ARKANSAS ADVOCATE: Supporters of a proposed Arkansas constitutional amendment to create a limited right to abortion claim Secretary of State John Thurston’s rejection of the measure in July was viewpoint discrimination, according to a brief filed Friday with the state Supreme Court.The Arkansans for Limited Government ballot question committee also repeated their assertion that it submitted all the legally required paperwork with the signatures from registered voters with the goal of putting the amendment on the November ballot.On July 26, the high court ordered AFLG and Thurston to file briefs Friday and to file responses to each other’s briefs Aug. 9.AFLG Executive Director Lauren Cowles asked the Supreme Court on July 16 to order Thurston to count the signatures, stating that the committee did in fact submit the required accompanying documents to Thurston’s office multiple times, including on the submission deadline of July 5.
The group submitted more than 102,000 signatures; proposed constitutional amendments need 90,704 signatures to qualify for the ballot.
Thurston said July 10 that his office would not count the signatures because AFLG did not submit required documents related to paid canvassers, rendering 14,143 signatures invalid and bringing the presumptive total number of facially valid signatures below the required minimum.
AFLG argued in its brief on Friday that the Secretary of State’s office in 2016 counted signatures for two proposed ballot measures after the ballot question committees failed to submit the necessary paperwork, which amounts to viewpoint discrimination because the office treated similarly situated parties differently.
Thurston, a Republican, has been secretary of state since 2019. His predecessor, Mark Martin, is also a Republican and oversaw the certification of ballot measures in 2016.
Martin certified both proposed constitutional amendments one to legalize cannabis for recreational use and one to limit non-economic damages in lawsuits against health care providers for the 2016 ballot, according to the Arkansas Democrat-Gazette.
AFLG argued that Thurston’s motivation for rejecting the proposed abortion amendment is ideological. Arkansas Right to Life, an anti-abortion group publicly opposed to the amendment, endorsed Thurston’s 2022 reelection campaign, and Thurston donated $315.75 to the organization on Jan. 4, according to campaign finance documents included in the brief.
Thurston was among the Republican elected officials who participated in the March for Life, the group’s annual anti-abortion rally, on State Capitol grounds later in January.
“The Secretary’s viewpoint is clear. He wants to keep the Amendment off the ballot,” the petitioners wrote in the 118-page brief. “Doing so furthers his anti-abortion personal beliefs and political interests. …This viewpoint discrimination infringes petitioners’ First Amendment rights and harms the integrity of the ballot initiative process.”
The Supreme Court fulfilled Cowles’ request July 23 and ordered Thurston to count the signatures collected by volunteer canvassers. The ensuing count yielded 87,675 facially valid signatures as well as 912 where Thurston’s staff could not tell if the canvasser was volunteer or paid.
Thurston’s Friday brief reiterated the argument that the rejection of the paid canvassers’ signatures was necessary.
“And without them, AFLG’s petition – as the Secretary has determined – falls short of the facial number required to qualify for a cure period,” Attorney General Tim Griffin, representing Thurston, wrote in the brief. “So either way, AFLG’s petition falls short and this Court should deny relief.”
Griffin filed a motion July 19 to dismiss the case; the court has not yet responded.
Petitioners’ requests
AFLG asked the court to order Thurston:
-To proceed with verifying that the signatures came from registered voters in the legally required minimum of 50 counties.
-To not throw out signatures or petitions that allegedly violate the law pertaining to accompanying documents.
-To include the signatures collected by paid canvassers in the verification and certification process.
-To give canvassers the legally-allowed 30-day cure period if the valid signatures equal at least 75% of the overall required number of signatures and 75% of the required number from at least 50 counties.
-To conditionally certify the amendment for the November ballot as soon as “the full verification and certification process – including any 30-day cure period” is over, even if the Aug. 22 certification deadline passes first.
State law requires an affidavit identifying paid canvassers by name and proof that the ballot question committee explained to canvassers the state’s laws for soliciting signatures and provided them with the Secretary of State’s initiatives and referenda handbook before they started canvassing.
AFLG submitted a “Sponsor Affidavit” to Thurston’s office June 27, testifying to the signature collection education portion of the law. The affidavit was included in the July 16 court documents, which state it was the seventeenth time the document was submitted.
The group said it routinely submitted lists of paid canvassers to Thurston, including on July 4 and 5, and did not include another sponsor affidavit at that time because Thurston’s staff said it was not necessary and all the correct paperwork had been filed.
On July 5, the committee submitted a 691-page file with signed affidavits from all of AFLG’s paid canvassers, which totaled more than 250, making the same testimony as in the sponsor affidavit. Thurston has argued that AFLG should have submitted the sponsor affidavit itself on July 5.
“AFLG seeks a pass, arguing that it should be excused from complying with Arkansas law because – while it undisputedly failed to submit a sponsor statement with its petition – its canvassers submitted statements attesting that the sponsor had provided that information to some of their fellow canvassers,” Griffin wrote in Thurston’s brief.
However, AFLG said in its brief, the law, “on its face, does not require a [signature collection education] statement to be submitted at the time of filing. This is in contrast to other sections of the statute that explicitly require certain documents to be filed at or before the time of filing the petition.”
Thurston also argued that Allison Clark, who signed the sponsor affidavit, was the wrong person to do so because she worked for the company that hired paid canvassers for AFLG. The ballot question committee disagreed.
“To follow the Secretary’s logic would mean that no sponsor, as an individual or individual working on behalf of a sponsor entity, could also be a paid canvasser,” AFLG wrote.
The committee added that “it is undisputed that the Secretary has in his office all of the information required” by law.
Thurston’s brief argued that any documents submitted after July 5, such as Cowles’ July 11 assertion that AFLG followed the law, should not be considered in compliance.
AFLG disagreed, stating that Article 5, Section 1 of the Arkansas Constitution allows for “correction or amendment” of an initiative petition deemed insufficient by the secretary of state. The group also said the use of the word “corrections” in the title of the state law in question “makes clear that this section deals with correctable actions.”
The proposal and opposition
AFLG said in a statement Friday that it was “grateful for the opportunity to present additional information” to support its argument that Thurston’s rejection of the amendment was unlawful.
“We remain frustrated by the Secretary’s transparent search for a rationale that squares with his decision to disqualify and are deeply concerned about the potential First Amendment violation that arises from his differential treatment of AFLG and close connection to and recent work with a group constituted to oppose our efforts,” the group stated. “Arkansans deserve a government that works for them – our fight continues on their behalf to make sure it does.”
If the Arkansas Abortion Amendment makes it to the ballot and is approved by voters, it would not allow government entities to “prohibit, penalize, delay or restrict abortion services within 18 weeks of fertilization.”
The proposal would also permit 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 nullify 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.
Supporters of the Arkansas Abortion Amendment faced a series of hurdles in their signature collection efforts. Arkansas Right to Life and another anti-abortion group, the Family Council, led a “Decline to Sign” effort encouraging voters not to sign petitions for the amendment, and protesters targeted canvassing sites throughout the state.
According to a Democrat-Gazette article included in AFLG’s brief, Arkansas Right to Life announced Jan. 21 at the March for Life that it would start the “Decline to Sign” campaign even though Griffin had not yet certified the proposed amendment’s ballot title.
Griffin issued his approval two days later; he rejected two previous iterations of the ballot language in November and earlier in January.
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; the Family Council has since removed the list from the post but has kept it 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 claiming to be from AFLG caused confusion by stating no more signatures for the Arkansas Abortion Amendment were needed. AFLG quickly alerted supporters that the misleading email was not from them and encouraged people to continue signing petitions.
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