McDaniel v. Spencer

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                SUPREME COURT OF ARKANSAS
                                        No.   CV-14-599

DUSTIN MCDANIEL, IN HIS                            Opinion Delivered   March 5, 2015
OFFICIAL CAPACITY AS ATTORNEY
GENERAL, and MARK MARTIN, IN                       APPEAL FROM THE PULASKI
HIS OFFICIAL CAPACITY AS                           COUNTY CIRCUIT COURT,
SECRETARY OF STATE                                 NINTH DIVISION
                     APPELLANTS                    [NO. CV-2013-4020]

V.                                                 HONORABLE MARY SPENCER
                                                   MCGOWAN, JUDGE

PAUL SPENCER and NEIL SEALY                        AFFIRMED IN PART; REVERSED IN
                       APPELLEES                   PART.


                            ROBIN F. WYNNE, Associate Justice


       Dustin McDaniel, in his official capacity as Attorney General for the State of Arkansas,

and Mark Martin, in his official capacity as Secretary of State for the State of Arkansas, appeal

from orders of the Pulaski County Circuit Court declaring certain sections of Act 1413 of

2013 unconstitutional and enjoining their enforcement.             As this appeal involves the

interpretation or construction of the Constitution of the State of Arkansas, as well as

substantial questions of law concerning the validity, construction, or interpretation of an act

of the General Assembly, our jurisdiction is pursuant to Arkansas Supreme Court Rules 1-

2(a)(1) and (b)(6) (2014). We affirm in part and reverse in part.

       During the regular session of the 89th General Assembly of the State of Arkansas, the

General Assembly passed Act 1413 of 2013. Act of Apr. 22, 2013, No. 1413, 2013 Ark. Acts
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. The Act made numerous changes to the portions of the Arkansas Code pertaining to

initiatives and referenda. Article 5, § 1, of the Arkansas Constitution, as amended by

Amendment 7, reserves to the people of the State of Arkansas the right to propose legislative

measures, laws, and amendments to the constitution, and to enact or reject the same at the

polls, independent of the General Assembly, and sets out the procedure for doing so. The

section also prohibits unwarranted restrictions, stating that

       [n]o law shall be passed to prohibit any persons or persons from giving or receiving
       compensation for circulating petitions, nor to prohibit the circulation of petitions, nor
       in any manner interfering with the freedom of the people in procuring petitions; but
       laws shall be enacted prohibiting and penalizing perjury, forgery, and all other felonies
       or other fraudulent practices, in the securing of signatures or filing of petitions.

In the legislative findings accompanying Act 1413, the General Assembly found that sponsors

and paid canvassers may have an incentive to knowingly submit forged or otherwise invalid

signatures in order to obtain additional time to gather signatures and submit supplemental

petitions. The General Assembly also found that, absent efforts to address the issues, untrained

paid canvassers would continue to obtain and submit forged or otherwise facially invalid

signatures. The General Assembly further found that passage of the Act would make sponsors

and canvassers more accountable to the people, facilitate the initiative process, conserve state

resources, and help restore confidence and trust in the initiative process.

       In October 2013, Paul Spencer and Neil Sealy filed a complaint against Secretary

Martin in his official capacity, alleging that certain sections of the Act violated the

Constitution of the State of Arkansas, specifically amendment 7, the right of due process, the

right of equal protection, the right to petition, and the right to free speech. They also filed


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a motion for preliminary injunction in which they sought to enjoin Secretary Martin from

enforcing the Act. Attorney General McDaniel, acting in his official capacity, successfully

moved to intervene in the action and opposed the request for an injunction.

       Following a hearing, the circuit court entered an order in which it granted a temporary

injunction and found that sections 3, 11, 13, 15, 18, and 21 of Act 1413 violated the state

constitution. In the order, the circuit court found that the provisions would cause the citizens

of the State of Arkansas to lose their ability to propose legislative measures and laws directly

to the people. On April 2, 2014, the circuit court entered a judgment in favor of appellees

in which it permanently enjoined Secretary Martin from enforcing the portions of the Act that

it had declared unconstitutional. This appeal followed.

       This court reviews a circuit court’s interpretation of the constitution de novo because

it is for this court to determine what a constitutional provision means. Martin v. Kohls, 

, at 10–11, 

. Although this court is not bound by the circuit

court’s decision, its interpretation will be accepted as correct on appeal in the absence of a

showing that the circuit court erred. Id. at 11, 444 S.W.3d. at 850.

       Appellees challenged the constitutionality of certain provisions of Act 1413 of 2013.

Acts of the legislature are presumed constitutional and the party challenging the statute has the

burden to prove otherwise. Archer v. Sigma Tau Gamma Alpha Epsilon, Inc., 

, 

. An act will be struck down only when there is a clear incompatibility between

the act and the constitution. Tsann Kuen Enters. Co. v. Campbell, 

, 

 (2003).


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                                     Section 21 of Act 1413

       Section 21 of Act 1413 adds subchapter 6, titled “Paid Cavassers,” to Title 7, Chapter

9 of the Arkansas Code. As our holding regarding the constitutionality of this section affects

the constitutionality of provisions in several of the other disputed sections, we address it first.

