Arkansans for Limited Government v. Thurston

Following the U.S. Supreme Court’s 2022 precedent-shattering decision in Dobbs v. Jackson Women’s Health Organization, the right to have an abortion, which had been constitutionally protected by the Court’s Roe v. Wade decision in 1973, became a matter for states to address as they saw fit. Supporters of abortion rights in Arkansas, using the Arkansas constitution’s initiative process, gathered signatures to put a constitutional amendment on the ballot in 2024 to legalize abortion in many instances, but in the case of Arkansans for Limited Government v. Thurston in the summer of 2024, a 4–3 majority of the Arkansas Supreme Court blocked the amendment from the ballot in a decision that seemed to defy the constitutional guarantee of popular governance prescribed in the Initiative and Referendum constitutional amendment (Amendment 7 of 1920).  

From the outset, the situation in Arkansas following the Dobbs ruling was politically charged, in part because the state had a “trigger law,” which, in the words of one writer, “made all abortion illegal except if a woman was in an acute medical emergency and facing death.” Such a draconian provision set up a no-holds-barred effort by abortion rights advocates to overturn the act, while equally determined anti-abortion advocates were intent on protecting the existing restrictions, first by keeping the proposed amendment off the ballot. 

The proposed constitutional amendment drafted by the citizens’ group Arkansans for Limited Government (AFLG) would have legalized abortion up to eighteen weeks or even later in cases of rape, incest, and fetal anomaly, or to protect the prospective mother’s health. Despite strong opposition, the amendment’s supporters were initially optimistic about their chances for success based upon comparable efforts in other states, even though they were confronting a political landscape increasingly hostile to the state’s initiative and referendum process. After labor groups circulated petitions and put minimum-wage laws on the ballot that were ratified by voters in 2014 and 2018, business interests and the Republican Party that dominated the legislative and executive branches began passing acts that made it extremely difficult thereafter for citizens to get initiated acts and amendments on the ballot. When AFLG set about putting a constitutional amendment on the ballot to increase the options for legal abortions, as a number of states were doing, it confronted these new laws that created hardships for groups to satisfy all the requirements for getting proper signatures on petitions to put a proposed amendment on the ballot. Chief among them was a 2023 act that raised the number of counties where a threshold of voter signatures were required from fifteen counties to fifty, which seemed to amend and thus violate the constitution (only voters can amend the constitution in a statewide election). Under state law, to have an initiative placed on a ballot, a sponsor of the referendum question must file a petition with the Arkansas Secretary of State’s Office. The petition must contain signatures of at least ten percent of the state’s legal voters. There are also other lesser, but no less necessary, requirements in the new statutes that had to be satisfied to put an amendment on the ballot. 

AFLG submitted its petitions—exceeding the required number of signatures—on July 5, 2024, which was the deadline for anyone seeking to place a question on the 2024 general election ballot. However, things soon turned murky. On July 10, Secretary of State John Thurston quickly rejected the petition, saying it did not meet the statutory requirements. Specifically, Thurston focused on the fact that AFLG had allegedly failed to submit along with the petitions a piece of “compliance paperwork.” The missing paperwork involved a requirement that any campaigns for ballot measure had to submit a list of canvassers hired to collect signatures. The law also required the campaign to sign a statement affirming that it had provided each paid canvasser with a copy of the most recent version of the secretary of state’s handbook on initiatives and referenda. Noting that there were other groups also seeking to place questions on the ballot, in his statement denying the petitions, Thurston wrote, “You did not submit any statements meeting this requirement. By contrast, other sponsors of initiative petitions complied with this requirement. Therefore, I must reject your submission.”  

Political leaders quickly weighed in, with Governor Sarah Huckabee Sanders declaring, “Today the far left pro-abortion crowd in Arkansas showed they are both immoral and incompetent,” while Arkansas Senate majority leader Blake Johnson of Corning (Clay County) issued a statement saying, “This is a great day for all Arkansans. Our unborn babes will continue to be protected and the next generation will receive the educational freedom they deserve.” 

