The future of a ballot initiative to restore abortion rights in Arkansas could come down to just who counts as a “sponsor” signing a piece of compliance paperwork about paid canvassers. But court filings last week suggest that Secretary of State John Thurston is applying the rules on that issue in very different and contradictory ways, preemptively striking down the abortion petition, while allowing the very same issue to slide for petitions regarding a casino license and medical marijuana, both of which also used paid canvassers.
The Arkansas Abortion Amendment is sponsored by a group called Arkansans for Limited Government (AFLG). The kerfuffle over the validity of AFLG’s petition began on July 10, when Thurston announced in a letter to the group that he was unilaterally disqualifying the entire petition, despite it including signatures from more than 102,000 Arkansans —well above the necessary threshold — with no opportunity to correct errors or collect more signatures. It eventually became clear that the group did not turn in a required statement on the July 5 deadline when it submitted its petitions, though they had submitted it numerous times in the past.
AFLG used some paid canvassers in addition to volunteers to collect signatures. If a group uses paid canvassers, the sponsor of the petition is required to confirm that all of them received training and a handbook on petitions created by the secretary of state’s office — let’s call that the Training Statement for simplicity. AFLG had submitted Training Statements numerous times in the weeks leading up to the July 5 deadline, including one on June 27, just eight days earlier.
There was no dispute that the canvassers had indeed received the handbook and training. Each paid canvasser signed a statement that they had, included when the group turned in its petition on the July 5 deadline day with all the signatures it had collected. But in that final submission, the Training Statement from the sponsor was nowhere to be found.
This was a genuine unforced error: The secretary of state’s handbook on petitions clearly lists it as one of the paperwork requirements for submitting a petition, along with the necessary signatures, and every other petition group turned in such a statement on July 5. (AFLG says that the secretary of state’s office erroneously told them that this statement was not necessary to submit; in a brief filed Aug. 9, Attorney General Tim Griffin, representing Thurston’s office, called that accusation “hardly plausible.”)
However, as more details came to light, it quickly became clear that whatever the handbook says, it was not at all clear that the paperwork oversight was fatal to the group’s effort, according to the actual statutory language. The handbook cannot overrule state law, and AFLG accused Thurston of abusing his power and violating the law. On July 16, the abortion rights petitioners sued him; the case is now before the Arkansas Supreme Court.
Shortly after Thurston’s disqualification letter, Griffin, along with Gov. Sarah Huckabee Sanders, publicly scolded the petitioners for the missing paperwork. But as the initial legal rationale started to look shakier, Thurston and Griffin began running through various, evolving claims to support their effort to disqualify the petition on the technicality. Thurston had at first erroneously claimed another piece of paperwork was missing as well. The legal explanation Thurston offered for why he preemptively disqualified all the signatures turned out to be wrong, so Griffin came up with several new ones.
In a followup letter on July 15, Thurston offered a new wrinkle for just what the relevant paperwork issue was. The Training Statement has to be signed by a “sponsor,” and Thurston argued that the abortion petitioners’ statement filed on June 27 is no good because it was signed by Allison Clark, who works for a company that contracted with AFLG to hire, train and manage compliance requirements for paid canvassers. Griffin and Thurston make the same argument in a brief filed Friday with the state Supreme Court. In its brief filed the same day, AFLG counters that Clark clearly meets the definition of “sponsor” in the statute and that it’s standard both in practice and under the law for an “agent of the sponsor” to sign on behalf of a group.
This is not the only issue, according to Griffin. He also argues that the Training Statement must cover a complete list of all the paid sponsors used, and since AFLG hired new canvassers after June 27, all of the paid-canvasser signatures should be disqualified. AFLG contends that the June 27 statement sufficiently covers the canvassers hired through that date, and that those signatures are valid even if the signatures from canvassers hired after that date are disqualified.
It will be up to the court to resolve that question, but in Griffin’s latest brief, he puts his strongest emphasis on the “sponsor” definition issue. There is a good chance that disqualifying the petition in this current case hinges on him winning on this question.
But there’s a problem for the secretary of state’s office. It turns out that other petition groups this year who used paid canvassers also had the person who contracted to run their paid canvassing operations sign a required sponsor statement each time they registered new hires with the secretary of state’s office.
The deadline for the Training Statement to be submitted, as with the signatures collected, is July 5. But the law also requires groups to meet other requirements before paid canvassers collect a single signature, including canvassers undergoing criminal background checks. One of those requirements is that the sponsor certify that none of the paid canvassers have a disqualifying criminal conviction listed by the law, including any felony, fraud, forgery and counterfeiting offense. Let’s call this the Background Statement.
In practice, groups trying to get a proposal on the ballot just include the Training Statement and the Background Statement on the same cover sheet. But the Background Statement has stricter requirements: It must be included each and every time new hires are registered, or else they cannot collect signatures. The casino and marijuana petitioners had their executive directors sign their final paperwork on July 5. But just like the abortion petitioners, when the casino and marijuana groups submitted the registration paperwork that had to be turned in with each new batch of hires, each form was submitted and signed by the paid-canvassing contractor who worked with each group.
