Portside

A proposed abortion-rights amendment to the Arkansas Constitution will not be on the statewide November ballot, the state Supreme Court ruled in a 4-3 decision Thursday.

Supporters of the amendment, which would have created a limited right to abortion, did not submit the correct paperwork to Secretary of State John Thurston’s office at the right time, the court’s majority said.

The court’s opinion concludes a five-week legal dispute over the signatures collected by paid canvassers for the proposed amendment. The decision also comes on the deadline for Thurston’s office to distribute certified election ballots to county election officials.

The ballot question committee Arkansans for Limited Government said in a statement that Thursday was “a dark day in Arkansas” and that Thurston and the court silenced the over 102,000 supporters of the amendment.

“Despite this infuriating result, our fight isn’t over,” the group stated. “We can’t — and won’t — rest until Arkansas women have access to safe, standard health care and the autonomy to make decisions about their bodies free from governmental interference.”

Proposed constitutional amendments require 90,704 signatures from 50 counties to qualify for the ballot. Supporters of the Arkansas Abortion Amendment gathered in the Capitol and cheered as AFLG submitted 102,730 signatures to Thurston’s office on the deadline of July 5.

Thurston said July 10 that the 14,143 signatures collected by paid canvassers were invalid and that he would not count the remaining signatures because they would fall below the required minimum.

State law requires ballot question committees to submit an affidavit identifying paid canvassers by name and provide proof that the committee explained to canvassers the state’s laws for soliciting signatures and gave them the Secretary of State’s initiatives and referenda handbook before they started canvassing.

AFLG repeatedly insisted that it did submit the required documents. The group submitted a “Sponsor Affidavit” signed by Allison Clark to Thurston’s office June 27, testifying to the signature collection education portion of the law, and court filings state it was the seventeenth time the document was submitted.

The group also said it routinely submitted lists of paid canvassers to Thurston, including on July 4 and 5, and did not include another sponsor affidavit on those days because Thurston’s staff said it was not necessary and all the correct paperwork had been filed.

“We have explained that even in election matters, the burden of determining what the law requires falls on the filer—not office staff,” Associate Justice Rhonda Wood wrote in the majority opinion. “…Thus, as the facts are undisputed, we hold that AFLG, by its own admission, failed to submit the required paid canvasser training certification.”

AFLG submitted the certification on July 11 and argued that Thurston should accept it, but the court disagreed.

The committee initially asked the Supreme Court July 16 to order Thurston to count the remaining signatures, and the court granted the request July 23. Thurston’s office counted 87,675 signatures from registered voters that were collected by unpaid canvassers.

The court reiterated its decision to grant this request Thursday, but it denied the remaining petition, which asked for Thurston to certify the proposed amendment for the ballot.

“We order that the 87,675 signatures be counted for purposes of the initial facial count because there is no constitutional or statutory authority to support not counting them,” the opinion states. “We find that the Secretary correctly refused to count the signatures collected by paid canvassers… AFLG needed 90,704 signatures to complete the first stage of the initial facial count to proceed to the verification stage. As it failed to obtain this number of signatures, AFLG is not entitled to any further relief.”

Alleged discrimination

AFLG told the court earlier this month that Thurston’s rejection of the amendment was viewpoint discrimination, citing his 2022 endorsement from Arkansas Right to Life and his donation to the group earlier this year.

Associate Justice Karen Baker agreed in her dissent Thursday that Thurston and the four justices who ruled in his favor “have treated [the proposed amendment] differently for the sole purpose of preventing the people from voting on this issue.”

Baker agreed with AFLG that state law does not require ballot measure petitions and paid canvasser certifications to be filed simultaneously.

“On the contrary, this requirement was made up out of whole cloth by the respondent and inexplicably ratified by the majority of this court,” Baker wrote.

Associate Justice Courtney Hudson co-signed Baker’s dissent, which states she would prefer to advance all the signatures to the verification stage, “appoint a special master to make findings of fact, grant a thirty-day provisional cure period, and order conditional certification of the proposed amendment.”

Chief Justice John Dan Kemp said in his own dissent that he would have made the same orders.

