The Arkansas Supreme Court today disqualified two proposed constitutional amendments for the ballot because of flawed affidavits on background checks for paid canvassers.
This kills amendments to create a non-partisan redistricting commission and to institute open primary elections in Arkansas. Republican money helped finance the legal campaign against both amendments.
The decision also seems to hold significance for a still-pending appeal about a referendum on a law expanding optometrists’ surgical privileges. A group trying to repeal that law is having its petitions challenged on similar grounds.
The key ruling came in the finding that neither campaign met the affidavit requirement for paid canvassers in a new state law that requires them to pass a criminal background check.
The law requires petitioners to obtain from the State Police state and federal background checks. Republican Secretary of State John Thurston, in rejecting the petitions, said affidavits for these measures said the campaigns had “acquired” rather than “passed” background checks.
In an opinion by Justice Robin Wynne, the court held:
Simply acquiring or obtaining a background check is not sufficient under the plain language of the statute. The results of the background checks are not required to be filed with the Secretary of State, and the certification is the only assurance the public receives that the paid canvassers “passed” background checks.
The campaigns said their canvassers did pass state background checks. But an additional complication was that the State Police, despite the wording of the statute, is unable to provide federal background checks. That part of the statute cannot be met, Special Master John Fogleman noted, but he said it would be up to the court to interpret that part of the law. The court dismissed that problem.
Next, petitioners argue that Arkansas law does not require sponsors to use magic words, especially when strict compliance with the statute is impossible. Their argument that strict compliance is impossible is a red herring, however, because the impossibility of obtaining federal background checks from the Arkansas State Police, as contemplated by the statute, is not at issue. Petitioners did not certify that their paid canvassers had passed any background check—state or federal. Nor are “magic words” the issue. Petitioners could have conveyed in their certification that each paid canvasser had passed a background check without using the word “passed.” The issue is whether petitioners have complied with the statutory requirements.
With that baseline decision reached, the Court dismissed other arguments in both the appeals by the non-partisan districting commission committee and the open primary committee. The latter committee had also challenged the denial of a ballot spot by the state Board of Election Commissioners. In a separate opinion, the court said invalidation of the petitions made that issue moot as well.
Justice Jo Hart dissented in both decisions. She wrote:
Today, the majority has disenfranchised more than 90,000 citizens. By signing the petition, these registered voters clearly manifested their desire to have these issues placed on the ballot. While I am not unmindful that the sponsor of an initiative is keenly interested in a proposed constitutional amendment, it is ultimately up to the qualified electors in this state to decide whether that measure is voted on. Ark. Const. art. 5, § 1. The legislative article of our constitution calls initiative “the first power reserved by the people.” Id. Our constitution expressly prohibits laws that impinge on the right of the people to access and sign initiative petitions. It could not be more clearly stated:
Unwarranted Restrictions Prohibited. No law shall be passed to prohibit any person or persons from giving or receiving compensation for circulating petitions, not to prohibit the circulation of petitions, nor in any manner interfering with the freedom of the people in procuring petitions; but laws shall be enacted prohibiting and penalizing perjury, forgery, and all other felonies or other fraudulent practices, in the securing of signatures or filing of petitions.
Given the express language in our constitution, to the extent that Arkansas Code Annotated section 7-9-601(b) acts to prohibit “any person” from being a paid canvasser or interferes with the “freedom of the people in procuring petitions,” it is obviously unconstitutional.
In the first place, the concept of “passing” a background check is not firmly rooted in fact. A State Police background check merely shares the content of one or more databases. The State Police do not “pass” or “fail” the subject of a background check. Accordingly, certifying that a paid canvasser has “passed” a background check leaves the sponsor with the Hobson’s choice of not quite truthfully claiming that a canvasser “passed” a background check, which exposes him or her to potential criminal penalties under section 7-9-601(b)(4), or the more similarly unpalatable prospect of having all the petition parts rejected. Secondly, appearing on a database as having a criminal conviction is not conclusive of the question of whether a paid canvasser committed or did not commit a criminal offense. See, e.g., Trammell v. Wright, 2016 Ark. 147, 489 S.W.3d 636. As with any electronic database, the time-honored maxim “garbage in/garbage out” applies. Thirdly, not all criminal convictions are positively correlated with a proclivity to commit perjury, forgery, or fraud. The Arkansas Rules of Evidence acknowledge this fundamental fact. See Ark. R. Evid. 609.
