If you’ve got whiplash over the last two weeks, you’re not alone: the Arkansas Abortion Amendment has been on a journey since Arkansans for Limited Government (AFLG) turned in over 101,000 signatures in support of the Amendment on July 5.
So let’s break it down into two parts. In today’s post, I’ll explain, simply and factually, what’s actually going on and what the lawsuit AFLG filed against Secretary of State John Thurston alleges. In tomorrow’s post, I’ll connect the dots between the attempted disqualification of the Arkansas Abortion Amendment, governmental overreach, and the broader fight against voter suppression and disenfranchisement.
I do also want to note at the outset that the Arkansas Times and Arkansas Advocate have done a great job reporting this story, and I draw heavily from the information they’ve reported. My goal is to make this into a simple timeline and try to draw broader conclusions about the Secretary’s motivation and pattern of bureaucratic overreach.
Sound good? Let’s dive in.
The Timeline
Almost two weeks ago, we celebrated the successful effort to gather over 101,000 signatures for the Arkansas Abortion Amendment. AFLG qualified 53 out of 75 counties and beat the minimum signature county by over 10,000 signatures.
Less than a week later, Secretary of State John Thurston overstepped his statutory authority by attempting to disqualify the measure. Let’s dive into how that overstep happened.
His original claim was that AFLG failed to satisfy the requirements laid out in Arkansas Code §7-9-111(f)(2). This is an arcane statute that deals with “sufficiency of petitions”: whether or not the petition satisfies all necessary requirements to get on the ballot, and, importantly, how to correct any mistakes.
Here’s the statute, with the portion Thurston claimed wasn’t followed by AFLG boxed in:
So there’s two parts in question.
- AFLG must submit a statement identifying the paid canvassers, and
- AFLG must submit a statement that confirms the paid canvassers were provided with the Secretary of State’s guidance on how to collect signatures.
The way Thurston worded his letter implies that he believes AFLG didn’t follow any of these statutes. We’ll circle back to that point below.
After Thurston released his letter, AFLG scrambled to interpret his poorly worded, confusing letter. Some media claimed to have “confirmed” the lack of a cure period or any remedy, and other media immediately filed FOIA requests to see exactly what AFLG had turned in.
That’s when things started to get weird.
The Secretary of State’s office gave the Arkansas Times just two documents in their first FOIA request, but Times journalist David Ramsey tweeted a photo of a huge box of documents that AFLG reps carried with them. After a few more rounds of FOIA requests, the Secretary’s office realized (or admitted) that they’d made a mistake; AFLG had actually submitted around 800 pages of documents.
Whether this was a legitimate oversight or something more nefarious from the Secretary’s office, we can’t say at this time, but it does represent a pattern that runs through this entire story: the Secretary of State obfuscates, misdirects, and generally tries to make life harder for voters in this state.
Among those documents? A list that identified the paid canvassers by name, which Thurston said AFLG failed to provide. It seems his complaint is the lack of a “cover sheet” that said “here’s a list of paid canvassers.” Below is what was included:
Screenshot courtesy of the Arkansas Times
This sounds nit-picky, but read subsection (A) again – there are no details regarding what that statement must say, what format it must take, or really anything about what it should look like other than “here’s our paid canvassers.” AFLG did provide the paid canvasser information, and the above could easily be read as an introductory statement for the list of paid canvassers in the absence of any detail whatsoever.
The first domino falls in Thurston’s argument.
The second part of the statute describes information that has to be provided to the paid canvassers. It turns out that AFLG included this too, and they released one such affidavit dated June 27 in their response to Thurston’s first letter. This part of Thurston’s argument is a question of timing – these affidavits weren’t provided on July 5, when the petitions were turned in, but about a week earlier.
Over the course of the campaign, AFLG turned in seventeen affidavits that comply with the law. The only group of paid canvassers that didn’t get such an affidavit was the one hired between June 27 and July 5. Except the Secretary’s office told AFLG that they could stop turning in the affidavits. Even if they hadn’t received that explicit guidance from the Secretary’s office, at worst the Secretary would only have an argument to throw out signatures turned in by paid canvassers that were hired after June 27.
The second domino falls in Thurston’s argument.
