Federal Judge P.K. Holmes has given some help to a group attempting to qualify for the November ballot a constitutional amendment to change the process for drawing legislative and congressional districts.
Arkansas Voters First and individual plaintiffs from Northwest Arkansas filed the lawsuit to ease the burden for qualifying their constitutional amendment to establish a non-partisan commission to draw political boundaries. The legislature currently draws congressional districts and an election commission controlled by the majority political party (now Republican) controls legislative districting
Holmes issued a preliminary injunction that allows a waiver in some signature-gathering rules on account of the coronavirus. He wrote, for example:
Plaintiffs challenge the application to their initiative petition of several different Arkansas requirements. Plaintiffs have made a sufficient showing that the in-person signing and sworn affidavit requirements (as well as any additional requirements necessarily contingent upon these requirements) substantially restrict political discussion. For those requirements, the Secretary of State has thus far failed to provide evidence or argument that would allow him at the merits stage to meet his burden under the heightened scrutiny the Court must apply, and so Plaintiffs have shown they are likely to succeed on the merits.
The judge, however, didn’t lift some other requirements.
Significantly, he did not find at this point a justification to lower the number of signatures required (89,000).
To be clear, the COVID-19 pandemic and the social distancing measures the State has deployed in response have unquestionably limited Plaintiffs’ ability to discuss, sign, or submit initiative petitions in sufficient number to obtain placement on the ballot. But although a provision makes it difficult “to plan [an] initiative campaign and efficiently allocate . . . resources, the difficulty of the process alone is insufficient to implicate the First Amendment, as long as the communication of ideas associated with the circulation of petitions is not affected.” Id. That appears to be the case with respect to the number of signatures required.
He likewise held that plaintiffs hadn’t made a sufficient case for an extension of the deadline four months before the election, July 3.
But he said plaintiffs had a chance of success in challenging the state requirement that a signature is valid only if it was signed in the presence of a witness, but not to the argument against the requirement for a handwritten “wet” signature. He said he was hesitant to approve the plaintiffs’ request to allow electronic signatures, a process he decided as cumbersome.
By finding that a witnessed in-person signature requirement with a notarized affidavit by a canvasser are unduly burdensome. the judge said some other related requirements should be set aside. For example, signatures could be gathered on copies of petition forms and then consolidated for submission to the secretary of state, rather than imposing the existing stricter requirement that signatures only be gathered on petitions already affixed to a document to be submitted to the secretary of state.
The ruling sets out guidance for how petitions that are not witnessed by canvassers should be drawn up to comply with laws on disclosure of the content of ballot initiatives.
He asked for further arguments by May 28 on the resolution of the case.
The judge seemed sympathetic to circumstances and some further arguments will be held on points he didn’t grant. He wrote:
Plaintiffs have alleged a concrete, particularized, and imminent injury in fact. Continued application of the State’s initiative petition requirements to Plaintiffs’ initiative petition during a pandemic and despite State guidance and law that make complying with those initiative petition requirements inadvisable and impracticable substantially burdens Plaintiffs’ First Amendment rights. The injury alleged is not merely speculative or hypothetical.
I thought the outcome was on balance negative for plaintiffs. David Couch, the Little Rock lawyer driving the proposal, says no.
We can work with this. 99% chance we get in the ballot.
UPDATE: The organization behind the drive issued this news release Monday:
U.S. District Court for the Western District of Arkansas ruled that signature
collection for non-partisan redistricting could resume under new guidelines that protect the health and safety of Arkansas voters.
“We are relieved that the Federal Court saw the danger in collecting signatures under the
current pandemic and sought to give voters a safe way to exercise their constitutional rights,” said Bonnie Miller, lead plaintiff and President of the Washington County League of Women Voters. “This ruling will allow Arkansans the right to vote on this incredibly important issue. That is all we have asked from the very beginning of this campaign.”
Under the court ruling, Arkansas Voters First will be able to collect signatures without requiring a witness. This ruling makes requirement of notarization by a notary public unnecessary. Voters will be allowed to sign the petition at their home and mail it in, without having to interact with a canvasser and risk their health.
“This court victory ensures that we have the chance to bring fairness to the redistricting
process,” said Brett Kincaid, Campaign Manager for Arkansas Voters First. “This is a victory for democracy. “Arkansans overwhelmingly believe that people should pick their politicians, politicians shouldn’t be deciding who their voters are which the current redistricting process allows.”
Arkansas Voters First is working to ensure all processes for collecting signatures follow the rigorous guidelines set out by the court. “We expect to be up and running by the end of the week,” said Kincaid. “This is only a step, though. We still have work to do, but we are confident now that all Arkansas voters will get their say in November. We will get it done.”