Arkansas Secretary of State John Thurston replied Monday to the group behind the Arkansas Abortion Amendment, which last week demanded that he begin counting the 101,000-plus signatures they submitted to the secretary of state’s office on July 5. His answer: No.
If the group sponsoring the proposal, Arkansans for Limited Government, wants to keep its petition to reverse the state’s abortion ban alive, it’s going to have to take Thurston to court.
“It’s unfortunate that Secretary Thurston continues to violate his statutory duty to count our petition signatures,” Gennie Diaz, a spokesperson for the group, said in a statement Monday evening. “While Secretary Thurston weaponizes bureaucracy, our grassroots campaign will continue to defend the people’s constitutional right to place issues on the ballot.”
Last Wednesday, Thurston rejected the proposed constitutional amendment before his staff had even begun the process of determining whether organizers had gathered the required number of signatures to appear on the November ballot. He said Arkansans for Limited Government had failed to meet two key paperwork requirements under state law when they submitted the petition. Both are technicalities concerning paid canvassers, which collected roughly 14,000 of the group’s total signatures (the rest were gathered by volunteers, organizers say).
After Thurston’s surprise announcement, a Freedom of Information Act request from the Arkansas Times revealed the petitioners had in fact turned in far more documentation on July 5 than the secretary of state’s office had initially told journalists. Those documents, and a response letter from Arkansans for Limited Government to Thurston, made his rejection seem premature at best. We outlined the legal arguments at play last week in depth and again in an explainer today.
Thurston’s brief response letter, which he waited to send until after 5 p.m. today, does not address many of those arguments at all, and in one respect appears to backtrack from his initial statement (though his letter last week was so vague and confusingly written, and the followup answers from his office so obfuscatory and imprecise, that it is impossible to say with any confidence precisely what claims that first letter intended to make). Perhaps most importantly, Thurston’s response today is silent on a central point made by Arkansans for Limited Government: The law Thurston cited to reject the proposal appears to not allow signatures to be tossed at this stage of the petition review process. A plain reading of the relevant statutes seems to say that even if the group violated the law Thurston cited, the count and verification process should continue, potentially opening up a possibility for the group to make corrections or collect more signatures to make up the shortfall.
In his letter last week, Thurston claimed the organizers had not submitted “a statement identifying the paid canvassers by name.” Or at least, that’s what a straightforward reading of the letter would suggest. But in fact, as shown in our later FOIA request, Arkansans for Limited Government submitted a list of all paid canvassers on July 5. Was the secretary of state claiming a list was somehow not “a statement”? The required list, with a clear heading on top, did not count because it lacked a complete sentence asserting that the list of names was a list of names? The abortion petitioners addressed this possibility in their response letter, but such a claim struck many as a strange bit of hair-splitting. The Arkansas Times and multiple journalists tried to seek clarity about precisely what the secretary of state’s office meant, but officials continually referred queries back to the confusing letter from last week.
The letter said that the group failed to comply with a provision that had two necessary documents, then listed both of those documents, with the list of paid canvassers as #1, followed by another document (see more below) as #2. The letter continued, “You did not submit any statements meeting this requirement.” The fact that “statements” was plural and that the letter noted two separate documents seemed to make it crystal clear that Thurston was claiming two documents were missing. The many media reports that followed his letter thus reported two documents, without a followup statement by the office to clarify if that was incorrect.
When KUAF reporter Matthew Moore questioned office spokesperson Jaime Land about the apparent discrepancy, she at least strongly hinted that Thurston was making only one accusation of a missing document rather than two. But she continued to refer to the letter by way of explanation, which seemed to refer to the opposite. She also said “we have never said they did not provide…a list of paid canvassers”; in fact, the secretary of state’s office told the Arkansas Times at least three times that no such list was turned in, but corrected that error late Thursday afternoon.
In any event, Thurston’s letter today makes no mention at all of the “statement identifying the paid canvassers by name” requirement — either an admission that the claim didn’t hold water or the aftermath of a baffling miscommunication by the secretary of state’s office.
Instead, he focuses on the other technical deficiency he alleged last week, listed as #2 in his letter: The lack of a signed statement from Arkansans for Limited Government on July 5 attesting that the group had provided the proper training to paid canvassers.
