“What Say You and I go Toe-to-Toe on Bird Law?” A Look At Dan Whitfield’s Recent Interview

If you have been following our Twitter account recently,1 you likely know who Dan Whitfield is and have probably noticed that we have been tweeting about him fairly often. For those unfamiliar with Whitfield, however, a quick recap before we get into the meat of this post.

Dan Whitfield wanted to run as an independent candidate for U.S. Senate to take on Sen. Tom Cotton2 in 2020. Under Arkansas law, to accomplish that feat and get on the ballot as an independent Senate candidate, Whitfield was required to collect 10,000 signatures from registered Arkansas voters between February 1 and May 1, 2020. He did not gather enough signatures, which he claimed was due to the impact of COVID-19, and he sued the Arkansas Secretary of State in federal court to try to get on the ballot despite not gathering enough signatures to qualify.

Whitfield lost his case in U.S. District Court in front of Judge Kristine Baker on July 3, 2020, and he appealed to the Eighth Circuit Court of Appeals. Now, about the same time that Whitfield lost his case in district court, he began tweeting about how sure he was that he would win on appeal, a position that he based on his statement that Judge Baker had ruled that he had standing in the district court case.3 Even as I, and other lawyers, pointed out to him that he was misstating the burden of proof on appeal, that his likelihood of success on appeal was basically nil, or even that he was wrong in his constant assertion that he would get an oral argument in the Eighth Circuit on September 21, Whitfield continued to tweet about how sure he was he would win the appeal and be on the ballot.

I might have left the whole thing alone and just waited until his inevitable loss on appeal to mention him any further, except for the fact that Whitfield has continued to fundraise while telling people how certain he is that he’ll be on the ballot in November. Getting people to donate money by misleading them about whether they will even be able to vote for you is way up there on my list of annoying candidate habits. Lately, he has also irked me by trashing the Libertarian candidate for Senate, Ricky Dale Harrington Jr., in an effort to keep people from supporting Harrington. (Whitfield seems to think that getting a lot of support on Twitter has some bearing on how his appeal will turn out. It does not.)

ANYWAY, Dan Whitfield’s current status as a candidate is that he isn’t one. Full stop.

Sure, his appeal is still pending, but the list of candidates has been certified by the Secretary of State as required by law, the state has to begin sending absentee ballots on September 18, and Whitfield’s case was not selected for any of the oral argument sessions in September (meaning his case likely won’t be heard until the week October 19 at the earliest, which is the same week that early voting starts in Arkansas and which will be far too late to get on the ballot, even if he won.4)

Despite Whitfield’s not technically being a candidate, he was a guest on Capitol View over this past weekend. You can view the whole interview here if you want to verify the quotes or if you just have a need to see a really atrocious knot in a necktie. In the interview, which ran slightly over eight minutes, he made so many misleading, loony, or outright false statements that it made more sense to write about it here rather than as a series of tweets.

What follows below is a transcript of the relevant portions of the interview, along with reactions to and/or fact-checking of Whitfield’s statements.

0:24 – [In response to being asked to “give us a little background” on his ballot-qualification efforts] “It has been a very interesting campaign, that’s for sure. I guess what’s really important first off is a lot of people talking about Kanye West and how did he get on the ballot. So I think it’s really important for people to understand right now that, to run as an independent for U.S. President, you only need 1100 signatures, the deadline for signature collection is August the third, and, at the same time, they don’t have a fixed collection period. So, I could start collecting signatures tomorrow to work toward my 1100 signatures to get on the ballot for 2024.”

This is somewhat minor, but it is part of a pattern that will be fleshed out below, so I’ll mention it anyway: An independent candidate for U.S. President has to submit 1,000 signatures–not 1,100–by noon on the first Monday in August of the election year.5 It is also such a weirdly misleading comparison for Whitfield to make, contrasting the requirements for an independent Presidential candidate with the requirements for a would-be Senate candidate, that I suspect he is only making that argument because Kanye West’s name evokes chuckles and eyerolls and Whitfield is implying that he’s a more “serious” candidate than West.

Why is it misleading? Because an independent candidate for President in Arkansas–even if they won Arkansas, which has literally never happened–is still 254 electoral votes from becoming President of the United States.6 An independent candidate for Senate, however, is a Senator if he or she wins Arkansas. So the stakes are different from the jump, and the comparison of ballot access requirements for the two is silly where, as here, the requirements for other state-wide independent candidates (Governor, etc.) is the same as the requirements for U.S. Senate.

