The Arkansas Supreme Court today upheld a Pulaski Circuit Court injunction against a state law that requires state and federal criminal background checks for people canvassing for signatures to put measures on the election ballot.

The Supreme Court said the court had not abused discretion in finding that the law is impossible to comply with. It requires the State Police to do the required background checks, but it doesn’t have the ability to perform federal background checks.


The ruling came in an appeal by Secretary of State John Thurston and Attorney General Leslie Rutledge of a case by Safe Surgery of Arkansas. That group tried without success to put a repeal of a law expanding surgery privileges for optometrists on the ballot but ran afoul of the background check. In a hypertechnical ruling, the Supreme Court disqualified the proposal and two others because canvassers stated they’d “acquired” rather than “passed” background checks. The Supreme Court declined to consider the argument that the requirement was impossible to comply with as stated in the law.

Safe Surgery Arkansas, backed by ophthalmologists, got the issue of compliance squarely before the court in this separate case. It said it hopes to try again in 2022 for a repeal of the surgery law and is prepared to spend millions, but faces a statute impossible to comply with.


The court said there’s no severability clause in the background check law, so the federal background check requirement can’t be removed from the statute.

“In sum, we cannot say that the circuit court abused its discretion in determining that SSA demonstrated a likelihood of success on the merits and that irreparable harm will result in the absence of an injunction.”


This background check law would appear to be dead. It was one of many obstacles devised by the business lobby and Republicans to hamper ballot initiatives. The other two amendments struck last year for the same reason would have created an open primary election and established a non-partisan legislative districting commission, both opposed by Republican spending.

I’d think this decision would lead to legislative action this session.

I’m checking with the lawyers.

Nate Steel, one of the attorneys for Safe Surgery said:


Remarkably, this is the exact argument that was raised prior to the election, and the exact issue that removed all three citizens’ initiatives from the 2020 ballot. I’m glad the Court has addressed it, and I hope this removes confusion for petitioners going forward.