Ballot measures at issue in report

Validity of background checks in hands of high court

LITTLE ROCK — A special master appointed by the state Supreme Court reported Monday depending on how the justices rule on the definition of criminal background check certifications, then the sponsors of two ballot proposals failed — or succeeded — in submitting enough signatures for the next step.

The next step would be to have the secretary of state determine how many valid signatures of registered voters they have and, if they are short, whether they qualify for 30 more days to gather more signatures.

That depends on the high court’s interpretation of Arkansas Code Annotated 7-9601(b)(3), special master John N. Fogleman said in his 35-page report to the justices.

That law states that “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,” Fogleman said in his report. The question is whether the canvassers were properly certified.

Canvassers, working on behalf of sponsors of initiated proposals, circulate petitions in an attempt to gather the number of voter signatures needed to place the proposals on the ballot.

The Arkansas Voters First committee is sponsoring a proposal to overhaul legislative and congressional redistricting. The Open Primaries Arkansas committee is sponsoring a proposal to require ranked-choice voting for most state offices.

The high court will review Fogleman’s report and make a decision.

Spokeswomen for the committees promoting the two proposed constitutional amendments urged the Supreme Court to place the proposals on the general election ballot, while a spokeswoman for the committee opposing both amendments urged the high court to conclude they failed to qualify for the ballot.

CASE BACKGROUND

On July 14, Republican Secretary of State John Thurston sent two letters to attorney David Couch, who represents both committees, stating that some petitions were invalidated by an error regarding criminal background checks of canvassers, causing both proposed constitutional amendments to lack sufficient signatures to place them on the general election ballot.

On July 17, the Arkansas Voters First committee and the Open Primaries Arkansas committee appealed Thurston’s rulings to the Supreme Court.

A week later, the Supreme Court appointed Fogleman as special master and directed Thurston to continue a facial review of the redistricting petition and to begin verifying signatures on the redistricting and elections petitions.

The high court also granted both committees a provisional 30-day cure period to collect more signatures.

In his July 14 letters to Couch, Thurston said the list of paid canvassers was accompanied by the following certification: “On behalf of the sponsors, 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.”

Thurston wrote to Couch that acquiring a criminal background check is not the same as passing one.

“Because Arkansas Voters First did not comply with Ark. Code Ann. 7-9-601(b)(3), none of the signatures solicited by the paid canvassers may be counted for any purpose,” he said. “Thus, the petition is insufficient to qualify for the November 3, 2020 general election ballot.”

Thurston wrote that his office was barred under state law from counting the submitted signatures.

On July 21, Thurston sent another letter to a representative of the Arkansas Voters First committee declaring that the Open Primaries Arkansas petition also is insufficient because an initial intake analysis showed that 10,208 signatures had been culled, leaving a total of 88,623 signatures, according to Fogleman’s report.

On July 23, Thurston sent another letter to a representative of the Arkansas Voters First committee about the redistricting petition, declaring that an initial intake analysis showed a total of 4,579 signatures had been culled, leaving a total of 90,493 signatures on the face of the petition, according to Fogleman’s report.

To get on the ballot, the proposals need 89,151 signatures each. That’s the number of signatures required on the face of either petition to require further analysis by Thurston’s office.

SPECIAL MASTER’S REPORT

In his report Monday, Fogleman said: “In summary, I find in the event the court finds the application of Ark. Code Ann. Section 7-6-601 (b) (3) 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.

“I further find that if the certification is inadequate, as I have found, neither petition has enough facially valid signatures to require the Secretary of State to move to the second phase of his review in verifying signatures to determine if the petitions qualify for a ‘cure,’” he wrote in his report.

“In the event, the Court determines that the ‘certification’ language complies with Ark. Code Annotated 7-9-601 (b) (3), then I also find that the Secretary of State erroneously culled 586 signatures on the Open Primaries Petition,” Fogleman said.

“As a result, I find both petitions (if the Court finds the ‘certification’ language complies with Ark. Code Ann. Section 7-9-601 (b) (3)) have a sufficient number of facially valid signatures for the Secretary to verify those signatures to determine if either petition is entitled to a cure period.”

REACTIONS TO REPORT

Spokeswomen both for and against the two ballot proposals had different views of Monday’s report.

“Today’s report is another step toward giving the people of Arkansas the chance to vote on this important issue,” Stephanie Matthews, campaign manager of Open Primaries Arkansas, said Monday in a news release.

“We respectfully call on the Supreme Court to adopt the Special Master’s report and place the measure before voters on Nov. 3. The people of Arkansas are watching. They want to decide on this important issue,” she said.

On July 22, the state Board of Election Commissioners voted 5-1 not to certify the ballot title and popular name for Open Primaries Arkansas’ proposed amendment.

The Open Primaries Arkansas committee has asked the Supreme Court to find that the state board erred in refusing to certify the ballot title and popular name, and to declare that Act 376 of 2019 is unconstitutional. The law changed the procedures for submitting petitions for constitutional amendments.

Bonnie Miller, chairwoman of the Arkansas Voters First committee, said Monday in a news release, “The Special Master’s report points out the conundrum faced by petitioners who seek to follow state law.

“We urge the Supreme Court to recognize this reality, accept the petitions we have submitted from more than 150,000 Arkansans, and put the measure on the ballot,” she said.

Jonelle Fulmer, co-chairwoman of the Arkansans for Transparency group that opposes both proposals, said, “We are pleased with today’s findings and agree with the Special Master who determined that the language used to certify that canvassers had ‘passed’ a criminal background check did not — as a matter of fact — meet the statutory requirement to say ‘passed.’

“Simply put, neither one of these petitions were properly filed, based on the facts of the case,” Fulmer said in a written statement.

“While the Supreme Court will have the final say, we believe this was yet another important step in our attempt to thwart the manipulation of our system of democracy by out-of-state interests,” said Fulmer, who is the state Republican National Committeewoman. “Arkansans deserve complete transparency at the ballot box, and we are committed to using every available resource under the law to challenge these unwanted ‘experiments’ on the Arkansas electorate.”

PROPOSED AMENDMENTS

Arkansas Voters First’s proposed redistricting amendment would shift the authority for redrawing the boundaries of legislative districts from the state Board of Apportionment — comprising the governor, attorney general and secretary of state — to a nine-member independent commission comprising three Democrats, three Republicans and three independents.

The proposal also would shift authority for redrawing the boundaries of the congressional districts from the Legislature to the nine-member commission. The boundaries of legislative and congressional districts are redrawn once a decade, after the U.S. census.

Under the Open Primaries Arkansas committee’s rankedchoice proposal, candidates for Congress, the General Assembly and constitutional offices would run in an open primary against other candidates for those offices, regardless of party.

In each race, the four candidates with the most votes in the open primary would then advance to the general election.

In the general election, voters would then rank their preferred candidates one through four. If no candidate won an outright majority in that election, then the candidate with the fewest voters would be eliminated, and those voters’ second and third choices would be added to the remaining candidates’ tallies until someone obtained the majority threshold.