1:08 – [Still talking in response to Jay Bir’s initial “give us a little background” prompt from earlier] “For U.S. Senate, what I’m working on now, you needed 10,000 signatures in a fixed, 90-day window, from February 1st and May the 1st. And, unfortunately, when Gov. Asa Hutchinson issued orders of the state to declare a state of emergency, it significantly and severely impacted our signature-collection effort.”

This is false, at least as a matter of law. The district court specifically held that COVID-19, including the Governor’s actions in response to it, was a burden on the collection efforts, but that, “although not trivial, this burden cannot be characterized as severe.”7 The district court made this finding in large part based on evidence provided by Whitfield and his co-plaintiff, including Whitfield’s testimony that he “had at least 600 private volunteers and 27 publicly identified volunteers throughout the state, had placed petitions in at least 12 businesses for people to sign which were directly affected by COVID-19, had 150 members in his Facebook group for volunteers, and received petition signatures in the mail as late as May 1, 2020.” The court also noted that, “even though most large public events throughout the state were postponed or cancelled as the pandemic worsened and even though Governor Hutchinson ordered that gatherings in confined spaces outside a single household or living unit be limited to ten or fewer people and instructed people to stay six feet away from one another, Mr. Whitfield acknowledges that he met virtually with the Garland County Democrats after the declaration of a state of emergency and received signatures from that virtual meeting in the mail.” Thus, the district court concluded, “the signature collection process was able to continue, albeit in a different manner.”

I mention all of that to also mention this: Dan Whitfield keeps telling people that he was “severely burdened,” when the district court found that he was not. Moreover, he keeps saying that all he has to show to win his appeal is that he was severely burdened in his signature-collection efforts. This is completely false.

To win on appeal, Whitfield has to convince the Eighth Circuit Court of Appeals that Judge Baker committed a clear error in finding that there was not a severe burden. This “clearly erroneous” standard is a huge hill to climb because it means, even if the three judges on whatever Eighth Circuit panel hears this case might have individually ruled differently if they were the District Court judge, the lower court’s decision will still be affirmed (and Whitfield will lose) unless Whitfield convinces the appellate judges that Judge Baker’s decision is “unsupported by substantial, credible evidence in the record.” Inasmuch as Judge Baker specifically cited to credible evidence–including Dan’s own testimony–this is basically an impossible hurdle for Whitfield to clear, and every time he says that he just needs to show the Eighth Circuit that he was substantially burdened, he is incorrect about pretty much everything that matters in terms of his appeal.

1:43 – [In response to a question about how he would respond to Ricky Harrington Jr.’s comment that the Libertarian Party had to collect 10,000 signatures and did so and that Dan just failed to meet the same burden the Libertarians did.] “It was two completely different circumstances. So, number 1, the Libertarian Party didn’t have a fixed 90-day window; they actually collected their signatures last July, August, and September, I believe.”

I’ve hinted at it already, but an important thing you need to know about Dan Whitfield is that he is very quick to make statements about what the law does or does not require. A second thing you need to know about him is that he is so often wrong in his pronouncements on the law, he makes Charlie Kelly look like Thurgood Marshall.

Case in point, a party collecting signatures for ballot access in Arkansas absolutely does “have a fixed collection period,” contrary to Dan’s claims. Ark. Code Ann. 7-7-205(a)(4)(B) specifically states that a signature that a party submits with its petition for ballot access “shall not be counted” if it is “dated more than ninety (90) days before the date the petition is submitted.”

Oddly enough, Whitfield’s lawyer in District Court and on appeal is the same lawyer who represented the Libertarian Party of Arkansas in their ballot-access lawsuit, which was heard by Judge Baker as well. The district court ruling in that case even says, “A new party petition must be filed at least 60 days before the party filing period. Furthermore, the signatures on the filed petition must not be more than 90 days old at the time the petition is filed. Throughout this Order, the Court refers to this as the ’90-day window.'”8 On appeal, the Eighth Circuit affirmed the district court’s decision and noted that the district court’s relief to the plaintiffs in that case did not impact the 90-day window. It takes an impressive level of hubris to make incorrect statements of law about something that two courts in the last year or so have specifically mentioned to your lawyer in written opinions.9

2:05 – [Dan continues his response to Bir’s previous question.] “[The Libertarian Party] paid over $55,000 to a paid canvassing company to get their signatures. […] When I was collecting signatures, I didn’t even have the option to pay a canvassing company to get my signatures.”

