State justices reinstate most of petition law

Decision voids only 2 parts of act nulled by circuit judge

A divided Arkansas Supreme Court on Thursday reinstated most of a law that placed tighter regulations on the petition procedure that allows Arkansans to directly pass laws and bypass the Legislature.

Pulaski County Circuit Judge Mary McGowan had previously ruled that Act 1413 of 2013 was unconstitutional, saying the statute was illegally vague and that it would hamper the petitioning process. McGowan had placed an injunction on the law, putting the brakes on its enforcement. Proponents of the law -- including former Attorney General Dustin McDaniel -- have said it was needed to prevent fraud.

The Supreme Court reversed the lower court's ruling, saying only two parts of the law were unconstitutional. The Thursday ruling put the law back into place without those two sections.

"I am glad the Arkansas Supreme Court upheld significant parts of Act 1413 of 2013 which will reduce fraud and increase the accountability of petition sponsors and paid canvassers and therefore protect the integrity of our election process," Attorney General Leslie Rutledge said in a statement.

The case stems from a 2013 challenge by leadership of grass-roots groups, Regnat Populus and Arkansas Community Organizations. Both groups have used the petition process to propose laws to Arkansans and contended that the law violated the state constitution and rights of due process, equal protection, petition and free speech.

McGowan said in a March 2014 ruling that the law had good intentions -- "stamping our fraud, forgery and false statements" -- but it did more for special interests than it did for voters.

Supreme Court justices reviewed each part of the law that was originally struck down.

Section 21 of the law set standards on paid canvassers. Under that section, sponsors cannot provide money or "anything of value" to a canvasser unless he meets the requirements, which include providing his full name, current home address and a photograph.

The grass-roots groups -- backed by the American Civil Liberties Union -- said that section placed "an unwarranted restriction" on their rights. But the majority of justices disagreed.

"The State clearly has an interest in ensuring that sponsors are aware of the identity of people who are being paid to solicit signatures from citizens as well as how to locate them should problems arise," Justice Robin F. Wynne wrote in an opinion released Thursday. "These requirements aid in the proper use of the rights granted to the people of the state."

Attorney David Couch, who represents the appellees in the case, said Thursday that he planned to petition the court for a rehearing on the address matter. Under the law, the paid canvassers must disclose their home address before petitions are turned in, he said, adding that doing so could lead to harassment by political opponents.

"There's no reason that exists for that," he said.

Even though the justices put that most of the law back into place, they helped to clarify the terms "anything of value" and "disability" when the statute failed to define them, Couch said.

"The items of value referenced in the section are things that are received in exchange for obtaining signatures, as opposed to items given to facilitate the effort to obtain signatures," Wynne wrote in the opinion. "A 'disability' ... is any condition that would not allow a petitioner to write the required information on the petition without assistance."

In the decision Thursday, justices deemed one section of the law was unconstitutional. The section would have prohibited canvassers from circulating any more petitions once the petition has been filed with the secretary of state. It would have allowed the canvassers to start the circulation only once the secretary of state determines the petition had an insufficient amount of signatures.

That section, the justices said, does not help remove fraud from the petition process.

"The part that they affirmed was on the collection of signatures during the cure period," Couch said, referring to the period when canvassers have turned in the initial petitions and usually collect more signatures in case those fail. "I think that is the biggest win."

The justices also deemed unconstitutional a subsection of the new law that would have invalidated the entire petition if it had signatures from voters in more than one county. The court said only the individual signatures should be called into question, not the entire petition.

The justices were very divided on the case, which never included oral arguments.

Chief Justice Jim Hannah and Justice Rhonda Wood were proponents of overturning McGowan's ruling and enforcing the entire law, while Justices Josephine Hart, Courtney Hudson Goodson and Karen Baker backed McGowan's finding that the entire law was unconstitutional.

In her opinion, Wood wrote: "The right question is whether this provision is consistent with [the constitution's] mandate to the General Assembly to enact laws 'prohibiting ... fraudulent practices.' If the Secretary of State were able to modify the cure period on his or her own, the integrity of the petition-gathering process would be threatened. But by making the cure period consistent, the General Assembly has ensured that the Secretary will treat all petitions equally."

Hart said the justices should have looked at the matter as a whole, not in a "piecemeal" way.

"In short, while Act 1413 does not eliminate the rights to initiative and referendum outright, the effect of its pervasive changes to the petition process will beget such a result -- it is death by a thousand cuts," Hart said in the opinion.

Metro on 03/06/2015

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