Arkansas AG accused of viewpoint discrimination as final briefs filed in abortion amendment suit

The sponsor of a ballot initiative to legalize limited abortion access in Arkansas is alleging that the state unlawfully discriminated against it when it disqualified the measure, while allowing others with the same supposed technical flaw to move ahead.

Attorney General Tim Griffin and the committee Arkansans for Limited Government on Friday filed what are expected to be the final briefs in a case before the state Supreme Court that will decide the fate of the proposed constitutional amendment.

In its Friday brief, Arkansans for Limited Government laid out allegations that Secretary of State John Thurston treated it differently from other committees based on its politics.

AFLG and two other committees hired canvassing contractors which, along with volunteers, collected signatures to qualify their measures for the November ballot.

Contractors also signed the paperwork certifying that they properly vetted and trained canvassers they oversaw.

After the signatures were submitted, Thurston said that contractors did not legally qualify as a sponsor and rejected Arkansans for Limited Government's petition while allowing the two others to proceed. Griffin argues that, unlike other organizations, the contractor filed initial paperwork as the sponsor and then hired more canvassers.

"(Contractor Allison) Clark isn’t the sponsor—AFLG is,” Griffin said in court documents filed Friday. “AFLG’s failure to comply means that none of its paid-canvasser signatures may be counted for any purpose.”

“AFLG objectively failed to follow the law. AFLG cannot avoid the consequences of its own failure, and this court should reject AFLG’s argument that it’s entitled to a mulligan,” Griffin said.

Representatives from the Secretary of State and Attorney General’s offices declined to comment.

Griffin has argued that, because Arkansans for Limited Government’s initial sponsor statement was signed by a contractor and submitted while signature collection was still underway, that disqualified the measure from having its signatures counted. That also blocked it from moving forward to the part of the verification process where Thurston would have discovered that other pieces of paperwork were also signed by a contractor, as was also the case for the two other committees. Thurston said in his response, however, that in the case of Arkansans for Limited Government, both errors were independent grounds for disqualification.

How does AFLG allege it was treated differently from other committees?

Thurston said that the incorrectly filled out paperwork was grounds for outright rejection , without the opportunity to cure the petition. At least three committees made this same ostensible error.

“Nevertheless,” Arkansans for Limited Government said in its Friday brief, “signatures gathered by paid canvassers for the Marijuana and Casino Amendments will count, but signatures gathered by paid canvassers for the Abortion Amendment will not count.”

Thurston disqualified the abortion amendment soon after the July petition deadline without counting the signatures.

However, Thurston told Arkansans for Patient Access, a pro-medical marijuana committee, in a letter Thursday that, even though its paperwork was signed by a contractor, none of its already verified signatures would be disqualified.

Bill Paschall, a member of Arkansans for Patient Access, confirmed on Monday that its signatures would stand, though they were also certified by a contractor, not a committee member.

“We’re all in the same boat,” he said, referring to Arkansans for Limited Government and Local Voters in Charge.

Arkansans for Patient Access was granted a 30-day cure period to collect more signatures because it met a threshold of 75% of the total verified signatures required in July.

Rebecca Bobrow, director of strategy for Arkansans for Limited Government, said on Monday that Thurston’s letter “makes it pretty clear in our eyes that we are being treated differently.”

“State officials shouldn't be making political decisions based on their own agendas, and it's their job to treat all initiatives like this the same, regardless of their content and whether or not they agree with it,” she said.

What happens next?

Bobrow said that, "Historically, when there have been fights about ballot initiatives, they've provisionally certified them, gotten them on the ballot by the deadline, and then, if it was decided that it actually wasn't moving forward, they just didn't count the votes for them."

The certification deadline for ballot questions in Arkansas is August 22.

Bettina Brownstein, an Arkansas civil attorney, said she thinks Arkansans for Limited Government has a relatively strong case.

“I didn’t think so initially,” when the committee first sued, she said. “But now that they’ve uncovered these contradictions in the position of the Secretary of State, I’d say it’s much stronger.”

“What exactly a ‘sponsor’ is doesn’t seem as straightforward as it once did.”

Still, she says a conservative Supreme Court could be an obstacle to the committee’s success. “I think if the makeup of the court were different, you’d have a different outcome.”

She also raised the specter of further legal challenges from opposing groups—as of earlier this year, there were seven ballot question committees organized in opposition to the abortion amendment.

Any one of them might still sue even if the abortion amendment comes out ahead in this legal tussle.

This article originally appeared on Fort Smith Times Record: Arkansas AG accused of viewpoint discrimination as final briefs filed in abortion amendment suit