All of this registration paperwork was accepted without incident by the secretary of state’s office. But if there’s any merit to Thurston and Griffin’s claim that a paid canvassing contractor can’t be a “sponsor,” that would mean all of those submissions would be invalid. That would be devastating for all three groups, because no signatures can be collected by paid canvassers if they’re not properly registered beforehand.
But Thurston has not declared the other two groups’ submissions to be invalid. Instead, he seems to be applying very different standards for different petitioners. While the abortion petition was preemptively disqualified, the signatures from paid canvassers for the marijuana and casino groups were counted without being disqualified. In fact, on July 31, Thurston certified that the casino group had successfully made the signature threshold after the full review process. That was about two weeks after Thurston first put forth his claim about who counts as a sponsor. Oops.
It gets worse. Griffin himself appeared to say recently in a brief in the casino case that it was totally fine for the contracted canvasser to sign for the casino group, in direct contradiction of his contention that an “agent of the sponsor” is not a “sponsor.”
In its latest filing on Friday, AFLG included a letter Thurston sent to the marijuana group on August 8 that shows he apparently has yet another policy for dealing with the supposed rule for that group: He informed them that their Background Statements are invalid because “the manager of a canvassing company” did the certification and that doesn’t count as the “sponsor.” That means the signatures from their paid canvassers are forbidden from being counted for any purpose by the law, he stated.
But remarkably, he did not apply that rule to the signatures that the group submitted on July 5, an allowance that he apparently never considered making for the abortion petitioners. Instead, he wrote, “my office will apply this standard to any additional signatures submitted during the cure period.” The “cure” is a 30-day period allowing petition groups to make up for a shortfall after invalid signatures have been culled in the secretary of state’s review process. Unlike the casino petition, the marijuana petitioners need that cure period to get over the hump. To date, the casino petitioners have not received a similar letter from Thurston, according to a source with knowledge of the group.
Griffin didn’t explain or address these discrepancies in the brief he filed Friday with the state Supreme Court in the abortion case. Instead, he seems to double down, introducing a brand new allegation: In addition to having an improper “sponsor” for the Training Statement, he says AFLG had the very same problem for its Background Statement. This is crucial for Griffin’s case because of the apparent difference in severity between the Background Statement and the Training Statement under the law.
Here’s why. The secretary of state’s review process is a multi-step process. Certain violations are culled in an initial review, whereas other violations are culled in the final count. That matters because to survive to the final phase, a petition has to stay above the signature threshold — 90,704 — during the initial review, when certain specific “facial” violations are culled. In the final count, other violations that aren’t facial are culled. If 75% of that 90,704 total are left — that would be 68,028 — the petitioners earn a cure period.
So in the abortion case, the question is not just whether a violation happened, but at what stage of the process such a violation would result in signatures being culled from the count. Griffin says signatures with a Training Statement violation should be tossed right away. But AFLG contends that even if there was such a violation, those signatures should not be disqualified until the final count, when they could still qualify for a cure period. Missing the Training Statement is not listed as a “facial” violation, and the statutory language appears to describe a process that aligns with AFLG’s argument.
That’s presumably why Griffin would like to shift his allegation to the Background Statement instead. No one disputes that’s a “facial” violation, so it would be fatal to the petition if all the paid canvasser signatures were tossed on those grounds. Griffin has made multiple arguments attacking the Training Statement, but on the Background Statement he has offered only one: These submissions were certified and signed by Allison Clark, and she’s not a “sponsor.”
At least based on publicly available information, the only difference between the abortion petitioners and the other two groups on this front is that Clark was herself working as a paid canvasser, in addition to managing the canvassing operation. AFLG argues that this makes no difference under the law, and that even if it does, the solution would be to toss out only the signatures Clark collected. It’s not entirely clear why Clark’s status as a paid canvasser herself would disqualify all the signatures, but in any event, Griffin reiterates his case that an “agent of the sponsor” cannot be the “sponsor,” the opposite of what he says in the casino case.
We can’t know just how everything went down, but the optics are pretty rough for Thurston and Griffin. It looks like they came up with the agent/sponsor claim as an ad hoc excuse to kick the abortion rights group off the ballot when their earlier excuses had the potential to fall flat. But perhaps they didn’t check to see whether this would complicate the process for other groups as well. And it looks even worse if Thurston and Griffin were rooting for certain petitions to succeed and certain petitions to fail.
Keep in mind, both the secretary of state and Griffin have repeatedly made public statements that AFLG’s paperwork mistake was glaring because all of the other groups complied. “The sponsors failed to follow the law, specifically a simple and straightforward affidavit requirement that other ballot committees followed,” Griffin stated when Thurston’s disqualification letter was released. “Failure to follow such a basic requirement is inexcusable: the abortion advocates have no one to blame but themselves.” Once again: Oops.
