BONNIE MILLER, INDIVIDUALLY AND ON BEHALF OF ARKANSAS VOTERS FIRST AND OPEN PRIMARIES ARKANSAS, BALLOT QUESTION COMMITTEES v. JOHN THURSTON, IN HIS CAPACITY AS ARKANSAS SECRETARY OF STATE , 2020 Ark. 267 ( 2020 )

Cite as 2020 Ark. 267
SUPREME COURT OF ARKANSAS
No. CV-20-454
Opinion Delivered: August 27, 2020
BONNIE MILLER, INDIVIDUALLY AND
ON BEHALF OF
ARKANSAS VOTERS FIRST AND OPEN
PRIMARIES ARKANSAS, BALLOT AN ORIGINAL ACTION
QUESTION COMMITTEES
PETITIONERS
V.
JOHN THURSTON, IN HIS CAPACITY
AS ARKANSAS SECRETARY OF STATE,
AND THE STATE BOARD OF ELECTION
COMMISSIONERS
RESPONDENTS
ARKANSANS FOR TRANSPARENCY, A
BALLOT QUESTION COMMITTEE, AND
JONELLE FULMER, INDIVIDUALLY
AND ON BEHALF OF ARKANSANS FOR PETITION DENIED IN PART AND
TRANSPARENCY DISMISSED AS MOOT IN PART;
INTERVENORS MOTIONS MOOT.
ROBIN F. WYNNE, Associate Justice
Petitioners Arkansas Voters First (AVF), a ballot question committee; Bonnie
Miller, individually and on behalf of AVF; and Open Primaries Arkansas, a ballot question
committee, filed this original action under article 5, section 1 of the Arkansas
Constitution, Amendment 7 to the Arkansas Constitution, and Arkansas Supreme Court
Rule 6-5. At issue are two initiative petitions proposing constitutional amendments that
petitioners seek to have placed on the November 2020 general election ballot—one
regarding open primaries/rank-choice voting1 and the other regarding redistricting.2 The
second amended consolidated original action complaint contains three counts challenging:
(1) the Secretary of State John Thurston’s determination that the certification language
submitted under Arkansas Code Annotated section 7-9-601(b)(3) was insufficient; (2) the
Secretary of State’s additional grounds for disqualifying signatures for the open
primaries/rank-choice voting petition; (3) the State Board of Election Commissioners’
(SBEC’s) decision not to certify the ballot title and popular name for the open
primaries/rank-choice voting proposed amendment.3 This court bifurcated the
proceedings, referring Counts 1 and 2 to the Honorable John Fogleman, special master,
and setting a separate briefing schedule for Count 3. This opinion addresses Counts 1 and
2. Because we deny Count 1 of the petition, the remainder of the petition is moot, as are
all pending motions. Neither initiative petition can qualify for the November 2020 general
election ballot.
1
The popular name of this proposed amendment is “A Constitutional Amendment
Establishing Top Four Open Primary Elections and Majority Winner General Elections
with Instant Runoffs if Necessary.”
2
The popular name of this proposed amendment is “Citizens’ Commission for an
Independent Redistricting Commission.”
3
On August 17, 2020, petitioners filed a third amended consolidated original action
petition to challenge the Secretary of State’s finding, conveyed by letter dated August 11,
2020, that the redistricting amendment did not contain the requisite number of verified
signatures of registered voters to qualify for a cure period. The third amended petition
incorporated by reference the petitioners’ prior pleadings, and Counts 1, 2, and 3 remain
the same as in the second amended petition. Therefore, there is no need to order
additional briefing.
2
I. Background
Pursuant to article 5, section 1 of the Arkansas Constitution, an initiative petition
proposing a constitutional amendment requires the signatures of 10 percent of legal voters.
In this case, the parties agree that the number of signatures needed for such a petition to
be placed on the ballot is 89,151. Furthermore, for an insufficient petition to be entitled to
a “cure period” to obtain more signatures, a state-wide petition must contain “valid
signatures of legal voters equal to: (A) At least seventy-five percent (75%) of the number of
state-wide signatures of legal voters required; and (B) At least seventy-five percent (75%) of
the required number of signatures of legal voters from each of at least fifteen (15) counties
of the state.” Ark. Const. art. 5, § 1.
