I Go to Federal Court for Independent Ballot Access
I spent most of yesterday in federal court in Little Rock. Some of you will know that I have struggled for years with a lawsuit over changes in ballot access law in 2013. Before that time, Independents could wait until the last day of the filing period to decide whether they wanted to run- just like Republicans and Democrats. After that time, independents had to decide months early they were going to run and collect signatures in the non-idea period of December, January, and February. I viewed the change in the law as the two parties pulling the ladder up so that people will be forced to go through them no matter how fed up people are with them.
The legislature had tried this stunt several times before. Each time the courts told them it was unconstitutional. The state can't put unnecessary burdens on people just because they want to run outside a party system they may view as corrupt. There should be equality of opportunity in access to the ballot as much as it is possible to do so.
The first time around the judge, James Moody Jr., agreed that I had standing to sue, and agreed that the change in the law was an infringement of my rights that should not be tolerated unless it was forced by necessity. The third part was the controversy. The Attorney for the State, A.J. Kelly, was dressed in a nice suit and spoke in calm but confident tones when he asserted without evidence that due to changes in election law the state simply could not handle the burden of processing the signatures after the filing period. He also presented an affidavit from an employee of the Secretary of State's office making that same assertion. The Judge bought it and ruled against me on the grounds that the state was doing the best it could to give independents equal treatment.
I have found this to be a recurring theme among people on the top in the political class. They rarely get nasty or confrontational to your face. They generally avoid engaging in the actual argument you try to make. They compliment you for something or other. They are well-dressed. They are never strident or overly emotional. They are pleasant in demeanor and speak softly and mildly as they, with consolations and apologies, give you all kinds of reasons why they just have to screw you.
On that first go around my lead attorney, Jim Linger of Tulsa, didn't even give a second thought to the state's claim that the law was due to unavoidable necessity. He was an expert in ballot access litigation and knew too much about the process to give those assertions any credibility. But I can see how that judge must have thought that the attorney for the state would not just claim something that was obviously false with such conviction and confidence. In the years to come he would learn better.
At any rate, we appealed. The Appeals Court had three judges on it. They all affirmed the lower court's first two conclusion- that I had standing and the damage was real. On the third question they all agreed with us that the state had not offered evidence to support their claim of necessity, but they differed on how it should be handled. One ruled that the decision should be reversed and I should win on summary judgement because the state had not presented any actual proof that they could not process the signatures when they always had - between May 1st and May 31st. The other two judges agreed that the state had not shown necessity, but wanted to give them a chance to show it, and so remanded it back to Judge Moody's court to give them that chance. Specifically they wanted the state to give answers to five questions which would show that the discrimination against independents was truly unavoidable and the least restrictive way to handle it.
The state did not want to have to answer those questions- for good reason as it turned out. So they appealed to the Supreme Court, again arguing on all points, including attacking my standing. The Supreme Court voted 9-0 that their appeal was not even worthy of a hearing. So it went back to Judge Moody's court for the showdown, which occurred yesterday.
In the meantime their evidence was looking shakier than ever. The employee who filed the affidavit for them the first time no longer worked at the Secretary of State's office. I heard elsewhere that they were kind of hush-hush about the circumstances surrounding his departure. So they had to bring someone else in to testify in person- a young man that I thought was put in a very unfair position of having to defend the indefensible. The fault does not lie with him, but rather with his superiors who put him in that position needlessly and without just cause. My lead attorney masterfully walked him down the list of questions from the Circuit Court ending in even he admitting that the unequal treatment of independents was not necessary.
Mr. Kelly could only do what he always did- try to change the subject and substitute a lack of evidence on the point in contention with a large quantity of irrelevant rabbit trails and assertions of possible future harm and doom for which he could provide no real proof. If you had never heard Mr. Kelly before, you might sense from his confident tones and the passion and conviction with which he was speaking that there must be real substance to what he was saying. If you are motivated to pay very close attention though, it becomes evident that the form is present but the substance is lacking. I think that is what happened the first time in court, but by now Judge Moody has figured it out. A reporter for the Dem-Gaz was there and I think that sort of factored into her report, which I have no complaints about once it is understood that it is written from the perspective of someone who has not caught on to Mr. Kelly's SOP.
Mr. Kelly continued to try and argue, regardless of the findings of this judge and every judge up to and including the Supreme Court, that I did not have standing. In fact, after all the arguments were supposedly over he called me up to the stand under the pretext of getting me to acknowledge under oath a couple of documents which were in the record as a procedural issue. Then once on the stand he started asking me questions related to my standing! He then got what amounted to a second closing in which he again brushed off a the heavy hints from the judge that this was settled and again attacked my standing.
But wait, there is more- my attorney had dueled with Mr. Kelly on a previous case in Judge Moody's court related to how long the Libertarians have to name candidates to the ballot. In Kelly's closing-after-the-closing he actually talked about how allowing that late limit for libertarian candidates could cause actual harm to other candidates if there was litigation about it which extended too late to take rejected libertarian candidates off of the ballot. In other words, it was not enough that he wanted to re-argue all of my case from scratch like the last three and a half years never happened, he also wanted to continue arguing to the Judge that the Judge was incorrect on the previous case which my attorney argued before Judge Moody, a case to which I was not a party! Daaaaang! Give it up man, your objectivity is becoming an issue.
If you want to hear more I had a segment on the Paul Harrell program about it here. The judge should have his ruling by January 2nd, which is pretty fast for these types of cases.
As far as solutions go, I wish they would let independents have access to the ballot like Judicial candidates get access. That is, Judges can collect signatures (which they often do) or pay a filing fee directly to the state equal to six percent of the annual income of the office. That way the state can make money on independent filings instead of spending money validating petitions and fighting tooth and nail lawsuits that they are going to lose anyway. Oklahoma lets independents pay a filing fee direct to the state. Our judges can do it here. If validating our petitions is such a bother, why not extend that same privilege to independent candidates in Arkansas? I mean, unless its really about keeping out the competition......
