Andrew DeMillo/AP Photo
Supporters and opponents of a proposed ballot measure to scale back Arkansas’s abortion ban hold signs outside the old Supreme Court chamber at the state Capitol in Little Rock, July 5, 2024.
Hell hath no fury like that of women scorned on a technicality.
But that’s the situation facing pro-choice campaigners in Arkansas after Secretary of State John Thurston rejected petitions on Wednesday for an abortion constitutional amendment that appeared headed for the November ballot.
In his letter to Arkansans for Limited Government, the group behind the amendment, Thurston indicated that the group had failed to file key documents—specifically, “a statement identifying the paid canvassers by name, and a signed statement indicating that the sponsor has provided a copy of the most recent edition of the Secretary of State’s initiatives and referenda handbook and explained the requirements under Arkansas law for obtaining signatures on the petition to each paid canvasser before the paid canvasser solicited signatures.”
He added that these requirements had been ruled constitutional a decade ago. He then delivered the brutal kicker: “By contrast, other sponsors of initiative petitions complied with this requirement. Therefore, I must reject your submission.”
Those requirements appear designed to do just what they did in this instance: trip up campaigns that lack the sophistication or the staff to check and cross-check that every bureaucratic obstacle (OK, requirement) had been met.
But in a statement, Arkansans for Limited Government expressed that they were “ashamed and outraged” by Thurston’s decision. “We worked with the Secretary of State’s office during every step of the process to ensure that we followed all rules and regulations. At multiple junctures—including on July 5 inside of the Capitol Building—we discussed signature submission requirements with the Secretary of State’s staff. In fact, the Secretary of State’s office supplied us with the affidavit paperwork, which we used. Until today, we had no reason not to trust that the paperwork they supplied us was correct and complete.” The organization added that their opposition successfully obtained a list of paid signature-gatherers, which confirms that they submitted them to the government. They vowed to fight the ruling.
But after disallowing the signatures gathered by the paid canvassers, the secretary indicated that the number of verified signatures collected from registered voters fell several thousand short of the 90,704 mark required to advance to the ballot.
It was a stunning development for a campaign that nearly a week ago was already looking ahead to the fall contest. Getting the required signatures in this reddest of states was no mean feat. Crews of mostly volunteer, state-resident campaigners crisscrossed a very rural and evangelical state and collected 101,525 signatures.
Despite the verbal threats and doxxing that some of these activists had endured from abortion opponents, canvassers had obtained almost 11,000 more signatures than state law required in 53 counties. Until recently, ballot campaigns only had to collect signatures in 15 counties; state lawmakers implemented more stringent requirements to pass constitutional amendments last year.
It was a stunning development for a campaign that nearly a week ago was already looking ahead to the fall contest.
National pro-choice groups—with their superior resources—had stayed out of the fray since the amendment would not have restored the abortion rights that Arkansans, like all Americans, had under Roe v. Wade, which permitted abortions until viability—about 24 weeks. Their decision will certainly come under renewed scrutiny, given that they had the kind of experience that might have enabled the campaign to meet the state requirements, and that the campaign had amassed the resources to run a viable election campaign this fall.
Under the Arkansas proposal, abortion would have been prohibited after “18 weeks of fertilization” which according to the amendment’s text equates to “approximately 20 weeks since the first day of the pregnant female’s last menstrual period.” It would allow the procedure in cases where there are fatal fetal conditions or threats to the life of the mother. Today, a pregnant Arkansas woman can obtain an abortion only if she has a life-threatening emergency.
The campaign had made a strategic decision to accept Arkansas’s unique legislative and cultural realities in its quest for signatures. It pursued a citizen-initiated constitutional amendment that state lawmakers could not modify rather than a state statute that, if passed, lawmakers could have weighed down with additional restrictions to produce their own more restrictive outcomes. Canvassers stressed to signers that the measure was designed to stave off government intrusions in health care decision-making.
The longer viability standard established by Roe, the campaign had calculated, may not have passed muster in conservative Arkansas, especially since what viability means and how it is defined—like most aspects of human sexuality and reproduction—generates questions and confusion and reticence for vast numbers of people, especially, in this case, for religious Arkansans and teens. The state does not mandate sex education in schools; where it is taught, it stresses abstinence.
The 18-week standard would have given rural women the time to consult with medical professionals, relatives, and friends, which is critical in cases involving complications. It also takes into consideration travel times from remote places to larger cities where the procedure could be performed.
The campaign waged by the measure’s opponents had featured all sorts of attempts to intimidate canvassers. Opponents of the amendment had used the state’s FOIA laws to find the addresses of the paid signature-gatherers (ironically, a concurrent signature-gathering campaign to enshrine FOIA in the state constitution failed). Some canvassers were followed on their routes. One Little Rock police officer told canvassers that an order to move them off a public area where a food distribution was under way came from Republican Gov. Sarah Huckabee Sanders.
The amendment would have required only a simple majority to pass. In 2022, Arkansas voters defeated an attempt by the state legislature to implement a 60 percent supermajority threshold for constitutional amendments and state statute initiatives. Florida, the only other state in the South that has an initiative process, also has an abortion constitution amendment on the ballot, but it requires a 60 percent supermajority, and successful measures there—including one restoring voting rights to felons who’ve completed their sentences—have been subjected to legislative interference and de facto negation.
This story has been updated with a statement from Arkansans for Limited Government.
