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Moore v. Thurston

United States Court of Appeals, Eighth Circuit

July 1, 2019

Mark Moore Plaintiff - Appellee
v.
John Thurston, in his official capacity as Secretary of State for the State of Arkansas Respondent - Appellant Michael Harrod; William C. Johnson Plaintiffs

          Submitted: April 16, 2019

          Appeal from United States District Court for the Eastern District of Arkansas - Little Rock

          Before LOKEN, WOLLMAN, and STRAS, Circuit Judges.

          WOLLMAN, CIRCUIT JUDGE

         Mark Moore, a registered voter and potential candidate for state office, challenged Arkansas's ballot access requirements for independent candidates.[1] After the district court[2] granted his request for declaratory and injunctive relief, the Arkansas Secretary of State (the Secretary)[3] filed this appeal. As the state legislature recently amended the challenged statute to accord with the petition filing deadline that Moore had sought, no controversy remains, and thus we dismiss the appeal as moot.

         I.

         Under Arkansas law, independent candidates for both federal and state office must meet certain requirements to be included on the ballot. Candidates must file a petition signed by at least three percent of the qualified electors in the state, county, township, or district in which the person is seeking office. Ark. Code Ann. § 7-7-103(b)(1)(A). The petition filing deadline had been May 1 of general election years, but in 2013, the legislature changed the date to the end of the party filing period, typically March 1 of general election years. See 2013 Ark. Acts 1356, codified as amended at Ark. Code Ann. § 7-7-103. Petitions may not be circulated for signatures earlier than ninety days prior to this deadline. Ark. Code Ann. § 7-7-103(b)(3)(B). The statute also requires independent candidates to file a political practices pledge, an affidavit of eligibility, and a notice of candidacy by the same date. Id. at § 7-7-103(a)(1)(A).

         Moore filed suit in federal district court in February 2014, challenging the constitutionality of the statute as applied to him. He alleged that the March 1 petition filing deadline was unnecessarily early and burdened his rights under the First and Fourteenth Amendments. He claimed that the law required independent candidates to gather petition signatures in December, January, and February, when political interest among the voting public was low and the weather was less conducive to gathering signatures. Moore failed to file the necessary paperwork and was thus ineligible to run for state office in 2014. He also sought declaratory and injunctive relief as to future election cycles, however, stating that he intended to run again in 2018.

         In granting the Secretary's motion for summary judgment and denying Moore's, the district court determined that Moore had standing and that the conclusion of the 2014 election cycle did not moot the case. D. Ct. Order of Aug. 25, 2015, at 3-4. In analyzing Moore's constitutional claims, the court employed a form of strict scrutiny known as the compelling state interest test. Id. at 6. The test requires the court to first determine whether the challenged statute imposes "a burden of some substance on a plaintiff's rights," Moore v. Martin, 854 F.3d 1021, 1026 (8th Cir. 2017) (quoting Libertarian Party of N.D. v. Jaeger, 659 F.3d 687, 693 (8th Cir. 2011)), and then to evaluate the State's justification for the statute, determining whether the "challenged statute is narrowly drawn to serve the State's compelling interest." Id. The court concluded that the March 1 petition filing deadline imposed a burden of some substance on Moore's rights as a potential independent candidate and voter. It found the deadline necessary, however, to meet "Arkansas's compelling interests in timely certifying candidates and interests for the ballot." D. Ct. Order of Aug. 25, 2015, at 6.

         Moore appealed, and we reversed the summary judgment grant to the Secretary. Moore, 854 F.3d at 1028. We agreed with the district court that the March 1 petition filing deadline imposed a burden of some substance, id. at 1026, but noted that a factual dispute existed with respect to whether the statute was narrowly drawn to serve Arkansas's compelling interest. We thus remanded for the district court to examine "whether the verification of independent candidate petitions would conflict with the processing of other signature petitions under the former May 1 deadline." Id. at 1028.

         On remand and after a bench trial, the district court granted Moore the relief he requested. It determined that the March 1 petition filing deadline was not narrowly drawn to serve the state's compelling interest in timely certifying signatures, and entered injunctive relief permitting Moore to file his petition on or before May 1, 2018. See D. Ct. Am. Order of Jan. 25, 2018, at 6-7.

         The court's order did not address the filing deadline for the notice of candidacy, affidavit, and political practices pledge. Moore failed to file those documents by the March 1 deadline, and the Secretary thereafter moved to vacate the injunction as moot, claiming that Moore was ineligible for the 2018 ballot because he had missed the statutory filing deadline. The court then extended the filing deadline for the notice, affidavit, and pledge at Moore's request. Moore filed those documents and his petition on April 30, 2018. Because his petition lacked the requisite number of verified signatures, however, Moore was again ineligible for candidacy.

         After the Secretary filed this appeal and the parties submitted their briefs, the state legislature amended the petition filing deadline for independent candidates to 12:00 p.m. on May 1 of the general election year. See 2019 Ark. Acts 68, to be codified as amended at Ark. Code ...


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