Post-Hearing Briefs Filed in Arkansas Lawsuit

Fri, Dec 6 2013 by Neal Hobson

Earlier this week, legal briefs were filed by all parties after a Nov. 14-15 hearing regarding the plaintiffs’ motion for a preliminary injunction against Arkansas’s new, draconian anti-petition law, Act 1413, which passed the legislature earlier this year as emergency legislation.

The lawsuit, Spencer v. Martin, was brought by the ACLU of Arkansas and the Public Law Center on behalf of plaintiffs Paul Spencer, a leader of Regnat Populus, and Neal Sealy, executive director of Arkansas Community Organizations. The suit was filed against the defendant, the Arkansas Secretary of State (acting in an official capacity), with the state’s Attorney General having intervened into the case on the side of the defendant.

After numerous allegations of fraud in the 2012 petition process, not a single person has been prosecuted. However, the Natural State has some powerful enemies of initiative and referendum – most notably Oaklawn and Southland, each with a state-enshrined monopoly (on horse and dog racing, respectively, as well as other rights to offer gambling). They pushed through a major re-write of petition rules requiring cumbersome registration for paid petition circulators and a myriad of new excuses for tossing out the perfectly valid signatures of registered voters for even the smallest technical mistake, all to help block any chance for their competition to enjoy similar rights by way of passing a ballot measure

Citizens in Charge President Paul Jacob traveled to Arkansas to testify at the hearing as an expert witness on behalf of the plaintiffs. The plaintiffs’ brief notes Jacob’s testimony that:

* “The requirements of [Act 1413] create a hostile environment for paid canvassers that will discourage them from working in Arkansas.”

* “… the effective way to prevent fraud is to prosecute wrongdoers. The challenged provisions of the Act do not prevent fraud.”

* “The Act therefore makes it more difficult for grass roots type organizations to be able to afford to mount petition campaigns and will cause the field to be occupied solely by big organizations and moneyed interests.”

The plaintiffs brief points also out to Judge McGowan that, “Neither defendant nor intervenor offered any evidence that the challenged provisions of the Act, either singly or in the aggregate, prohibit or penalize perjury, forgery or other felonious acts, or facilitate the operation of Article 5, §1. They failed to offer any evidence as to any rational basis for treating paid canvassers differently from unpaid ones (especially since the definition of a paid canvasser erases in practical terms the distinction between the two categories.)”

The brief by the AG counters, “Testimony that gathering signatures might be more difficult or that the initiative process may be more costly is not sufficient to demonstrate irreparable harm. Their testimony is merely speculative and does not meet plaintiffs’ burden.”

The next step in the case will be for each party to submit briefs responding to the briefs just filed by the other parties. A decision on enjoining enforcement of Act 1413 is hoped for early in 2014.

Ark. Democrat-Gazette (available only to subscribers)
Backers: New law protects petitions – Arguments filed on initiatives act…

Plaintiff Brief – Spencer & Sealy

Defendant’s Brief – Secretary of State’s Post-Hearing Brief.pdf

Intervenor’s Brief – Attorney General’s Post-Hearing Brief.pdf