Cowles v. Thurston

695 S.W.3d 60

2024 Ark. 121

Lauren COWLES, Individually and on Behalf of Arkansans for Limited Government, a Ballot Question Committee, Petitioners

v.John THURSTON, in His Official Capacity as Secretary of State, Respondent

Arkansans for Patient Access, a Ballot Question Committee; Bill Paschall, Individually and on Behalf of Arkansans for Patient Access; Local Voters in Charge, a Ballot Question Committee; and Jim Knight, Individually and on Behalf of Local Voters in Charge, Intervenors

No. CV-24-455

Supreme Court of Arkansas.

Opinion Delivered: August 22, 2024

AN ORIGINAL ACTION

Shults Law Firm LLP, by: Amanda Orcutt, Peter Shults, and Steven Shults, Little Rock, for petitioners.

Tim Griffin, Att’y Gen., by: Nicholas J. Bronni, Solicitor Gen.; Dylan L. Jacobs, Dep. Solicitor Gen.; and Asher Steinberg, Sr. Ass’t Att’y Gen., for respondent.

Friday, Eldredge & Clark LLP, Little Rock, by: Elizabeth Robben Murray and Kathy McCarroll, for intervenors Local Voters in Charge, a ballot question committee; and Jim Knight, individually and on behalf of Local Voters in Charge.

Wright, Lindsey & Jennings LLP, Little Rock, by: Stephen R. Lancaster, Gary D. Marts, Jr., and Erika Gee for intervenors Arkansas for Patient Access, a ballot question committee; and Bill Paschall, individually and on behalf of Arkansans for Patient Access.

RHONDA K. WOOD, Associate Justice

₁Petitioners Lauren Cowles and Arkansans for Limited Government (AFLG) filed this original action against John Thurston, in his official capacity as Arkansas Secretary of State ₂(Secretary).¹ AFLG is a ballot question committee created to secure the passage of the Arkansas Abortion Amendment of 2024. AFLG submitted a petition on the Amendment to the Secretary on July 5, 2024, its rejection led to this original action. AFLG asks this court to (1) determine that the decision rejecting the petition was incorrect; (2) vacate the decision that the submission was insufficient; and (3) order the Secretary to count all submitted signatures.²

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.³ 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.

₃I. Jurisdiction

[1] AFLG filed this original action under article 5, section 1, and amendment 80, section 2(D)(4) of the Arkansas Constitution; Arkansas Code Annotated section 7-9-112 (Supp. 2023); and Arkansas Supreme Court Rule 6-5 (2023). The Arkansas Constitution first vests the Secretary of State with the authority to determine the sufficiency of ballot initiatives, followed by this court having "original and exclusive jurisdiction" to review the Secretary’s decision. Ark. Const. art. 5, § 1. The Secretary moved to dismiss the action, arguing he did not make a sufficiency determination when he rejected AFLG’s petition and that this court thus lacks jurisdiction. He contends that he rejected AFLG’s petition for "want of initiation" instead of insufficiency and cited Dixon v. Hall, 210 Ark. 891, 198 S.W.2d 1002 (1946). We disagree.

[2] There are three types of sufficiency determinations that arise during the ballot-initiative process. One involves the sufficiency of the ballot name and title. See Knight v. Martin, 2018 Ark. 280, 556 S.W.3d 501. A second concerns the facial validity of the petition upon submission. See Ark. Hotels & Entm’t, Inc. v. Martin, 2012 Ark. 335, at 3, 423 S.W.3d 49, 51. The third involves the sufficiency of the petition during the signature verification process. See Zook v. Martin, 2018 Ark. 306, 558 S.W.3d 385.

Like the petitioner in Arkansas Hotels, the petitioner seeks review of the Secretary’s sufficiency determination of the facial validity of the initiative petition filed on July 5, 2024. Accordingly, we have jurisdiction as provided in amendment 7, codified in article 5, section 1 of the Arkansas Constitution. The court unanimously denies the Secretary’s motion to dismiss.

₄II. Analysis

[3, 4] 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. See Ark. Hotels, 2012 Ark. 335, at 8, 423 S.W.3d at 54. Arkansas Code Annotated section 7-9-111(f) (Supp. 2023) provides:

(1) A person filing a statewide initiative petition . . with the Secretary of State shall bundle the petitions by county and shall file an affidavit stating the number of petitions and the total number of signatures being filed.

(2) If signatures were obtained by paid canvassers, the person filing the petitions under this subsection shall also submit the following:

(A) A statement identifying the paid canvassers by name; and

(B) A statement signed by the sponsor indicating that the sponsor:

(i) Provided a copy of the most recent edition of the Secretary of State’s initiatives and referenda handbook to each paid canvasser before the paid canvasser solicited signatures; and

(ii) Explained the requirements under Arkansas law for obtaining signatures on an initiative or referendum petition to each paid canvasser before the paid canvasser solicited signatures.

(Emphasis added.)

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 traimng certification. Given the undisputed facts, we do not need to decide that issue today. AFLG filed two affidavits with this court, one by Cowles ₅and one by Allison Clark. 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. See generally, Blackburn v. Lonoke Cnty. Bd. of Election Comm’rs, 2022 Ark. 176, at 8, 652 S.W. 3d 574, 580 (candidate alleged that staff in county clerk’s office provided incorrect information about filing requirement). 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.

[5] AFLG argues that even if it failed to timely file the certification, the Secretary should have accepted the late filing of its paid canvasser training certification on July 11, 2024. But as we have explained, "[c]orrection and amendment go to form and error, rather than complete failure." Ark. Hotels, 2012 Ark. 335, at 10, 423 S.W.3d at 55. There was a complete failure to file the paid canvasser training certification along with the petition. July ₆5 is the filing deadline required by the Arkansas Constitution for this election cycle’s initiative petitions, "not less than four months before the election at which they are to be voted upon." Ark. const. art. 5, § 1. There is no provision for late filing of required paperwork and we cannot order the Secretary, in a separate branch of government, to do what the law does not require.

A. Signatures Collected by Volunteer Canvassers

[6] 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. On a facial validity count, the Secretary cannot point to any statutory or constitutional provision requiring that no signatures be counted for this failure. After all, section 111(f)(2) is required only "[i]f signatures were obtained by paid canvassers[.]" While the General Assembly had specific concerns about the potential for fraud and abuse with paid canvassers, we are hard pressed to correlate those concerns with not counting signatures collected by volunteers. The Secretary does not provide a compelling argument that failing to comply with respect to paid canvassers requires rejection of signatures gathered by volunteer canvassers. We do not find constitutional or statutory support for that argument. AFLG asks this court to order the Secretary to count the signatures gathered by volunteer canvassers and include them in the initial facial count. On July 23 we...