On July 6, 2020, sponsor AVF timely submitted to the Secretary of State the two
initiative petitions at issue. The Secretary of State then began the two-step intake process,
which involves (1) completion of an internal checklist of petition requirements and
“culling” invalid signatures (what the parties sometimes refer to as “facial review”) and (2)
verification of signatures if a petition contains the requisite number of facially valid
signatures. See Ark. Code Ann. § 7-9-126. Counts 1 and 2 concern the first step in the
process, which precedes the verification of signatures. On July 14, 2020, the Secretary of
State sent letters to a representative of AVF declaring both petitions insufficient for failure
to comply with Arkansas Code Annotated section 7-9-601(b)(3), which requires the
sponsor, upon submission of its list of paid canvassers, to certify that each paid canvasser in
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its employ has passed a criminal background check. Here, the list of paid canvassers was
accompanied by the following certification:
In compliance with Arkansas Code Annotated § 7-9-601, please find the list of paid
canvassers that will be gathering signatures on the Redistricting Commission
Constitutional Amendment. On behalf of the sponsors, Arkansas Voters First, this
statement and submission of names serves as certification that a statewide Arkansas
State Police background check, as well as, 50-state criminal background check have
been timely acquired in the 30 days before the first day the Paid canvasser begins to
collect signatures as required by Act 1104 of 2017.
The certification for the open primaries/rank-choice voting amendment was identical
except for identifying the amendment as “the Constitutional Amendment Establishing
Top Four Open Primary Elections and Majority Winner General Elections with Instant
Runoff.” The Secretary of State’s letters indicated that because AVF had not certified that
each paid canvasser had “passed” a criminal background check, none of the signatures
solicited by the paid canvassers could be counted for any purpose, citing Arkansas Code
Annotated section 7-9-601(f). Section 7-9-601(f) provides that “signatures incorrectly
obtained or submitted under this section [regarding hiring and training of paid canvassers]
shall not be counted by the Secretary of State for any purpose.”
Petitioners filed suit in this court on July 17, 2020, seeking a preliminary and
permanent injunction requiring the Secretary of State to count the petitions’ signatures
and to provide a “cure period” of at least thirty days. Petitioners sought expedited
consideration based on the August 20, 2020 deadline for the Secretary of State to certify
any proposed constitutional amendments to the County Boards of Election
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Commissioners for the November general election. This court ordered the Secretary of
State to continue with the intake process, granted a provisional cure period and expedited
consideration, and appointed a special master to make findings on factual issues. Miller v.
Thurston, 2020 Ark. 262 (per curiam). Arkansans for Transparency, a ballot question
committee, and Jonelle Fulmer, individually and on behalf of Arkansans for Transparency,
were permitted to intervene. Id.
On July 21, 2020, the Secretary of State issued a revised declaration-of-insufficiency
letter to AVF regarding the open primaries/rank-choice voting petition. The Secretary of
State listed six additional reasons for culling 10,208 signatures from the petition, leaving
only 88,623 of the 89,151 signatures required on the face of the petition. On July 23,
2020, the Secretary of State issued a revised declaration-of-insufficiency letter to AVF
stating that, after intake analysis had been completed, a total of 90,493 signatures were left
on the face of the redistricting petition. Thus, the sole reason for the declaration of
insufficiency on the redistricting petition was the certification language discussed in the
initial insufficiency letter.
The special master held a hearing on July 28–31, 2020, at which he heard
testimony, heard the arguments of counsel, and received evidence. On August 10, 2020,
the special master filed a detailed report and findings of fact. Pertinent to Count 1 of the
complaint, the master stated:
If the Supreme Court concludes that there is only one reasonable
interpretation that can be drawn from the undisputed facts in regard to the
certification, then the question of the adequacy of the certification appears
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to be a question of law for the Court to decide. The facts are not in dispute,
but the meaning of those facts is disputed. In the event the court finds that
the application of the statute to the undisputed language of the certification
is subject to more than one reasonable interpretation and is a question of
fact, I find that the language of the certification does not certify that the
canvasser has “passed” a background check and does not comply with
Arkansas law. Neither petition in question has enough facially valid
signatures to require verification of signatures if the certification given in this
case is inadequate. If the court concludes the certification language complies
with Ark. Code Ann. Section 7-9-601(b)(7) further analysis is required[.]
Regarding Count 2, the special master found that the Secretary of State erroneously culled
586 signatures from the open primaries/rank-choice voting petition, leaving the petition
with sufficient signatures on its face if the background-check certification language is
determined to be adequate.
II. Count 1
For Count 1, petitioners contend that the Secretary of State’s decision to declare
the two initiative petitions insufficient for failure to comply with the requirement of
certifying that the paid canvassers had passed background checks violates Arkansas law.
There is no dispute about the language used in the certification, and the issue presents a
question of law for this court to decide.
The applicable statute provides in pertinent part:
(b)(1) 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.
(2) The criminal record search shall be obtained within thirty (30) days
before the date that the paid canvasser begins collecting signatures.
