The Arkansas Supreme Court
today reversed substantial parts of Circuit Judge Mary McGowan's
ruling invaliding the 2013 law aimed at restricting paid campaigns to gather signatures for initiated acts and constitutional amendments.
The Court was split, with three justices wanting to uphold McGown, two wanting to overturn her entirely and two splitting on her ruling.
The Supreme Court, in a split decision said in a majority opinion written by Justice Robin Wynne,
held that these portions of the law that McGown had ruled unconstitutional passed muster:
* Providing that a pad canvasser must submit name, permanent address and statements that the canvasser has a clean criminal record and understands the initiative law, and a photograph. Plaintiffs had raise, among others, free speech and due process arguments, which the court rejected.
* A section that requires a canvasser who assists a disabled person to print name and address on a petition to provide their own name in the margin as having provided the assistance. The court also rejected a challenge on vagueness that sets out the registration requirement for anyone who receives anything of value in return for canvassing.
* It is not unconstitutional to require a permanent address for a paid canvasser when one isn't required for a volunteer canvasser.
* It is acceptable for requiring the names of paid canvassers to be submitted with signatures.
The Court did uphold a finding that it was unconstitutional for petitioners to gather additional signatures after meeting the first deadline for submissions to the secretary of state for verification as to meeting raw required numbers.
The Court said it also was unconstitutional to throw out entire pages of petitions when a problem was found with even a single signature on a page, but it affirmed that a petition drive that failed to meet the facial count on an initial review by the secretary of state couldn't go forward.
The decisions was splintered. Chief Justice Jim Hannah and Justice Rhonda Wood
concurred in part and dissented in part in a separate opinion. They said they would have reversed McGowan entirely and upheld the statute in every respect.
Justices Courtney Goodson, Karen Baker and Jo Hart
joined a separate concurrence and dissent. They would have struck down the entire law. That opinion, written by Hart, noted the bedrock of plaintiffs' case: "Amendment 7 contains express language prohibiting the General Assembly from passing any law “in any manner interfering with the freedom of the people in procuring petitions.” Id. The amendment further provides, “No legislation shall be enacted to restrict, hamper or impair the exercise of the rights herein reserved to the people.”
The dissent continued:
The majority has determined that section 13 and parts of section 18 are unconstitutional, and I agree with that analysis; however, even assuming that the remaining provisions of the Act could withstand examination individually, the cumulative effect of the Act is more than the constitution will bear. Under a strict-scrutiny analysis, the State must show a compelling governmental interest that the Act is narrowly tailored to meet. While I agree that prohibiting fraud is a compelling governmental interest, Act 1413 goes too far; it is not narrowly tailored to meet that goal. As a result, it fails under strict scrutiny.
Only Justice Paul Danielson joined Wynne's opinion without other comment.
So you had a 5-2 vote in favor of striking down two lesser portions of the law. Three wanted to strike down the whole law. Two wanted to preserve the whole law.
The net, on balance, is a victory for the corporate interests, particularly Oaklawn Park, that want to dampen the ability to get measures on the ballot by paid petition. The Arkansas State Chamber of Commerce has also been active in ballot suppression efforts, preferring to see initiatives it crafts put on the ballot by the legislature.