Last week, after Arkansas Secretary of State John Thurston unilaterally disqualified the abortion-rights amendment from the November general election ballot, the group behind the proposal, Arkansans for Limited Government, sent the secretary a letter asserting that his analysis was incorrect and demanding he begin counting signatures on their petition by Monday, July 15.
Thurston issued a response yesterday evening, doubling down on his decision to disqualify the measure. On Tuesday, Arkansans for Limited Government sued him.
The group turned in a petition bearing signatures of over 100,000 Arkansas voters on July 5 — more than the 90,704 threshold necessary to qualify for the ballot. But Thurston rejected the petition before counting any of the signatures, saying Arkansans for Limited Government hadn’t met a technical requirement under state law, Ark. Code Ann. §7-9-111(f)(2). The statute deals with statements a group must submit along with their petition regarding any canvassers who were paid to gather signatures. (The Arkansas Times’ David Ramsey covered this extensively in an explainer about this whole issue yesterday.)
In a complaint filed Tuesday with the Arkansas Supreme Court, Arkansans for Limited Government argues broadly that they did comply with that statute and, even if they did not, failure to comply is correctable. They have since corrected any errors by submitting a statement to Thurston’s office, they say.
The group also contends that the petition and signatures are still valid and must be counted, regardless of compliance with that statute, and they note the secretary of state’s office has made that exact argument to the Supreme Court in the past. Finally, they contend Thurston failed to perform an initial count of the signatures as required by a separate statute, Ark. Code Ann. §7-9-126(a), because Thurston by his own admission only counted signatures from paid canvassers and not volunteer canvassers.
Based on all of this, Arkansans for Limited Government argues, Thurston’s decision was contrary to the law and must be vacated. They are asking the Supreme Court to: (1) vacate Thurston’s determination of insufficiency; (2) expedite the proceedings; (3) provide emergency relief (which they say they will request in a separate motion); (4) order that they are entitled to “a full certification and correction process;” (5) order Thurston to count all signatures gathered; and, (6) order Thurston to certify the measure for the ballot if a full certification and correction process cannot be completed before the deadline for the November ballot.
On its face, the complaint seems to contain the bare minimum necessary to make the argument Arkansans for Limited Government is trying to make. It’s interesting, however, what the group has left out of the filing.
For instance, the complaint does not attempt to lay out the full statutory scheme and explain the process as a whole. As our earlier reporting noted, part of the confusion about all of this stems from the fact that understanding the two-step process the secretary of state must follow when reviewing a petition requires reading multiple separate statutes and reading them cohesively. Only a short list of specific reasons (listed in Ark. Code Ann. §7-9-126) allow for disqualification of petition sheets or signatures at this preliminary stage of the analysis, and the reasons cited by Thurston fall under a different statute.
The second step of the process is where the “sufficiency” of the petitions is evaluated. That is where problems not covered in step one can be addressed. Importantly, while signatures may be disqualified under this stage of the process, as long as the group has at least 75% of the required signatures after the sufficiency analysis, they are guaranteed a 30 day cure period to try to collect any additional signatures they might need.
The complaint skips over this context and dives right into the narrow issue of compliance with §7-9-111(f)(2). It does not fully make clear that Thurston only gets to that statute in the second step and therefore, by extension, cannot disqualify the measure based on a violation of §7-9-111(f)(2) without also counting all of the signatures and providing a cure period if appropriate and necessary.
There is also nothing in the complaint addressing Thurston’s claim in his letter Monday that the group did not submit the required statements at the same time as they submitted the petition. This is a new argument that Thurston only raised yesterday. While it appears to be a ham-fisted attempt to find an argument that would let Thurston justify the decision he’s already made, it is still something that will have to be addressed. Arkansans for Limited Government chose to give Thurston until Monday to respond to their letter last week; it seems odd that they wouldn’t then reference his Monday response in their Tuesday complaint.
Similarly, the complaint does not address the other new argument Thurston introduced Monday: that the group supposedly did not sign an affidavit it submitted on June 27 attesting that it had provided proper training to paid canvassers. (The affidavit was in fact signed by the group’s paid canvasser coordinator, an outside contractor, but Thurston implies that person doesn’t count as the petition effort’s “sponsor,” for undisclosed reasons.) This affidavit is a critical part of Arkansans for Limited Government’s argument that it has actually complied with the requirement cited by Thurston.
Saying nothing about these issues makes it seem like the complaint was drafted before Thurston’s response yesterday and then filed today without incorporating any of the new issues. It’s not fatal to the complaint, but it’s a strange omission.