AFLG contested Thurston’s decision, asserting that it had submitted the statement multiple times—generally, after each new set of canvassers had been hired—and the organization noted that its last affidavit had been submitted on June 27, well in advance of the July 5 deadline. In a July 15 letter, Thurston argued that the June 27 affidavit was inadequate, failing to meet the requirement that the affidavit be submitted with the petition. Thurston, supported by Attorney General Tim Griffin, also argued that the paid canvassing company did not count as a “sponsor” who could submit the documentation, despite the fact that it had been an acceptable practice for years. Too, Thurston disqualified all of the signatures obtained by the paid and allegedly improperly documented canvassers, an action that resulted in the total number of approved signatures being insufficient to earn the AFLG the benefit of the corrective period provided by the statute, during which mistakes could be rectified in a way that could ultimately earn approval and qualification. 

On July 16, AFLG filed suit against the secretary of state. Among its arguments was the assertion, supported by a sworn declaration, that on or around July 1, Josh Bridge, the secretary’s assistant director of elections, had told AFLG that the submission of an additional explanation was not necessary.  

As the case moved into the courts and the parties pleaded their cases in the court of public opinion, a perception grew that state leaders were trying to block a vote on the abortion proposal, with that view strengthened by the shifting explanations as to why the AFLG petitions had been rejected. Further adding to the confusion—and heightening the doubts—was the fact that there were two other petition efforts simultaneously underway, one involving a group seeking an expansion of the state’s medical marijuana program and the other opposing the casino license awarded earlier in 2024 to Cherokee Nation Entertainment in Pope County. As these two groups pursued their efforts to secure a spot on the ballot, both Secretary of State Thurston and Attorney General Griffin offered different interpretations of the statutory language as it applied to those efforts versus that of the abortion rights advocates, despite the fact that they were all operating under the same statutory provisions.  

Things become so confused that at one point prior to the case getting to the Arkansas Supreme Court, Thurston and Griffin acknowledged that the Secretary of State’s Office had improperly approved the submission of the casino referendum petitions but, upon discovery of the mistake, said that it would be improper to revoke the already approved submission. Such logic, coupled with the ever-changing and shifting explanations for the disqualification of the AFLG effort, did little to quell the public questions. The marijuana and casino groups even sought to intervene in the case in support of AFLG. Casino group spokesman Hans Stiritz said, “As citizens we personally oppose the pro-abortion policy that AFLG is attempting to enact. But we also believe the job of the government is to follow the rules. Creating new interpretations of the law never applied before and glaringly inconsistent only creates further risks for the State of Arkansas, its citizens and the democratic process.”  

On August 22, 2024, by a 4–3 vote, the Arkansas Supreme Court upheld the secretary of state’s refusal to certify the AFLG petitions. It was a divisive, politically charged issue, but one that seemed to come down, in the words of one legal commentator, to the fact that AFLG had “failed to staple a photocopy of a document it had already submitted a week earlier,” even though, as that commentator continued, “(a) nothing in Arkansas law requires this photocopy to be stapled; and (b) even if this requirement existed, Arkansas law is clear that the failure to staple this photocopy is curable, and the sponsor immediately cured the asserted defect.”  

