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Arkansas Stopped From Some ‘Wet’ Signature Ballot Requisites

May 27, 2020, 12:56 AM

Arkansas may require “wet” handwritten signatures on petitions for constitutional amendments by ballot initiative despite the ongoing pandemic, but the Western District of Arkansas said that some related requirements are likely unconstitutional.

The U.S. District Court for the Western District of Arkansas held that, because of Covid-19 related concerns, the state can’t require canvassers to personally witness those signatures or mandate that notarized affidavits be submitted attesting to the authenticity of the signatures collected.

Arkansas’s constitution permits amendment by petition. To get a proposed amendment on the ballot, at least 10% of registered voters must sign a petition indicating their support. Typically, the signatures must be gathered in person by a canvasser who must submit a notarized affidavit attesting to the authenticity of the signatures at least four months before the general election.

In issuing Monday’s preliminary injunction, Judge P.K. Holmes III applied the U.S. Supreme Court’s Anderson/Burdick balancing test. He concluded strict scrutiny should apply given the “substantial” and “severe” burden on plaintiffs’ First Amendment rights imposed by in-person authentication requirements in light of the need for social distancing to prevent the spread of the coronavirus.

The court assumed for purposes of the analysis that the state’s interest in promoting election integrity is compelling.

The court concluded the state’s in-person witnessing and notarized affidavit requirements are probably not narrowly tailored to serve the state’s asserted interest in promoting the integrity of elections. State laws criminalizing petition fraud likely provide adequate protection for any compelling state interest in preventing phony petition signatures without unnecessarily burdening voter rights by requiring in-person engagement, the court said.

But the court also declined to require Arkansas to adopt an alternative proposed by the plaintiffs, which would have required the state to accept electronic signatures supported by photo identification. The proposal isn’t more narrowly tailored and unlikely to be less burdensome, the court said.

Plaintiffs Bonnie Heather Miller, Robert William Allen, and Adella Dozier Gray are registered voters in Arkansas. Plaintiff Arkansas Voters First is an advocacy organization. They are represented by Campaign Legal Center, David A. Couch PLLC, and Christopher Lamar.

Defendant John Thurston, named in his official capacity as Arkansas Secretary of State, is represented by the Office of Arkansas Attorney General.

The case is Miller v. Thurston, W.D. Ark., No. 5:20-cv-05070, 5/25/20.

To contact the reporter on this story: Holly Barker in Washington at hbarker@bloombergindustry.com

To contact the editors responsible for this story: Rob Tricchinelli at rtricchinelli@bloomberglaw.com; Steven Patrick at spatrick@bloomberglaw.com