Whiplash: Why the Arkansas Abortion Amendment still might be in play

For Arkansans following the efforts to put abortion rights on the ballot in November, it has been a whirlwind week. Last Friday, petitioners celebrated an inspiring achievement: More than 101,000 signatures were collected and turned in to the state by the July 5 deadline, a triumph of direct democracy and grassroots activism. Arkansans for Limited Government, the group pushing the measure, did it without national organizational support, on a shoestring budget. Just Arkansas women with clipboards, hustling.

Then, on Wednesday, came an apparently devastating setback: Arkansas Secretary of State John Thurston rejected the petition before the count and verification had even begun, arguing that they had failed to turn in paperwork that fulfilled two key requirements. “Today the far left pro-abortion crowd in Arkansas showed they are both immoral and incompetent,” crowed Gov. Sarah Huckabee Sanders. “The sponsors failed to follow the law, specifically a simple and straightforward affidavit requirement that other ballot committees followed,” Attorney General Tim Griffin added. “Failure to follow such a basic requirement is inexcusable: The abortion advocates have no one to blame but themselves.”

It was a gut punch for the organizers and their supporters — would all that effort be lost to a technicality on an unforced error?

But on Thursday, the plot thickened again: Thurston’s office admitted to the Arkansas Times that it had been mistaken in earlier stating that Arkansans for Limited Government had submitted just two documents on July 5 along with signatures. Once the full slate of documents was released — around the same time that the abortion petitioners issued a detailed response to Thurston — the reasons for nixing the signatures started to look more rinky-dink, with more avenues for challenge. Moreover, it now appears that Thurston’s decision to stop the count altogether could violate state law.

Lauren Cowles, executive director of Arkansans for Limited Government, sent Thurston a sharply worded letter Thursday saying he had “unlawfully rejected” the petition. “You must continue counting,” she told him.

Secretary of State John Thurston

That doesn’t mean that abortion petitioners are out of the woods. Their fate will ultimately be in the hands of state officials and judges, many of whom are politically hostile to their cause. If Thurston’s office does resume counting, they could still see significant numbers of signatures rejected. And even if they survive this hurdle, significant challenges will remain.

But the funeral atmosphere of Wednesday now appears premature. The fight has only just begun.

Abortion rights is an basic issue to understand, and few questions draw more passionate feelings from citizens. But its future in Arkansas will now be settled by the tedious minutia of statutory interpretation and election procedure. Here’s your guide to how it all works, how we got here and what might come next.

What is the process for collecting and turning in petitions?

To place a proposed constitutional amendment before Arkansas voters in November, organizers had to collect 90,704 signatures from registered voters by July 5. (That threshold is equal to 10% of the number of voters in the last gubernatorial election.) Of those 90,704 signatures, a certain number must come from voters in 50 of the state’s 75 counties.

There’s also red tape. And in recent years, legislators have added various recent technical compliance requirements that can trip up even professional operations. A paperwork mistake can lead to signatures being tossed out and wind up keeping even a measure with wide popular support off the ballot.

What are the potential errors or omissions in what Arkansans for Limited Government submitted on July 5?

In addition to petition sheets bearing 101,525 signatures — all figures are the group’s current estimates, which they say are conservative — organizers with Arkansans for Limited Government insist they submitted all necessary supplementary materials to the secretary of state’s office on the July 5 deadline. 

The abortion amendment campaign was powered largely by volunteers, but it also hired paid workers to collect some signatures. Of the total collected, they say 87,382 signatures were from volunteers and 14,143 were from paid canvassers. State law has special requirements for paid canvassers, including that they must obtain background checks and participate in certain training before going out into the field.

At issue, according to Thurston’s letter, are two items regarding paid canvassers, required under a state law, §7-9-111(f)(2):

The first (part “A” above) is “a statement identifying the paid canvassers by name.” Thurston’s rejection letter said that no such statement was provided.

Until slow Thursday afternoon, the secretary of state’s office implied there was no list of paid canvassers at all. The office’s spokesman, Chris Powell, repeatedly stated that just two documents were the only materials submitted by Arkansans for Limited Government on July 5. But no list. “Nothing additional was submitted,” he said.

Eventually, however, Powell said he had been mistaken. There was a list after all!

Does the list comply with the requirements of §7-9-111? In general, it appears to. 

The most generous case for Thurston rejecting the list is that it doesn’t say something like this: “The sponsor used paid canvassers and this is a list of their names and addresses.” The other canvassing groups that submitted petitions on July 5 did include such a sentence. 

The submission from Arkansans for Limited Government, on the other hand, simply had this heading, followed by all the required information: 

Most speakers of the English language would conclude that this amounts to “a statement identifying the paid canvassers by name.” Part A of the statute above offers no further demands or explanation of what this “statement” must be.

And it is notable that the very next clause (part “B,” above) under the same subsection, does require “a statement signed by the sponsor indicating…” That sounds like an official attestation; a statement just sounds like a statement. But as with all of these issues, that would ultimately be up to the courts to decide.