Fun Fact: The Libertarians did not pay $55,000 to a canvassing company to get their signatures. Didn’t happen at all. Not even close. That $55,000 came from an estimate that the State of Arkansas’s expert offered as a possible price tag if the Libertarian Party had paid canvassers to collect 40% of the required signatures while relying on volunteers for the other 60%. That expert’s conclusions were not given much credence by the district court, and the court specifically found that the expert’s estimates were far more money than the Libertarian Party would be able to spend. So Dan’s comment here is just an outright lie.

Also false? Dan’s claim that, when he was collecting signatures, hiring a canvassing company “was not even an option.” It certainly was an option, as the signature-collection period started February 1 and nothing in the law prohibited Whitfield from hiring such a company. In fact, you want to know how we can be sure that hiring a canvassing company was an option for Whitfield? Let’s go back to the tape.

2:24 – [Dan continues regarding canvassing companies.] “My wife actually surprised me. She’s like, ‘I’ll help you get a thousand signatures.’ So, for her part of my campaign, she had actually paid–behind my back–a canvassing company $1,250 for 500 signatures and, because of the state of emergency, that canvasser was only able to turn in, I believe, 129 [signatures], and they still owe us $900.”

So, no, as a practical matter, it is not correct for Dan to say that he “didn’t even have the option of paying a canvassing company.” He definitely did have that option, and that is, in fact, what was done. Perhaps, if we’re being charitable, one could read Dan’s comment as meaning that he did not have an option to hire such a company because COVID-19 made it so that those companies could not gather signatures either. Except, if that was his point, then falsely claiming that the Libertarian Party spent $55,000 makes no sense, as their spending in 2019 (even if Dan were correct, which he wasn’t) would have no bearing on whether canvassers in March 2020 could get signatures.

As long as Whitfield wants to bring up this story about his wife paying Evans Consulting “behind [his] back” to get signatures, however, let’s look at something interesting about that whole transaction. According to Whitfield’s April FEC report, his wife made an in-kind contribution on March 3 to his campaign in the form of money paid to Evans Consulting by Dan’s wife on Dan’s behalf.

That is how you would expect an in-kind contribution to be done. However, in the very same April FEC report, we also see these disbursements to Whitfield’s wife on the same day.

Then there’s this: Whitfield testified to the district court that his wife made a $2,500 in-kind contribution to his campaign, with $1,250 paid up front by her to the company. Yet, the FEC reports show Dan paying his wife $1,250 from campaign funds on the same day that she paid Evans Consulting, which means either he was giving her the money for the payment to be made to Evans Consulting (making the descriptions of her going “behind his back” and making an “in-kind contribution” false), or Dan reimbursed her for the initial $1,250 that she had spent (which still would mean that her contribution was not really an in-kind contribution and would make Dan’s May 27 district-court testimony about a $2,500 in-kind contribution weird, since at no point have Whitfield’s FEC filings reflected a $2,500 in-kind contribution from his wife). Additionally, Whitfield claims that Evans Consulting still owes his campaign $900, yet would you care to take a guess whether that debt is reflected in his FEC reports?

3:20 – [Answering how he would respond to the arguments that Arkansas never had a real shutdown or stay-home order, so he wasn’t hampered by COVID-19 like someone in a state that actually shut down would have been.] “Realistically, just because we were one of four states that didn’t shut down due to negligence in our administration, it didn’t change the fact that we closed schools, we closed businesses, people were going to the store and hoarding groceries and self-quarantining for weeks and weeks and weeks, months even. We can’t say that just because we didn’t actually close the state down and mandate a closure, it didn’t severely impact every aspect of our lives.”

A few things here. First, again, despite constantly speaking in absolutes, Dan Whitfield is not good with facts. There were nine states that never shut down, not four.

Second, “we closed businesses.” Not Krogers or Food Giants or other grocery stores or Walmarts or Targets or gas stations or Sam’s Clubs. As anyone who has gone grocery shopping in the past months can attest, there were plenty of people going in and out of those stores daily, even in March and April. Whitfield wants to pretend like “we closed businesses” means that he could not gather signatures, despite being aware that people “were going to the store and hoarding groceries.”

