Arkansas Supreme Court rules 4-3 that abortion amendment will not be on ballot this fall

The Arkansas Supreme Court ruled 4-3 Thursday (Aug. 22) to reject a challenge to the validity of signatures that could have qualified an abortion amendment to be on the November general election ballot.

The court’s ruling upholds Secretary of State John Thurston’s decision in July to not count a subset of signatures related to the abortion amendment’s petition.

Justices Cody Hiland, Barbara Webb, Shawn Womack and Rhonda Wood supported the ruling, while Justices John Dan Kemp, Karen Baker and Courtney Hudson dissented.

The abortion amendment, supported by Arkansans for Limited Government (AFLG), proposed to legalize abortion in Arkansas up to 18 weeks in the pregnancy and at any time in cases of rape, incest, a fatal fetal anomaly, or when the doctor determines the abortion is needed “to protect a pregnant female’s life or to protect a pregnant female from a physical disorder, physical illness, or physical injury.” The measure was proposed in response to the U.S. Supreme Court’s Dobbs decision, which allowed states to set abortion policy. Present Arkansas law restricts all abortions.

AFLG submitted 101,525 signatures, above the 90,704 threshold, but Thurston determined that AFLG did not comply with a state statute to submit an affidavit related to some of its paid canvassers. AFLG claimed they did submit the paperwork as instructed by the Secretary of State’s office and, if there was an omission, they were allowed by law to correct that paperwork error. The dispute, which is at the center of the legal wranglings at the Supreme Court, knocked AFLG’s signature count below 88,000 and Thurston determined the group did not qualify for a cure period to collect more signatures.

MAJORITY OPINION
Justice Wood, who is running for Arkansas Supreme Court Chief Justice, authored the majority opinion. Notes from her opinion included:

“This court is being asked to order another constitutional officer, the Arkansas Secretary of State, to ignore a mandatory statutory provision that he has enforced. That is not the proper role of the court. As explained below, we find that the petitioners failed to comply with the statutory filing requirements for paid canvassers. That statute was inapplicable to volunteer canvassers. As such, we ordered the Secretary to count the signatures from volunteer canvassers, but we do not order him to count the signatures from paid canvassers. Because the number of the initial count of signatures fails to meet the facial validity threshold required by law, we deny further relief…

“The dispute primarily revolves around an Arkansas statute that sets requirements for how the petition is filed for the Secretary to determine sufficiency. When we interpret a statute, we give its words their ordinary meaning so that no word is left void, superfluous, or insignificant…

“Collectively, a person filing an initiative petition (1) shall bundle the petitions by county; (2) shall file an affidavit stating the number of petitions and total number of signatures; and, (3) if submitting signatures obtained by paid canvassers, shall submit a statement identifying the paid canvassers by name and a statement signed by the sponsor confirming the sponsor met the other requirements. Id. This last requirement is at the core of this dispute. We refer to the statement as the “paid canvasser training certification.” AFLG, the Secretary, and the Intervenors, argue in part about whether an agent of a sponsor can sign the paid canvasser training certification. Given the undisputed facts, we do not need to decide that issue today.

“AFLG filed two affidavits with this court… Both state that AFLG filed partial certifications during the process but admit that the paid canvasser training certification was not submitted with the petition on July 5, 2024. Both also admit the last two additional lists of paid canvassers, filed on June 29 and July 4, included no partial certifications. Even giving it the benefit of the doubt, AFLG admits that at least seventy-four of the paid canvassers failed to ever have such certification filed. 4 AFLG argues that it failed to file the further certifications after June 27 and failed to file the actual required certification with the petition because an employee at the Secretary’s office communicated they were unnecessary. But we have explained that even in election matters, the burden of determining what the law requires falls on the filer—not office staff.

“The court has ruled on this as a matter of law. Thus, as the facts are undisputed, we hold that AFLG, by its own admission, failed to submit the required paid canvasser training certification in compliance with Arkansas Code Annotated section 7-9-111(f)(2)(B). For today, who signed the earlier statements is irrelevant.

“This presents the court with two more questions to answer. First, could the Secretary reject the entire petition—including signatures obtained by volunteer canvassers—because AFLG failed to file a complete paid canvasser training certification? We find the answer is no.

“The next question is can the Secretary refuse to count the signatures obtained by paid canvassers due to AFLG’s failure to file a complete paid canvasser training certification? The answer is yes.”

MINORITY DISSENT
Chief Justice Kemp, who is not seeking re-election, wrote a dissenting opinion. He said:

“… [t]he Secretary [of State] has not fulfilled this statutory obligation. Therefore, I would order the Secretary to complete a statutorily mandated initial count of signatures, including those signatures obtained by the paid canvassers; continue with the intake process; grant a provisional cure period; and submit his findings of a full section 7-9-126 review to this court. See id. at 4–5, 605 S.W.3d at 257. In light of the August 22 certification deadline, I would also order a conditional certification of the proposed amendment.

“Because this case is not purely “a matter of law” that entails interpreting the language of section 7-9-111(f)(2), but rather is a mixed question of law and fact, this court should appoint a special master.”

Justice Baker, also running for Supreme Court Chief Justice, authored a second dissenting opinion, which was joined by Justice Hudson. Baker wrote:

““Regnat Populus — The People Rule — is the motto of Arkansas. It should ever remain inviolate.” Our constitution embodies this foundational principle, as its text makes all too clear that “[t]he first power reserved by the people is the initiative.” …Today’s decision strips every Arkansan of this power. It is much more than an anomaly.

“Regarding the paid canvasser training certification, the majority concludes that the petitioners failed to provide the respondent with “one single statement at one specific point in time” that covers “‘each paid canvasser,’ not some of the paid canvassers.” I disagree. In my view, the majority has reconfigured the relevant statute in order to cater the initiative process to the preference of the respondent while this process is the first power reserved for the people. In fact, despite the majority’s acknowledgment that “[t]his court cannot rewrite the statute[,]” the majority has done just that multiple times to achieve a particular result.

“The fact that the petitioners did not file a certification contemporaneously with the petition is of no moment. To be clear, nothing in the statute requires that the certification and the petition be filed simultaneously. On the contrary, this requirement was made up out of whole cloth by the respondent and inexplicably ratified by the majority of this court. However, the rules of statutory construction do not permit us to read into a statute words that are not there.

“The initiative is the first power reserved for the people by the Arkansas Constitution. Why are the respondent and the majority determined to keep this particular vote from the people? The majority has succeeded in its efforts to change the law in order to deprive the voters of the opportunity to vote on this issue, which is not the proper role of this court.”

You can read the full Supreme Court decision here.