Section 21 prohibits a sponsor from providing money or anything of value to a canvasser

unless the canvasser meets the requirements of the section. 

(a)(1)

(Supp. 2013). Sponsors are required to provide paid canvassers with a copy of the most recent

edition of the Secretary of State’s handbook on referenda and initiatives and explain Arkansas

law applicable to obtaining signatures on an initiative or referendum petition to the canvasser

before the canvasser can solicit signatures. 

(a)(2)(A)–(B) (Supp.

2013). Sponsors must also provide a complete list of all paid canvassers’ names and current

residential addresses to the Secretary of State and update the list if additional paid canvassers

are used. 

(a)(2)(C)(i)–(ii) (Supp. 2013).

       Before a paid canvasser can obtain signatures on an initiative or referendum, the

canvasser must submit to the sponsor the following: (1) his or her full name and any assumed

name; (2) his or her current residence address and permanent domicile address if the

permanent domicile address is different from the current residential address; (3) a signed

statement taken under oath or solemn affirmation that states that he or she has not pled guilty

or nolo contendere to or been found guilty of a criminal offense involving a violation of the

election laws, fraud, forgery, or identification theft in any state; (4) a signed statement that he

or she has read and understands the Arkansas law applicable to obtaining signatures on an


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initiative or referendum petition; (5) a signed statement that the person has been provided a

copy of the most recent edition of the Secretary of State’s initiatives and referenda handbook;

and (6) a photograph of the person taken within ninety days of the submission of the above-

required information. 

(b)(1)–(6) (Supp. 2013). Sponsors are

required to maintain the information for three years after the general election. 

(c) (Supp. 2013). For the purposes of section 7-9-601, “paid canvasser” means

a person who is paid or with whom there is an agreement to pay money or anything of value

before or after a signature on an initiative or referendum petition is solicited in exchange for

soliciting or obtaining a signature on a petition. 

(d) (Supp. 2013).

       Appellants challenged section 21 of the Act as an unwarranted restriction on the rights

granted to the people in article 5, § 1 of the Constitution of the State of Arkansas. We hold

that the requirements of section 21 do not act as unwarranted restrictions on the rights granted

in article 5, § 1. While article 5, § 1 prohibits any law that prohibits the circulation of

petitions or interferes with the freedom of the people in procuring petitions, it expressly

allows laws to facilitate its operation, as well as acts to prohibit and punish fraud in obtaining

signatures and filing petitions. In Washburn v. Hall, 

, 

 (1956),

this court considered whether Act 195 of 1943, now codified at Arkansas Code Annotated

section 7-9-107, which requires that the original draft of any initiative or referendum petition

ordering a vote upon any amendment or act be submitted to the attorney general with a

proposed legislative or ballot title and popular name before the petition can be circulated,

acted as an unwarranted restriction on the rights granted in article 5, § 1. In holding that it


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did not, we stated,

       Obviously, the Legislature considered that in signing a referendum or initiative petition
       the signer should have the benefit of a popular name and ballot title that would give
       as much information about the proposed act as is possible to give by such means . . .
       This statute in no way curtails the operation of Amendment no. 7 but is in aid of the
       amendment and insures the giving to the signer of the petition as much information
       as is possible and practicable with regard to what [he or she] is being asked to sign.

Washburn, 225 Ark. at 871–72, 

.

       The rationale used in Washburn is instructive in this case. The State clearly has an

interest in ensuring that sponsors are aware of the identity of people who are being paid to

solicit signatures from citizens as well as how to locate them should problems arise and to have

assurance that the persons so employed are aware of the applicable laws and do not have a

criminal history that calls into question their ability to interact with the public in a manner

consistent with those laws. These requirements aid in the proper use of the rights granted to

the people of this state. Combined with the minimal burden placed on paid canvassers and

sponsors, the requirements of section 21 do not act as an unwarranted restriction on the rights

of the people under article 5, § 1.

       Appellees also argued below that the requirements of section 21 violated their rights

to free speech, petition, and due process. Appellees’ argument regarding due process stems

from the lack in the Act of a definition of the terms “anything of value” as used in the section

to describe who is considered to be a paid canvasser for the purposes of the section and

“current residence address” as used to describe the address that must be included on the pre-

circulation form to be submitted to the sponsor. A law is unconstitutionally vague if it does



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not give a person of ordinary intelligence fair notice of what conduct is prohibited. Reinert

v. State, 

, 

 (2002). To satisfy due-process requirements, there must

be ascertainable standards of guilt in a statute so that a person of average intelligence does not

have to guess at its meaning. See Booker v. State, 

, 

 (1998). A

statute is void if it is so vague and standardless that it allows for arbitrary and discriminatory

enforcement. Craft v. City of Ft. Smith, 

, 

 (1998).

       Although the term “anything of value” is not defined, we hold that its use in section

21 passes muster for the purposes of due process. The items of value referenced in the section

are things that are received in exchange for obtaining signatures, as opposed to items given to

facilitate the effort to obtain signatures. The term employed is not so imprecise as to require

a person of ordinary intelligence to guess at its meaning or to allow for arbitrary and

discriminatory enforcement. Sponsors, agents, and canvassers should be able to determine

whether a canvasser has or will receive money or anything of value in exchange for obtaining

signatures.

