table of contents - arkansas times exhibit 5—certification letter to election officials from...
TRANSCRIPT
CV 16-776
IN THE ARKANSAS SUPREME COURT
COL. MIKE ROSS, RET.; MARION HUMPHREY; JAMES BROOKS, PATRICK ADAM JEGLEY; MARTHA DEAVER; AND THE COMMITTEE TO PROTECT AR FAMILIES
PETITIONERS
v. MARK MARTIN, ARKANSAS SECRETARY OF STATE
RESPONDENT
CHASE DUGGER AND DR. STEPHEN CANON, INDIVIDUALLY AND ON BEHALF OF HEALTH CARE ACCESS FOR ARKANSANS
INTERVENORS
_________________________________________________ ORIGINAL ACTION
_________________________________________________
PETITIONERS’ BRIEF AND ADDENDUM COUNTS I and II
_________________________________________________ Brian G. Brooks, 94209 Brian G. Brooks, Attorney at Law, PLLC P.O. Box 605 Greenbrier, AR 72058 Telephone: (501) 733-3457 [email protected]
Jeff Priebe, 2001124 James, Carter & Priebe, LLP 500 Broadway, Suite 400 Little Rock, AR 72201 Telephone: (501) 372-1414 [email protected]
Breean Walas, 2006077 Walas Law Firm, PLLC P.O. Box 95458 North Little Rock, AR 72190 Telephone: (501) 246-1067 [email protected]
Attorneys for Petitioners
Volume 1 of 4
i
TABLE OF CONTENTS
TABLE OF CONTENTS .................................................................................... i
INFORMATIONAL STATEMENT .............................................................. xii
JURISDICTIONAL STATEMENT ................................................................ xv
POINTS ON APPEAL ................................................................................... xvi
TABLE OF AUTHORITIES ......................................................................... xviii
ABSTRACT.................................................................................................. Ab. 1
I. SEPTEMBER 22, 2016 HEARING [1]...................................... Ab. 1 TESTIMONY ON BEHALF OF PETITIONERS [8] .............. Ab. 1
Chase Dugger [8] ......................................................... Ab. 1 Dan Greenberg [58] .................................................. Ab. 16 Josh Bridges [178] ..................................................... Ab. 45 Leslie Bellamy [229] ................................................. Ab. 65 Peyton Murphy [246] ............................................... Ab. 70 David Couch [254] ................................................... Ab. 72 Allison Clark [265] ................................................... Ab. 75
II. SEPTEMBER 23, 2016 HEARING [385] ............................. Ab. 109
TESTIMONY ON BEHALF OF PETITIONERS, CONTINUED [385] .............................................................. Ab. 109
ii
Allison Clark, continued [385] ............................ Ab. 109
ARGUMENT ON MOTION TO DISMISS [435] .............. Ab. 133
Intervenors’ Counsel [435] .................................. Ab. 133 Respondent’s Counsel [449] ................................ Ab. 144 Petitioners’ Counsel [454] .................................... Ab. 148
The Court [465] ...................................................... Ab. 157
TESTIMONY ON BEHALF OF INTERVENORS [468] ... Ab. 158
Trevor Donarski [469] .......................................... Ab. 158 Lucas Talburt [578] ............................................... Ab. 203 Josh Bridges [601] .................................................. Ab. 214
CLOSING STATEMENTS [644] ......................................... Ab. 237
Petitioners’ Counsel [645] .................................... Ab. 237 Respondent’s Counsel [663] ................................ Ab. 251 Intervenors’ Counsel [669] .................................. Ab. 255 Petitioners’ Counsel [681] .................................... Ab. 264
STATEMENT OF THE CASE ................................................................ SOC. 1 ARGUMENT .......................................................................................................1
I. APPLICABLE PRINCIPLES OF LAW ............................................2
II. HCAA, THE SPONSOR, CHOSE NOT
iii
TO FOLLOW THE LAW ....................................................................4
III. ISSUE 4 SHOULD BE STRICKEN FROM THE BALLOT, OR THE COURT SHOULD ENJOIN THE SECRETARY OF STATE FROM COUNTING THE VOTES FOR AND AGAINST IT ........................................................................................7
A. HCAA’s Petition did not comply with Section 7-9-111(f) ......7
