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PAPERWORK ERRORS WILL KEEP PROPOSED ARKANSAS ABORTION AMENDMENT OFF
BALLOT  
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Tess Vrbin
August 22, 2024
Arkansas Advocate
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_ Split Supreme Court affirms Secretary of State’s claim that
supporters didn’t submit right documents at the correct time. _

Opponents and supporters of the Arkansas Abortion Amendment gather at
the state Capitol on Friday, July 5, 2024, (Tess Vrbin/Arkansas
Advocate)

 

A proposed abortion-rights amendment to the Arkansas Constitution will
not be on the statewide November ballot, the state Supreme Court ruled
in a 4-3 decision Thursday.

Supporters of the amendment, which would have created a limited right
to abortion, did not submit the correct paperwork to Secretary of
State John Thurston’s office at the right time, the court’s
majority said.

The court’s opinion
[[link removed]] concludes
a five-week legal dispute over the signatures collected by paid
canvassers for the proposed amendment. The decision also comes on the
deadline for Thurston’s office to distribute certified election
ballots to county election officials.

The ballot question committee Arkansans for Limited Government said in
a statement that Thursday was “a dark day in Arkansas” and that
Thurston and the court silenced the over 102,000 supporters of the
amendment.

“Despite this infuriating result, our fight isn’t over,” the
group stated. “We can’t — and won’t — rest until Arkansas
women have access to safe, standard health care and the autonomy to
make decisions about their bodies free from governmental
interference.”

Proposed constitutional amendments require 90,704 signatures from 50
counties to qualify for the ballot. Supporters of the Arkansas
Abortion Amendment gathered in the Capitol and cheered
[[link removed]] as
AFLG submitted 102,730 signatures to Thurston’s office on the
deadline of July 5.

Thurston said July 10
[[link removed]] that
the 14,143 signatures collected by paid canvassers were invalid and
that he would not count the remaining signatures because they would
fall below the required minimum.

State law requires
[[link removed]] ballot
question committees to submit an affidavit identifying paid canvassers
by name and provide proof that the committee explained to canvassers
the state’s laws for soliciting signatures and gave them the
Secretary of State’s initiatives and referenda handbook
[[link removed]] before
they started canvassing.

AFLG repeatedly insisted that it did submit the required documents
[[link removed]].
The group submitted a “Sponsor Affidavit” signed by Allison Clark
to Thurston’s office June 27, testifying to the signature collection
education portion of the law, and court filings state it was the
seventeenth time the document was submitted.

The group also said it routinely submitted lists of paid canvassers to
Thurston, including on July 4 and 5, and did not include another
sponsor affidavit on those days because Thurston’s staff said it was
not necessary and all the correct paperwork had been filed.

“We have explained that even in election matters, the burden of
determining what the law requires falls on the filer—not office
staff,” Associate Justice Rhonda Wood wrote in the majority opinion.
“…Thus, as the facts are undisputed, we hold that AFLG, by its own
admission, failed to submit the required paid canvasser training
certification.”

AFLG submitted the certification on July 11 and argued that Thurston
should accept it, but the court disagreed.

The committee initially asked the Supreme Court July 16 to order
Thurston to count the remaining signatures, and the court granted the
request
[[link removed]] July
23. Thurston’s office counted 87,675 signatures
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registered voters that were collected by unpaid canvassers.

The court reiterated its decision to grant this request Thursday, but
it denied the remaining petition, which asked for Thurston to certify
the proposed amendment for the ballot.

“We order that the 87,675 signatures be counted for purposes of the
initial facial count because there is no constitutional or statutory
authority to support not counting them,” the opinion states. “We
find that the Secretary correctly refused to count the signatures
collected by paid canvassers… AFLG needed 90,704 signatures to
complete the first stage of the initial facial count to proceed to the
verification stage. As it failed to obtain this number of signatures,
AFLG is not entitled to any further relief.”

Alleged discrimination

AFLG told the court
[[link removed]] earlier
this month that Thurston’s rejection of the amendment was viewpoint
discrimination, citing his 2022 endorsement
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Arkansas Right to Life and his donation to the group earlier this
year.

Associate Justice Karen Baker agreed in her dissent
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that Thurston and the four justices who ruled in his favor “have
treated [the proposed amendment] differently for the sole purpose of
preventing the people from voting on this issue.”

Baker agreed with AFLG that state law does not require ballot measure
petitions and paid canvasser certifications to be filed
simultaneously.

“On the contrary, this requirement was made up out of whole cloth by
the respondent and inexplicably ratified by the majority of this
court,” Baker wrote.

Associate Justice Courtney Hudson co-signed Baker’s dissent, which
states she would prefer to advance all the signatures to the
verification stage, “appoint a special master to make findings of
fact, grant a thirty-day provisional cure period, and order
conditional certification of the proposed amendment.”

