                 United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 15-3558
                         ___________________________

                                     Mark Moore

                        lllllllllllllllllllll Plaintiff - Appellant

                     Michael Harrod; William Chris Johnson

                              lllllllllllllllllllll Plaintiffs

                                            v.

Mark Martin, in his official capacity as Secretary of State for the State of Arkansas

                       lllllllllllllllllllll Defendant - Appellee
                                      ____________

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

                          Submitted: December 14, 2016
                              Filed: April 26, 2017
                                 ____________

Before WOLLMAN, SMITH,1 and BENTON, Circuit Judges.
                          ____________

WOLLMAN, Circuit Judge.



      1
       The Honorable Lavenski R. Smith became Chief Judge of the United States
Court of Appeals for the Eighth Circuit on March 11, 2017.
       This 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.2 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.

                                   I. Background

       Under 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.3 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


      2
        Plaintiff William Chris Johnson was voluntarily dismissed from the case, and
Plaintiff Michael Harrod did not appeal from the district court’s judgment.
      3
       Prior to being amended in 2013, section 7-7-103(b)(1)(A) provided a May 1
deadline for an independent candidate to submit a petition with the requisite number
of signatures. H.R. 2036, 89th Gen. Assemb., Gen. Sess., 2013 Ark. Acts 1356.

                                         -2-
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).

       The 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.4 Id. § 7-10-103(c)(1)(C).

        Additionally, Arkansas election officials must process petitions for ballot
initiatives. Eight percent of the qualified electors in Arkansas may propose a law, and


      4
        Prior to being amended in 2013, § 7-10-103(c) provided a later period for
filing of petitions for nonpartisan office—beginning forty-six days before the first day
of the party filing period and ending thirty-two days before the first day of the party
filing period—and provided that the “Secretary of State, or the county clerk, as the
case may be,” must verify the sufficiency of a petition for nonpartisan office within
thirty days of its filing. H.R. 2065, 89th Gen. Assemb., Gen. Sess., 2013 Ark. Acts
1286.

                                          -3-
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. § 7-5-204(c)(2).

       Moore is a registered Arkansas voter and claims that he was an independent
candidate for Lieutenant Governor of Arkansas in the 2014 election.5 He sued
Martin, alleging, as mentioned above, that the filing deadline for independent
candidates violates the First and Fourteenth Amendments.




      5
        Moore also alleged, in his affidavit opposing Martin’s motion for summary
judgment, that he intends to run for Lieutenant Governor as an independent candidate
in the 2018 general election.

                                           -4-
       The 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.

                                    II. Discussion

       We 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

                                          -5-
the absence or presence of a genuine dispute, or that an adverse party cannot produce
admissible evidence to support the fact.” Fed. R. Civ. Proc. 56(c)(1).

       Ballot 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).6 “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 Party of N.D. v. Jaeger, 659
F.3d 687, 693 (8th Cir. 2011) (quoting McLain v. Meier, 851 F.2d 1045, 1049 (8th
Cir. 1988)). In such cases, the State bears the burden of showing that the challenged
statute is narrowly drawn to serve the State’s compelling interest. See Eu v. S.F. Cty.
Democratic Cent. Comm., 489 U.S. 214, 222 (1989).




      6
        We confine our analysis to Moore’s First Amendment rights and due process
rights under the Fourteenth Amendment and do not separately consider his claim of
an equal protection violation. See Anderson v. Celebrezze, 460 U.S. 780, 786 n.7
(1983).

