605 S.W.3d 255
Ark.2020Background
- Arkansas Voters First (AVF) submitted two initiative petitions on July 6, 2020 (one on open primaries/ranked-choice voting; one on redistricting). 89,151 statewide signatures were required to qualify; a cure period requires at least 75% statewide and 75% in 15 counties.
- Ark. Code Ann. § 7-9-601 requires sponsors to obtain state and federal criminal-record searches for paid canvassers and to "certify" to the Secretary of State that each paid canvasser has "passed" a criminal background check; signatures obtained in violation of the section "shall not be counted."
- AVF submitted lists of paid canvassers with a certification stating that background checks had been "timely acquired" but did not state that canvassers had "passed" the checks; Secretary Thurston issued letters declaring both petitions insufficient based on § 7-9-601(b)(3).
- A special master found the factual record undisputed and recommended that if the certification were ambiguous, the certification did not state that canvassers had "passed" a background check; he also found some other intake culling errors for the primaries petition.
- The Supreme Court held as a matter of law that the sponsor’s certification failed to comply with § 7-9-601(b)(3) because it did not certify that each paid canvasser had "passed" a criminal background check; therefore both petitions were insufficient and not entitled to a cure period.
- The court dismissed remaining claims and motions as moot; Justice Hart dissented, arguing the statute should be construed to avoid disenfranchising voters and that the certification did not render signatures "incorrectly obtained."
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether AVF’s certification satisfied § 7-9-601(b)(3) requiring certification that each paid canvasser had "passed" a criminal background check | Certification as a whole (referencing compliance with § 7-9-601 and Act 1104 of 2017) adequately conveyed that background checks were done and passed; statute should not require "magic words." | Statute’s plain text requires a sponsor to certify that each paid canvasser "has passed" a criminal background check; merely obtaining checks is insufficient; noncompliant signatures must be excluded. | Court: As a matter of law, certification was inadequate because it did not state canvassers had "passed" background checks; Count 1 denied. |
| Whether petitioners are entitled to a cure period or relief based on other alleged errors in intake (e.g., erroneous culling) | Petitioners sought a cure period and challenged additional culling of signatures for the open-primaries petition. | Secretary argued insufficiency under § 7-9-601 meant no cure period; other intake adjustments do not overcome the statutory defect. | Court: Having denied Count 1, remaining challenges are moot and dismissed; no cure period; petitions cannot qualify. |
Key Cases Cited
- Berryhill v. Synatzske, 432 S.W.3d 637 (Ark. 2014) (statutory construction: give words their ordinary meaning)
- Benca v. Martin, 500 S.W.3d 742 (Ark. 2016) (strict compliance with canvasser/background-check statutes required; noncompliance led to signature exclusion)
- Zook v. Martin, 558 S.W.3d 385 (Ark. 2018) (upholding exclusion of signatures for failure to meet statutory canvasser requirements)
- Trammell v. Wright, 489 S.W.3d 636 (Ark. 2016) (evidentiary limits of background-check databases and related reliability concerns)
- 3 Rivers Logistics, Inc. v. Brown-Wright Post No. 158 of Am. Legion, Dep’t of Ark., Inc., 548 S.W.3d 137 (Ark. 2018) (presumption favoring a construction that sustains constitutionality of a statute)