Attorney David Couch, who has been deeply involved in the wave of ballot initiative efforts in Arkansas over the last 12 years, now finds himself on both sides of this issue. He represents the company collecting signatures for the marijuana petition as well as Cherokee Nation Entertainment, which opposes the casino amendment and is backing a lawsuit to try to stop it. So if there’s a problem with using the canvassing company to sign the paperwork registering new paid canvassers with the secretary of state’s office, that’s bad news for the marijuana effort but good news for the Cherokees hoping to stop the casino amendment.
Couch told the Arkansas Times that Griffin’s claim that the paid canvassing company employee couldn’t sign was a strained interpretation of the law at best. Using the company for that purpose has been standard practice for most or all ballot initiative groups that employ paid canvassers in recent cycles, Couch said. It makes sense, after all, that the person tasked with making sure the canvassers are in proper compliance would be the one to certify that.
In fact, as AFLG pointed out in its Friday brief, the law’s definition of “sponsor” formerly specified that it had to be the person who filed the petition, the very thing Griffin now implies. But in the very same legislation that created the rules in question, an “or” provision was added to the law: “a person who arranges for the circulation of an initiative or referendum petition.” That sounds a lot like someone like Allison Clark.
“We have always sent the new hire registration paperwork using the canvassing company,” Couch said. More broadly, Couch added, if an agent of a sponsor can’t sign on behalf of a sponsor, that would make a mess of longstanding agency and administrative law, impacting countless other paperwork requirements in state law.
“This is something that the secretary of state and the attorney general made up,” Couch said.
In a lawsuit Couch filed on behalf of the Cherokees and two other plaintiffs to stop the casino amendment, however, he put forward that very argument. “A canvassing company and its employees cannot certify on behalf of a sponsor, especially not regarding paid canvassers,” the lawsuit states, echoing the argument Griffin makes in the abortion case.
Couch explained that once he saw Griffin and Thurston raise this novel notion, it had to be pressed in the casino case. It would not be fair to apply the rule against one petitioner and not another, he said. “The issue is raised,” he said. “We need to know what the rule is. And if that is the law — why did he give casinos a pass?”
Couch added that the secretary of state lacks the authority to make novel or creative statutory interpretations in the first place. His job is just to count, following the basic rules, Couch said — not disqualify petitioners on shaky or ambiguous grounds. Thurston “should not use his interpretation of a statute to deny counting signatures on a petition,” he said.
If there is a statutory interpretation question, that’s up to the Arkansas Supreme Court to weigh in on, Couch said. If there’s a potential problem, someone can file a lawsuit — precisely what Couch and the Cherokees did in the casino case. That’s how the process is supposed to work, he said, as the state’s constitution makes clear. And when the court considers such an issue, per the constitution, “the burden of proof shall be upon the person or persons attacking the validity of the petition.”
The secretary of state has no authority, right or expertise to get into the statutory interpretation game to preemptively kick petitions off the ballot, Couch argues. And if the rules are applied in contradictory or capricious ways, it starts to look like content-based discrimination.
“It’s OK with casino, it’s not OK with abortion, it’s sort of OK with medical marijuana,” Couch said. “It’s like nailing Jell-O to the wall.”
The abortion petitioners say they’re being singled out, in what “constitutes unlawful viewpoint discrimination.”
“At every juncture, the Secretary has treated petitioners’ submission differently from other submissions,” AFLG argues in its brief filed Friday. “He is determined to keep the Amendment off the ballot, regardless of the facts or law.”
Will this uneven application of a rule that appears to have been newly created on the fly, and perhaps applied in a discriminatory way, undercut Griffin’s case and resurrect the abortion petition’s chances at making the ballot?
That will be up to the Supreme Court — including conservative justices who may not be inclined to sympathize with the abortion petitioners. They could always find some new ground not explicitly covered in the filings, or revive some other point Griffin has raised, to nix the petition. But for all the flack the court takes for its ideological bent, judges are typically attuned to issues of basic fairness, political optics and the potential for backlash if it looks like officials are playing Calvinball with rules. It could be that this naked hypocrisy, apparent incompetence, and flimsy and capricious process simply prove too much for the court to stomach.
Even if the abortion petitioners win this case, they have many hurdles to go — including other potential legal challenges and uncertainty about whether they will meet the minimum county thresholds after culling or the 75% threshold in the Final Count — and not much wiggle room on the calendar before ballots are printed. Politically, that could be another reason for justices who oppose abortion to side with the petitioners on the process issues here — they might wager that the petition might well not make the ballot in any case. Letting the count play out could help maintain the appearance of fairness and impartiality of the court while still perhaps winding up with the same outcome. But no one can read the justices’ minds, so we’ll have to wait for a decision in the coming days.
No matter what the court decides, the recent filings in these cases, the bizarre timeline and the hopping around from one excuse to another paint an ugly picture: It increasingly appears that state officials are conspiring to twist the law to block the abortion petition by any means necessary, violating the constitutional rights of more than 100,000 Arkansans.