The group did not in fact submit such a statement on July 5. But organizers argue that it shouldn’t matter much, because they submitted an affidavit saying the same thing eight days earlier, on June 27. (It’s attached to the group’s letter to Thurston last week.) Thurston said today that’s insufficient, for two reasons: It wasn’t turned in on July 5 along with the petition and it allegedly wasn’t signed by “the sponsor” of the measure.
Is Thurston right that the statute requires the statement to be submitted on the same day as the petition? One potential problem for Arkansans for Limited Government is that they hired additional canvassers between June 27 and July 5, the home stretch of their statewide signature-gathering effort. So as of the July 5 deadline, the group had earlier turned in the relevant documentation for the 191 paid canvassers hired through June 27, but not for any of the 75 canvassers hired after that. Thurston argues that none of the paid canvassers, before or after June 27, are covered by the affidavit filed on that date.
The statute Thurston cites doesn’t seem to have any clear language about timing requirements. The abortion petitioners argue that means there is nothing special about turning in on July 5 as opposed to an earlier date (another statute about the initiative process requirements does have language about timing, and specifically mentions a “final list,” so the lack of such specificity in the statute Thurston cites is notable). But Thurston argues, as our previous explainer anticipated, that the statement must cover each and every paid canvasser; the June 27 affidavit does not include all of them since more were hired after that date. Thurston also says that the importance of July 5 is implied by the fact that the material is required to be submitted by “the person filing the petitions,” which he says suggest the final submission on July 5.
Thurston also claims the sponsor of the amendment — that is, Arkansans for Limited Government — didn’t sign the June 27 affidavit. This seems to be a new claim, as there was no mention of it in the letter last week. State law says a sponsor is “the person who arranges for the circulation of an initiative or referendum petition or who files an initiative or referendum petition with the official charged with verifying the signatures.”
Of course, Arkansans for Limited Government itself can’t sign anything, as it’s a legal invention, but some human being must sign on its behalf. Thurston appears to be saying the human who did sign the June 27 document, a woman named Allison Clark, somehow doesn’t fit the bill, though it’s not clear why. Clark works for Verified, a company that groups pay to hire and vet paid canvassers who gather signatures. The abortion petitioners contracted with Verified, and Clark led the group’s effort to organize paid canvassers, including compliance with all requirements for those canvassers. She also signed all previous sponsor statements regarding paid canvasser training that the group turned in to the secretary of state’s office over the course of their campaign — 17 in all — all of which were accepted by the office without incident as the group attempted to comply with all requirements under the law.
Thurston is perhaps implying that only Lauren Cowles, the group’s executive director, can sign as the sponsor. There is no statutory language in the definition of what a “sponsor” is or in the underlying statute that Thurston says the group is violating that would suggest anything of the kind, but that will be yet another issue for courts to sort out. The abortion petitioners will likely argue that Clark is a legitimate agent of the sponsor.
Finally, the most notable thing about Thurston’s letter may be what it omits altogether: He never makes any counterargument to the abortion petitioners’ argument that the law he cites can’t even be used to disqualify signatures at this first stage in the process. As reporter David Ramsey explains here, the law on initiatives explicitly lays out reasons why the secretary of state can throw out signatures immediately as it first ascertains whether the group made the required total threshold, before a more rigorous verification process begins. Missing the specific document that Thurston cites — a signed statement by the sponsor that paid canvassers received a guidebook and training — isn’t one of those reasons. Even if that omission on July 5 means some or all of the paid signatures get disqualified, that would not happen until a later phase of the process.
Under the circumstances, the abortion petitioners say, the count must continue, potentially leading to a “cure” period during which petitioners can make up any shortfall. If there is a statutory justification for Thurston’s decision to preemptively stop the count, we’re still waiting to hear it. It was not in last week’s letter or in his statement today.
The abortion petitioners also argued in their letter that if there is a paperwork problem under the statute Thurston cites, the very same statute gives them an opportunity to fix the issue for those signatures with a simple submission of the needed document, rather than having to collect new signatures to replace that shortfall. Thurston was likewise silent today on this argument.