       Likewise, we hold that the term “current residence address” is not unconstitutionally

vague. Appellees produced testimony before the circuit court that professional canvassers

relocate frequently, making it unclear what their “current residence address” would be. As

used in section 21, the term “current residence address” is juxtaposed with “permanent

domicile address,” clarifying what is meant by the use of both terms. The language used is

sufficiently clear to put canvassers and sponsors on notice as to what information is required.




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       The requirements of section 21 also do not violate appellees’ rights to free speech.

Although their complaint alleged that this section of the Act violated their right to free speech

under the Arkansas Constitution, their responsive brief cites no Arkansas case law, but instead

relies on United States Supreme Court precedent. While state courts are absolutely free to

interpret state constitutional provisions to accord greater protection to individual rights than

do similar provisions of the United States Constitution, Michigan v. Long, 

(1983), this court has not yet held that to be the case with regard to article 2, § 6 and, as none

of the parties assert that it provides more protection, we see no reason to address that issue at

this point.

       The United States Supreme Court has recognized that the circulation of an initiative

petition “involves the type of interactive communication concerning political change that is

appropriately described as ‘core political speech.’” Meyer v. Grant, 

, 421–22

(1988). In Buckley v. American Constitutional Law Foundation, Inc., 

 (1999), the

Court struck down a Colorado law requiring paid canvassers to wear badges displaying their

names. In discussing how the name-badge requirement impermissibly burdened political

speech by requiring canvassers to reveal their identities at the very moment of interaction with

potential petitioners, the Court contrasted Colorado’s requirement that canvassers submit an

affidavit containing their names and addresses with the petition on the basis that it is

“separated from the moment the circulator speaks.” 

. Likewise, here, the

requirements regarding submission of information by paid circulators does not force them to

reveal their identities at the time of their exercise of free speech. In addition, there is no


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reason to believe that the requirements of section 21 of Act 1413 will cause fewer people to

be willing to exercise their right of free speech by circulating petitions, as there is no

difference under the Act between a paid canvasser’s discussion of a desire for political change

with registered voters during the petition process and a discussion by any other citizen. As

such, this section of the Act does not violate appellees’ right to free speech.

       Appellees also alleged that section 21 infringed upon their right to engage in “core

political speech” under article 2, § 4, of the Arkansas Constitution. Article 2, § 4 provides

that

       [t]he right of the people peaceably to assemble, to consult for the common good; and
       to petition, by address or remonstrance, the government, or any department thereof,
       shall never be abridged.

As is discussed above, section 21 does not abridge appellees’ rights to engage in core political

speech under article 2, § 6. Section 21 likewise does not violate those rights under article 2,

§ 4.

       Appellees argue that section 21 of the Act violates their rights to equal protection

under the law. Their argument is based on their contention that the portions of the Act that

treat paid canvassers differently than volunteer canvassers violate the right to equal protection

contained in the Arkansas Constitution. Article 2, § 3, of the Arkansas Constitution states,

       The equality of all persons before the law is recognized, and shall ever remain
       inviolate; nor shall any citizen ever be deprived of any right, privilege or immunity;
       nor exempted from any burden or duty, on account of race, color or previous
       condition.

The equal-protection clause permits classifications that have a rational basis and are reasonably



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related to a legitimate government purpose. Bakalekos v. Furlow, 

, 

. Equal protection does not require that persons be dealt with identically;

it requires only that classification rest on real and not feigned differences, that the distinctions

have some relevance to the purpose for which the classification is made, and that their

treatment be not so disparate as to be arbitrary. 

 If a rational basis exists, the statute or, in

this case, the regulation, will withstand constitutional challenge. 

       Here, there exists a rational basis for the differing treatment of paid canvassers.

According to the legislative-findings portion of the Act, the General Assembly was concerned

that paid canvassers, who make their livelihood gathering signatures and who often, according

to the testimony before the circuit court, are paid by the signature, have an incentive to

submit forged or otherwise invalid signatures. This basis for the disparate treatment, expressed

in the Act itself, is sufficient to withstand appellees’ equal-protection challenge.

       Because section 21 of Act 1413 of 2013 is constitutional, the ruling of the circuit court

to the contrary is reversed.

                                      Section 3 of Act 1413

       Section 3 of Act 1413, which amended Arkansas Code Annotated section 7-9-103,

states that registered voters in Arkansas may sign their names and print their name, addresses,

birth dates, and the date of signing on an initiative or referendum petition. 

(a)(1)(A) (Supp. 2013). If a person signing a petition requires assistance due to a

disability, another person may print the petitioner’s name, address, birth date, and the date of

signing on the petition. 

(a)(1)(B)(i) (Supp. 2013). The assisting


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individual must then sign and print his or her name in the margin of the petition. 