Chief Justice John Dan Kemp said in his own dissent that he would have
made the same orders.

Additionally, Baker noted that the majority — Associate Justices
Barbara Webb, Shawn Womack, Cody Hiland and Wood — did not address
the concerns of another ballot question committee.

On July 31
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Thurston gave supporters of changes to the state’s medical marijuana
industry until Aug. 30 to collect more signatures for another proposed
amendment. State law allows this cure period if a ballot question
committee’s initial submission contains valid signatures equal to at
least 75% of the overall required number of signatures and 75% of the
required number from at least 50 counties.

The ballot question committee Arkansans for Patient Access intervened
in the abortion amendment case
[[link removed]] last
week, arguing
[[link removed]] that
Thurston’s reasons for rejecting the proposed amendment relied on an
“erroneous and out-of-the-ether” interpretation of the law and
threatened to keep the medical marijuana proposal off the ballot.

Thurston told APA on Aug. 8
[[link removed]] that
his office would not count signatures collected during the cure period
by paid canvassers because a company that hired paid canvassers had
signed legally required paperwork instead of the sponsor of the
amendment. Thurston used this same argument against AFLG, and APA
criticized Thurston in court documents for “making the same
eleventh-hour about-face.”

“Disqualifying signatures should be a high bar for the state to
clear,” APA member Bill Paschall said in a Thursday statement after
the Supreme Court ruled against the abortion amendment. “We believe
when Arkansans take the time and make the effort to sign a petition
that those signatures should be counted. Disqualifying based on a new
interpretation of the canvasser registration filing process in
midstream does not meet that high bar.”

Baker expressed concern in her dissent that Thurston told APA “that
the thousands of signatures gathered by paid canvassers that he had
previously deemed valid will remain so, despite any alleged statutory
violation—a courtesy that the respondent chose not to extend to the
petitioners in the present case.”

She called the “differing treatment” of the two measures
“alarming.” 

“Why are the respondent and the majority determined to keep this
particular vote from the people?” Baker wrote. “The majority has
succeeded in its efforts to change the law in order to deprive the
voters of the opportunity to vote on this issue, which is not the
proper role of this court.”

AFLG’s statement praised Baker’s assessment of the majority
opinion and declared, “Democracy demands better.”

Supporters’ struggles

The Arkansas Abortion Amendment
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have disallowed government entities to “prohibit, penalize, delay or
restrict abortion services within 18 weeks of fertilization.” 

The proposal would also have permitted abortion services in cases of
rape, incest, a fatal fetal anomaly or to “protect the pregnant
female’s life or physical health,” and it would have nullified any
of the state’s existing “provisions of the Constitution, statutes
and common law” that conflict with it.

Abortion has been illegal in Arkansas, except to save the pregnant
person’s life, since the U.S. Supreme Court overturned Roe v. Wade
in 2022. State Rep. Mary Bentley, R-Perryville, and former Republican
state Sen. Jason Rapert of Conway sponsored the 2019 “trigger
law.”
[[link removed]]

In Thursday’s statement, AFLG praised the hundreds of volunteers
“who worked tirelessly to educate voters, coordinate signing
opportunities, and collect signatures.”

“They were fearless in the face of misinformation, intimidation, and
harassment,” the statement reads. “And their work will leave an
indelible mark on Arkansas politics.”

The group referred to a range of hurdles the amendment’s supporters
faced in the months before the submission deadline. The anti-abortion
groups Arkansas Right to Life and the Family Council led a “Decline
to Sign” effort encouraging voters not to sign petitions for the
amendment, and protesters targeted canvassing sites
[[link removed]] throughout
the state.

In May, Little Rock police told supporters of the abortion amendment
that they could be arrested for obstructing traffic while canvassing
from a public sidewalk at a busy intersection.

WE CAN’T — AND WON’T — REST UNTIL ARKANSAS WOMEN HAVE ACCESS
TO SAFE, STANDARD HEALTH CARE AND THE AUTONOMY TO MAKE DECISIONS ABOUT
THEIR BODIES FREE FROM GOVERNMENTAL INTERFERENCE.

– ARKANSANS FOR LIMITED GOVERNMENT

In June, the Family Council posted on its website a list of 79 people
paid by AFLG to collect signatures. AFLG called the post attempted
intimidation
[[link removed]];
the Family Council has since removed the list from the post but has
kept a longer, more recent list publicly available on its political
action committee website. Acquiring and publishing the list is legal
under the Arkansas Freedom of Information Act.

On Independence Day, the day before the deadline to submit signatures
to Thurston, an email
[[link removed]] claiming to
be from AFLG caused confusion by stating no more signatures for the
Arkansas Abortion Amendment were needed. AFLG quickly alerted
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that the misleading email was not from them and encouraged people to
continue signing petitions.

