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Law's canvassers rule unconstitutional, judge says; clause used to toss 3 state ballot measures

by John Moritz | September 25, 2020 at 7:17 a.m.

A section of Arkansas' canvassing law that was used to strike three separate measures from this year's Nov. 3 general election ballot was deemed unconstitutional Thursday by a Pulaski County circuit judge, who then issued an injunction against the law.

Circuit Judge Mary McGowan ruled that portions of the law -- Arkansas Code Annotated 7-9-601 -- that require paid canvassers to pass both state and federal background checks before gathering signatures, were impossible to comply with. Thus, those sections of the law violated Arkansans' constitutional right to solicit measures to appear on the ballot, she said.

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

Part of the statute says: "To verify that there are no criminal offenses on record, a sponsor shall obtain, at the sponsor's cost, from the Division of Arkansas State Police, a current state and federal criminal record search on every paid canvasser to be registered with the Secretary of State."

[RELATED » Full coverage of elections in 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 sponsors of ballot proposals obtain them from the agency on behalf of their paid canvassers.

Groups that hire paid canvassers also are required to certify to the secretary of state's office that their canvassers passed the required background checks, which McGowan said puts those groups in the position of either committing a crime by lying or having all of their signatures invalidated.

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 filed by Safe Surgery Arkansas, a group that petitioned to place a referendum on this year's ballot to repeal a 2019 law that eased regulations on optometrists performing certain eye surgeries.

The group's efforts were halted last week, after the Arkansas Supreme Court ruled that the group had failed to properly follow the law because it certified only that canvassers had "acquired" background checks, instead of certifying that the canvassers passed.

"We are satisfied with Judge McGowen's ruling which underscores that Safe Surgery Arkansas has done everything it can to protect patients and ensure that eye surgery is performed by medical doctors with surgical training," Dr. Laurie Barber, the chairwoman of Safe Surgery Arkansas, said in a statement Thursday.

"We will continue to promote surgery by surgeons and fight hard to protect Arkansas citizens."

The Supreme Court pointed to similar issues with background checks in a ruling last month that kicked two other proposals, for electoral changes, off of the ballot.

Representatives of the two groups pushing those measures -- one, a proposed constitutional amendment to switch the state to a ranked-choice-style voting system for elections, the other a proposed amendment to change the method of redistricting -- each declined to comment on McGowan's ruling.

McGowan's ruling likely comes too late for any of the three groups to receive a vote in the Nov. 3 general election.

Chris Powell, a spokesman for the secretary of state's office, said in an email last week that "ballot printing and coding is under way, if not already finished, in every county."

While the Safe Surgery Arkansas referendum, also known as Issue 6, is likely to appear on most or all of the state's ballots, any votes cast on the issue will not be counted because of the Supreme Court's ruling last week to disqualify the issue.

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

In a brief filed with the court before a hearing Sept. 18 in the lawsuit over Arkansas Code Annotated 7-9-601, Safe Surgery Arkansas' attorneys wrote that the group "is looking ahead to November 2022."

Rutledge, however, will seek to have the Supreme Court uphold the law on appeal.

"The Attorney General is disappointed in the court's decision and is confident the appeal will be successful," Amanda Priest, a spokeswoman for the attorney general, said in a statement Thursday.

The section of the law that McGowan struck down was added by lawmakers in 2015. However, it had not previously been an issue for groups soliciting petitions for various measures in the next two election cycles because the certifications submitted by those groups were not challenged by their opponents, according to David Couch, a prolific sponsor of ballot measures, including the 2016 amendment to legalize medical marijuana.

Couch said he knew that the law, if the word "federal" was taken to mean an FBI background check, was unconstitutional because the Arkansas State Police was not authorized to conduct those checks for canvassers.

Instead, Couch said he had used public records to conduct a national background search for any canvassers he paid so he could fulfill the requirement, in addition to a statewide check done by the Arkansas State Police.

This year, Couch said, the groups soliciting petitions used different wording in their certifications, prompting issues with the secretary of state's office. (Couch helped draft the two proposals dealing with electoral changes.)

In the certification that Safe Surgery Arkansas gave to the secretary of state's office last June, the group's sponsors wrote that they had "acquired" a "statewide Arkansas State Police background check, as well as a 50-state criminal background check." Secretary of State John Thurston's office later refused to count most of the signatures gathered by the group, determining that its canvassers had not met the requirement to "pass" the background checks.

During a hearing earlier this year in a lawsuit aiming to disqualify Safe Surgery Arkansas' measure, Mary Claire McLaurin, an attorney for the state police, testified that the agency had never gathered a federal background check on behalf of canvassers because "FBI has not -- will not give them, will not process a federal background check pursuant to that statute."

On Thursday, a state police spokesman declined to comment, citing Rutledge's appeal of the decision.

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