(a)(1)(B)(ii) (Supp. 2013). This section also provides that a person shall not

act as a paid canvasser on a statewide initiative or referendum petition if the sponsor has not

provided the information required pursuant to Arkansas Code Annotated section 7-9-601 to

the Secretary of State before the person solicits signatures.         

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103(a)(2)(B)(4) (Supp. 2013). It is also impermissible under section 3 for anyone under the

age of eighteen to act as a canvasser. 

(a)(2)(B)(3) (Supp. 2013).

       Section 3 makes it a Class A misdemeanor to do the following if acting as a canvasser,

notary, sponsor, or agent: (1) sign a name other than his or her own to a petition; (2) print

a name, address, or birth date other than his or her own unless the petitioner requires

assistance due to a disability, and the assisting individual signs and prints his or her name in

the margin; (3) solicit or obtain a signature knowing that the person signing it is not qualified

to sign; (4) knowingly pay a person any form of compensation in exchange for signing a

petition; (5) accept or pay money or anything of value for obtaining signatures on a petition

when the person acting as a canvasser, sponsor, or agent of a sponsor knows that the person

acting as canvasser’s name or address is not included on the sponsor’s list; (6) as a sponsor, file

a petition part knowing that the petition part contains one or more false or fraudulent

signatures unless each false or fraudulent signature is clearly stricken before filing; (7) as a

canvasser, knowingly makes a false statement on a petition verification form; and (8) as a




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notary, knowingly fails to witness a canvasser’s affidavit.1 Act 1413, § 3. Section 3 also

requires officials charged with verifying signatures to report suspected forgery to the

appropriate law-enforcement agency. 

(d) (Supp. 2013).

       Appellees allege that section 3 violates article 5, § 1 as an unwarranted restriction upon

the right of petition that would interfere with the freedom of the people in procuring

petitions. Specifically, they allege that the terms “disability” and “anything of value” are

undefined and unconstitutionally vague, thus violating their rights to due process. Appellees

produced testimony at the hearing on the motion for preliminary injunction that people who

had been involved in the initiative and referendum process were unsure what would

constitute a disability under the Act and that they were concerned that the provision of items

such as food, drinks, and t-shirts to otherwise unpaid canvassers would result in their being

considered to be paid canvassers under the Act. They also argued that the requirement that

a petitioner write his or her name, address, and date of birth on the petition violates article

5, § 1 which they contend requires only signatures and an affidavit from the canvasser.

       Although the terms “disability” and “anything of value” are not defined, their use in

section 3 passes muster for the purposes of due process and the prohibition of unwarranted

restrictions under article 5, § 1. A “disability” for the purposes of section 3 is any condition

that would not allow a petitioner to write the required information on the petition without

assistance. The items of value referenced in the section are things that are received in exchange



       1
           This portion of section 3 is not codified in the Arkansas Code Annotated.


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for obtaining signatures. These terms are not so imprecise as to require a person of ordinary

intelligence to guess at their meaning or to allow for arbitrary and discriminatory enforcement.

Sponsors, agents, and canvassers should be able to determine whether someone requires

assistance due to a disability or if a canvasser receives money or anything of value in exchange

for obtaining signatures.

       Likewise, the requirement that a petitioner include his or her printed name, address, and

date of birth on the petition does not violate article 5, § 1. Article 5, § 1 requires the person

who circulated the petition to verify by affidavit that the signatures were obtained in his or her

presence, and that to the best of his or her knowledge or belief, each signature is genuine and

each signatory is a legal voter. It further states that no other affidavit or verification shall be

required to establish the genuineness of such signatures. However, the requirement of the

additional petitioner information on the petition is not a verification of the genuineness of the

signatures. Instead, that information assists the verifier of the signatures in determining

whether the petitioner is a legal voter, as is necessary for that person’s signature to count

toward the required total. Article 5, § 1 allows for the passage of laws to facilitate its operation.

This, in turn, assists in prohibiting fraudulent practices in the obtaining of signatures, which

is an authority granted to the General Assembly. Because the requirement does not conflict

with a provision of the Arkansas Constitution and falls within the power granted to the

General Assembly under article 5, § 1, the requirement is constitutional.

       Because section 3 of Act 1413 of 2013 is constitutional, the ruling of the circuit court

to the contrary is reversed.


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                                       Section 11 of Act 1413

       Section 11 of Act 1413, which amended Arkansas Code Annotated section 7-9-109(a),

sets out the form for the canvasser verification, including a requirement that the canvasser

include his or her “current residence address.” Appellees alleged that section 11's “current

residence address” requirement violated their rights to due process and equal protection

because the same is not required of volunteer canvassers and, per the testimony before the

circuit court, many of the professional paid canvassers move frequently, making it difficult to

determine what their “current residence address[es]” would be for the purposes of the Act.

Regarding equal protection, as explained above in the analysis of the challenge to section 21,

the General Assembly put forth a rational basis for disparate treatment between paid and

volunteer canvassers, justifying having the required information in order to locate the paid

canvassers after they submit their petitions. The requirement also does not violate due process,

according to the same rationale used in the above discussion of the term’s use in section 21 of

the Act.

       Because section 11 of Act 1413 of 2013 is constitutional, the ruling of the circuit court

to the contrary is reversed.