At every turn, AFLG communicated with the Secretary’s office in an effort to avoid just this situation. Time and time again, they showed substantial effort to comply with the law. Time and time again, AFLG worked in good faith with the Secretary’s office, followed rules given to them from that office, and they were rewarded with this.
Indeed, Thurston knows he doesn’t have an argument. Remember that his original attempt at disqualification revolves entirely around the fact that AFLG (1) didn’t turn in a list of paid canvassers, which they absolutely did, and (2) that they didn’t turn in a cover sheet saying “here’s our list of canvassers”, which again, they seem to have done so.
So how does Thurston respond to AFLG’s pushback? With more nitpicks and changing of the goalposts.
Instead of saying “whoops, our bad, turns out you did turn in the stuff you were supposed to!”, his response to AFLG on Monday, July 15, says “Well, you did turn in the required paperwork, but you turned it in at the wrong time and signed by the wrong person.” Instead of being signed by AFLG, it’s signed by a representative of Verified, Arkansas, which is the group contracted with AFLG to provide paid canvassers (sounds like a sponsor to me). Instead of being turned in on July 5, with the rest of the petition paperwork, the last affidavit came on June 27 (again, the Secretary of State told AFLG no further affidavits were required). Read the statute again; nowhere, nowhere in the statute does it say the sponsor affidavit has to be turned in with the rest of the paperwork.
I’ve been out of school for a while, but I can’t remember ever being penalized for turning in work early.
Do you see what’s happening, Arkansas? He knows he doesn’t have a good argument so the goalposts shift. His boss cannot have this amendment make the ballot because she knows if it does it will pass, and she’ll have egg on her face. The goalposts shift to more and more nitpicky, ticky-tacky arguments that will take time to untangle in court and waste time that could be used for collecting signatures in a cure period or simply campaigning for the amendment’s passage.
Yesterday, AFLG filed a lawsuit against Thurston.
The complaint describes what I go through above. AFLG argues that they did, in fact, satisfy all the requirements of the statute in question, for all the reasons I laid out. They turned in a list of paid canvassers and they turned in the statement listing the canvassers.
Furthermore, the suit compellingly argues that, even if AFLG did make a mistake in not filing the proper paperwork at the proper time, Thurston doesn’t have the authority to disqualify the amendment outright. This is basically ironclad; a different statute, §7-9-126, has a list of specific reasons that a signature can be thrown out. The reasons that Thurston cites aren’t on that list, so even signatures that might eventually be thrown out for lack of an affidavit (what I talked about above), Thurston still has to count them first.
Why’s that important? Because it means AFLG is entitled to a cure period, and one of the things you’re allowed to cure is paperwork.
The original statute Thurston cited is §7-9-111(f)(2). It runs out that just one subsection before (f) describes how a cure period works. Here it is:
Look at section (B)! “Submit proof to show that the rejected signatures or some of them are good and should be counted.”
Sure looks to me like, even if AFLG was deficient in their paperwork, they would have the chance to cure that mistake if they hit the minimum signature count, which they did. Thurston doesn’t have the authority to kill all the paid canvasser signatures only on a potentially missing sponsor affidavit, which means AFLG almost certainly hit the cure period and therefore should have the chance to cure any missing paperwork.
So what’s this mean?
Thurston is weaponizing paperwork and bureaucracy in an effort to delay certification of the Arkansas Abortion Amendment because his extremist friends in state government are terrified to see it on the ballot.
Let’s back up one more time for a quick summary of all the nitpicking that John Thurston is making me do.
First, and most importantly, even if AFLG did mess up on paperwork, he doesn’t have the authority to not count the entire slate of signatures that AFLG turned in, which means AFLG has a chance to correct the paperwork argument.
Second, let us not lose sight of the fact that AFLG did turn in the required paperwork, multiple times throughout the campaign, and always in close communication with the Secretary’s office.
This means that there’s a few reasons for this silly situation:
- the Secretary’s office intentionally misled AFLG reps;
- the people AFLG was talking to simply didn’t know what they were talking about; or
- AFLG did everything correct and the Secretary was looking for the tiniest, dumbest reason in the book to disqualify the amendment.
Any of those reasons are unacceptable in a functioning republic.
