Submitted: December 14, 2016
from United States District Court for the Eastern District of
Arkansas - Little Rock
WOLLMAN, SMITH,  and BENTON, Circuit Judges.
WOLLMAN, Circuit Judge.
appeal concerns certain Arkansas statutes that set the filing
deadline for individuals who wish to appear on the general
election ballot as independent candidates. Mark Moore, along
with two other individuals, filed suit in federal district
court against Mark Martin, in his official capacity as
Arkansas Secretary of State, seeking a declaratory judgment
that the filing deadline is unnecessarily early and thus
violates the First and Fourteenth Amendments and 42 U.S.C.
§ 1983. The suit seeks to enjoin Martin from enforcing
this deadline against Moore. Moore appeals from the district
court's orders that denied his motion for summary
judgment, granted Martin's motion for summary judgment,
and denied Moore's motion for reconsideration. We affirm
in part and reverse in part.
Arkansas law, a person seeking to include his or her name on
the general election ballot as an independent candidate for
any office other than President or Vice President of the
United States must submit a petition to the Arkansas
Secretary of State. Ark. Code Ann. § 7-7-103(a)(1).
Petitions for statewide office must be signed by the lesser
of three percent of the qualified electors of the state or
ten thousand qualified electors. Id. §
7-7-103(b)(1)(B). Independent candidate petitions must be
submitted during the same period as political party candidate
petitions. This "party filing period" begins one
week prior to the first day in March and ends the first day
in March. Id. §§ 7-7-103(a)(1),
7-7-203(c)(1). Petitions may not be circulated for signatures
earlier than ninety days prior to the March 1 deadline.
Id. § 7-7-103(b)(3)(B). The general election is
held on the Tuesday following the first Monday in November.
Id. § 7-5-102. For political party candidates,
the general primary election is held on the second Tuesday in
June and the preferential primary election is held three
weeks earlier. Id. § 7-7-203(a)-(b). The
Secretary and county clerks must certify to the county boards
of election commissioners the names of all candidates to be
placed on the general election ballot not less than
seventy-five days before the general election. Id.
§ 7-5-203. Upon timely request, states must transmit
absentee ballots to absent military voters and overseas
voters at least forty-five days before an election for
federal office. 52 U.S.C. § 20302(a)(8).
Secretary must also process requests for inclusion on the
ballot for nonpartisan offices, including judges and
prosecuting attorneys. The general election for nonpartisan
offices is held on the same day as the preferential primary
election for partisan offices, and any runoff election is
held on the same day as the November general election. Ark.
Code Ann. § 7-10-102. A person may have his or her name
placed on the ballot for nonpartisan office by paying a
filing fee during the party filing period or by submitting a
petition, signed by a requisite number of electors, during a
period beginning fifty-three days before the first day of the
party filing period and ending forty-six days before the
first day of the party filing period. Id. §
7-10-103(a)-(c). The Secretary must verify the sufficiency of
a petition for nonpartisan office within forty-five days of
its filing. Id. § 7-10-103(c)(1)(C).
Arkansas election officials must process petitions for ballot
initiatives. Eight percent of the qualified electors in
Arkansas may propose a law, and ten percent may propose an
amendment to the state's constitution. Ark. Const. art.
V, § 1. To appear on the November general election
ballot, an initiative petition signed by the requisite number
of voters must be filed with the Secretary not less than four
months before the general election is to be held.
Id. The Secretary must verify the sufficiency of an
initiative petition within thirty days after it is filed and
may contract with county clerks for assistance in verifying
the petition signatures. Ark. Code. Ann. § 7-9-111(a).
If the Secretary finds a petition insufficient, within thirty
days the petition sponsors must cure the deficiency (by
gathering additional signatures, proving the validity of
rejected signatures, or making the petition more definite)
and submit a supplemental petition, the sufficiency of which
the Secretary must verify within thirty days. Id.
§ 7-9-111(d). The Secretary must certify each verified
initiative proposal to the county boards of election
commissioners for inclusion on the ballot not less than
seventy-five days before the general election. Id.
