On August 27, two Arkansas citizen-initiated measures—one that would have established a redistricting commission (Issue 4) and another that would have established ranked-choice voting (Issue 5)—were blocked by the Arkansas Supreme Court from appearing on the November ballot. The measures were provisionally certified for the ballot on August 21, 2020.
The redistricting measure, sponsored by Arkansas Voters First, would have created the Citizens’ Redistricting Commission for state legislative and congressional redistricting. The commission would have been comprised of nine commissioners who are registered Arkansas voters and would have replaced the Board of Apportionment, which is currently responsible for state legislative redistricting in Arkansas. The current Board of Apportionment is comprised of the governor, the secretary of state, and the attorney general. Currently, in Arkansas, the state legislature is responsible for congressional redistricting. The measure would have also established criteria for drawing district maps.
Sponsored by Open Primaries Arkansas, the ranked-choice voting measure would have (a) changed primary elections so that all candidates for an office are listed on a single primary ballot, rather than on separate partisan ballots, and (b) created a top-four ranked-choice voting system for general elections for federal congressional office, state general assembly, and statewide elected offices, including Governor, Lieutenant Governor, Secretary of State, Treasurer of State, Auditor of State, Attorney General, and Commissioner of State Lands.
The campaigns each submitted around 100,000 signatures on July 6. To qualify for the ballot, 89,151 valid signatures were required.
Secretary of State John Thurston (R) found on July 14 that signatures for the initiatives were insufficient on the grounds that petition circulators’ background check certifications did not comply with state law.
Under Arkansas Code § 7-9-601(b)(3), sponsors are required to certify to the Secretary of State that each paid canvasser passed a state and federal criminal background check. Arkansas Voters First and Open Primaries Arkansas campaigns submitted certifications stating that the background checks were acquired but did not say they were passed. The statements of insufficiency for the two measures came a day after Special Master Mark Hewett determined signatures submitted on January 31 for an optometry law referendum were invalid for the same reason. Hewett’s report was filed with Arkansas Supreme Court for a final determination.
The campaigns asked the state Supreme Court on July 17 to order Secretary of State John Thurston to give the campaigns at least 30 days to collect additional signatures. In Arkansas, if petitioners fail to meet the signature requirement, but the petitioners have gathered at least 75% of the valid signatures needed, petitioners have 30 days to collect additional signatures or demonstrate that rejected signatures are valid. The campaigns were granted a provisional 30-day cure period. Arkansas Voters First reported submitting an additional 50,000 signatures on August 5. Open Primaries Arkansas reported submitting an additional 59,000 signatures on August 20.
Retired Circuit Judge John Fogleman was appointed by the Arkansas Supreme Court on July 24 as a special master to resolve the disputes between Arkansas Voters First, Open Primaries Arkansas, and the secretary of state concerning petition circulator background check certifications and signature validity. Fogleman’s report was submitted to the state Supreme Court on August 10, 2020. Fogleman concluded that the Supreme Court needed to decide whether or not the campaigns’ background check certifications comply with Arkansas Code § 7-9-601(b)(3).
On August 21, Secretary of State John Thurston certified both measures for the ballot “for coding purposes and preparation purposes only, pending the outcome of the litigation.” Under Arkansas Code § 7-5-204, if the secretary of state has not determined a petition’s sufficiency by the 75th day before the general election or if a measure is being challenged in court, the measure must be placed on the ballot. If the measure is later declared insufficient or invalid, votes for the measure will not be counted or certified.
On August 27, 2020, Arkansas Supreme Court ruled in favor of John Thurston. Associate Justice Robin Wynne, who wrote the majority opinion, said, “Simply acquiring or obtaining a background check is not sufficient under the plain language of the statute. The results of the background checks are not required to be filed with the Secretary of State, and the certification is the only assurance the public receives that the paid canvassers ‘passed’ background checks.” The state Supreme Court ruled, “In sum, we hold that petitioners did not comply with Arkansas Code Annotated section 7-9-601(b)(3) when they failed to certify that their paid canvassers had passed criminal background checks. Accordingly, the initiative petitions at issue are insufficient and petitioners are not entitled to a cure period or any other relief.” Justice Josephine Linker Hart dissented, writing, “Today, the majority has disenfranchised more than 90,000 citizens. By signing the petition, these registered voters clearly manifested their desire to have these issues placed on the ballot. … there is no evidence that the certification language directly affected the validity of even a single petition part.”
The campaign managers for Arkansas Voters First and Open Primaries Arkansas said they were exploring their legal options for keeping the measures on the ballot.
Two measures on the 2018 ballot in Arkansas were declared invalid by the state Supreme Court and votes for the measures were not counted. Similarly, in 2016, the supreme court declared two measures on the ballot to be invalid and votes were not counted.