Contrary to the majority’s assertion, there is no evidence that the disputed certification resulted in a single signature be “incorrectly obtained or submitted.” Under the Arkansas Constitution, “incorrectly obtained” can only mean as a result of “perjury, forgery, or fraud.” Likewise, there is no evidence that the certification language directly affected the validity of even a single petition part. The validity of each petition part, which was evaluated by the Special Master, depends on entirely separate criteria. Accordingly, in my view, the Secretary of State improperly excluded petitions circulated by paid canvassers with the disputed certification language. I would order those signatures to be counted.
This decision came in the appeal by the redistricting committee
Justice Rhonda Wood wrote the opinion denying the appeal of the open primary committee, noting the question had been settled by disqualifiction on account of how the background question was phrased.
Justice Hart again dissented saying the court should address the question of whether the legislature had overstepped by Constitution by adding additional burdens on popular petitions, particularly in allowing the Board of Election Commissioners to determine “sufficiency” of ballot titles. The Constitution says the approval process is only ministerial and any questions are to be resolved by the Supreme Court.
We have original and exclusive jurisdiction over the sufficiency of statewide petitions. Under the separation-of-powers doctrine in our constitution, the legislature does not have authority to cede our authority to decide such issues to a quasi-executive agency acting in a quasi-judicial capacity.
Sad day for citizen-initiated government. Good day for the business lobby, which prefers to control the Constitution through the legislature. To that end, it has put another petition-killing amendment on the ballot for voters this year, along with an end to term limits and an increase in the sales tax to fatten the wallets of highway contractors.
Regnat populus? Well, some of the populus.
PS: An appeal is still pending before the court on another popular initiative with the same problem. This is the referred act, backed by ophthalmologists in the name of Safe Surgery Arkansas, to repeal a 2019 law expanding surgical privileges for optometrists. Secretary of State John Thurston certified it for the ballot, though it also used a similar paid canvassing procedure. Optometrists, organized as Arkansans for Healthy Eyes, are trying to kill the repeal measure arguing, among others, that the referendum sponsors had also failed to obtain federal background checks and had said it had acquired, rather than, passed criminal background checks.
Today’s decisions wouldn’t seem to bode well for it.
UPDATE FOR COMMENTS
From Arkansas Voters First, the redistricting group:
Bonnie Miller, Chair of Arkansas Voters First, on the Arkansas Supreme Court decision to remove the redistricting reform ballot proposal as Issue 4 from the November ballot:
The Supreme Court of Arkansas has taken deliberate steps to make it impossible for citizens to petition their government by applying unworkable standards to legally certify that canvassers have “passed” federal background checks. The Court had the opportunity to side with the people as the canvassers had clearly complied with the statute, but instead chose to refuse their rights by a thin technicality.
From Open Primary Arkansas:
The following statement can be attributed to Stephanie Matthews, campaign manager of Open Primaries Arkansas, on the Arkansas Supreme Court decision to remove Issue 5 from the November ballot to give voters more choices at the ballot box:
This is a dark day for our democracy, and yet another example of how extreme partisanship interferes with our inherent right as citizens to initiate change. More than 150,000 voters — Republicans Democrats and Independents — signed the petition supporting Issue 5 from Open Primaries Arkansas to take the power away from the extreme wings of both parties and to give voters more choices in November.
We are exploring our legal options to uphold the will of the people.
A typically disingenuous statement from Arkansans for Transparency, issued through the Hutchinson-Republican-dependent Gilmore Strategy Group:
Jonelle Fulmer and County Judge Joseph Wood, Co-Chairs of Arkansans for Transparency, issued the following statement:
“We applaud the Supreme Court’s decision to keep these deceitful measures off the November ballot. This is a huge victory for Arkansans in our continued fight against billionaire-backed, out-of-state liberals who want nothing more than to wholly manipulate our system of democracy.
There was nothing deceitful about either amendment, which were supported by hundreds of thousands of Arkansans. The dishonest transparency group also took out-of-state money. They court made no statement on the substance of the measures, only on a one-word word choice. Transparency should dictate the group admit they want partisan, backroom-dealmaking driven by special interests to continue to control elections and the legislature in Arkansas.