On August 21, 2020 the Secretary of State certified Issue 4 and Issue 5 for the November ballot. Issue 4 would have changed how legislative district lines are drawn following the census. Issue 5 would have changed Arkansas primary elections by placing all state and federal positions on the same ballot, regardless of party, with the top four advancing to the general election. Ballot certification sounds like it would be the last step before voters decide an issue, but it’s really just the first hurdle to overcome. Experienced campaign teams expect to defend their initiative against legal challenges right up until Election Day. But this is 2020 and nothing is going as planned.
Less than a week after ballot certification, on August 27th, the Arkansas Supreme Court handed down a decision that threw out signatures from over 150,000 voters and upended Arkansas’ hundred year old system of direct democracy, leaving more questions than answers. The whole melodrama came down to one single word on the petitions. Here’s the statement that caused so many issues:
“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.”
Did you catch the magic word that changed everything? Don’t feel too bad if you missed it. Some of the most talented constitutional lawyers in our state didn’t catch it either. The one word that undid the will of 150,000 voters is “acquired” and according to Arkansas’ highest court “acquired” doesn’t cut the mustard.
To understand how this happened we have to go back to the contentious 2012 election cycle. Several initiative groups used paid canvassers to gather signatures that year, a departure from past efforts that relied heavily on volunteers. State lawmakers responded by overhauling the petition process in 2013, adding several new restrictions on ballot access for citizen led initiatives. In 2015 another round of restrictions was added to include a section stating that all paid canvassers must pass “from the Department of Arkansas State Police, a current state and federal criminal record search on every paid canvasser.”
This is where it starts getting wonky. The Arkansas State Police cannot provide a federal criminal record search and there is no standard for passing or failing a background check, meaning this requirement is technically impossible to meet. Logically that would mean that no other initiatives have been able to use paid canvassers since 2015. Like many of the policies that come out of Little Rock, logic isn’t the leading principle. In this case the law was crafted to be strong on requirements and weak on follow through.
There isn’t actually a point in the process that the initiative sponsor is required to provide the background checks for an official review. In 2016 and 2018, initiative sponsors certified that their paid canvassers passed a state and federal background check. That met the legal requirement for the Secretary of State to count signatures, even though it was impossible to truly follow the letter of the law in how they were obtained.. In 2020 the initiative sponsors followed the same process for background checks as they have in the past. None of the canvassers had a criminal record that would prevent them from gathering signatures. The only thing missing was that one pesky word. Passed… That brings us back to 2020, where all bets are off.
The Arkansas Constitution states that “the first power reserved by the people is the initiative.” Yet this election will be one of only a handful in Arkansas history that does not include a single policy brought by the People. Instead we are left with three constitutional amendments written by lobbyists and referred to the ballot by politicians. Ironically one of these referred amendments, Issue 3, substantially restricts the ballot initiative process. Between the impossible requirements addressed by the Arkansas Supreme Court and the increased requirements proposed in Issue 3, this could very well be the last we see of citizen led ballot initiatives in Arkansas.