                                           -6-
       Arkansas’s ballot access requirements for independent candidates have been
repeatedly challenged. In Lendall v. Bryant, 387 F. Supp. 397, 400-03 (E.D. Ark.
1975) (per curiam) (Lendall I), a three-judge district court held unconstitutional the
combined requirements that an independent candidate’s petition be filed by the first
Tuesday in April, which was also the filing deadline for political party candidate
petitions, and be signed by fifteen percent of the qualified electors for the office.
After Arkansas reduced that requirement to ten percent, and not more than two
thousand signatures for district office or ten thousand signatures for statewide office,
a three-judge district court held that the filing deadline, still the first Tuesday in April,
was unconstitutional standing on its own. Lendall v. Jernigan, No. LR-76-C-184
(E.D. Ark. Aug. 20, 1976), aff’d mem., 433 U.S. 901 (1977) (Lendall II). Then in
Lendall v. Jernigan, 424 F. Supp. 951, 958 (E.D. Ark. 1977) (Lendall III), the district
court held that the petition requirement of ten percent of qualified electors, standing
alone, was unconstitutional.7 In Lendall v. McCuen, No. LR-C-88-311 (E.D. Ark.
Aug. 16, 1988) (Lendall IV), the court held that a one-time January 5 filing deadline,
which accompanied a one-time March 8 date for the preferential primary, was
unconstitutional in light of Lendall II’s disapproval of an April deadline. Finally, in
Langguth v. McCuen, 30 F.3d 138 (unpublished table decision), No. 93-3413, 1994
WL 411736, at *1-2 (8th Cir. Aug. 9, 1994) (unpublished per curiam), our court
upheld a deadline that required filing thirty days before the primary election, a
signature requirement for statewide office of the lesser of three percent of qualified
electors or ten thousand signatures, and a sixty-day period in which to gather
signatures. Although we are mindful that these cases do not provide a “litmus-paper
test,”8 Anderson, 460 U.S. at 789, we note that a filing deadline earlier than the first


       7
        The court also discussed the requirement that the signatures be gathered within
a sixty-day period, but did not appear to base its holding on this requirement. Lendall
v. Jernigan, 424 F. Supp. 951, 958 (E.D. Ark. 1977) (Lendall III).
       8
      Similarly, we perceive no error in the fact that the district court’s order did not
mention the affidavit of Moore’s purported expert witness, Richard Winger, which

                                            -7-
Tuesday in April would require additional justifications to distinguish this case from
Lendall II.

       The district court correctly noted that the March 1 filing deadline for
independent candidates imposes a burden “of some substance” on Moore’s First and
Fourteenth Amendment rights and that Arkansas has a compelling interest in timely
certifying independent candidates for inclusion on the general election ballot. We
believe that the district court erred, however, in concluding that there was no genuine
dispute of material fact whether the March 1 deadline is narrowly drawn to serve that
compelling interest. The district court reasoned:

      [I]n light of the increase in [candidates for nonpartisan offices] (mostly
      judges) filing petitions instead of paying filing fees as before and the
      increased number of initiative petitions[,] there is simply not enough
      time to process all of the petitions within the May 1st deadline. This
      fact coupled with the time consumed by ever increasing litigation over
      petitions has necessitated the [advancement] of the deadline to March
      1st.

       Secretary Martin’s evidence shows an increase in the number of candidates
who petitioned for inclusion on the ballot for nonpartisan offices, resulting in an
increase in the number of signatures that required verification. Those signatures were
required to be verified by the end of February: in 2014, the deadline for submission
of signature petitions for nonpartisan office was January 9, and thus, presumably,
these petitions were verified by February 24, 2014.                               See
Ark. Code Ann. § 7-10-103(c)(1)(C) (forty-five-day deadline for Secretary’s
verification of signature petitions for nonpartisan office). Although advancing the


detailed the history and judicial treatment of ballot access requirements for
independent candidates and new political parties, because it would not have informed
the district court’s analysis in weighing Arkansas’s interests against the burden on
Moore’s rights.

                                         -8-
deadline from May 1 to March 1 gives the Secretary two additional months in which
to review independent candidate petitions, we question whether the increase in the
number of nonpartisan petitions necessitated that change in dates in light of the fact
that the Secretary is statutorily required to verify the nonpartisan petitions prior to the
independent candidate petitions’ due date. The increase in nonpartisan petitions may
have resulted in an increase in litigation regarding those petitions, which might
interfere with the processing of independent candidate petitions, but the record is
unclear as to any such effect. Accordingly, the increase in the number of nonpartisan
petitions does not by itself establish the existence of a compelling interest that the
March 1 deadline is narrowly tailored to serve.

