 1, ¶¶ 7, 9). Plaintiffs seek declaratory and injunctive relief. Consistent with this Order, the Court denies plaintiffs' request for injunctive relief and enters judgment in favor of Secretary Thurston on the merits of plaintiffs' claims.

I. Procedural Background

Before the Court is plaintiffs' motion for preliminary injunction (Dkt. No. 8). Secretary Thurston filed a response (Dkt. No. 12), and plaintiffs filed a reply (Dkt. No. 15). All parties agreed, pursuant to Federal Rule of Civil Procedure 65(a)(2), to consolidate the hearing on the motion for preliminary injunction with the trial on the merits. Prior to the hearing, the parties entered into joint stipulations of fact and a second joint stipulation that addressed the admissibility of certain evidence (Dkt. Nos. 11; 19).

The Court conducted a telephonic hearing and consolidated trial on the merits regarding this motion on May 27, 2020 (Dkt. Nos. 20; 25). The following witnesses testified at that hearing: Mr. Whitfield; Mr. Fults; Sandra Furrer, an independent candidate for State Representative for District 31, who as of the date of the hearing had not satisfied the State's ballot access requirements; Roderick Talley, an independent candidate for State Representative for District 34, who as of the date of the hearing had satisfied the State's ballot access requirements; Lee Jarrod Evans, an individual who runs a political consulting company that does petitioning and fundraising; Richard Winger, expert for plaintiffs in the field of minor political parties, independent candidates, and election and ballot access laws in the United States; and Meghan Cox, expert for defendants in the field of ballot access (Dkt. Nos. 21; 22).

After the trial, Secretary Thurston filed notices of supplemental authority (Dkt. Nos. 23; 26), to which plaintiffs responded (Dkt. Nos. 24; 27). The parties also informally communicated with the Court regarding a dispute related to the parties' joint stipulations of fact; the Court attaches the electronic mail messages regarding this dispute to this Court's Order as the Court's Exhibits A, B, and C.¹

II. Findings Of Fact

1. Mr. Whitfield is a resident of Bella Vista, Arkansas; a registered voter in the State of Arkansas; a citizen of the United States; an independent candidate for U.S. Senate from Arkansas for the 2020 general election; and, at the time of filing, was conducting a petition drive for ballot access in Arkansas as an independent candidate for U.S. Senate (Dkt. Nos. 1, ¶ 2; 11, ¶ 5).

2. Mr. Fults is a resident of Hensley, Arkansas; a registered voter in the State of Arkansas; a citizen of the United States; an independent candidate for State Representative for District 27 in Arkansas for the 2020 general election; and, at the time of filing, was conducting a petition drive for ballot access in Arkansas as an independent candidate for State Representative for District 27 (Dkt. Nos. 1, ¶ 3; 11, ¶ 6).

3. Secretary Thurston, as Arkansas Secretary of State, is statutorily responsible in his official capacity for determining how many valid signatures a petition contains, certifying election results, maintaining State election records, and administering the election and voter registration laws of the State of Arkansas (Dkt. Nos. 1, ¶ 5; 11, ¶ 7). See Ark. Code Ann. § 7-7-103.

4. At all times relevant to this litigation, Secretary Thurston and his agents were acting under color of state law (Dkt. No. 11, ¶ 7). Secretary Thurston is sued only in his official capacity (Id. ).

5. By the statutory deadline, May 1, 2020, five individuals—including plaintiffs—timely submitted petitions seeking to be included as independent candidates on the November 3, 2020, general election ballot, and Secretary Thurston's office proceeded to verify the validity of the signatures on those petitions and count the valid signatures (Dkt. No. 11, ¶ 8).

6. On March 11, 2020, Arkansas Governor Asa Hutchinson declared an emergency related to COVID-19 by Executive Order 20-03 (Id. , ¶ 9).

7. Governor Hutchinson announced on March 15, 2020, that schools would be closed (Dkt. No. 12-2, ¶ 22). Arkansas closed bars, on-site dining, and gyms/fitness centers on March 19, 2020 (Id. , ¶ 23).