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(3) Upon submission of the sponsor’s list of paid canvassers to the Secretary
of State, the sponsor shall certify to the Secretary of State that each paid
canvasser in the sponsor’s employ has passed a criminal background check in
accordance with this section.
(4) A willful violation of this section by a sponsor or paid canvasser
constitutes a Class A misdemeanor.
Ark. Code Ann. § 7-9-601 (emphasis added). The first rule in considering the meaning and
effect of a statute is to construe it just as it reads, giving the words their ordinary meaning
and usually accepted meaning in common language.” Berryhill v. Synatzske, 2014 Ark. 169,
at 4, 432 S.W.3d 637, 640.
Petitioners argue that their certification language, when viewed as a whole, certifies
that its canvassers passed criminal background checks. According to petitioners, the
Secretary of State’s conclusion that AVF had not done so was “due to his excessive focus
on the absence of the word ‘passed.’” Petitioners would have this court instead focus on
the words “[i]n compliance with Arkansas Code § 7-9-601” at the beginning of the
certification and “as required by Act 1104 of 2017” at its conclusion. But these references
to the applicable statute and its 2017 amendatory act do not constitute compliance with
the statute. Under Arkansas Code Annotated section 7-9-601, a sponsor is required both to
obtain a criminal record search on each paid canvasser and to certify to the Secretary of
State that each paid canvasser passed the criminal background check. See Ark. Code Ann. §
7-9-601(b)(1), (b)(3). Simply acquiring or obtaining a background check is not sufficient
under the plain language of the statute. The results of the background checks are not
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required to be filed with the Secretary of State, and the certification is the only assurance
the public receives that the paid canvassers “passed” background checks.4
Next, petitioners argue that Arkansas law does not require sponsors to use magic
words, especially when strict compliance with the statute is impossible. Their argument
that strict compliance is impossible is a red herring, however, because the impossibility of
obtaining federal background checks from the Arkansas State Police, as contemplated by
the statute, is not at issue. Petitioners did not certify that their paid canvassers had passed
any background check—state or federal. Nor are “magic words” the issue. Petitioners could
have conveyed in their certification that each paid canvasser had passed a background
check without using the word “passed.” The issue is whether petitioners have complied
with the statutory requirements. Benca v. Martin, 2016 Ark. 359, 500 S.W.3d 742, is
instructive. In Benca, this court addressed challenges to the sufficiency of signatures
counted by the respondent Secretary of State in a statewide initiative ballot petition. In
interpreting several requirements for canvassers, this court applied the plain language of
the statutes and disqualified signatures collected by canvassers when statutory requirements
4
Before obtaining a signature on an initiative or referendum petition as a paid
canvasser, the prospective canvasser is required to submit to the sponsor, among other
things, “[a] signed statement taken under oath or solemn affirmation stating that the
person has not pleaded guilty or nolo contendere to or been found guilty of a criminal
felony offense or a violation of the election laws, fraud, forgery, or identification theft in
any state of the United States, the District of Columbia, Puerto Rico, Guam, or any other
United States protectorate.” Ark. Code Ann. § 7-9-601(d)(3). Thus, the standard for having
“passed” a criminal background check appears to be having no criminal conviction for a
felony offense or a violation of the election laws, fraud, forgery, or identification theft as
stated in section 7-9-601(d)(3).
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had not been met. For example, over 7500 signatures were excluded because they were
gathered by canvassers where no state police background check was ever obtained or where
the background check was completed after the sponsor had certified that the background
check had already been performed. Benca, 2016 Ark. 359, at 8–9, 500 S.W.3d 742, 748.
We concluded by stating, “Today, we have simply interpreted the laws enacted by our
General Assembly—‘shall’ means ‘shall’ and the Sponsor did not comply with the statutes.”
Id. at 16, 500 S.W.3d at 752. Similarly, in Zook v. Martin, 2018 Ark. 306, 558 S.W.3d 385,
this court excluded several sets of signatures for failure to comply with the statutory
requirements regarding paid canvassers. Here, we cannot ignore the mandatory statutory
language requiring certification that the paid canvassers passed criminal background
checks, nor can we disregard section 7-9-601(f)’s prohibition on the Secretary of State
counting incorrectly obtained signatures “for any purpose.”
In sum, we hold that petitioners did not comply with Arkansas Code Annotated
section 7-9-601(b)(3) when they failed to certify that their paid canvassers had passed
criminal background checks. Accordingly, the initiative petitions at issue are insufficient
and petitioners are not entitled to a cure period or any other relief.
