Tom Williams/CQ Roll Call via AP Images
Rep. Jan Schakowsky (D-IL) attends a rally to mark the two-year anniversary of the Supreme Court’s decision that overturned Roe v. Wade, June 27, 2024.
It only took 20 pages for the Supreme Court of Arkansas to set back both reproductive autonomy and direct democracy in a state on the cusp of delivering a powerful signal on abortion access. Four of the seven justices disallowed signatures gathered for a citizen-initiated constitutional amendment on abortion based, in part, on the failure of organizers to adhere to complex regulations that can tax the skills of the most adept legal minds in Arkansas.
Last week’s decision found that Arkansans for Limited Government, the sponsor of the constitutional amendment, had failed to submit a required paid canvasser certification document with the final batch of signatures by a July deadline. The group has contended, among other reasons, that a state employee told them since they had submitted certifications with earlier batches, there was no need to submit another in the final round of paperwork.
AFLG’s problems began when Arkansas Secretary of State John Thurston threw out the petitions based on errors involving the required documentation. The oversights were a mortal blow to a campaign that had collected some 101,000 signatures, using both volunteers—who collected the vast majority of signatures—and paid canvassers.
The campaign faced long but not entirely insurmountable odds after the Dobbs decision led to well-publicized cases of women and girls trying to get abortions in other states, for reasons from life-threatening complications to rape. Highly motivated, mostly female volunteers fanned out across the state and collected nearly 88,000 signatures across 53 counties (three more counties than required, after state lawmakers upped the number from 15). They rounded up thousands of signatures in the last ten days before the deadline.
That effort was, for Arkansas, a remarkable feat.
A victory at the ballot box would have reverberated across other archconservative states, adding to wins in places like Kansas and Kentucky. Instead, the court’s decision has forced abortion rights advocates to reassess and regroup for a possible second attempt in 2026.
Joshua Silverstein, a law professor at the Bowen School of Law at the University of Arkansas at Little Rock, who assisted the abortion rights advocates, is looking ahead to the next election. “If people are willing to put the same effort in over the next two years that they did over the last nine to ten months, then it will be able to get on the ballot, especially now that there’s some guidance on how the ballot and initiative rules are going to be understood and interpreted by the secretary of state and the [state] Supreme Court.
“Now there might be new arguments that others try to come up with to strike it from the ballot,” he cautioned, “but I don’t think it’ll be difficult to overcome the problems from the current round.”
To maintain a permanent Republican trifecta, GOP state lawmakers have to keep tight controls on direct democracy.
“The ballot initiative process [is] a viable and crucial path forward for reproductive rights advocates,” Megan Bailey of the ACLU of Arkansas said in a statement provided to the Prospect. The organization participated in initial conversations about the ballot drive, provided advice and feedback to organizers, and looked out for canvassers’ First Amendment rights.
There was some concern that Arkansas, a small, deeply evangelical Protestant state, was a no-win situation for abortion rights, in contrast to larger, secular states like Florida where national funding could have more impact. Controversy over the wording of the ballot question, drafted with conservative voters in mind, did not go over well either. National pro-choice groups like Planned Parenthood held onto their dollars and stayed on the sidelines. State law prohibited out-of-state canvassers, so the campaign had to rely heavily on in-state volunteers.
Additional legal expertise could have provided valuable support once the signatures had been collected and the documents reviewed for compliance with state law. The justices in the majority were not, for example, moved by the AFLG’s argument that they were misinformed by a state employee. “We have explained that even in election matters, the burden of determining what the law requires falls on the filer—not office staff,” they wrote. “The court has ruled on this as a matter of law.”
“If someone misinforms you about the law, that’s on you,” says Silverstein. “You can sue them for misrepresentation in some circumstances, although generally not. But you’re not going to be able to use your mistake and the bad advice you’ve gotten as a defense to failure to comply with the law when some third parties are involved, like the state of Arkansas [employee] here.”
The regulation is designed to ensure that organizers take responsibility for paid canvassers’ work. “We all know that money influences, and so I have no problem in theory with more rigid requirements for signatures gathered by paid canvassers than by volunteers,” says Silverstein.
A presidential year with Kamala Harris at the top of the ticket would have contributed to higher turnout, organizers believe. Even though it is a foregone conclusion that Donald Trump will prevail in Arkansas, there are enough deeply dissatisfied women who could have tipped the scales for the abortion amendment.
The march to 2026 introduces more political complexities. All of the state’s constitutional officers will be on the ballot, including Gov. Sarah Huckabee Sanders (R), who remains popular in Arkansas’s ruby-red political circles.
To maintain a permanent Republican trifecta, GOP state lawmakers have to keep tight controls on direct democracy. “Why would you want to allow other methods of lawmaking?” says Silverstein about state leaders. “When you control one method of lawmaking, you want that to be the dominant method. So, from a purely political standpoint, it’s entirely logical that the Republicans would want to limit the ballot and initiative process in various ways to make it harder, because that’s really the only area where Democrats can have the type of success that they used to have when they had control of the legislature years ago.”
In another twist to the 2024 abortion question, two supreme court justices—Rhonda Wood, author of the majority decision, and Karen Baker, author of the dissent—meet up in an election contest for chief justice of the state supreme court. However, judges’ races in the small state tend to interest legal professionals and not the average voter. Although the abortion ballot question organizers are letting their supporters and other voters know about the race, it is unlikely that this down-ballot face-off would serve as a proxy for the abortion ballot question. In a nonpartisan race, voters have no way of knowing about the women’s party affiliation or their roles in the abortion case unless they had been following the legal developments very closely, or unless there’s a massive organizing campaign to make them aware.
State lawmakers are another case entirely. A goal for Arkansas Democrats this November is to break through the Republicans’ legislative supermajority. Even flipping a few seats could give Democrats more influence on issues like the state budget, which requires a 75 percent majority to pass. The current situation leaves them out of the picture.
Yet Silverstein warns that the whole situation is less about a particular issue (questions about casinos and recreational marijuana are also on the ballot) and more about direct-democracy backsliding. “Abortion kind of makes it more salient in people’s minds, but this is really about the role that direct democracy plays in the United States generally and in Arkansas specifically.
“There are reasons why the Republicans in the state have tried to make direct democracy more difficult, because they control representative democracy,” he continues. “What’s going on in all of these cases is always about both a specific substitute issue—casinos, marijuana, abortion—but also about what role is direct democracy going to play.”
