Kristin Higgins Public Policy Center Phone: 501-671-2160 Email: email@example.com
Office: University of Arkansas Division of Agriculture Cooperative Extension Service 2301 S. University Avenue Little Rock, AR 72204
Supreme Court Removes Issue 4 and Issue 5
by Kristin Higgins - August 28, 2020
Sponsors using the word "acquired" when submitting information about canvasser background
checks to the state led to tens of thousands of voter signatures being tossed and
Issue 4 and Issue 5 being struck from the ballot.
The Arkansas Supreme Court ruled Thursday in a 6-1 decision that Issue 4 and Issue 5 did not qualify for the ballot because sponsors failed to certify paid canvassers
passed required background checks.
Proposed constitutional amendments require 89,151 voter signatures to qualify for
the ballot. Arkansas Voters First did not have enough signatures to qualify the two
issues for the ballot after the court's decision.
Issue 4 would have changed who redistricts Arkansas after a federal census. Issue
5 would have put statewide and federal offices on a single primary ballot, leading
to the top four winners being on a general election ballot for ranked choice voting
and instant runoffs.
Only the legislature's three proposed amendments remain on the 2020 ballot andIssue 6, a referendum on Act 579.A similar court challenge lingers for Issue 6, whose sponsors used the same language
as the two citizen initiatives when submitting their background check information
last year to the Secretary of State.Issue 2andIssue 3are also being challenged in court over their ballot title.
Historical Context of Changes to Citizen Initiative Process
The Arkansas Constitution lays out the basic process for citizen groups to refer constitutional
amendments, state laws and referendums to voters. But in the hundred years since Arkansas
established the citizen initiative process, laws passed by the legislature have added
layers of complexity over time.
The court decision Thursday finds its roots in many of those changes. In 2013, legislators
passed an overhaul of state law regarding the voter signature collection process.Act 1413of that year's legislative session added a section to state law governing paid canvassers,
The changes followed a contentious 2012 ballot issue cycle. Several citizen groups
that year used paid canvassers to gather signatures and qualified for a cure period,
or additional time to collect more voter signatures to ensure they meet the signature
threshold to qualify for the ballot. But many of the original signatures submitted
were later discounted. Opponents said the groups should never have qualified for a
cure period and that they violated the spirit of the law.
That contentious 2012 ballot cycle also led to the proposal and passing of Amendment
93 in 2014, which limits cure periods to groups whose petitions contain valid voter
signatures equal to at least 75% of the number of statewide signatures required and
75% of the required number of signatures from at least 15 counties.
Note:Issue 3on the ballot this year would eliminate the cure period all together, and increase
the number of counties where signatures must be collected, from 15 to 45 counties.
Arkansas Code 7-9-601 was amended in 2017 inAct 1104to say that the canvasser's "criminal record search shall be obtained within 30 days
before the date that the paid canvasser begins collecting signatures."
Acquired Versus Passed - What the Law and Judges Said
In July, shortly after Arkansas Voters First submitted their petitions, Secretary
of State John Thurston notified them he would not be counting their signatures because
of the wording about background checks. His response followed a special judge's opinion
that acquired versus passed did not mean the same thing in a review of a challenge
to the Act 579 referendum.
Arkansas Code 7-9-601 was at the crux of court arguments.
What Arkansas Code 7-9-601(b)(3) says:
"Upon submission of the sponsor’s list of paid canvassers to the Secretary of State,
the sponsor shall certify to the Secretary of State that each paid canvasser in the
sponsor’s employ has passed a criminal background check in accordance with this section."
What the campaigns wrote to the Secretary of State's Office regarding Issue 4 and
"In compliance with Arkansas Code Annotated § 7-9-601, please find the list of paid
canvassers that will be gathering signatures on the [Popular Name of Proposal]. On
behalf of the sponsors, Arkansas Voters First, this statement and submission of names
serves as certification that a statewide Arkansas State Police background check, as
well as, 50-state criminal background check have been timely acquired in the 30 days
before the first day the Paid canvasser begins to collect signatures as required by
Act 1104 of 2017."
Arkansas Voters First appealed to the Arkansas Supreme Court. The court allowed the
signatures to be counted while they reviewed the case. Issue 4 ultimately had 90,493
signatures, which would qualify it for the ballot. Issue 5 had 88,623 signatures,
falling short. But the number of signatures was moot based on the "passed" versus
"acquired" issue, state attorneys and opponents argued in court.
The Arkansas Supreme Court agreed that Arkansas Voters First did not comply with Arkansas
Code 7-9-601. The case isCV-20-454 - BONNIE MILLER V JOHN THURSTON SOS.
In a majority opinion, Justice Robin Wynne wrote:
"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."
But the interpretation of state law and the meaning of "acquired" versus "passed"
resonated with one judge, who said she thought Code 7-9-601(b)(3) was unconstitutional.
In a lone dissenting opinion, Justice Josephine Linker Hart wrote:
"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."
The court's decision came a week after the Secretary of State sent the official statewide
ballot to counties. Due to this timing, it's possible Issue 4 and Issue 5 may appear
on some ballots. If that occurs, votes cast for or against the issues will not be
Ballot Websites and Voter Guide
The Public Policy Center launched its ballot issue websites this week. Type in uaex.uada.edu
followed by the ballot issue number, i.e.www.uaex.uada.edu/issue1and to see our summary of the issue.
A digital voter guide will be available in the next few weeks, providing a look at
the ballot titles, what supporters and opponents say, and answers to general questions
about the remaining proposals. Find it atwww.uaex.uada.edu/ballot.
In The Courts: Ballot Issue Lawsuit Updates
Issue 2 & Issue 3- A lawsuit filed June 29 seeks to remove Issue 2 and Issue 3 from the November ballot.
The complaint says the ballot titles for both measures do not summarize all the changes
included for voters to be able to make a decision. The lawsuit, filed by Tom Steele,
also says Issue 3 includes multiple unrelated changes to the constitution that in
the past have resulted in the Arkansas Supreme Court striking measures from the ballot.
Issue 2 involves term limits for state legislators. Issue 3 involves the process ballot
issue groups and legislators follow to refer proposed amendments and state laws to
voters.Follow the case online
Act 579 Referendum- A special judge appointed by the Arkansas Supreme Court recently said voter signatures
collected for this referendum on a2019 state lawshould not be counted. The judge said paperwork submitted along with the signatures
said criminal background checks for paid canvassers were acquired rather than the
canvassers had passed the checks. The final decision is up to the Arkansas Supreme
Court. Opponents of thereferendumfiled the lawsuit with the Arkansas Supreme Court in February.Follow the case online