III. Conclusion
Because we deny Count 1 of the petition, petitioners cannot move forward with
their remaining challenges to the initiative process, and any ruling on petitioners’
remaining claims would be strictly advisory. Generally, this court does not issue opinions
that are moot or advisory. Ross v. Martin, 2016 Ark. 362, at 4. Therefore, Count 2 of the
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third amended consolidated original action petition is dismissed as moot. Additionally, all
pending motions are moot.
Petition denied in part and dismissed as moot in part; motions moot.
Mandate to issue immediately.
HART, J., dissents.
JOSEPHINE LINKER HART, Justice, dissenting. Today, the majority has
disenfranchised more than 90,000 citizens. By signing the petition, these registered voters
clearly manifested their desire to have these issues placed on the ballot. While I am not
unmindful that the sponsor of an initiative is keenly interested in a proposed
constitutional amendment, it is ultimately up to the qualified electors in this state to
decide whether that measure is voted on. Ark. Const. art. 5, § 1. The legislative article of
our constitution calls initiative “the first power reserved by the people.” Id. Our
constitution expressly prohibits laws that impinge on the right of the people to access and
sign initiative petitions. It could not be more clearly stated:
Unwarranted Restrictions Prohibited. No law shall be passed to
prohibit any person or persons from giving or receiving compensation for
circulating petitions, not to prohibit the circulation of petitions, nor in any
manner interfering with the freedom of the people in procuring petitions;
but laws shall be enacted prohibiting and penalizing perjury, forgery, and all
other felonies or other fraudulent practices, in the securing of signatures or
filing of petitions.
Given the express language in our constitution, to the extent that Arkansas Code
Annotated section 7-9-601(b) acts to prohibit “any person” from being a paid canvasser or
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interferes with the “freedom of the people in procuring petitions,” it is obviously
unconstitutional.
I do not mention the plain language of article 5, section 1, because we have a
challenge to the constitutionality of section 7-9-601. I mention this only because in
construing section 7-9-601, this court must be guided by the mandate to construe the
section to be constitutional, if possible. 3 Rivers Logistics, Inc. v. Brown-Wright Post No. 158 of
Am. Legion, Dep’t of Ark., Inc., 2018 Ark. 91, 548 S.W.3d 137. The majority has failed to
follow this mandate.
In the first place, the concept of “passing” a background check is not firmly rooted
in fact. A State Police background check merely shares the content of one or more
databases. The State Police do not “pass” or “fail” the subject of a background check.
Accordingly, certifying that a paid canvasser has “passed” a background check leaves the
sponsor with the Hobson’s choice of not quite truthfully claiming that a canvasser “passed”
a background check, which exposes him or her to potential criminal penalties under
section 7-9-601(b)(4), or the more similarly unpalatable prospect of having all the petition
parts rejected. Secondly, appearing on a database as having a criminal conviction is not
conclusive of the question of whether a paid canvasser committed or did not commit a
criminal offense. See, e.g., Trammell v. Wright, 2016 Ark. 147, 489 S.W.3d 636. As with any
electronic database, the time-honored maxim “garbage in/garbage out” applies. Thirdly,
not all criminal convictions are positively correlated with a proclivity to commit perjury,
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forgery, or fraud. The Arkansas Rules of Evidence acknowledge this fundamental fact. See
Ark. R. Evid. 609.
Contrary to the majority’s assertion, there is no evidence that the disputed
certification resulted in a single signature “incorrectly obtained or submitted.” Under the
Arkansas Constitution, “incorrectly obtained” can only mean as a result of “perjury,
forgery, or fraud.” Likewise, there is no evidence that the certification language directly
affected the validity of even a single petition part. The validity of each petition part, which
was evaluated by the Special Master, depends on entirely separate criteria. Accordingly, in
my view, the Secretary of State improperly excluded petitions circulated by paid canvassers
with the disputed certification language. I would order those signatures to be counted.
I dissent.
Steel, Wright, Gray, PLLC, by: Ryan Owsley, Nate Steel, Alex Gray, and Alec Gaines;
and Adam H. Butler and Robert F. Thompson, for petitioners.
Gary L. Sullivan, Managing Attorney, for respondent John Thurston, in his official
capacity as Secretary of State.
Leslie Rutledge, Att’y Gen., by: Nicholas J. Bronni, Ark. Solicitor Gen.; Vincent M.
Wagner, Deputy Solicitor Gen.; and Dylan L. Jacobs, Ass’t Solicitor Gen., for respondent
Arkansas State Board of Election Commissioners.
Friday, Eldredge & Clark, LLP, by: Elizabeth Robben Murray, Kevin A. Crass, and Kathy
McCarroll, for intervenors.
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