8. On March 26, 2020, Governor Hutchinson ordered that gatherings in confined spaces outside a single household or living unit be limited to ten or fewer people (Id. , ¶ 24).

9. The Governor's March 26, 2020, order did not limit gatherings in "unenclosed, outdoor spaces such as parks, trails, athletic fields and courts, parking lots, golf courses and driving ranges where social distancing of at least six (6) feet can be easily achieved" (Dkt. No. 11, ¶ 10).

10. On May 5, 2020, Governor Hutchinson ordered that "[t]he emergency and declaration shall be extended for an additional forty-five (45) days" (Id. , ¶ 11).

11. Arkansas holds general elections in even numbered years (Id. , ¶ 12). See Ark. Code Ann. § 7-5-102. The next general election and non-partisan runoff election in Arkansas will be held on November 3, 2020 (Id. ).

12. For the 2020 election cycle, Arkansas's preferential primary election and non-partisan general election were held on March 3, 2020 (Id. , ¶ 13). See Ark. Code Ann. §§ 7-7-203(b), 7-10-102(b).

13. For the 2020 election cycle, Arkansas's general primary election was held on March 31, 2020 (Id. , ¶ 14). See Ark. Code Ann. § 7-7-203(a).

14. To run for political office in Arkansas, independent candidates must submit a political practices pledge, an affidavit of eligibility, and a notice of candidacy during a one-week party filing period (Id. , ¶ 15). See Ark. Code Ann. § 7-7-103(a)(1). That period begins at noon on the first Monday in November preceding the general primary election and concludes at noon on the seventh day thereafter (Id. ). Ark. Code Ann. § 7-7-203(c).

15. For the 2020 election cycle, that party filing period ran from 12:00 noon on November 4, 2019, through 12:00 noon on November 12, 2019 (Id. ).

16. Candidates who wish to be placed upon the ballot as an independent with no political party affiliation in the county, township, or district in which the person is seeking office may do so by filing a petition "signed by not less than three percent (3%) of the qualified electors in the county, township, or district in which the person is seeking office, but in no event shall more than two thousand (2,000) signatures be required for a district, county, or township office." Ark. Code Ann. § 7-7-103(b)(1)(A). If the independent candidate is seeking a statewide office or any office for which a statewide race is required, that candidate's petition must either have 10,000 signatures or signatures from 3% of the qualified electors of the state, whichever is lesser. Ark. Code Ann. § 7-7-103(b)(1)(B).

17. "In determining the number of qualified electors in any county, township, or district or in the state, the total number of votes cast therein for all candidates in the preceding general election for the office of Governor shall be conclusive of the number of qualified electors therein for the purposes of this section." Ark. Code Ann. § 7-7-103(b)(4).

18. To be a qualified elector, an individual must be legally registered to vote at the time he or she signs a ballot-access petition. See Ark. Code Ann. § 7-7-103(b)(2).

19. As of June 3, 2019, there were 1,732,161 registered voters in Arkansas (Dkt. No. 11, ¶ 17).

20. Three percent of the total vote cast for Governor of Arkansas in the November 2018 general election was 26,746 votes (Id. , ¶ 18).

21. For the 2020 election cycle, an individual seeking to qualify for inclusion on the ballot as an independent candidate for statewide office must submit at least 10,000 valid signatures, approximately 0.58% of registered Arkansas voters (Id. , ¶ 19).

22. An individual seeking to be included on the ballot as an independent candidate for the Arkansas House of Representatives must submit a ballot-access petition containing signatures equivalent to 3% of the vote cast for Governor in the relevant district during the previous general election (Id. , ¶ 20).

23. To be a qualified elector, an individual must be legally registered to vote and a resident of the relevant district (Id. ). See Ark. Code Ann. §§ 7-7-103(b)(1)(A), (b)(2), (b)(4).

24. Under current Arkansas law, "[p]ersons desiring to have their names printed on the ballot as independent candidates for President and Vice President shall file a petition with the Secretary of State by noon on the first Monday of August of the year of the election. The petition shall contain at the time of filing the names of one thousand (1,000) qualified electors of the state declaring their desire to have printed on the ballot the names of the persons desiring their names to be printed on the ballot as independent candidates for President and Vice President. The...