What a mess. As readers of the Arkansas Blog know, last week was a whirlwind for the Arkansas Abortion Amendment, the ballot initiative seeking to reverse the state’s abortion ban.
On July 5, Arkansans for Limited Government, the group pushing the measure, celebrated meeting the threshold for signatures to qualify for the ballot in November — turning in more than 100,000 to the secretary of state’s office. But then, on July 10, Secretary of State John Thurston preemptively disqualified the initiative, citing two paperwork deficiencies. The next plot twist came the very next day, on July 11, when documents uncovered by an Arkansas Times Freedom of Information Act request provided clarity on just what the abortion petitioners had turned in July 5, including a crucial document that the secretary of state’s office had previously told the Times was not submitted.
These documents, and a response letter from Arkansans for Limited Government, changed the picture significantly from the rather vague accusations in Thurston’s letter. The letter’s allegations now seemed flimsier and less cut-and-dried, and his decision to preemptively disqualify the ballot initiative altogether at least appeared to violate the plain language of the law.
Standard disclaimer: I am not an attorney. My assessments here are based on thoroughly researching the relevant statutes and communicating with multiple attorneys with deep experience in the ballot initiative process in Arkansas. The secretary of state’s office has declined to offer any statutory explanation beyond the letter it released last week; it’s always possible they have an argument or angle that no attorney has yet mentioned publicly or in conversations with me. We’ll just have to see. So that’s your healthy grain of salt.
So here’s where we stand:
- Arkansans for Limited Government indubitably turned in its required list of paid canvassers. A number of media accounts have been quite misleading on this point, such as a column in yesterday’s Democrat-Gazette.
- The secretary of state’s first allegation seems to be that the group didn’t include a sentence stating that the list of names and addresses was a list of names and addresses (there was a heading on top instead). This nitpick appears fairly weak and seems to lack a clear statutory basis, but we’ll see if Thurston has more to say.
- The secretary of state’s second allegation is stronger: On July 5, the petitioners did not include an updated signed statement that they offered certain training to paid canvassers. They had provided this statement eight days earlier, however, on June 27. The courts will have to decide: Are all of the signatures from paid canvassers valid? Are all of them invalid? Or are only some of them valid?
- Now that we know precisely what the abortion petitioners turned in, it appears relatively clear that even if the secretary of state’s allegations are true, the law requires the counting and verification process to continue, which would keep the group’s hopes alive. That D-G column failed to mention this key point. The secretary of state’s office has not responded to queries on this, referring the Times back to its letter last week.
The whole thing has been hard to follow, and based on media accounts and social media chatter, I suspect that the known facts and key questions that have emerged have gotten lost in the shuffle.
I thought it would be helpful to touch quickly again on the major legal issues that will determine the future of the petition (more details, if you want to get in the weeds, in our post Friday). Why these questions matter: Arkansans for Limited Government gave today as a deadline for the secretary of state to reverse course on disqualifying the group’s petition. If the secretary of state holds firm, a lawsuit seems inevitable.
Here’s what the court would have to consider. I’m offering my take about which claims appear to be weaker or stronger based on the statutory language, but as always, there’s nothing stopping a judge from getting creative in their interpretation. And while they hate it when anyone points this out, judges are political actors ruling on a politically charged issue.
Did the abortion petitioners fail to provide the required statement listing paid canvassers?
The law says petitioners have to submit “a statement identifying the paid canvassers by name.” The relevant statue is §7-9-111(f)(2)(A) but my editors understandably hate a squiggly mark followed by a weird chain of numbers and letters, so from now on, I’m just going to call this “The List.” As noted above, the abortion petitioners did indeed submit The List on the July 5 deadline, even though the secretary of state’s office said otherwise in earlier FOI requests.
The secretary of state’s only apparent argument, then, hinges on the word “statement.” Other groups that had to disclose paid canvassers included a brief sentence stating that they were doing so. The abortion group submitted the list with the following heading:
In plain English, it strains credulity to assert that the document the petitioners submitted is not a “a statement identifying the paid canvassers by name.” There is no statutory explanation that “a statement” means something different, requires an affidavit, or requires a complete sentence as opposed to a fragment. At best, providing a statement along with the list appears to be custom with the secretary of state’s office. The secretary of state’s handbook on ballot measures, without apparent basis in law, says that an “affidavit” should be submitted for this information.
Did the abortion petitioners fail to provide a signed statement affirming they followed certain rules about paid canvassers?
This is a much stronger claim for the secretary of state’s office: The group did not in fact submit a signed statement on July 5 that the sponsors had provided a handbook and basic information to all paid canvassers before they hit the field.
To be clear: We know that abortion petitioners actually did comply with these obligations to the canvassers — on July 5, they submitted affidavits from each of the canvassers themselves to that effect. But the issue here is one more step of compliance paperwork: a separate statement signed by the sponsor (that is, Arkansans for Limited Government) affirming that the rules were followed. I’m going to call this the “Signed Sponsor Statement” for short (§7-9-111(f)(2)(B) for the nerds).