      Stronger evidence exists to suggest that the processing of initiative petition
signatures might conflict with the processing of independent candidate petition
signatures. The Director of Elections’ affidavit states, in part:

       The deadlines for filing petition signatures [for candidates for
       nonpartisan offices, independent candidates, and new political parties]
       [were] “moved up” on the calendar—to earlier in the year—in order to
       facilitate election administration necessities, including the processing of
       so many initiative petition signatures during the 2012 election cycle that
       it was nearly impossible to finish the process within the statutory and
       constitutional guidelines, resulting in preliminary certification of
       [initiative petitions] that were later determined to be “stricken” from the
       ballot for one reason or another (after considerable litigation). Given the
       constitutional deadline for submission of initiative petition signatures,
       and the necessities of UOCAVA and MOVE compliance,9 all other
       petition signature requirements were advanced to earlier in the year so
       as to clear the calendar of petition signature processing and subsequent
       litigation, in advance of the constitutional initiative petition signature


      9
       This refers to the earlier-mentioned requirement, upon timely request, to
transmit absentee ballots to absent military voters and overseas voters at least forty-
five days before an election. 52 U.S.C. § 20302(a)(8).

                                           -9-
      deadlines (which normally fall just before or just after the July 4
      holiday).

Arkansas Code Annotated § 7-9-111 allows thirty days for the Secretary to verify
initiative petitions, thirty days for petition sponsors to cure any deficiencies, and
thirty days for the Secretary to review a thus-cured petition. Martin argues that the
thirty-day cure period for defective petitions during which his office is required to
meet the deadline for sending absentee ballots in practice means that he is left with
only “a week to ten days to evaluate every single petition that comes in, many of them
50 or 60 or 70,000 signatures,” which “becomes nearly impossible, [as] it was in
2012.”

       Moore contends that because independent candidates do not appear on the
ballot until the November general election and because there are relatively few
independent candidates, the former May 1 deadline did not create conflicts between
the processing of independent candidate petitions and other signature petitions. He
also argues that even if Arkansas were required to hire additional election workers to
meet the statutory deadline, the cost increase would not justify the burden on
independent candidates’ and voters’ constitutional rights. See Tashjian v. Republican
Party of Conn., 479 U.S. 208, 218 (1986) (holding that the possibility of increased
administrative costs would not justify a statute prohibiting a political party from
opening its primary to voting by independents).

      Notwithstanding the district court’s and the parties’ description of the issue for
decision as being purely legal, we conclude that there exists a genuine factual dispute
whether the verification of independent candidate petitions would conflict with the
processing of other signature petitions under the former May 1 deadline. As
mentioned earlier, it appears that the processing of nonpartisan-office petitions would
not conflict with the processing of independent candidate petitions because the
nonpartisan-office petition signatures are statutorily required to be verified before the


                                          -10-
end of February. The Director of Elections’ affidavit establishes that the processing
of initiative petitions consumes a great deal of time between early July and late
August. But on this record a number of other relevant facts are unclear. The record
does not establish what periods of time, between the former May 1 deadline for
independent candidate petitions and the early July deadline for initiative petitions,
were available for the state to process independent candidate petitions. It does not
establish when independent candidate petitions were in fact processed in the past, nor
does it reveal whether during the 2014 election, following the move of the deadline
from May 1 to March 1, independent candidate petitions were processed between
those two dates. Also unclear are the amount of time required to process independent
candidate petitions and the feasibility of temporarily hiring additional election
workers. We conclude that the lack of a record establishing such underlying facts
demonstrates the existence of a genuine dispute of material fact that precluded
summary judgment.10

      Accordingly, the district court erred in granting Martin’s motion for summary
judgment. It did not err in denying Moore’s motion for summary judgment, however,
because of the existence of a factual dispute, which renders moot Moore’s motion for
reconsideration. We thus affirm in part, reverse in part, and remand the case for
further proceedings consistent with the views set forth in this opinion.

SMITH, Circuit Judge, dissenting.

      I respectfully dissent. Arkansas’s election scheme requires independent
candidates to file for candidacy at the same time political parties are required to file

      10
        Martin and the district court noted that Moore presented no affirmative
evidence to persuade the district court of his position. Because the record did not “in
fact bear[] out [Martin’s] claim that no genuine dispute exist[ed],” however, Moore
was not required to provide affirmative evidence. See 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)).

