Judges: WINSTON BRYANT, Attorney General
Filed Date: 3/30/1995
Status: Precedential
Modified Date: 7/5/2016
The Honorable Morril Harriman State Senator 522 Main Van Buren, AR 72956
Dear Senator Harriman:
This is in response to your request for an opinion regarding Senate Bill 461, a bill to establish a uniform filing date for both independent candidates and those seeking to qualify as candidates for political party nominations.1 You have asked if there are any court decisions which indicate whether or not the bill would be constitutional.
The Code section amended by this bill (A.C.A. §
It is therefore my opinion that a conclusive determination regarding the constitutionality of SB 461 cannot be reached without undertaking this factual inquiry. It seems clear, as a general matter, that requiring independent candidates to qualify during the same period as those desiring to run in party primaries is "not necessarily unconstitutional."Lendall v. Bryant,
In Bradley v. Mandel,
[W]e are unable to see how any of these provisions actually ameliorates the major defect of the Maryland scheme: viz. that the remoteness of the filing date makes it impossible to generate interest on the part of workers and the electorate in the candidacy of the independent and to generate the publicity, campaign funds, and interest which must be generated even to accomplish the moderate requirement of obtaining the signatures of only 3% of the registered voters eligible to vote for the office that the independent candidate seeks. Overall, we do not find any moderating factors which remove or significantly ameliorate the substantial burden of Maryland's early filing date for independent candidates.
Id. See also McLain v. Meier,
These cases raise serious questions regarding the constitutionality of the deadline imposed in Senate Bill 461. Under the bill, independent candidates would be required to file approximately 55 days before the primary election and 210 days before the general election. Although this is essentially the same deadline that was approved by the Kentucky court in Pratt v. Begley, supra, a key distinction lies in Arkansas' signature requirement, including the 60-day time period for gathering signatures.Rock v. Bryant, supra, offers no support for this filing scheme, and indeed may cast doubt due to the court's conclusion that the filing requirements at issue in that case "[do] not work to require plaintiff, in essence, to solicit signatures and thereby evidence support for his candidacy in a political vacuum or at a time when the campaign issues have not yet crystallized."
It should perhaps also be noted, finally, that the filing deadline under SB 461 is essentially the same as that which was struck down in the prior unreported case of Lendall v. Jernigan, LR-76-C-184 (E.D. Ark. 1976). The extent to which the court in that case viewed the filing requirement as unconstitutional apart from any signature requirement is, however, somewhat unclear. The percentage requirement at that time was 10%. See
Act 700 of 1975. The case was subsequently characterized in Lendall v.Jernigan, as invalidating the deadline (set at that time between the second Tuesday in March and the first Tuesday in April before the preferential primary) "regardless of the existence of, or the terms of, any petitioner percentage requirement."
In conclusion, it appears that the filing deadline in SB 461 is somewhat comparable, in the degree of remoteness, to deadlines that have been held unconstitutional. Decisions in this area are, however, as noted by the Supreme Court, "very much a `matter of degree'. . . ." Storer v. Brown,
The foregoing opinion, which I hereby approve, was prepared by Assistant Attorney General Elisabeth A. Walker.
Sincerely,
WINSTON BRYANT Attorney General
WB:EAW/cyh
Rock v. Bryant , 459 F. Supp. 64 ( 1978 )
Lendall v. Bryant , 387 F. Supp. 397 ( 1975 )
Bradley v. Mandel , 449 F. Supp. 983 ( 1978 )
Pratt v. Begley , 352 F. Supp. 328 ( 1970 )
Lendall v. Jernigan , 424 F. Supp. 951 ( 1977 )
Harley McLain v. Ben Meier, Secretary of State and Allen ... , 637 F.2d 1159 ( 1980 )
Mandel v. Bradley , 97 S. Ct. 2238 ( 1977 )
American Party of Texas v. White , 94 S. Ct. 1296 ( 1974 )
Jenness v. Fortson , 91 S. Ct. 1970 ( 1971 )