A lawsuit over Arkansas’ direct democracy process continues as nonprofits work to roll back new restrictions on petitioning.
The legislature earlier this year passed a slew of laws making the canvassing process extremely difficult. A consortium of local nonprofits is fighting back; groups plan to each pass an amendment undoing the legislation, and say the new rules make petitioning virtually impossible.
The Arkansas Constitution allows any citizen to put initiatives or amendments on the ballot for voters to approve. It's a three-step process.
First, an amendment or initiative is approved by the attorney general. Then, canvassers gather signatures from across the state, and finally the measure is on the ballot for citizens to approve. Very few initiatives or amendments have made it through all three hurdles in recent election cycles.
The state constitution gives citizens the right to this process, but lawmakers have put parameters on the specifics. For example, state law has upped the minimum number of counties needed for signatures from 15 to 50 and enhanced requirements for hired canvassers.
“You would think saying we have the power of the petition,” said Jennifer Standerfer, referring to the state constitution, “would be enough to infer that we have that right.”
She was speaking at a press call on Tuesday. Standerfer is an attorney working with Protect AR Rights, one of the nonprofits planning to attempt to stop canvassing laws in the courts.
Meanwhile, the same nonprofits are on a meta-quest, attempting to use the canvassing system they are challenging to pass amendments deregulating the system.
The mission is primarily led by two groups: Protect AR Rights, and the League of Women Voters of Arkansas. Both have put forward separate proposed amendments regarding canvassing. The proposals are nearly identical.
Right now, the League of Women Voters has made it through the first hurdle. Their amendment’s ballot title was approved by the attorney general, but Protect AR Rights has so far seen their amendment be rejected.
One of the biggest new hurdles is the requirement that language be written on an eighth-grade level using the Flesch-Kincaid Grade Level formula. The equation counts word and sentence difficulty.
The League of Women Voters’ approved proposal is called “The Direct Democracy Amendment.” The language in the amendment is simple, with an anaphoric use of the word “it.” As in:
“It makes 'petition fraud' a crime. It allows the legislature to decide the penalty range for criminals who intentionally defraud the petition process.”
Meanwhile, “The Arkansas Ballot Measure Rights Amendment” from Protect AR Rights was filled with multi-syllable words.
“This process is built to be difficult,” Standerfer said Tuesday.
Standerfer said their amendment is “still in the editing process.” She thinks they will resubmit within the next week or two. Her group is working on a unique approach to ballot titles in order to survive the equation.
“It reads more like a summary than our traditional lawyer ballot titles,” she said.
The group has to forgo words like “fundamental” when talking about rights. There are just too many syllables. Other words like “substantial” and “compliance” also had to go. But substitute phrases like: “mostly comply” mean different things in law.
The amendment aims to make canvassing a “fundamental right,” but that phrase has too many syllables for the new law.
“We are doing our best to get it down to an eighth-grade reading level while refusing to sacrifice honesty with the voters,” Standerfer said.
She says the group basically needed to create a “new legal theory” that put readability over legal accuracy.
In their lawsuit, the groups say rules, like the readability test, violate their First Amendment rights to go through the petition process.
Recently, attorney Emma Sharkey intervened in the case. She is a partner at the Elias Law Firm in Washington, D.C. The firm was created by Democratic lawyer Marc Elias, perhaps best known for fighting President Donald Trump's objections to the 2020 election results.
Sharkey is the firm's representative in the Arkansas lawsuit. She says the suit aims to protect voters' First Amendment rights to petition.
“A fundamental right is the idea that this is a protected right that you should be able to engage in,” she said. “That means the burden of the state has to be higher in order to regulate it.”
During a press call, lawyers fielded questions about the dueling and mostly similar ballot petitions from the two advocacy groups.
“We will continue to engage with them in a professional manner,” Standerefer said of the League of Women Voters, saying she wanted to get her group's title approved before she started “bickering” with them. Standerfer said having two similar measures can be confusing for voters, who may forget which ballot they already signed or struggle to discern the difference.
She hoped the two groups may work together. She pointed out that if both measures were to pass, the one with more votes takes legal priority.
Standerfer is no stranger to the ballot process. She made headlines in 2024, when she was arrested at an Arkansas Bar Association event in Hot Springs. Police arrested her for solicitation, though Standerfer says she was simply holding a petition when she was arrested.
The City of Hot Springs later offered her a settlement.
Correction: a previous version of this article confused Protect AR Rights with For AR People.
