Arkansas State Senator Trent Garner is pushing for new legislation to give his state some of the most restrictive ballot access laws in the country. After initially sailing through the Senate, his proposed bill is now working its way through the House.
Senator Garner, who works as an attorney when not in session, testified to the House Committee on State Agencies and Government Affairs about his proposals last week. After analyzing his statements, leading ballot access expert Richard Winger has concluded the testimony Garner presented was incorrect on almost every point.
“He may be an attorney, but he has not done his research,” Winger said.
On the recommendation of Garner’s conclusions, however, the bill was nonetheless approved by the committee and will be considered by the full House tomorrow.
If signed into law by Governor Asa Hutchinson, the new legislation could turn out to be very expensive for Arkansas taxpayers. The state has spent millions on legal fees in recent decades, unsuccessfully defending similar ballot restrictions.
Ballot access advocates have already indicated that Trent Garner’s proposals would trigger more of the same.
Trent Garner declares an electoral “emergency”
Senator Garner’s proposed legislation, SB 163, would overturn rules that have been in place since 2007. These allow new parties to access the Arkansas statewide ballot by collecting 10,000 petition signatures over a 90 day period. This is already a very difficult task. Only the Libertarian Party has managed to gain ballot access in the last two statewide elections.
Garner says he wants Arkansas to revert to pre-2007 rules, which required new parties were to get signatures from 3% of all Arkansas voters. This would more than double the current requirement to over 20,000.
Although it is not specifically acknowledged in his proposed bill, SB 163 would actually create a heavier burden than pre-2007 rules. Previously, new parties had five months to meet the 3% requirement. SB 163 keeps the three month time limit used for 10,000 signatures. This legislative slight of hand would create a nearly impossible burden for third parties, arguably giving Arkansas the dubious title of having the most restrictive laws in the country (which for the last 70 years has been held by Georgia’s infamously repressive ballot access laws).
Garner has also added an “emergency clause” to the bill that would make it take effect immediately (and, conveniently, in time for the 2020 election).
What the emergency is in Garner’s mind is not clear, but the constitutionality of Garner’s proposals were weighing on the minds of some committee members on Wednesday.
Representative Jimmy Gazaway asked the question most directly: “Have the courts said that a 3% requirement is…an acceptable amount of signatures for a political party to have to gather in order to gain ballot access?”
Senator Garner said yes they have, citing three court rulings.
According to Richard Winger, editor of Ballot Access News and widely seen as America’s leading expert on the issue (even Politifact call Winger to verify ballot access claims), the cases Garner cited are not actually relevant to the changes SB 163 would introduce.
“None of the precedents he mentioned involve the number of signatures for a statewide party petition,” Winger explained.
Trent Garner’s struggle with precedent
In his response to Gazaway, Garner mentioned a 2009 Federal Court decision that upheld a 3% requirement as constitutional. The case, Green Party vs Martin, was concerned with the 3% of the gubernatorial vote parties need to maintain ballot access in Arkansas, not a 3% petitioning requirement to get on the ballot.
He also cited Libertarian Party of North Dakota vs Jaeger, but this case was concerned with how parties nominate candidates for primaries in North Dakota, and did not concern ballot access for general elections.
Lastly, Garner referred to an Illinois case that upheld a 5% petitioning requirement, pointing out that it is an even higher threshold than the one he is proposing. The 5% requirement in Illinois only applies to local candidates, however. At the statewide level the threshold works out to a much lower 0.5% of voters.
Jimmy Gazaway is given pause
A few hours after Wednesday’s hearing, Richard Winger sent News Growl his analysis of Garner’s testimony, explaining how the cases Garner cited as precedent were not applicable.
News Growl sent a copy of Winger’s findings to Senator Garner and every member of the House committee. We also asked if, given what they read, they would now consider voting against the bill when it comes before the full House.
Jimmy Gazaway, who posed the original question about constitutionality, was one of the committee members who replied.
“Yes, I would consider it,” he said. “What I have read below gives me pause.”
Then, indicating that the decision-making process had been incomplete, Gazaway continued, “I wish someone would have been in Committee this morning who could have presented information about what the Courts have held when Sen. Garner made his presentation. It certainly would have been helpful for me and I believe a few others.”
Two other committee members replied to our emails, both of whom had voted against the bill in committee on Wednesday.
Invoking the Golden Rule to explain her vote, Representative Gayla McKenzie said, “I’m a simple girl and believe in treating people and parties the way I would want to be treated.”
Trent Garner: party ideas should be vetted
Senator Garner’s proposal to tighten ballot access only applies to parties, not to individuals seeking to run as independent candidates.