                                       Section 13 of Act 1413

       Section 13 of Act 1413, codified at Arkansas Code Annotated section 7-9-111(a)(3),

states that after the petition has been filed, a canvasser shall not circulate a petition, or collect,

solicit, or obtain any additional signatures for the filed petition until the Secretary of State

determines the sufficiency of the petition under this section. Appellees argued that this was


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an unwarranted restriction under Article 5, § 1 and that it violated the rights to petition and

liberty of speech granted in Article 2, §§ 4 and 6 of the Constitution of the State of Arkansas.

       We hold that section 13 of the Act violates article 5, § 1 because it acts as an

unwarranted restriction on the right to circulate a petition. The requirements of section 13

are distinguishable from those in section 21 such that the rationale utilized in Washburn v. 

 is neither instructive nor applicable. While the statute at issue in Washburn and the

requirements in section 21 of Act 1413 facilitate the purposes of the Act or assist in the

removal of fraud from the petition process, the requirements of section 13 do neither of those

things. Appellants argue that this section places all parties utilizing the petition process on

equal footing because it gives them all the same amount of time to obtain signatures. This

assertion, even if taken as true, serves no reasonable purpose in either furthering the rights

guaranteed in article 5, § 1 or assisting the people in exercising their rights to refer or initiate

legislation.

       Because section 13 of Act 1413 of 2013 is unconstitutional, the ruling of the circuit

court as to that section is affirmed.

                                        Section 15 of Act 1413

       Section 15 amended Arkansas Code Annotated section 7-9-111(f) to require that

petitions containing signatures from paid canvassers must be submitted with a statement

identifying the paid canvassers by name. 

(f)(2)(A) (Supp. 2013).

The sponsor must also submit a signed statement indicating that he or she (1) provided a copy

of the most recent edition of the Secretary of State’s initiative and referenda handbook to each


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paid canvasser prior to the canvasser soliciting signatures and (2) explained the requirements

under Arkansas law for obtaining signatures on an initiative or referendum petition to each

paid canvasser prior to the canvasser obtaining signatures.            

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111(f)(2)(B)(i)–(ii) (Supp. 2013).

       Appellees objected to the new requirements of section 7-9-111(f) on equal-protection

grounds. This argument lacks merit for the same reasons outlined in the discussions of sections

21 and 11 above.

       Because section 15 of Act 1413 of 2013 is constitutional, the ruling of the circuit court

to the contrary is reversed.

                                      Section 18 of Act 1413

       Section 18 of Act 1413 added section 7-9-126 to the Arkansas Code. That section,

titled “Count of Signatures,” requires that the official charged with verifying the signatures,

upon initial filing of the petition, perform an initial count and determine whether the petition

contains, on its face and before verification of the signatures of registered voters, the designated

number of signatures required by the Arkansas Constitution and statutory law in order to

certify the measure for the election ballot. The section further mandates that a petition part

and all signatures appearing on the petition part shall not be counted for any purpose, including

the initial count if (1) the petition is not an original petition, including one that is photocopies

or a facsimile transmission; (2) the petition lacks the signature, printed name, and residence

address of the canvasser or is signed by more than one canvasser; (3) the canvasser is a paid

canvasser whose name and the information required under Arkansas Code Annotated section


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7-9-601 were not submitted by the sponsor to the Secretary of State before the petitioner

signed the petition; (4) the canvasser verification is not notarized, is notarized by more than

one notary, or lacks a notary signature or notary seal; (5) the canvasser verification is dated

earlier than the date on which a petitioner signed the petition; (6) the petition fails to comply

with Arkansas Code Annotated sections 7-9-104 or 7-9-105, including the lack of the exact

popular name or ballot title approved by the Attorney General for a statewide initiative, a

discrepancy in the text of the initiated or referred measure, or the lack of an enacting clause

in a statewide petition for an initiated act; (7) the petition part of a statewide petition clearly

and unmistakably contains signatures of more than one county unless each signature of a

petitioner from another county is clearly stricken before the filing of the petition with the

Secretary of State; or (8) the petition part has a material defect that, on its face, renders the

petition part invalid. 

(b)(1)–(8) (Supp. 2013).

       Under section 18, the following signatures are not to be counted for any purpose,

including the initial count of signatures: (1) a signature that is not an original signature; (2) a

signature that is obviously not that of the purported petitioner; (3) a signature that is illegible

and is accompanied by no personally identifying information; (4) a signature for which the

corresponding printed name, address, or birth date is written by someone other than the signer

except under circumstances of a disability of a signer; and (5) a signature that has any other

material defect that, on its face, renders the signature invalid.       

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126(c)(1)–(5) (Supp. 2013). Also, if the initial count of signatures is less than the designated

number of signatures required by the Arkansas Constitution and statutory law, the official


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charged with verifying the signatures shall declare the petition insufficient and shall not accept

or file any additional signatures to cure the insufficiency. 

(d) (Supp.

2013).

