New Lawsuit Challenges Arkansas’s Recent Ballot Access Legislation
News and Analysis
Apr 24, 2025
NEWS. April 23, 2025, from Little Rock.
The League of Women Voters has sued the State of Arkansas over the legislation from the 2025 session that affected ballot access for initiatives and referenda. The suit was filed in federal court in Fayetteville, Arkansas, by long time liberal attorney David Couch.
The suit challenges the constitutionality of the Acts which require paid canvasser disclosures, reading of ballot titles, and viewing the signor’s identification prior to obtaining a signature. Additionally, the League challenges the domicile requirement for canvassers, disclosures by canvassers that petition fraud is a crime, and signature gathering restrictions.
The challenges are to the Acts on the grounds that they violate the First Amendment’s freedom of speech and assembly provisions. The League is on solid legal ground.
In Meyer v. Grant, a 1988 case, SCOTUS struck down as unconstitutional regulations on free speech dealing with Colorado’s restrictions on a pay-per-signature ban on gathering signatures. Additionally, it found that requiring canvassers to preregister with the Secretary of State’s Office was an impermissible burden on free speech. Finally, the court ruled that trying to limit petitions to those gathered by grass roots voters was equally unconstitutional.
In McIntyre v. Ohio Elections Comm’n, decided in 1995, SCOTUS held that the free speech clause of the First Amendment extend not only to a candidate’s political speech, but those of ballot measures as well. It is in this case that SCOTUS introduces its standard where it says any restrictions on political speech are not just held to strict scrutiny, but “exacting scrutiny.”
Turning to Fed. Election Comm’n v. Cruz, (yes, Senator Ted Cruz was the named party in that one), in 2022, SCOTUS made it clear that state legislatures are prohibited under the First Amendment from attempting “to tamper with the rights of citizens to choose who shall govern them.”
As recent as 2023, in a case involving a cake maker from Colorado, SCOTUS held that the government cannot compel a person to speak the State’s own preferred message or include the State’s ideas for speech with those of the speaker.
Finally, for good measure, Couch has challenged the change in the 2023 session that caused petitions to now come from fifty counties instead of fifteen. Though more properly a state-law claim for state court, Couch can ask the federal court to include it under its “pendant jurisdiction.” The federal court has discretion to hear the state law claim or sever it from the federal claims.
The case is League of Women Voters of Arkansas, et. al., v. Cole Jester in his official capacity. 5:25-cv-05087. The case is assigned to the Honorable Timothy Brooks who presides in Arkansas’s Western District.
ANALYSIS.
There is a lot going on legally in this article. Let me help explain some of the concepts at play. First, there are federal and state constitutions. The federal one trumps the state ones pursuant to the Supremacy Clause. When a supreme court, whether state or federal, interprets the constitution, its interpretation “becomes a part of the constitution itself.”
The federal one says that you have free speech. What SCOTUS has said about the constitution in these cases is now what the First Amendment means. Clearly, a lot of the Arkansas legislation won’t survive in federal court.
Notice how SCOTUS has said that the states cannot force someone to use the state’s speech or mix the state’s speech with their own. However, that is exactly what the Arkansas legislation does. It tells the canvassers what they must tell other people about ballot measures. That’s red meat for a federal judge—especially given the SCOTUS precedent.
A few other nuances to note. “Strict scrutiny” is the highest standard for review. The lowest is “rational basis.” When strict scrutiny applies, you can expect that the law infringing the constitutional right will be struck down. There are two reasons for this: first, it’s a high bar to have to chin legally. Second, statistics. Statistically, more laws are struck down than held up when strict scrutiny is the standard. So what the heck is “exacting scrutiny.”
The court does not use that term often and it is not considered an additional standard of review in SCOTUS world. Additionally, the court, like a lot of courts tend to do, has not confirmed or denied the nature of “exacting scrutiny.” It is widely considered to be strict scrutiny at its zenith.
Second nuance, the domicile Act signed by Governor Sanders. This one is going to go down as well. The reason? States don’t get to say who comes into the state and exercises free speech. It’s free speech throughout the country, not just in your home state and Washington D.C. States can neither restrict speech nor employment of persons from a different state without running into strict scrutiny. Additionally, because employment is involved, there is a legal challenge here that Couch missed–this Act likely violates the Commerce Clause of the U.S. Constitution because a state law is impeding interstate commerce (the exchange of money for goods or services across state lines, and in this case canvasser employment).
I tend to laugh to myself because the domicile bill was an anti-Clint Lancaster/AVII bill where, in a very public legislative hearing, some legislator tried to convince me that using residents instead of domiciled persons was “violating the spirit of the law.” After explaining that laws don’t have spirits, only words, and they picked the word “resident” instead of the word “domicile” the fault was their own. The writing was on the wall that the 2025 gathering on the hill intended to change resident to also require domicile. However, they never asked me if that was a good idea or even constitutional. It’s always the questions you don’t ask that bite you the worst.
One question that tends to plague my mind is “why?” Why is the legislature so hell-bent to restrict our freedoms and rights that so many of us believe come from God himself? A couple of reasons.
First, professional politicians make money and prestige by staying in power. That means keeping the citizenry in check. Also, they suffer from group think and/or deference syndrome that keeps them from really acting in a legitimate manner. Finally, they are worried about not making other legislators mad so they can get votes on their own bills.
Rather than simply do the right thing, they are happy to force you to sue. Tax dollars and the largest law firm in the State, the AG’s office, defends the state. Private action comes from the pockets of the people. And Tim Griffin has fanned the flames for this situation by practically telling every legislator what they wanted to hear to support these bad bills which have become bad Acts.
However, to Couch’s credit, he has “forum shopped” this case into the right location. Forum shopping is a term used to describe a plaintiff’s searching out a court that will be most favorable to the plaintiff’s cause and then filing suit in the most favorable forum. For example, a conservative Arkansas Supreme Court is probably not going to help much in this case. As a caveat, that court held that registration and payment restrictions for paid canvassers was valid even though SCOTUS has said otherwise in Meyer.
As a side note, some people believe that forum shopping is bad. Forum shopping is not unlawful or prohibited. Do not be angry at the lawyers when they follow the laws. Bend it like Lancaster–but don’t break it.
Judge Brooks is the same judge that just shot down Crawford County’s restriction of the LGBTQ books in public libraries and stuck the county with everyone’s legal bill. That is a litmus test for how he sees constitutional matters. This one will be an easy one for Judge Brooks, who is wholly unafraid to enforce the constitution.
Additionally, this is not a liberal vs. conservative issue. Conservatives do not have a voice if liberals do not have a voice. I dislike a lot of the ways liberals use their voice, but from their freedom flows my own.
Attorney. America First. Sued Hunter Biden for child support. Represented President Trump in the 2020 Wisconsin election challenge. Former attorney for the Wisconsin Special Counsel. An official “Tough Cookie” per President Trump.
Looking forward to a good outcome on this one.