The Arkansas Supreme Court on Tuesday evening ordered Secretary of State John Thurston to begin counting signatures collected by volunteers behind a proposed constitutional amendment to restore abortion access in the state — but the court’s limited order still may not be enough to save the Arkansas Abortion Amendment. The order was silent on several key issues that will determine what happens next.
Thurston must perform “the initial count of signatures collected by volunteer canvassers according to A.C.A. 7-9-126(a)” by the morning of Monday, July 29, the court said. That statute describes the first stage in the state’s multi-step process for tallying and verifying signatures turned in by petitioners.
But the court said nothing about how the secretary of state should handle signatures collected by paid canvassers, which has been the focus of the fight over the abortion amendment thus far. If Thurston isn’t required to count paid canvasser signatures along with volunteer signatures, the amendment may be unable to reach the crucial 90,704 threshold required to qualify for the November ballot.
The group behind the amendment, Arkansans for Limited Government, turned in over 101,000 signatures to the secretary of state by a July 5 deadline. Of those, an estimated 87,382 were collected by volunteers and another 14,143 collected by paid canvassers.
Five days later, Thurston rejected the petition. Organizers had failed to include a piece of compliance paperwork related to paid canvassers, he said, which required him to disqualify the entire thing out of hand. Thurston also said his staff had performed an initial count of paid canvasser signatures “as a courtesy” to organizers and determined that if those signatures were removed, the group would fall short of the 90,704 mark. Arkansans for Limited Government sued Thurston on July 16 and asked the Supreme Court to force him to begin counting.Â
The court’s order on Tuesday seems to suggest Thurston broke the law in his refusal to begin counting signatures on July 10. But it doesn’t address whether he was right to disqualify paid canvassers or answer any of the thorny legal questions raised by Arkansans for Limited Government in its lawsuit against Thurston. It only directs Thurston to begin the first stage of the process — that is, an “initial count” — rather than continuing on to the next stage, in which staff conducts a more thorough verification and validates that signatures belong to registered Arkansas voters.
That’s critical, because reaching the second stage could open the door for organizers to begin a “cure period” in which they can keep collecting signatures from Arkansans. If the group ultimately fell short of the 90,704 threshold, the cure period could allow them to make up the shortfall.
Significantly, three justices on the seven-member court — Courtney Hudson, Karen Baker and Chief Justice Dan Kemp — wanted to order Thurston to perform both the initial count and a verification analysis and to provide those results to the court on July 29. They also would have granted Arkansans for Limited Government a 30-day “provisional cure period to commence on the date of this order.” But they apparently couldn’t get a fourth justice to join them in crafting a more expansive order.
Here’s the ruling from the court:
In a statement Tuesday night, Arkansans for Limited Government hailed the order as a win and thanked the court “for upholding democracy in Arkansas.”Â
“We are heartened by this outcome, which honors the constitutional rights of Arkansans to participate in direct democracy, the voices of 101,000 Arkansas voters who signed the petition, and the work of hundreds of volunteers across the state who poured themselves into this effort,” the group said. “Today’s decision is reflective of our state motto: ‘The People Rule,’ and we look forward to that principle guiding the rest of the signature verification process.”
If the court’s decision could have been worse for petitioners, though, it could also signal that the four other justices on the court — Rhonda Wood, Barbara Webb, Shawn Womack and Cody Hiland, all known as conservatives — are reluctant to ultimately allow the paid canvasser signatures or allow a cure period to fix that shortfall. A pessimistic reading of the tea leaves might suggest that the justices are determined to reach an outcome that would keep the petition off the ballot.
On the other hand, Thurston’s staff has already counted the paid canvasser signatures — he said so himself in his July 10 letter. Since that number is already known, it’s possible they could be added to the volunteer signatures Thurston has now been ordered to count. Tuesday’s order does not make clear what happens next; it just says the court “reserves the right to issue further orders and proceed in accordance with state law.”
For now, the justices have kept abortion petitioners’ hopes alive. Today’s order suggests three justices are inclined to side with Arkansans for Limited Government. The question is about the other four: Have all of them made up their minds, or is one or more still undecided about what to do next? That will be the glimmer of hope petitioners will be holding on to as the legal fight continues.
Asked for comment Tuesday evening, a spokesman for Attorney General Tim Griffin, who is representing the secretary of state, called the order “narrow” and said the attorney general’s office was still reviewing the ruling. Griffin had unsuccessfully argued that Thurston was correct to preemptively disqualify the entire petition without conducting any count at all.