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State law used to spike ballot measures is unconstitutional, judge rules

by John Moritz | September 24, 2020 at 2:04 p.m.

A Pulaski County judge on Thursday struck down a section of state law that was used to disqualify three separate ballot measures from receiving votes in this fall’s elections.

The law, which requires that paid canvassers in Arkansas pass state and federal criminal background checks, is both impossible to comply with and unconstitutional, Circuit Court Judge Mary McGowan wrote in her order.

Attorney General Leslie Rutledge, whose office defended the law, soon after filed a notice of her appeal of the decision to the Supreme Court of Arkansas.

McGowan said her decision was based on testimony from an attorney for the Arkansas State Police who said the agency does not run federal background checks, despite the law’s requirement that groups obtain one from state police on behalf of their paid canvassers.

The law “created at least two requirements with which compliance is impossible. Such requirements violate Amendment 7's [of the Arkansas Constitution] prohibition on laws that interfere "with the freedom of the people in procuring petitions" and that "restrict, hamper or impair the exercise of the rights herein reserved to the people,” McGowan wrote.

The ruling came in a lawsuit brought by Safe Surgery Arkansas, a group that petitioned to place a referendum on this year’s ballot to repeal a 2015 law that eased regulations on certain eye surgeries.

The group’s efforts were halted last week, after the Arkansas Supreme Court ruled that they had failed to properly follow the law requiring them to certify that all their paid canvassers passed the necessary background checks.

The Supreme Court pointed to similar issues with background checks in a ruling last month that kicked two separate ballot measures proposing electoral changes off of the ballot.

McGowan’s ruling comes too late for any of the three groups to regain a spot on the ballot in the November general election, as ballots have already begun printing in counties around the state.

Instead, the ruling places an injunction on the law for groups that are beginning to petition for the 2022 election.

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