                                         -11-
to be included in the general election. Ark. Code Ann. § 7-7-103(a)(1). Because the
party-filing deadline shifts at the discretion of the General Assembly, the
independent-candidate filing deadline shifts accordingly. For example, in 2014, this
filing date was March 3, 2014—246 days before the general election. In 2016, this
filing date was November 9, 2015—365 days before the general election. In McLain,
we were troubled by a third-party filing deadline “more than 200 days before the
November election.” 851 F.2d at 1049. The deadline here—246 to 365 days before
the general election—is even more troubling.

       “The Constitution requires that the access requirements as to both party-backed
and independent candidates be reasonable.” McLain v. Meier, 637 F.2d 1159, 1165
(8th Cir. 1980). Restrictions on ballot access “may not go beyond what the state’s
compelling interests actually require,” id. at 1163, and must be “narrowly drawn to
serve [that] compelling state interest,” Jaeger, 659 F.3d at 693 (quoting McLain, 851
F.2d at 1049). The Arkansas independent-candidate filing deadline fails to meet these
constitutional standards—it is neither actually required nor narrowly drawn.

       Secretary Martin contends that this filing deadline is “actually required”
because his office gets overwhelmed with the number of petitions for nonpartisan
candidates and ballot initiatives. Yet, the nonpartisan petitions are certified in
February, and the ballot initiatives are not due until July. Five months for certifying
independent candidates is a substantial time period. The record reflects that no more
than two independent candidates ran for state-wide office in Arkansas per election
cycle in recent years. Using the former May 1 deadline, Secretary Martin would have
two full months to process at most 20,000 signatures for independent candidates.11

      11
        The evidence on the record suggests that Secretary Martin’s office is more
than capable of handling such a task. In 2014, Secretary Martin processed 92
nonpartisan candidate petitions, containing 103,578 signatures, before the end of
February. Further, Arkansas ballot initiatives must be processed within a period of 30
days, and these petitions can include up to 70,000 signatures.

                                         -12-
See Ark. Code Ann. § 7-7-103(b)(1). Because the record does not demonstrate a
legitimate conflict in the months of May and June for processing independent-
candidate filings and other petitions, Secretary Martin has not shown that such an
early filing deadline is actually required.

       Additionally, Secretary Martin has not demonstrated how attaching the
independent-candidate filing deadline to the party-filing deadline is “narrowly
drawn.” See Jaeger, 659 F.3d at 693. In Council of Alternative Political Parties v.
Hooks, the Third Circuit rejected a less-restrictive scheme in New Jersey that required
third-party and independent candidates to file candidacy petitions in early April—the
same day as the party-affiliated candidates. 121 F.3d 876, 879 (3d Cir. 1997).
Alternative candidates had to file up to 800 signatures seven months before the
general election. Id. at 878–79. In balancing the interests, the court determined that
“requiring [independent candidates] to file their nominating petitions at the same
early date as Democratic and Republican candidates” was unjustified. Id. at 881.
“Requiring party candidates to comply with a March filing deadline permits a
‘reasonable time for processing the documents submitted by candidates and preparing
the ballot’ for a June primary. . . . [But] ‘[n]either the administrative justification nor
the benefit of an early filing deadline is applicable to an independent candidate.’”
Wood v. Meadows, 207 F.3d 708, 711 (4th Cir. 2000) (citations omitted) (quoting
Anderson, 460 U.S. at 800). “[A]lthough such laws appear to treat independent and
party candidates similarly, they actually disadvantage independent candidates.” Id.
Secretary Martin presents no justification for statutorily attaching the independent-
candidate filing deadline to that of the political parties. Thus, this connection fails to
be “narrowly drawn.”

      The majority holds that we must remand because there is insufficient evidence
regarding Secretary Martin’s inability to process independent-candidate petitions
concurrently with the ballot initiatives. On summary judgment, however, if the
nonmoving party fails to make a sufficient showing of an element of his case that he

                                           -13-
has the burden of proving, then the moving party is entitled to judgment as a matter
of law. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Secretary Martin had the
burden of proving a genuine conflict existed between the processing of independent-
candidate petitions and petitions for ballot initiatives. Because no evidence exists on
the record that such an early deadline is necessary to process the independent-
candidate petitions, Moore is entitled to judgment as a matter of law. See Gometz v.
Culwell, 850 F.2d 461, 464 (8th Cir. 1988).

      I respectfully dissent.
                       ______________________________




                                         -14-
