In a brief filed in the Arkansas Supreme Court today, sponsors of a proposed constitutional amendment to restore abortion access in Arkansas say they complied with state law regarding paid canvassers, contrary to the claims of Secretary of State John Thurston. And, even if they did not, they say, Thurston can’t reject their petition without allowing them a 30-day cure period to try to collect more signatures to make up any shortfall.
The group behind the amendment, Arkansans for Limited Government (AFLG), also contends that Thurston is legally prevented from arguing they did not comply with the relevant statutes, since his office allegedly told the group they had met all the requirements when they submitted their petition and signatures by a July 5 deadline.
Finally, they contend that Thurston’s rejection violates the First Amendment to the U.S. Constitution because it treats their petition differently than previous petitions have been treated in similar circumstances — solely, they claim, because Thurston personally objects to abortion.
Thurston, represented by Arkansas Attorney General Tim Griffin, also filed a brief today. He contends the Supreme Court lacks jurisdiction to hear the case at all because Thurston has not yet made a “sufficiency determination” about the submitted signatures.
Alternatively, if the court does not lack jurisdiction, Thurston argues the group failed to comply with state law when they failed to submit a statement, signed by the sponsor, saying that paid canvassers had received a copy of rules for gathering signatures before collecting signatures. Based on this alleged failure, Thurston argues the group is not entitled to a cure period and is entitled to no other relief from the court.
The backstory is well known at this point. On July 5, organizers with Arkansans for Limited Government turned in a petition to Thurston’s office with signatures from more than 102,000 Arkansans. They required 90,704 to qualify their measure for the November ballot.
Thurston rejected the petition five days later, saying the group had failed to include a piece of paperwork with their petition related to paid canvassers. Though most of the group’s signatures (about 88,000) were gathered by volunteers, it also hired paid canvassers who collected another 14,000. Arkansans for Limited Government needs at least some of those paid canvasser signatures to count in order to meet the 90,704 threshold.
AFLG sued, and late last week, the Arkansas Supreme Court ordered Thurston to respond to the allegations in the lawsuit, which he did on Monday. They also ordered both sides to file briefs in the case by today. Each side now has until Aug. 9 to file a response to the other side’s brief.
Thurston’s arguments
Thurston’s answer to AFLG’s lawsuit on Monday tipped his hand as to the argument he and the attorney general were going to make in the brief filed today.
According to Thurston, the Supreme Court does not have jurisdiction over this case because Thurston has not made a determination of the “sufficiency” of the abortion petition. State law outlines a multi-step process by which the secretary of state’s office reviews petition signatures and determines whether a proposal qualifies for the ballot. Staff first performs an “initial count” of signatures and then later completes a “sufficiency review,” during which signatures are checked more thoroughly to make sure they’re valid.
Thurston’s contention is that AFLG failed to submit “a statement by the sponsor that it gave paid canvassers the Secretary’s handbook and explained to them the relevant requirements of Arkansas law,” as required under Ark. Code Ann. 7-9-111(f)(2). Such failure means they never submitted a completed petition, he claims.
In other words, Thurston argues that he rejected the petition before he ever got to the second stage, the sufficiency review. He contends it is only after a sufficiency review that the Supreme Court gains jurisdiction to review the secretary of state’s decisions.
But this argument is a bit of a catch-22: Thurston’s office reiterated last week that he would not proceed to that stage until he receives further instructions from the court, but the court cannot give that instruction if it lacks jurisdiction over the case in the first place.
Even if the court has jurisdiction, Thurston argues, AFLG is entitled to no cure period and no relief from the court. He claims the group’s failure to comply with 7-9-111(f)(2) means that all signatures gathered by paid canvassers must be culled at the start. None of those signatures can be counted for purposes of the first, “initial count” stage of the process, he says. AFLG says that it did submit a statement that meets the 7-9-111(f)(2) requirement on June 27, eight days before the deadline.
Thurston’s argument on this point hinges on two distinctions he hopes the court will buy. First, he argues the statement AFLG submitted June 27 was signed by one of the paid canvassers, not “by the sponsor” of the petition. Thurston claims a paid canvasser cannot also be the sponsor of the amendment. Thurston points to AFLG’s reference to Allison Clark — the person who signed the June 27 statement — as a “contractor” as proof that Clark is not “the sponsor” of the measure within the meaning of the statute.
Second, Thurston says that Clark’s June 27 statement is insufficient on its face because some paid canvassers were hired between June 27 and the July 5 deadline. “Clark’s June 27 affidavit undisputedly did not make the required certification as to each of the paid canvassers AFLG employed,” the brief says. “Section 111(f)(2) does not contemplate partial lists but instead requires ‘[a] statement’ containing the required certification as to ‘each paid canvasser.’ The various statements submitted by Clark were thus incomplete, and that is an independent reason why they did not comply with the statute.”