The legislature had tried this stunt several times before. Each time the courts told them it was unconstitutional. The state can't put unnecessary burdens on people just because they want to run outside a party system they may view as corrupt. There should be equality of opportunity in access to the ballot as much as it is possible to do so.
The first time around the judge, James Moody Jr., agreed that I had standing to sue, and agreed that the change in the law was an infringement of my rights that should not be tolerated unless it was forced by necessity. The third part was the controversy. The Attorney for the State, A.J. Kelly, was dressed in a nice suit and spoke in calm but confident tones when he asserted without evidence that due to changes in election law the state simply could not handle the burden of processing the signatures after the filing period. He also presented an affidavit from an employee of the Secretary of State's office making that same assertion. The Judge bought it and ruled against me on the grounds that the state was doing the best it could to give independents equal treatment.
I have found this to be a recurring theme among people on the top in the political class. They rarely get nasty or confrontational to your face. They generally avoid engaging in the actual argument you try to make. They compliment you for something or other. They are well-dressed. They are never strident or overly emotional. They are pleasant in demeanor and speak softly and mildly as they, with consolations and apologies, give you all kinds of reasons why they just have to screw you.
On that first go around my lead attorney, Jim Linger of Tulsa, didn't even give a second thought to the state's claim that the law was due to unavoidable necessity. He was an expert in ballot access litigation and knew too much about the process to give those assertions any credibility. But I can see how that judge must have thought that the attorney for the state would not just claim something that was obviously false with such conviction and confidence. In the years to come he would learn better.
At any rate, we appealed. The Appeals Court had three judges on it. They all affirmed the lower court's first two conclusion- that I had standing and the damage was real. On the third question they all agreed with us that the state had not offered evidence to support their claim of necessity, but they differed on how it should be handled. One ruled that the decision should be reversed and I should win on summary judgement because the state had not presented any actual proof that they could not process the signatures when they always had - between May 1st and May 31st. The other two judges agreed that the state had not shown necessity, but wanted to give them a chance to show it, and so remanded it back to Judge Moody's court to give them that chance. Specifically they wanted the state to give answers to five questions which would show that the discrimination against independents was truly unavoidable and the least restrictive way to handle it.
The state did not want to have to answer those questions- for good reason as it turned out. So they appealed to the Supreme Court, again arguing on all points, including attacking my standing. The Supreme Court voted 9-0 that their appeal was not even worthy of a hearing. So it went back to Judge Moody's court for the showdown, which occurred yesterday.
In the meantime their evidence was looking shakier than ever. The employee who filed the affidavit for them the first time no longer worked at the Secretary of State's office. I heard elsewhere that they were kind of hush-hush about the circumstances surrounding his departure. So they had to bring someone else in to testify in person- a young man that I thought was put in a very unfair position of having to defend the indefensible. The fault does not lie with him, but rather with his superiors who put him in that position needlessly and without just cause. My lead attorney masterfully walked him down the list of questions from the Circuit Court ending in even he admitting that the unequal treatment of independents was not necessary.
Mr. Kelly could only do what he always did- try to change the subject and substitute a lack of evidence on the point in contention with a large quantity of irrelevant rabbit trails and assertions of possible future harm and doom for which he could provide no real proof. If you had never heard Mr. Kelly before, you might sense from his confident tones and the passion and conviction with which he was speaking that there must be real substance to what he was saying. If you are motivated to pay very close attention though, it becomes evident that the form is present but the substance is lacking. I think that is what happened the first time in court, but by now Judge Moody has figured it out. A reporter for the Dem-Gaz was there and I think that sort of factored into her report, which I have no complaints about once it is understood that it is written from the perspective of someone who has not caught on to Mr. Kelly's SOP.
Mr. Kelly continued to try and argue, regardless of the findings of this judge and every judge up to and including the Supreme Court, that I did not have standing. In fact, after all the arguments were supposedly over he called me up to the stand under the pretext of getting me to acknowledge under oath a couple of documents which were in the record as a procedural issue. Then once on the stand he started asking me questions related to my standing! He then got what amounted to a second closing in which he again brushed off a the heavy hints from the judge that this was settled and again attacked my standing.
But wait, there is more- my attorney had dueled with Mr. Kelly on a previous case in Judge Moody's court related to how long the Libertarians have to name candidates to the ballot. In Kelly's closing-after-the-closing he actually talked about how allowing that late limit for libertarian candidates could cause actual harm to other candidates if there was litigation about it which extended too late to take rejected libertarian candidates off of the ballot. In other words, it was not enough that he wanted to re-argue all of my case from scratch like the last three and a half years never happened, he also wanted to continue arguing to the Judge that the Judge was incorrect on the previous case which my attorney argued before Judge Moody, a case to which I was not a party! Daaaaang! Give it up man, your objectivity is becoming an issue.
If you want to hear more I had a segment on the Paul Harrell program about it here. The judge should have his ruling by January 2nd, which is pretty fast for these types of cases.
As far as solutions go, I wish they would let independents have access to the ballot like Judicial candidates get access. That is, Judges can collect signatures (which they often do) or pay a filing fee directly to the state equal to six percent of the annual income of the office. That way the state can make money on independent filings instead of spending money validating petitions and fighting tooth and nail lawsuits that they are going to lose anyway. Oklahoma lets independents pay a filing fee direct to the state. Our judges can do it here. If validating our petitions is such a bother, why not extend that same privilege to independent candidates in Arkansas? I mean, unless its really about keeping out the competition......
posted by Mark Moore (Moderator) at Wednesday, December 13, 2017
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