Is a disagreement about what constitutes a “statement” driving Thurston’s assertion that backers of the Arkansas Abortion Amendment did not meet requirements? We don’t know. Asked to articulate the precise reasons his office found the abortion group’s list of paid canvassers faulty, Powell referred back to Thurston’s Wednesday letter, which remains unclear.

The second problem raised by Thurston in his letter alleges that the abortion petitioners failed to provide a statement signed by the sponsor that they had provided copies of the secretary of state’s handbooks and training on Arkansas law (part B above).

This one will come down to a question of timing. There is no dispute that Arkansans for Limited Government provided the handbook and explained the process under the law to canvassers. (They also obtained background checks and met other key requirements.) And the group did in fact make a signed attestation that they had complied with those mandates, as required. Moreover, they did so 17 times over the course of their campaign, each time they submitted an updated list of paid canvassers until just before the end.

Credit: Brian Chilson

The last signed statement, which appears to comply with the relevant law, was turned in June 27, eight days before the deadline, covering 191 paid canvassers. This continued the group’s practice of strict compliance with part B of the above statute, with the signed sponsor statement attached every time. 

Unfortunately, after June 27, that stopped. According to Arkansans for Limited Government, the group was explicitly told by the secretary of state’s office that they no longer had to attach the sponsor statement each time they submitted signatures. So, on the following two submissions — June 29 and July 4 — they omitted the statement. Their final submission on July 5 was a photocopy of the July 4 submission, the group’s final list, without the statement. All of the other petition groups that needed to submit this sponsor statement did so on July 5.

While Arkansans for Limited Government maintains that all of their signatures from paid canvassers remain valid, the lack of the sponsor statement would appear to violate part B on its face. If so, the question for the secretary of state’s office — or the courts — would be whether the violation means that all of the signatures from paid canvassers are invalid or only those collected by the 75 canvassers hired after June 27. The fact that canvassers were hired after the last sponsor statement required by part B is almost certainly the most vulnerable legal issue for the abortion petitioners. We’ll see. But even if they lost all of the signatures from paid canvassers, they have a very sturdy argument that they would still have a potential path to replace them by collecting more (see more below).

A weaker case against the group regarding part B is the notion, floated by some, that it must have filed the necessary information on July 5 specifically, as opposed to earlier. “They are required to submit the information at the time of filing,” secretary of state’s office spokeswoman Jamie Land told the Democrat-Gazette yesterday. “I mean, every other petition group submitted their file at the time of filing.” 

This comment perhaps suggests a preference at the secretary of state’s office, but has no clear basis in state law. There is no language in the statute cited by Thurston that demands that the group turn in the statement “at the time of filing.” 

How did the secretary of state’s office fumble communication about what the abortion petitioners submitted? 

On the afternoon of Friday, July 5, Powell sent journalists the documents Arkansans for Limited Government filed along with their petition. He shared similar information with journalists about the filings of other groups pursuing other ballot measures. 

Powell provided only two documents (totaling three pages) filed by the abortion petitioners. On Thursday morning, after Thurston’s letter left many wondering whether the abortion petitioners had altogether failed to turn in the paid canvasser list, the Arkansas Times submitted a request under the Freedom of Information Act for all documents filed by the group, excluding the signature sheets themselves. Powell promptly responded 15 minutes later, again sending only the two documents he’d circulated last Friday afternoon. 

By this point, multiple people familiar with the Arkansas Abortion Amendment campaign were sounding the alarm: In fact, they said, the group had turned in the full slate of required forms, not just two documents. The Times sent a second followup, asking if the group had submitted anything else. They had not, Powell replied.

The Times then sent a third request, this time specifically asking for copies of all signature cards and lists of paid canvassers that the group had submitted. About 40 minutes later, Powell sent a followup email: 

I misspoke earlier. Apparently, there was some additional information filed on Friday besides what I sent and the signatures. I’m awaiting that information and will clarify further once I get it.

Finally, at 4 p.m., Powell provided more than 870 additional pages, including the list of paid canvassers and affidavits signed by canvassers, among other documents. Though the Times sent follow-up queries, that was the last we heard from the secretary of state’s office Thursday.

The handbook has multiple errors, and the statutes are the final guide. There are times when its specific process requirements may have questionable statutory justification. But for supporters of abortion rights, it’s frustrating that Arkansans for Limited Government didn’t follow the handbook’s advice more closely.

The abortion petitioners have claimed that staffers at the secretary of state’s office misled them with faulty information, ultimately leading to this entire mess. It’s a confusing process and it’s understandable that petitioners would lean on the express advice of state officials. Still, even if what the handbook says isn’t actually required, it stands to reason that petitioners would aim to follow it to the letter in an abundance of caution.

What’s next?

After the strangeness of the past 48 hours, it’s anyone’s guess. 

In its letter to Thurston, Arkansans for Limited Government demanded that he resume the count. “Please confirm as soon as possible, and no later than Monday, July 15, that the submission of the initiative petition facially contains the required number of signatures and that your office is proceeding to verify all of the submitted signatures, including those contained on petition parts from paid canvassers,” the group said. If he doesn’t respond by Monday, it seems likely abortion advocates will turn to the courts.