Bentley and Rapert have both broadcast their opposition to the
amendment on social media.

“Praise the Lord these cold-blooded baby killers lost their appeal
to get their unholy abortion amendment on the ballot in #Arkansas
[[link removed]],” Rapert said
Thursday on X [[link removed]],
reposting a July 5 video from a supporter of the amendment celebrating
the submission of signatures. “Thanks to the 4 justices on the
Arkansas Supreme Court for following the law. Just look at the way the
abortion supporters cheered for death. It’s crazy.”

A unique challenge to the Arkansas Abortion Amendment was a lack of
national support. While several states have approved citizen-led
abortion-rights initiatives over the past two years and more have
pursued similar efforts — including in neighboring Missouri
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where abortion will be on the November ballot — Arkansas’ proposal
has been controversial among reproductive justice advocates because it
would reinstate an abortion policy more restrictive than the one in
place under Roe v. Wade. For this reason, major national
abortion-rights groups were not involved in promoting or funding the
campaign, Slate reported
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In South Dakota, a proposed abortion-rights ballot measure faced a
court challenge
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an anti-abortion group alleging that supporters did not follow state
canvassing laws. The measure remains likely to appear on the ballot
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but the timing and outcome of the lawsuit could change that.

Like Arkansas, South Dakota bans abortion except to save the pregnant
person’s life.

Responses to court’s ruling

Attorney General Tim Griffin, representing Thurston, asked the
Arkansas Supreme Court on July 19 to dismiss AFLG’s case
[[link removed]].
The court’s Thursday decision denied the motion.

Griffin praised the court’s decision in a statement, calling it “a
win for the rule of law in Arkansas.”

“The people rule in Arkansas, through the law,” Griffin said,
referring to the state motto, Regnat Populus, Latin for “the people
rule.”

“Changing the Arkansas Constitution involves a rigorous process
requiring strict adherence to the law,” Griffin continued. “The
Arkansas Supreme Court confirmed today that the abortion advocates
failed to follow the law that other ballot committees had successfully
followed for over a decade since Governor Mike Beebe signed the law
governing paid canvassers in 2013.”

Gov. Sarah Huckabee Sanders wrote on X
[[link removed]] in July that
“the far left pro-abortion crowd in Arkansas showed they are both
immoral and incompetent” in response to Thurston’s initial
rejection of the amendment.

“Proud I helped build the first conservative Supreme Court majority
in the history of Arkansas and today that court upheld the rule of
law, and with it, the right to life,” Sanders posted Thursday
[[link removed]], referring to
her appointment last year
[[link removed]] of
Hiland, the former chairman of the state Republican Party.

The Democratic Party of Arkansas denounced the court’s ruling in a
news release.

“The MAGA Republicans’ total abortion ban has brought to light
countless stories of women and girls who have been harmed by this
extreme policy, which makes no exceptions for rape, incest, child
victims, or mothers in danger,” party chairman Grant Tennille said.
“This no-exceptions ban is too extreme, and voters deserved the
opportunity to vote for common-sense access and exceptions.
Republicans know their extreme views are unpopular; that’s why they
repeatedly used their power to cheat Arkansans out of the opportunity
to let their voices be heard.”

THE MAJORITY HAS SUCCEEDED IN ITS EFFORTS TO CHANGE THE LAW IN ORDER
TO DEPRIVE THE VOTERS OF THE OPPORTUNITY TO VOTE ON THIS ISSUE, WHICH
IS NOT THE PROPER ROLE OF THIS COURT.

– ARKANSAS SUPREME COURT ASSOCIATE JUSTICE KAREN BAKER, DISSENTING
FROM THE MAJORITY OPINION IN CV-24-455

Family Council President Jerry Cox called the proposed amendment
“deceptively worded” in a statement praising the ruling.

“This radical abortion amendment might have made the ballot had it
not been for all of the pro-life Arkansans who spread the word about
it and had it not been for the Arkansas Secretary of State and
Arkansas Attorney General being willing to enforce Arkansas’ ballot
initiative laws,” Cox said. “…Arkansas’ women and unborn
children will be protected from unrestricted abortion as a result.
Arkansas remains the most pro-life state in America. That’s
something to celebrate.”

_Tess Vrbin came to the Advocate from the Arkansas Democrat-Gazette,
where she reported on low-income housing and tenants' rights, and won
awards for her coverage of 2021 flooding and tornado damage in rural
Arkansas.  She previously covered local government for The
Commercial Dispatch in Mississippi and state government for the
Columbia Daily Tribune in Missouri._

_Arkansas Advocate is part of States Newsroom
[[link removed]], the nation’s largest state-focused
nonprofit news organization._

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