Legislative redistricting group files federal suit for ballot access

A group seeking to pass a state constitutional amendment creating a legislative redistricting commission filed suit in federal court Wednesday (Sept. 2) to gain a place on the ballot.

The League of Women Voters filed the lawsuit in the Western District of Arkansas after the Arkansas Supreme Court blocked the measure Aug. 27.

The Supreme Court based its ruling on the fact that the sponsoring organization, Arkansas Voters First, had certified that signature gatherers had “timely acquired” legally required criminal background checks rather than “passed” them, as is required under a statute. However, sponsors say it’s impossible to actually “pass” a background check.

“Given the technicality the court used to remove our amendment from the ballot, we owe it to the 150,000 registered Arkansas voters who signed our petitions to exhaust every legal avenue,” said Bonnie Miller, Arkansas Voters First chairperson, in a press release. “The voters who signed our petition deserve the right to vote on an independent redistricting commission. We will continue to fight for them until they are allowed to vote for fair maps in our state.”

The ballot initiative campaign is associated with People Powered Fair Maps, a nationwide campaign by the League. The Campaign Legal Center is representing the League and Arkansas Voters First.

The proposal would create a nine-member citizens commission that would determine districts for the U.S. House of Representatives and the state Legislature. The commission would include three Republicans, three Democrats and three Arkansans who are not members of either of those two parties.

Congressional district lines are determined by the state Legislature, while state legislative lines are determined by the Board of Apportionment composed of the governor, attorney general and secretary of state.

In the decision written by Associate Justice Robin Wynne, the Supreme Court agreed 6-1 with Secretary of State John Thurston, who had declined to count the signatures because of the language. Groups attempting to place a constitutional amendment on the ballot were required this election cycle to collect 89,151 valid signatures.

“Simply acquiring or obtaining a background check is not sufficient under the plain language of the statute,” Wynne wrote. “The results of the background checks are not 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.”

In an interview, David Couch, an attorney working with the initiative, said Arkansas Voters First filed an affidavit saying the canvassers did not have disqualifying offenses under penalty of perjury.

“You’re disenfranchising all these people over this word when nobody disputes that they all did not have a disqualifying offense,” he said.

The original ruling came after retired Circuit Judge John Fogleman, a special master appointed by the court, had said in a report Aug. 10 that sponsors cannot meet the requirement of “passing” a federal background check because State Police cannot perform one. He said the Supreme Court would have to rule whether the certification complied with the law.

George Shelton, a spokesperson for Arkansas Voters First, said in an interview that there is no such thing as “passing” a criminal background check. It would have been a felony for Miller to sign the affidavit saying otherwise – a point made by Supreme Court Justice Jo Hart in her lone dissent in the court case.

Arkansas Voters First on Aug. 28 filed a petition for rehearing with the Supreme Court to withdraw the mandate and rehear the case.

Secretary of State spokesperson Chris Powell said his office would not comment on pending litigation.

The Arkansas Supreme Court also blocked a sister proposal, Open Primaries Arkansas, for the same reason. If that measure were to pass, the top four candidates in primary elections would advance to the general election regardless of party affiliation, with space for a write-in candidate provided, and then voters would rank their preferences. If no candidate wins a majority, the last-place candidate would be eliminated and his or her next choice would be awarded the votes. The process – known has ranked choice voting – would continue until a candidate wins a majority.

Shelton said a favorable ruling in the Arkansas Voters First case would have the same effect for Open Primaries Arkansas.

The two efforts are closely associated and used the same signature collectors funded by the same group. Arkansas Voters First collected $3.3 million, most of it from the Houston-based Action Now Initiative, which was founded by billionaires John and Laura Arnold. Action Now had donated $100,000 to Open Primaries Arkansas, according to campaign filings with the Arkansas Ethics Commission.

Another ballot initiative, Safe Surgery Arkansas, which is backed by ophthalmologists and seeks to prevent optometrists from performing minor eye surgeries, faces the same issue with the certification wording, but the Arkansas Supreme Court has not ruled on that case.