Third, “we can’t say that, just because we didn’t actually close the state down, it didn’t severely impact every aspect of our lives.” That’s not the relevant legal standard and is yet another example of Whitfield’s either not understanding how courts work or making false comparisons in an effort to mislead other people. The relevant question was whether the state’s response to COVID-19, when combined with the various deadlines, severely burdened Whitfield’s ability to get on the ballot, and the district court already ruled against Whitfield on that.

4:18 – [Asked if he’s certain that he’s going to be able to get on the ballot considering just last week the Secretary of State certified the official ballot, plus considering that the legal process takes time.] “That ties hand in hand with corruption.10 What we don’t talk about enough is the corruption in our government.11 Corruption in the US Senate from Tom Cotton; he takes money from special interests and then votes on legislation that hurts us to benefit his donors. What we are experiencing here in Arkansas is another level of corruption. It’s important to realize that Gov. Asa Hutchinson, the Secretary of State John Thurston, and his defense counsel the attorney general Leslie Rutledge, they’ve all taken money from Tom Cotton. Not only have they taken contributions from him, but he’s also created a PAC — Rangers Lead the Way — and double contributed to all of them.12 They’re all buddies; they’re all in the same, tight good-ol’-boy group. What we need to do is we need to have a fair democracy. We need to have a legitimate path to ballot access. We’re not having an issue of an over-crowded ballot; we’re having an issue of having one candidate who has done everything in his power to run unopposed.” 13 He does have one unviable candidate [against him].”

Hoo boy. Asked specifically if he’s certain he’ll be on the ballot, Whitfield does not say yes or no. Instead, he just starts rambling about a baseless theory that there is corruption that somehow applies to Dan’s efforts to get on the ballot. My thoughts about the various non-corruption “corruption” claims are in the footnotes above, so as to not belabor that point.

Also, Dan says, flippantly, that Cotton “does have one unviable candidate” running against him, a reference to Ricky Dale Harrington, Jr. Isn’t it funny how Dan considers the guy who is actually on the ballot “unviable,” but considers himself to be a viable candidate, despite having no realistic path to even being on the ballot? Wait, no…”funny” isn’t the right word. “Delusional” is the word I was looking for.

5:30 – [Dan is still talking about what Cotton’s people did to Mahoney. Meaning it has been over 70 seconds since he was asked directly if he was certain that he would be on the ballot, and he still hasn’t said yes or no. Let’s skip ahead.]

5:50 – [Still responding to the question of whether he is certain he will get ballot access, nearly two minutes after it was asked, and he still hasn’t answered the question.] “Where we are with our case is we are currently in the appeal process through the Eighth Circuit. We filed our expedite [sic] for our appeal on July 8th. On July 9th, the United States Attorney General, William Barr, came to Arkansas, met with my opponent, Tom Cotton, and with the defendant’s defense counsel, Leslie Rutledge, at the same time, for all we know, behind a closed-door meeting.”

Dan keeps referring, both here and on Twitter, to “filing an expedite.” That is not a thing. He filed a motion to expedite his appeal, which was denied. Then he filed a renewed motion to expedite his appeal, which was also denied.

More importantly, though, do you have any idea just how full of one’s self a person would have to be to assume that a meeting between United States Attorney General William Barr, Senator Tom Cotton, and Arkansas Attorney General Leslie Rutledge would have ANYTHING to do with the efforts of an underwhelming would-be candidate who had already lost in district court and was relying on the Eighth Circuit to save him?

6:10 – [Whitfield still hasn’t said yes or no to the question about his confidence that he’ll make the ballot, but he has spent nearly two full minutes rambling about a conspiracy against him while offering zero proof of anything.] “When we filed our expedite [sic] on the 8th, that set a time frame for the attorney general to respond within fourteen days. They waited twelve days to file an opposition to our expedite [sic], and then shortly after that the opposition to our expedite [sic] was approved by an unknown panel of judges. You start going down the rabbit hole, it’s amazing what has gone on and what nobody is talking about.”

So, to recap, they filed their opposition to a motion to expedite two days earlier than they were required to? OH MY GOD, THE ABSOLUTE HORROR! (Seriously, having an appellee file anything even one day before a deadline is rare, but this is not suggestive of anything nefarious and, if anything, is proof that they have not been delaying the appeal proceedings as Dan keeps insinuating.)