         Appellees contended below that section 18 constitutes an unwarranted restriction and

violated the rights to due process, free speech, and petition. As noted previously, the General

Assembly has the right under article 5, § 1 to enact laws to prohibit and penalize fraud in the

securing of signatures or the filing of petitions. Arkansas Code Annotated section 7-9-

126(b)(1)–(6) and (8) fall within that authority. However, section 7-9-126(b)(7) does not.

That section provides that every signature on a petition part is invalidated if the part contains

signatures of more than one county. This court has held that, in situations involving the

validity of individual signatures, where there is no evidence of improper motives on the part

of the canvasser(s), only those individual signatures are called into question, not the entire

petition part. Sturdy v. Hall, 

, 

 (1942) (“If there was

no willful violation of the law by those who circulated the petitions, then it cannot be said that

an occasional duplication of names nullifies the entire sheet upon which a long list of electors

had in good faith petitioned for submission of the question at issue.”) Section 7-9-126(b)(7),

in invalidating an entire petition part for issues with individual signatures, goes beyond the

power granted to the General Assembly in article 5, § 1.

         Regarding Arkansas Code Annotated section 7-9-126(d), this Court has previously held

that a sponsor was not entitled to a grace period where the petition, on its face, did not include

enough signatures. Dixon v. Hall, 

, 

 (1946). As section 7-9-


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(d) is in line with this precedent, that subsection is constitutional.

       Appellees’ challenge on due-process grounds is based on the use of the term “anything

of value” in the sections definition of “paid canvasser” as well as the use of the term “material

defect.” As discussed above, the use of the term “anything of value” is not unconstitutionally

vague. Also, the use of the term “material defect” is not unconstitutionally vague, as it is

consistent with the Secretary of State’s authority under article 5, § 1 to determine the

sufficiency of petitions subject to review by this court.

       The alleged violations of free speech and right to petition are the same arguments that

were made and rejected with regard to other sections of the Act. For the reasons discussed in

preceding portions of this opinion, section 18 does not violate appellees’ rights to free speech

and petition.

       Because subsection (b)(7) of section 18 of Act 1413 of 2013, codified at Arkansas Code

Annotated section 7-9-126(b)(7), is unconstitutional, the circuit court’s finding as to that

subsection is affirmed. The circuit court’s findings as to the remainder of section 18 are

reversed.

       Affirmed in part; reversed in part.

       HANNAH, C.J., and WOOD, J., concur in part and dissent in part.

       BAKER, GOODSON, and HART, JJ., concur in part and dissent in part.

       RHONDA K. WOOD, Justice, concurring in part and dissenting in part. Because

I would uphold all of Act 1413 as constitutional, I would reverse the circuit court’s order in

its entirety. Thus, I concur with those parts of the majority’s opinion regarding sections 3, 11,


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, and 21 of Act 1413. I also concur with the balance of the majority’s holding regarding

section 18. But I dissent from its holding on subsection (b)(7) of section 18 and its holding on

section 13. These two provisions—the two-county signature prohibition and the petition-

gathering dead period—are consistent with the General Assembly’s duty under article 5,

section 1, of the Arkansas Constitution to prevent fraudulent petition-gathering practices.

       The General Assembly shall enact laws “prohibiting and penalizing perjury, forgery, and

all other felonies or fraudulent practices, in the securing of signatures and filing of petitions.”

Ark. Const. art. 5, § 1. This is a broad mandate, and combined with the deference this court

must give to laws passed by the General Assembly, the challengers to Act 1413 must meet a

high bar before they can overcome the Act’s presumptive constitutionality. It is well settled

that there is a presumption of validity attending every consideration of a statute’s

constitutionality. Cato v. Craighead Cnty. Cir. Ct., 

, 

. Before

an act will be held unconstitutional, the incompatibility between it and the constitution must

be clear. 

 Any doubt as to the constitutionality of a statute must be resolved in favor of its

constitutionality. 

 The heavy burden of demonstrating the unconstitutionality is upon the

one attacking it. 

 When possible, we will construe a statute so that it is constitutional. 

Applying these principles to the two-county signature prohibition and petition-gathering dead

period, I find that these two provisions pass constitutional muster.

       Subsection (b)(7) of section 18 provides that “[a] petition part and all signatures

appearing on the petition part shall not be counted . . . if . . . the petition part . . . clearly and

unmistakably contains signatures of petitioners from more than one (1) county.” Ark. Code


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Ann. § 7-9-126(b)(7) (“two-county signature prohibition”). The two-county signature

prohibition is in line with the rule announced in Sturdy v. Hall, 

, 

(1942). In Sturdy, at least some of the over 10,000 signatures submitted on a petition were

forged. A challenge was raised, which asserted that any petition part that included a forged

signature should not be counted. We rejected this argument and held that if the forged

signatures “were not done with the wrongful intent and with connivance between the

[petitioner] and the circulator, we think only the particular name wrongfully signed should be

stricken and not all the names appearing on that petition.” 

, 

.

       The majority mistakenly uses Sturdy to strike the two-county signature prohibition;

instead, this provision survives under Sturdy because, in this Act, the sponsors have the ability

to cure the defect. The Act provides that a petition part with signatures from petitioners living

in more than one county shall not be counted “unless each signature of a petitioner from

another county is clearly stricken before the filing of the petition.” 