Additionally, Baker noted that the majority — Associate Justices Barbara Webb, Shawn Womack, Cody Hiland and Wood — did not address the concerns of another ballot question committee.

On July 31, Thurston gave supporters of changes to the state’s medical marijuana industry until Aug. 30 to collect more signatures for another proposed amendment. State law allows this cure period if a ballot question committee’s initial submission contains valid signatures equal to at least 75% of the overall required number of signatures and 75% of the required number from at least 50 counties.

The ballot question committee Arkansans for Patient Access intervened in the abortion amendment case last week, arguing that Thurston’s reasons for rejecting the proposed amendment relied on an “erroneous and out-of-the-ether” interpretation of the law and threatened to keep the medical marijuana proposal off the ballot.

Thurston told APA on Aug. 8 that his office would not count signatures collected during the cure period by paid canvassers because a company that hired paid canvassers had signed legally required paperwork instead of the sponsor of the amendment. Thurston used this same argument against AFLG, and APA criticized Thurston in court documents for “making the same eleventh-hour about-face.”

“Disqualifying signatures should be a high bar for the state to clear,” APA member Bill Paschall said in a Thursday statement after the Supreme Court ruled against the abortion amendment. “We believe when Arkansans take the time and make the effort to sign a petition that those signatures should be counted. Disqualifying based on a new interpretation of the canvasser registration filing process in midstream does not meet that high bar.”

Baker expressed concern in her dissent that Thurston told APA “that the thousands of signatures gathered by paid canvassers that he had previously deemed valid will remain so, despite any alleged statutory violation—a courtesy that the respondent chose not to extend to the petitioners in the present case.”

She called the “differing treatment” of the two measures “alarming.” 

“Why are the respondent and the majority determined to keep this particular vote from the people?” Baker wrote. “The majority has succeeded in its efforts to change the law in order to deprive the voters of the opportunity to vote on this issue, which is not the proper role of this court.”

AFLG’s statement praised Baker’s assessment of the majority opinion and declared, “Democracy demands better.”

Supporters’ struggles

The Arkansas Abortion Amendment would have disallowed government entities to “prohibit, penalize, delay or restrict abortion services within 18 weeks of fertilization.” 

The proposal would also have permitted abortion services in cases of rape, incest, a fatal fetal anomaly or to “protect the pregnant female’s life or physical health,” and it would have nullified any of the state’s existing “provisions of the Constitution, statutes and common law” that conflict with it.

Abortion has been illegal in Arkansas, except to save the pregnant person’s life, since the U.S. Supreme Court overturned Roe v. Wade in 2022. State Rep. Mary Bentley, R-Perryville, and former Republican state Sen. Jason Rapert of Conway sponsored the 2019 “trigger law.”

In Thursday’s statement, AFLG praised the hundreds of volunteers “who worked tirelessly to educate voters, coordinate signing opportunities, and collect signatures.”

“They were fearless in the face of misinformation, intimidation, and harassment,” the statement reads. “And their work will leave an indelible mark on Arkansas politics.”

The group referred to a range of hurdles the amendment’s supporters faced in the months before the submission deadline. The anti-abortion groups Arkansas Right to Life and the Family Council led a “Decline to Sign” effort encouraging voters not to sign petitions for the amendment, and protesters targeted canvassing sites throughout the state.

In May, Little Rock police told supporters of the abortion amendment that they could be arrested for obstructing traffic while canvassing from a public sidewalk at a busy intersection.

We can’t — and won’t — rest until Arkansas women have access to safe, standard health care and the autonomy to make decisions about their bodies free from governmental interference.

– Arkansans for Limited Government

In June, the Family Council posted on its website a list of 79 people paid by AFLG to collect signatures. AFLG called the post attempted intimidation; the Family Council has since removed the list from the post but has kept a longer, more recent list publicly available on its political action committee website. Acquiring and publishing the list is legal under the Arkansas Freedom of Information Act.

On Independence Day, the day before the deadline to submit signatures to Thurston, an email claiming to be from AFLG caused confusion by stating no more signatures for the Arkansas Abortion Amendment were needed. AFLG quickly alerted supporters that the misleading email was not from them and encouraged people to continue signing petitions.