§ 7-5-204(a). If the Secretary has not verified the
sufficiency of an initiative petition at least seventy-five
days before the general election, or if an initiative
petition is legally challenged, the Secretary must
nevertheless transmit it to the county boards of election
commissioners for inclusion on the ballot. Id.
§ 7-5-204(c)(1). If the Secretary subsequently declares
the petition insufficient or if the initiative proposal is
held to be legally invalid, no votes regarding the initiative
proposal are counted or certified. Id. §
is a registered Arkansas voter and claims that he was an
independent candidate for Lieutenant Governor of Arkansas in
the 2014 election. He sued Martin, alleging, as mentioned
above, that the filing deadline for independent candidates
violates the First and Fourteenth Amendments.
parties filed cross-motions for summary judgment. The
district court granted Martin's motion and denied
Moore's motion. It rejected Martin's arguments that
the case was moot or unripe for review and that Moore lacked
standing. It found that the March deadline for filing as an
independent candidate placed a substantial burden on
Moore's rights; that Arkansas has a compelling interest
in timely certifying candidates and initiatives to the
general election ballot; and that the March deadline is
narrowly tailored to serve this interest. In determining that
the March deadline is narrowly tailored, the court relied on
an affidavit submitted by the Arkansas Director of Elections,
which states that the increased number of initiative
petitions and candidates petitioning for inclusion on the
ballot for nonpartisan office leaves Arkansas election
officials with insufficient time to process the petitions
using the previous May 1 submission deadline.
review de novo the district court's order
granting Martin's motion for summary judgment and denying
Moore's motion for summary judgment. See Green Party
of Ark. v. Martin, 649 F.3d 675, 679 (8th Cir. 2011).
"The court shall grant summary judgment if the movant
shows that there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of
law." Fed. R. Civ. Proc. 56(a). The party moving for
summary judgment bears the initial burden to "bring up
the fact that the record does not contain" a genuine
dispute of material fact "and to identify that part of
the record which bears out his assertion." Counts v.
MK-Ferguson Co., 862 F.2d 1338, 1339 (8th Cir. 1988)
(quoting City of Mt. Pleasant v. Associated Elec.
Coop., 838 F.2d 268, 273-74 (8th Cir. 1988)). "[I]f
the record in fact bears out the claim that no genuine
dispute exists on any material fact, it is then the
respondent's burden to set forth affirmative evidence,
specific facts, showing that there is a genuine dispute on
that issue." Id. "A party asserting that a
fact cannot be or is genuinely disputed must support the
assertion by" either "citing to particular parts of
materials in the record" or "showing that the
materials cited do not establish the absence or presence of a
genuine dispute, or that an adverse party cannot produce
admissible evidence to support the fact." Fed. R. Civ.
access restrictions implicate not only the rights of
potential candidates for public office, but also the First
and Fourteenth Amendment rights of voters to cast their
ballots for a candidate of their choice and to associate for
the purpose of advancing their political beliefs.
Anderson v. Celebrezze, 460 U.S. 780, 786-88
(1983). "Constitutional challenges to
specific provisions of a State's election laws  cannot
be resolved by any 'litmus-paper test' that will
separate valid from invalid restrictions." Id.
at 789 (quoting Storer v. Brown, 415 U.S. 724, 730
(1974)). Instead, we "must first consider the character
and magnitude of the asserted injury to the rights protected
by the First and Fourteenth Amendments that the plaintiff
seeks to vindicate, " then we "must identify and
evaluate the precise interests put forward by the State as
justifications for the burden imposed by its rule, "
determining not only "the legitimacy and strength of
each of those interests" but also "the extent to
which those interests make it necessary to burden the
plaintiff's rights." Id. "[W]e review
the statute under a form of strict scrutiny referred to as
the 'compelling state interest test' by first
determining whether the challenged statute causes a burden of
some substance on a plaintiff's rights, and if so,
upholding the statute only if it is 'narrowly drawn to
serve a compelling state interest.'" Libertarian