-

126(b)(7). Thus, an entire petition part would be invalid not because a petitioner signed the

wrong sheet—it would be invalid because the sponsor submitted a petition part without

striking signatures from other counties. This provision is no different from other provisions in

the same section.

       For example, section 18 also has provisions (which the majority has upheld) prohibiting

the counting of petition parts if the petition part is not signed by the canvasser, if the canvasser

is paid and is not registered with the Secretary of State, or if the canvasser fails to properly

notarize the verification. 

(b)(2)–(4). If any of these situations occur,


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then a petitioner’s otherwise valid signature will not be counted. But just like the two-county

signature prohibition, the reason the valid signature will not be counted is the sponsor’s or

canvasser’s failure to comply with the law. In short, there is no constitutional difference among

section 18’s various provisions regulating the counting of signatures, and it is inconsistent for

the majority to treat these provisions differently.

       I also fail to see any constitutional defect in section 13. This provision provides that after

the petition has been filed, a canvasser shall not circulate a petition, or collect, solicit, or obtain

any additional signatures for the filed petition until the Secretary of State determines the

sufficiency of the petition. 

(a)(3) (“petition-gathering dead period”).

The rationale for this provision is to ensure that each petition drive has an equal amount of

time—thirty days—to cure any signature shortfall. If canvassers were able to gather signatures

while the Secretary makes an initial count, the amount of time to gather signatures after

submission would vary depending on how long it took the Secretary to determine the

petition’s initial sufficiency. The majority rejects this rationale, holding that the provision

“serves no reasonable purpose in either furthering the rights guaranteed in article 5, § 1 or

assisting the people in exercising their rights to refer or initiate legislation.” This response,

however, answers the wrong question.

       The right question is whether this provision is consistent with article 5, § 1’s mandate

to the General Assembly to enact laws “prohibiting . . . fraudulent practices.” If the Secretary

were able to modify the cure period on his or her own, the integrity of the petition-gathering

process would be threatened. For example, the Secretary could take longer to count petitions


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on causes he or she was in favor of. These petitions would therefore have thirty days, plus

however long the Secretary took to determine the petition’s initial sufficiency, to cure any

signature shortfall. Conversely, the Secretary could quickly count petitions he or she disagrees

with, compressing the cure time for these disfavored petitions. But by making the cure period

consistent, the General Assembly has ensured that the Secretary will treat all petitions equally.

Moreover, without the petition-gathering dead period, a sponsor who is running short of time

would be encouraged to deliberately include fraudulent petition parts in order to lengthen the

time it would take the Secretary to determine the number of valid signatures, thus expanding

the amount of time the sponsor would have to continue collecting signatures.

       A fraudulent act is defined as “conduct involving bad faith, dishonesty, a lack of

integrity, or moral turpitude.” Black’s Law Dictionary 777 (10th ed. 2014). By preventing the

Secretary from acting in bad faith and discouraging sponsors from fraudulently increasing their

petition’s signatures, the petition-gathering dead period is entirely consistent with article 5, §

1’s charge to the General Assembly to pass laws preventing fraudulent practices.

       For these reasons, I would hold that all of Act 1413 is constitutional.

       HANNAH, C.J., joins.

       JOSEPHINE LINKER HART, Justice, concurring in part and dissenting in part.

The citizens of the State of Arkansas are guaranteed fundamental rights to petition for

initiatives and referendums. Through amendment 7 of the Arkansas Constitution, the people

of our state have reserved to themselves the power to directly participate in the legislative

process by “propos[ing] legislative measures, laws, and amendments to the Constitution.” Ark.


                                               23
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Const. amend. 7. Amendment 7 “permits the exercise of the power reserved to the people to

control, to some extent at least, the policies” of the state, counties, and municipalities through

the petition process. Reeves v. Smith, 

, 

 (1935). Through

the explicit text of the amendment, the Arkansas Constitution is clear that the General

Assembly may not restrict, hamper, or impair these rights. Because Act 1413 impermissibly

interferes with the initiative and referendum processes that amendment 7 so jealously guards,

I believe it is unconstitutional in its entirety. Accordingly, I must dissent, in part, from the

majority’s decision.

       The Arkansas Constitution provides that the rights to initiative and referendum are of

paramount importance to the people of Arkansas, identifying them respectively as the first and

second powers “reserved by the people.” Ark. Const. amend. 7. Amendment 7 contains

express language prohibiting the General Assembly from passing any law “in any manner

interfering with the freedom of the people in procuring petitions.” 

 The amendment further

provides, “No legislation shall be enacted to restrict, hamper or impair the exercise of the

rights herein reserved to the people.” 

 Beyond doubt, the power retained by the citizens to

initiative and referendum are fundamental rights guaranteed by the constitution. When a

statute impinges on a fundamental right, strict scrutiny applies, and it cannot survive unless “a

compelling state interest is advanced by the statute and the statute is the least restrictive method

available to carry out [the] state interest.” Jegley v. Picado, 

, 

 (2002); see also Martin v. Kohls, 

, 

 (right to vote); Paschal v.