In reply to a question from Representative Megan Godfrey, Garner explained why he thought it was important for the state to restrict access to the ballot for parties in particular:
“We want to make sure that those who’re getting major political party status and are on our ballots have to have some sort of threshold that they are legitimate, they’re serious, and their ideas have been vetted in some kind of capacity.”
Garner misspoke when he equated ballot access with attaining major party status, but more controversial is his assertion that the state should take part in vetting the ideas of political parties.
Vetting a party’s ideas before allowing it on the ballot is not unknown in some countries, but is normally reserved for institutions like Iran’s Council of Guardians. Most modern democracies have either never had such rules, or have abandoned them in recent decades.
News Growl emailed Senator Garner asking him to explain why he thinks government regulations to vet the ideology of political parties is a good idea.
We also asked him to explain if being on the ballot should be seen by voters that a party’s ideas have received government approval.
We receive no reply to any of our questions despite three attempts to contact him.
Population growth and ballot overcrowding
Trent Garner put forward two other arguments for making Arkansas ballot access requirements the strictest in the nation:
- Easy ballot access could lead to ballot overcrowding and voter confusion.
- The current flat 10,000 signature requirement does not take into account population growth in Arkansas.
Libertarian Party of Arkansas Chairman Michael Pakko addressed both of these issues during his testimony at Wednesday’s committee hearing. The following day he sent a synopsis to News Growl.
“These arguments are demonstrably specious,” he said in an email.
“Over half of the seats for the Arkansas General Assembly were uncontested in the 2018 general election… Arkansas is not suffering from overcrowded ballots – quite the opposite.
“Moreover, the current signature requirement was not causing the ballot to be overrun with third parties. The Libertarian Party is the ONLY party to have marshaled the resources to get on the ballot at all in the last two electoral cycles.”
Addressing the population growth argument, Pakko said this is no way to justify more than doubling the current target. “Since the 10,000 signature requirement was adopted in 2007, the population of Arkansas has grown by less than 6%.”
Trent Garner undermines one proposed law with another
The constitutionality of Garner’s attempt to restrict ballot access could be further undermined by other legislation he has proposed this session.
A second bill submitted by the Senator, SB 276, would move the date of the 2020 Arkansas primary from May to March. It would then coincide with primaries held by several other Southern states, in hopes of creating what has been dubbed the “SEC primary.”
Ballot access expert Richard Winger has spotted a major flaw in Garner’s second bill, however. If the earlier primary date was enacted it could make Garner’s ballot access restrictions an even easier target in the courts.
Arkansas ballot petition deadlines are tied to the date of the primary. According to current law, the 90 day signature collection window takes place four months before the primary. This means under Garner’s proposals new parties would begin petitioning in August 2019 – nearly a year and a half before the November 2020 election.
“The current deadline is already unconstitutionally early and [ Trent Garner ] is trying to make it even earlier,” Winger argued.
Winger continued with some tough advice for Garner:
“If he were sophisticated, he would de-couple the petition deadline for new parties from the date of the primary. But he is not sophisticated. He may be an attorney but he has not done his research.”
Is this a “smaller government” policy?
Garner’s attempt to regulate away electoral competition for Republican and Democrats does not appear to sit easily with his claim to be a small government conservative who stands up for individual rights.
“When I am elected,” his website says, “I will support smaller government that gets rid of waste and fraud, will put more power in the hands of the people of Arkansas, and will create economic growth.”
If passed, it is hard to see how SB 163 (especially when combined with SB 276) will put more power into the hands of the people of Arkansas. Ballot Access activists also say it will waste hundreds of thousands of taxpayer of dollars on legal fees, as well.
“If the Libertarian Party is faced with no other recourse we will take whatever steps are necessary to maintain our presence as a viable alternative in Arkansas politics,” Libertarian chair Michael Pakko told News Growl. “It would be a situation where everyone loses. The taxpayers of this state would be on the hook for the expense of mounting a legal defense.”
Arkansas ballot access rules have been overturned in the courts several times, so it is possible Trent Garner does not himself believe his new rules would stand up to judicial scrutiny. Pakko thinks there might be another motive for tighter rules.
“With a court case, the time and energy of third-party plaintiffs would be drained, leaving fewer available resources to mount effective campaigns in the election and thus depriving the voters of alternative choices,” he said.
“The skeptic in me suggests that might be the point: cripple, if not outright kill, potential third-party opposition – and make the citizens of Arkansas pay for it.”
“Perhaps that’s the problem,” Pakko continued. “We’ve become too much of a potential threat to the status quo. A law must be passed to stop us. And it’s an emergency!”