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Justices remove barrier to the ballot

Canvassers rulefound wrongful by Neal Earley | March 12, 2021 at 4:51 a.m.
The Arkansas Supreme Court is shown in this file photo.

The state law that knocked questions on ranked-choice voting, redistricting and eye surgery regulations off November's ballot could be done away with, thanks to a Thursday ruling from the Arkansas Supreme Court.

The decision affirms a September ruling by a Pulaski County circuit judge that blocked the law, and it could remove a significant hurdle for those looking to put a question on the statewide ballot.

The issue is one the courts have deliberated before. A September ruling from the Supreme Court kept the three questions off last November's ballot for not complying with the state law in question -- Arkansas Code Annotated 7-9-601.

The provision at issue in Thursday's ruling requires paid canvassers to pass federal and state background checks by the Arkansas State Police, despite the state agency being unable to offer federal checks.

After having its question kept off the ballot, Safe Surgery Arkansas, a group that pushed for a referendum to repeal a 2019 law that relaxed regulations on certain eye surgeries, filed suit.

That lawsuit prompted Pulaski County Circuit Court Judge Mary McGowan to rule that parts of a state law requiring paid canvassers to obtain federal and state background checks by state police before gathering signatures were likely unconstitutional.

The Supreme Court agreed, saying the lower court "did not abuse its discretion" when it granted the preliminary injunction.

"This is the exact argument we raised prior to the election, and the exact issue that removed the referendum from the ballot," Nate Steel, an attorney for Safe Surgery Arkansas, said in a statement. "While I wish it had been resolved then, I'm glad the Court has addressed it, and I hope this removes confusion for petitioners going forward."

For those trying to get a question on the ballot, obtaining the required federal background check from the State Police was impossible, given that the agency is able to provide only state background checks.

"The issue here is that they were required to undergo background checks that are not available to them under the statute," Steel said. "I think that canvassers should and will continue to have to undergo background checks, they just have to undergo the ones that are, you know, available to them."

It was that part of the law that McGowan deemed unconstitutional in September, enjoining it from being enforced, with the Supreme Court affirming her decision Thursday.

But David Couch, one of the attorneys who represented two of the initiatives removed from November's ballot -- redistricting and ranked-choice voting -- said Thursday's ruling is far from a win.

"It's kind of not even a victory," said Couch, who also has also been involved with other ballot initiatives, including drafting the 2016 constitutional amendment that Arkansans approved to legalize medical marijuana. "It's like we pointed out a problem that they didn't know exists," he said.

While the regulation requiring canvassers to get federal and state background checks from the State Police was impossible to follow, it was not always enforced, Couch said, meaning the case has likely alerted lawmakers looking to regulate ballot questions to a loophole they were unaware of.

The section of the law that McGowan struck down was added by lawmakers in 2015. However, it wasn't 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.

Couch said that even with Thursday's ruling, Arkansas' laws are too restrictive.

"This process that they put in is expensive, and is cumbersome and is time-consuming," Couch said. "And so it is designed as just one of the many roadblocks that the General Assembly has passed over the last 10 years to make the exercise of the people's right to collect signatures on initiatives and referendums much more difficult."

On Wednesday, state Sen. Greg Leding, D-Fayetteville, filed a bill to amend the state law regulating canvassing to require that the federal background checks be performed by the FBI.

After Thursday's ruling, Arkansas Attorney General Leslie Rutledge said she will work with the General Assembly on a law regulating petitions that can hold up in court.

"The Attorney General is disappointed in today's decision by the Arkansas Supreme Court," Rutledge said in a statement. "She is reviewing to see what the next steps will be while looking forward to working with the legislature to address the issues identified by the court."

Writing the court's opinion, Associate Justice Karen Baker said the justices looked at the case as an "appellate" court that "will not delve into the merits of the case further than is necessary to determine whether the circuit court exceeded its discretion in granting the injunction."

The court looked at two factors when reviewing McGowan's injunction against the law -- whether "irreparable harm" would occur absent the injunction and if there was a "likelihood of success on the merits" for the case.

On both counts, the court said McGowan "did not abuse" her discretion.

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