State, 

, 

 (right to privacy); Linder v. Linder, 

, 72


                                                24
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S.W.3d 841 (2002) (right to parent); Griffen v. Ark. Judicial Discipline & Disability Comm’n, 

, 

 (2003) (right to free speech); Lake View Sch. Dist. No. 25 of Phillips

Cnty. v. Huckabee, 

, 

 (2002) (right to an adequate education); Bennett

v. Nat’l Ass’n for Advancement of Colored People, 

, 

 (1963) (right to

association and access to the courts). Amendment 7 does provide that the legislature has an

interest in enacting laws to facilitate the operation of the amendment and to prohibit and

penalize perjury, forgery, and fraudulent practices. However, Act 1413 abuses and exceeds this

restricted grant of power.

       The majority has determined that section 13 and parts of section 18 are

unconstitutional, and I agree with that analysis; however, even assuming that the remaining

provisions of the Act could withstand examination individually, the cumulative effect of the

Act is more than the constitution will bear. Under a strict-scrutiny analysis, the State must

show a compelling governmental interest that the Act is narrowly tailored to meet. 

 While I agree that prohibiting fraud is a compelling governmental interest, Act 1413

goes too far; it is not narrowly tailored to meet that goal. As a result, it fails under strict

scrutiny.

       In examining whether the Act is narrowly tailored, we must consider the undisputed

testimony concerning the wide reach of the Act. The testimony before the circuit court was

that Act 1413 imposed arduous requirements to the procedures applicable to circulating and

filing petitions for initiatives and referendums. Even assuming that any one of these

requirements, standing alone, could pass constitutional muster, the cumulative result of the


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extensive changes to the initiative and referendum process is to deter Arkansans from exercising

their fundamental rights under amendment 7. For example, the Act clearly invokes criminal

liability for sponsors and canvassers who fail to comply with its edicts, but yet muddles its

provisions with ambiguous terms, making it difficult or impossible to determine whether one

is engaging in illegal conduct. We have held that a statute is unconstitutional when it

discourages the exercise of a fundamental right by imposing criminal liability through the use

of vague and unspecified terms. Neal v. Still, 

, 

 (1970). In this

case, the plaintiffs testified to precisely such a result from Act 1413 when they stated that the

threat of criminal liability on sponsors and paid canvassers throughout Act 1413 was daunting

and imposed a chilling effect on their desire to mount campaigns for initiatives and referenda.

Additionally, the undisputed testimony before the circuit court was that the Act added

insurmountable obstacles in the counting and discarding of signatures collected for petitions

and the prohibition on collecting signatures following the petition’s initial submission to the

Secretary of State. Accordingly, after reviewing the testimony at trial, the circuit court properly

concluded that “the effects of Act 1413 are crushing to the citizens who wish to bring their

issues directly to the people.”

       The majority opinion does not acknowledge the factual testimony regarding the

cumulative effect of the Act on the powers of initiative and referendum but rather limits its

discussion to the individual parts of the Act in seclusion. In my view, the strict language of

amendment 7 requires more than a piecemeal analysis to ensure that the General Assembly has

not enacted a law that will restrict, hamper, or impair the exercise of the rights of initiative and


                                                26
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referendum. I agree with the circuit court’s finding and would hold that the totality of the Act

results in an overly burdensome gauntlet whereby citizens of Arkansas are effectively denied

the fundamental rights granted through amendment 7.

       The majority contends that certain provisions of the Act can be upheld because the

legislative purposes are to facilitate the operation of amendment 7, and to prohibit and punish

fraud. While I have no quarrel with the stated legislative purposes, they are insufficient to

justify Act 1413 because of the law’s sweeping consequences. We have held that an Act is

invalid if it has an overall unconstitutional effect, even if the legislative purpose underlying the

Act is legitimate. Ports Petroleum Inc. of Ohio v. Tucker, 

, 

 (1996).

In Ports Petroleum, this court examined a challenge to Act 380 of 1993, which precluded

below-cost sales of motor fuel. This court held that, although the statute fell within the State’s

proper police power and was directed at a “laudable purpose . . . to foment competition and

prevent predation by prohibiting subsidizing below-cost pricing at the retail level,” the statute

was nonetheless unconstitutional because it was overbroad in its reach. 

, 

. Similarly, in the instant case, it is of no consequence that the General Assembly

purported to act pursuant to its limited powers under amendment 7 because Act 1413 is

overbroad and impairs the rights of the people to initiative and referendum far beyond what

is necessary to achieve those purposes.

       In short, while Act 1413 does not eliminate the rights to initiative and referendum

outright, the effect of its pervasive changes to the petition process will beget such a result—it




                                                27
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is death by a thousand cuts. Accordingly, I would hold that Act 1413 is unconstitutional in its

entirety.

       BAKER and GOODSON, JJ., join in this concurrence.

       Dustin McDaniel, Att’y Gen., by: Patrick E. Hollingsworth, Ass’t Att’y Gen., for appellants.

       Bettina E. Brownstein Law Firm, by: Bettina E. Brownstein; and David A. Couch, PLLC,

by: David A. Couch, for appellees.




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