As for the statement that the “opposition to our expedite [sic] was approved,” this is again wrong as a procedural matter. The motion to expedite, which was filed by Dan, was denied. It was denied “at the direction of the court,” by a Clerk’s entry in the docket, which is how these things are almost universally denied. So, again, this is not proof of anything other than the Eighth Circuit doing what would be expected.

Regarding the “unknown panel of judges” who denied the motion, at the risk of repeating myself, this is how rulings on preliminary procedural motions work in the Eighth Circuit. You don’t know who the judges will be on your case until it is set for oral argument (or until the screening panel determines that oral arguments aren’t necessary). So, again, this is basic procedural stuff, not proof of any conspiracy or corruption.

By the way, as of the end of this rambling answer, at 6:33 in the video, Whitfield never actually responded to Bir’s question about whether he was certain he would have ballot access. It sure seems like a candidate who was as confident of success as Whitfield pretends to be would have given a clear “yes” answer at some point in that two minutes and fifteen second of talking.

7:03 – [Bir asks if maybe Whitfield’s real fight is with the laws in place regarding ballot access, since it seems like John Thurston is just following the laws as written, and asks, since it was only 10,000 signatures (roughly .5% of voters), is it really a burden when other states with higher burdens have had those laws upheld?] “So, again, different situations. I heard that when the solicitor general was cross-examining me for two hours during our first hearing. He said, ‘if you can’t get 10,000 signatures, what makes you think you can even get 10,000 votes?’ Well, unfortunately, sir, people are kinda lazy, and, when things get really difficult, people tend not to follow through.”

You mean like driving nearly 8,400 miles between February 13, 2020, and March 31, 2020,14 despite all of April being time that you still could have been collecting signatures? Or are we talking about some other kind of “kinda lazy” people quitting when things get difficult?

7:20 – [Dan continues what is supposed to be an answer to Jay Bir’s previous question.] “Number one, in order to get a signature counted for myself, it says on the very bottom of the petition that this petition must be printed on a legal-sized paper, which means 8.5 x 14. So, when we got to the point that COVID had brought everyone into their homes and people were no longer able to really go out and petition, that means, in order to sign my petition if you wanted to, you had to…have a printer that printed on legal-sized paper and you had to go buy legal-sized paper. And then you would have to sign it correctly, which is a lot different than having a petition in front of you saying, you know, ‘date here, sign here, print here, date of birth, city,’ and all that. So a lot of the signatures were reversed with date signed, birthday, all that. And after getting them to sign it correctly, you have to get them to go to the post office to mail it to my PO Box. So it’s a different process. Now, when someone is already at the voting booth, what we’re seeing this November is one of the most important elections in history, especially after over 172,000 people have died due to our President’s negligence, we are going to have people in the voting booth, and it’s a lot easier for someone to click a button on a machine or check a box on something they’re already doing than to do that entire process.”

Good lord. That pointless digression on ballot requirements and the logistics of printing legal-sized paper ran for over 90 seconds, and nothing Whitfield said in that time in any way answered any of Bir’s questions about whether the Secretary of State was just following the law, whether the issue was more what the law said than what John Thurston was doing, and/or whether the 10,000 signature requirement in Arkansas is a lesser burden than has been upheld in other states.15 Meaning that, for the final 4 minutes and 20 or so seconds of an eight-and-a-half-minute interview, Whitfield rambled about a non-existent conspiracy against him that reaches into the highest levels of federal and state government, then rehashed his response to a question from his district court case—a case which he conveniently did not mention that he lost after the court specifically found he did not face a severe burden—rather than responding to questions actually posed to him.

Tellingly, despite being asked point blank if he was certain he would be on the ballot, which his pinned tweet would suggest he is, Whitfield did not ever say that he was certain. He didn’t even hedge and say that he has a good chance. (He doesn’t.) Instead, he just continues to pull a Donald Trump-style move by laying the groundwork for being able to whine about a fake conspiracy that kept him off the ballot, rather than acknowledging that he failed to get signatures and then lost at two levels of federal court when he sued over the issue.

Dan Whitfield is not going to be on any Arkansan’s ballot for Senate or any other office in 2020. No amount of going on television and making false claims about state officials and conspiracy theories, misleading people about the procedural workings of his lawsuit or appeal, or trashing Ricky Harrington is going to change that. But as long as he is going to continue to try to raise money for his Hindenburg of a campaign, we might as well keep pointing out when he’s either ignorant of facts or lying to potential supporters.