Bentley and Rapert have both broadcast their opposition to the amendment on social media.

“Praise the Lord these cold-blooded baby killers lost their appeal to get their unholy abortion amendment on the ballot in #Arkansas,” Rapert said Thursday on X, reposting a July 5 video from a supporter of the amendment celebrating the submission of signatures. “Thanks to the 4 justices on the Arkansas Supreme Court for following the law. Just look at the way the abortion supporters cheered for death. It’s crazy.”

A unique challenge to the Arkansas Abortion Amendment was a lack of national support. While several states have approved citizen-led abortion-rights initiatives over the past two years and more have pursued similar efforts — including in neighboring Missouri, where abortion will be on the November ballot — Arkansas’ proposal has been controversial among reproductive justice advocates because it would reinstate an abortion policy more restrictive than the one in place under Roe v. Wade. For this reason, major national abortion-rights groups were not involved in promoting or funding the campaign, Slate reported.

In South Dakota, a proposed abortion-rights ballot measure faced a court challenge from an anti-abortion group alleging that supporters did not follow state canvassing laws. The measure remains likely to appear on the ballot, but the timing and outcome of the lawsuit could change that.

Like Arkansas, South Dakota bans abortion except to save the pregnant person’s life.

Responses to court’s ruling

Attorney General Tim Griffin, representing Thurston, asked the Arkansas Supreme Court on July 19 to dismiss AFLG’s case. The court’s Thursday decision denied the motion.

Griffin praised the court’s decision in a statement, calling it “a win for the rule of law in Arkansas.”

“The people rule in Arkansas, through the law,” Griffin said, referring to the state motto, Regnat Populus, Latin for “the people rule.”

“Changing the Arkansas Constitution involves a rigorous process requiring strict adherence to the law,” Griffin continued. “The Arkansas Supreme Court confirmed today that the abortion advocates failed to follow the law that other ballot committees had successfully followed for over a decade since Governor Mike Beebe signed the law governing paid canvassers in 2013.”

Gov. Sarah Huckabee Sanders wrote on X in July that “the far left pro-abortion crowd in Arkansas showed they are both immoral and incompetent” in response to Thurston’s initial rejection of the amendment.

“Proud I helped build the first conservative Supreme Court majority in the history of Arkansas and today that court upheld the rule of law, and with it, the right to life,” Sanders posted Thursday, referring to her appointment last year of Hiland, the former chairman of the state Republican Party.

The Democratic Party of Arkansas denounced the court’s ruling in a news release.

“The MAGA Republicans’ total abortion ban has brought to light countless stories of women and girls who have been harmed by this extreme policy, which makes no exceptions for rape, incest, child victims, or mothers in danger,” party chairman Grant Tennille said. “This no-exceptions ban is too extreme, and voters deserved the opportunity to vote for common-sense access and exceptions. Republicans know their extreme views are unpopular; that’s why they repeatedly used their power to cheat Arkansans out of the opportunity to let their voices be heard.”

The majority has succeeded in its efforts to change the law in order to deprive the voters of the opportunity to vote on this issue, which is not the proper role of this court.

– Arkansas Supreme Court Associate Justice Karen Baker, dissenting from the majority opinion in CV-24-455

Family Council President Jerry Cox called the proposed amendment “deceptively worded” in a statement praising the ruling.

“This radical abortion amendment might have made the ballot had it not been for all of the pro-life Arkansans who spread the word about it and had it not been for the Arkansas Secretary of State and Arkansas Attorney General being willing to enforce Arkansas’ ballot initiative laws,” Cox said. “…Arkansas’ women and unborn children will be protected from unrestricted abortion as a result. Arkansas remains the most pro-life state in America. That’s something to celebrate.”

Tess Vrbin came to the Advocate from the Arkansas Democrat-Gazette, where she reported on low-income housing and tenants' rights, and won awards for her coverage of 2021 flooding and tornado damage in rural Arkansas.  She previously covered local government for The Commercial Dispatch in Mississippi and state government for the Columbia Daily Tribune in Missouri.

Arkansas Advocate is part of States Newsroom, the nation’s largest state-focused nonprofit news organization.