Thurston concludes that all signatures gathered by paid canvassers therefore cannot be counted for any reason, including determining whether the group gets a 3o-day cure period to obtain more signatures. He also says that documents submitted by AFLG after July 5 to try to fix any errors under 7-9-111(f)(2) were untimely and cannot retroactively save the petition.
While it’s anyone’s guess what the Supreme Court will ultimately do, especially with the jurisdictional argument, Thurston’s argument about striking the signatures on the front end based on 7-9-111(f)(2) should fail as a matter of statutory construction.
The problem is that the law appears to allow the secretary of state to preemptively ditch the entire petition effort only under certain circumstances. A separate statute, Ark. Code Ann. 7-9-126, outlines eight specific reasons that would cause entire sets of petition sheets to be immediately tossed at this stage — for example, if they lack the name and signature of the canvasser who collected it. It also lists seven reasons that individual signatures would be immediately tossed — for example, if it’s “obviously not that of the purported petitioner.” What it does not say is that signatures can be disqualified on the front end for the missing paperwork required under 7-9-111(f)(2).
It’s a long-standing rule of statutory construction that the express mention of one thing in a statute means that anything not listed is excluded. Section 126 specifically refers to other statutory violations that warrant signatures being discarded. By omitting 7-9-111(f)(2) from that list, the Legislature has effectively excluded it as a reason to reject the signatures at this point in the process.
AFLG’s arguments
AFLG begins by arguing that they did comply with all of the necessary statutory requirements under 7-9-111(f)(2).
They contend they submitted multiple versions of the required statement during the entire signature-gathering process and that Thurston has received all required information from the group regardless of the form that information was provided in. They also argue that nothing in the law says a paid canvasser cannot also be a sponsor of an amendment for purposes of the law in question. And, somewhat weakly, they contend that interpreting the law to say paid canvassers can’t be sponsors would violate the First Amendment. They go on to argue that 7-9-111(f)(2) does not require the signed statement to be submitted at the exact time the petition and signatures are turned in, unlike other provisions in the relevant statutes that have clear timing requirements.
The most important part of AFLG’s brief, though, is the argument that Thurston can’t refuse to count signatures gathered by paid canvassers at this stage in the process, even if they failed to comply with 7-9-111(f)(2). That’s critical for determining whether or not AFLG gets a cure period to collect more signatures.
In support, AFLG cites a 2014 case in which the state Supreme Court said, the “only concern when examining the propriety of the Secretary of State’ s decision to grant or not grant the cure period is whether, on the face of the petition, the signatures were of a sufficient number.” They also cite arguments made by the secretary of state’s office in two previous Supreme Court cases where the secretary asserted that Section 126 didn’t allow rejection of signatures for violation of 7-9-111(f)(2), and they note that the attorney general previously agreed with this position.
If Thurston can’t reject the signatures at this stage in the process for violating 7-9-111(f)(2), AFLG argues, Thurston also cannot deny them a cure period.
AFLG makes two more arguments, neither of which seems likely to carry the day for them.
First, they claim Thurston is legally barred (estopped, to use the legal term of art) from arguing AFLG failed to comply with the law. According to AFLG, Thurston’s office told them on July 5 that they’d submitted everything that was required of them. But even assuming this is true, there is nothing in the statute that requires the secretary of state’s office to verify that a group has submitted everything they were required to submit. Nor is there anything in the law that says a group may rely on assurances from the secretary of state’s staff that they had turned everything in, if they have in fact not submitted everything required.
AFLG points to a 1980 case dealing with an administrative agency that incorrectly told someone they did not need to file a document. But for reasons too in-the-weeds to get into here, that case is pretty easily distinguishable from this scenario. (For example: The handbook provided by the secretary of state’s office specifically mentions the signed-statement requirement under 7-9-111(f)(2). Whether a staff member failed to realize the group hadn’t submitted that document on July 5, AFLG was still on notice that the document was required.)
Second, AFLG argues that Thurston’s rejection of their petition violates the First Amendment to the U.S. Constitution because it treats their petition differently than previous petitions have been treated in similar circumstances. That’s because Thurston personally objects to abortion, they argue. According to AFLG, this amounts to viewpoint discrimination in violation of the First Amendment. In support of this argument, they note that Thurston’s campaign donated money in January to Arkansas Right to Life, an anti-abortion group.
While this argument might have traction in federal court, it seems unlikely the Arkansas Supreme Court will entertain it. There’s an adage: If you don’t have the facts on your side, argue the law; if you don’t have the law on your side, argue the facts; if you have neither, argue the Constitution. This argument feels a lot like a Hail Mary, if-all-else-fails position.
So what’s next? AFLG and Thurston both have until Aug. 9 to submit responses to one another’s briefs. At that point, the case will be in the hands of the Arkansas Supreme Court. Though no timeline has been given for how quickly they will rule, given the rapidly approaching deadline for finalizing the November ballot, one hopes the justices will act sooner rather than later.