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 and Issue 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 2 and Issue 3 are 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 1413 of that year's legislative session added a section to state law governing paid canvassers, 7-9-601.
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 3 on 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 in Act 1104 to 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 Issue 5:
"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.
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 counted.
Ballot Websites and Voter Guide
The Public Policy Center launched its ballot issue websites this week. Type in uaex.edu followed by the ballot issue number, i.e. www.uaex.edu/issue1 and 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 at www.uaex.edu/ballot.