The three dissenting justices on the court strongly criticized the majority’s decision. Running through the timeline and identifying the ways AFLG had submitted the required certifications, the dissent noted: “The petitioners’ decision to file this certification on a rolling basis clearly satisfied the requirements set forth in subdivision (f)(2)(B) because the certifications were submitted well before the July 5 petition deadline. The fact that the petitioners did not file a certification contemporaneously with the petition is of no moment. To be clear, nothing in the statute requires that the certification and the petition be filed simultaneously. On the contrary, this requirement was made up out of whole cloth by the respondent and inexplicably ratified by the majority of this court.” The dissent concluded by stating: “It is absurd to hold that a certification cannot be submitted early, and by concluding otherwise, the majority has added yet another obstacle that prevents Arkansans from exercising their constitutional rights.” Justice Karen Baker stated, “Even a cursory review of how the present ballot initiative has progressed since its inception demonstrates that both the respondent and the majority have treated it differently for the sole purpose of preventing the people from voting on this issue.” But to the majority, none of that mattered. As one observer noted, “The majority opinion does not respond to this reasoning. It just asserts, without explanation, that ‘[t]here was a complete failure to file the paid canvasser training certification along with the petition.’” 

Technically, despite the Arkansas Supreme Court’s decision, it was not the definitive final word, as AFLG could have filed a lawsuit in federal court. But procedural and timing issues made that an unrealistic option. Proponents of the effort indicated that another try in 2026 was a possibility.  

For additional information:
Cowles v. Thurston, Supreme Court of Arkansas, No. CV-24-455. https://law.justia.com/cases/arkansas/supreme-court/2024/cv-24-455.html (accessed May 7, 2025). 

Earley, Neal. “Arkansas Supreme Court Upholds Rejection of Proposed Abortion Amendment.” Arkansas Democrat-Gazette, August 22, 2024. https://www.arkansasonline.com/news/2024/aug/22/arkansas-supreme-court-upholds-rejection-of-abortion-rights-petitions-blocking-ballot-measure/ (accessed May 7, 2025).  

———. “Ballot Petition to Expand Arkansas Abortion Rights Denied.” Arkansas Democrat-Gazette, July 10, 2024. https://www.arkansasonline.com/news/2024/jul/10/arkansas-secretary-of-states-office-rejects/ (accessed May 7, 2025).  

Kirchgaessner, Stephanie. “How a Rightwing Machine Stopped Arkansas’s Ballot to Roll Back One of the Strictest Abortion Bans.” The Guardian, October 29, 2024. https://www.theguardian.com/us-news/2024/oct/29/arkansas-abortion-ban-ballot (accessed May 7, 2025).  

Ramsey, David. “‘We Had to Be Perfect’: What Went Right and Wrong in the Campaign to Restore Abortion Rights in Arkansas.” Arkansas Times special series.  

Part 1: https://arktimes.com/arkansas-blog/2025/01/29/we-had-to-be-perfect.  

Part 2: https://arktimes.com/arkansas-blog/2025/02/04/we-had-to-be-perfect-2.  

Part 3: https://arktimes.com/arkansas-blog/2025/02/07/we-had-to-be-perfect-3.  

Part 4: https://arktimes.com/arkansas-blog/2025/02/17/we-had-to-be-perfect-3/.  

Part 5: https://arktimes.com/arkansas-blog/2025/03/12/we-had-to-be-perfect-3. (all accessed May 7, 2025). 

Ramsey, David, and Matt Campbell. “Arkansas Supreme Court Stretches Law to Disqualify Abortion Petition.” Arkansas Times, August 22, 2024. https://arktimes.com/arkansas-blog/2024/08/22/calvinball-arkansas-supreme-court-stretches-law-to-disqualify-abortion-petition (accessed May 7, 2025).  

———. “Marijuana and Casino Petitioner Groups Agree with Abortion Petitioners.” Arkansas Times, August 13, 2024. https://arktimes.com/arkansas-blog/2024/08/13/marijuana-and-casino-petitioner-groups-agree-with-abortion-petitioners-key-argument-from-attorney-general-is-wrong (accessed May 7, 2025).  

Unikowsky, Adam. “They Didn’t Submit a Photocopy That Wasn’t Required.” Adam’s Legal Newsletter, August 25, 2024. https://adamunikowsky.substack.com/p/they-didnt-submit-a-photocopy-that (accessed May 7, 2025).  

William H. Pruden III
Ravenscroft School