The petitioners did submit the Signed Sponsor Statement on June 27, just not on July 5. The secretary of state’s office has implied that the issue is that it had to be submitted specifically on July 5, the day the signatures and other final paperwork were filed. However, the statute says nothing about timing. That’s especially notable because other requirements do mention specific timing for submissions — not this one, however.
But the secretary of state’s office does have a potentially stronger argument that the lack of an updated Signed Sponsor Statement on July 5 means all of the paid canvass signatures should be tossed, even the ones on or before June 27. Thurston could argue that the Signed Sponsor Statement must include all of the paid canvassers — that would have been impossible on June 27, since the group hired 75 canvassers after that date. Even that argument feels like a bit of a stretch to me, since the June 27 statement was updated and complete at the time it was submitted and fully covers the other 191 paid canvassers. But there’s at least a path for Thurston to argue that the intent of the statute was a statement regarding all the paid canvassers used all the way through July 5, which would be filed as part of the final submission of the petition as a whole.
If the petitions violated the Signed Sponsor Statement requirement, does that disqualify all of the signatures or only some?
There’s some gray area here. The simplest and most straightforward solution under the plain language of the statute would be that the signatures from the 75 paid canvassers hired after June 27 would be invalid, whereas the signatures from the other 191 paid canvassers would be fine. But one can at least come up with decent arguments either way.
Arkansas for Limited Government claims that even the signatures from the 75 later hires should be counted. For various reasons, I suspect this is an unlikely outcome, but that will be up to the courts.
A stronger claim by the group is that even if the court rules that all signatures from paid canvassers are insufficient under this statute, they should have the chance to cure the problem via a simple paperwork submission rather than re-collecting signatures.
Should the verification process continue — and potentially give the petitioners a chance to add new signatures to fix the problem — even if they violated one or both of the statutes above?
Of all of the legal issues surrounding the abortion petition, this one is almost certainly the most clear cut under the law: The secretary of state is only allowed to preemptively ditch the entire petition effort before doing this official final verification process under certain circumstances. The allegations outlined in Thurston’s letter last week do not seem to count. Whether or not some signatures are ultimately deemed insufficient, the secretary of state appears to be obligated to proceed with the process, potentially giving canvassers the chance to submit additional signatures.
Here’s the gist of the process the secretary of state must follow:
- Review each petition page, each of which includes up to 10 signatures.
- Look for facial violations and toss those.
- Count the remainder — in order to proceed, petitioners must still meet the total threshold (90,704 for the abortion petition, along with county thresholds that we’ll leave aside for now).
- Next phase of review begins. In this phase, they toss signatures or full petition pages due to other problems that make the signatures insufficient but don’t count as facial violations; ultimately, they do a thorough verification process of all remaining signatures, identifying violations such as a signatory not being a registered voter.
- Count the remainder — if petitioners reach 75% of the total amount above (so, that would be 68,028), they are granted a “cure” period, allowing them 30 days to collect additional signatures to make up the shortfall.
Look at step 2 in the process above. State law lists only 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. There are seven reasons that individual signatures would be immediately tossed — for example, if it’s “obviously not that of the purported petitioner.”
The secretary of state is claiming that the alleged violations are facial, and apply when it does step 2 above. We’ll have to see what their argument for that position is.
The reason this matters: If the secretary of state tosses them at step 2, the group falls short of the 90,704 needed and never gets to the stage that opens up the possibility of a cure.
But if those signatures are instead found insufficient under step 5 above, even if the entire lot of paid signatures is tossed, the group would still have at least a shot to reach the 75% threshold to trigger the cure period.
What will happen if this gets into the courts?
There’s an old joke: There are three umpires who just finished calling the first game of the season. The rookie ump, who just called his first game, says, “I called ’em like I saw ’em.” The veteran ump who’s been around for ten years smirks and says, “I called ’em like they was.” But then the oldest ump in the crew, who’s been doing this for decades, harrumphs. “They wasn’t,” he says, “until I called ’em.”
Ultimately, the law is what the courts say it is. The secretary of state’s office may come up with some sort of creative argument to back even their weaker claims described above. I can tell you what the statute says, but I can’t predict how the courts will rule, particularly on a hot-button issue like abortion.
The only thing I can speculate on is what seems like the most elegant political solution: A judge could force Thurston to start the count based on the clear statutory language, but remain silent on the underlying alleged violations. This would avoid looking too slanted while dodging establishing precedents on the various other issues. Thurston would wind up looking a little bit foolish in this event, but that’s what the money is for, as they say. His goal could potentially just be to delay as much as possible and throw every wrench into the works that he can.
Finally, a note of caution: Even if Thurston is forced to restart the count, and even if the petitioners make it to a cure period and collect the necessary extra signatures, ballot initiative law in Arkansas has been turned into a booby trap of technical compliance by lawmakers who would like to make direct democracy as hard as possible. The abortion petition isn’t dead yet, but it still has a very long and rocky road to make it onto the ballot in November.