1. An affidavit was not submitted with the Petition .........9
2. No sponsor statements were submitted with
the Petition ....................................................................... 10
B. HCAA never certified to the Secretary of State That each paid canvasser had passed a criminal background search ..................................................................... 12
C. HCAA did not obtain, at its cost, a current Arkansas State Police criminal background search for each paid canvasser. ................................................ 14
D. HCAA submitted petition parts containing signatures collected by paid canvassers who were ineligible to do so .............................................................. 16
1. Paid canvassers solicited and obtained signatures before registration with the Secretary of State ............................................................. 16
2. Paid canvassers solicited and obtained signatures before an Arkansas State Police criminal background search was done ......................... 17
3. Paid canvassers collected signatures without signing a statement of eligibility..................... 19
iv
4. Paid canvassers collected signatures even though they were never correctly registered with the Secretary of State .............................................. 20
5. Paid canvassers solicited and collected signatures even though they had not provided a domicile address to the Sponsor ............... 23
6. Paid canvassers collected signatures even though they had not provided a current, in-state residence address to the Sponsor .................... 25
IV. TO PROTECT THE INTEGRITY OF THE INITIATIVE PETITION PROCESS, “IT CERTAINLY IS” IMPORTANT TO FOLLOW THE LAW ................................................................ 27
CONCLUSION ................................................................................................ 30 CERTIFICATE OF SERVICE ......................................................................... 32
CERTIFICATE OF COMPLIANCE ............................................................. 32 ADDENDUM ........................................................................................... Add. 1
ADDENDUM
Document Addendum Page
VOLUME 2
Original Action Complaint Add. 1
Exhibit 1—Statement of Organization Add. 24
Exhibit 2—Certification Opinion from Attorney General
Add. 26
Exhibit 3—Receipt for Initiative Petition from Secretary of State
Add. 39
Exhibit 4—Certification Letter to Sponsor from Secretary of State
Add. 41
v
Exhibit 5—Certification Letter to Election Officials from Secretary of State
Add. 42
Exhibit 6—Listing of Signature Pages with Apparent Defects on their Face
Add. 48
Exhibit 7—Signature Pages Add. 69
Exhibit 8—Canvasser Submission Add. 79
Exhibit 9—Signature Pages Add. 86
Exhibit 10—Signature Pages Add. 98
Exhibit 11—Signature Pages Add. 106
Respondent’s Answer Add. 116
Motion to Intervene Add. 141
Exhibit 1—Statement of Organization Add. 147
Exhibit 2—Certification Letter to Sponsor from Secretary of State
Add. 149
Exhibit 3—Proposed Answer in Intervention Add. 150
Exhibit 4—Intervenors’ Response to Petitioner’s Motion to Appoint Master, for Bifurcated Consideration, Consecutive Briefing, Leave of Court to Conduct Discovery, Oral Argument, and Expedited Consideration of Motion
Add. 160
Intervenors’ Answer to Original Action Complaint Add. 166
Intervenors’ First Amended Answer to Original Action Complaint
Add. 174
Intervenors’ Cross-Claim Add. 182
First Amended Original Action Complaint Add. 186
Exhibit 1—Statement of Organization Add. 215
Exhibit 2—Certification Opinion from Attorney General
Add. 217
Exhibit 3—Receipt for Initiative Petition from Secretary of State
Add. 230
Exhibit 4—Certification Letter to Sponsor from Secretary of State
Add. 232
Exhibit 5—Certification Letter to Election Officials from Secretary of State
Add. 233
Exhibit 6—Listing of Signature Pages with Apparent Defects on their Face
Add. 239
vi
Exhibit 7—Signature Pages Add. 260
Exhibit 8—Canvasser Submission Add. 270
Exhibit 9—Signature Pages Add. 277
Exhibit 10—Signature Pages Add. 289
Exhibit 11—Signature Pages Add. 297
Exhibit 12—Email With Canvasser Submission Add. 308
Exhibit 13—Listing of Signatures from Out-of-State Canvassers
Add. 316
Exhibit 14—Signature Pages Add. 320
Exhibit 15—Signature Pages Add. 323
Respondent’s Response to Intervenors’ Cross Claim Add. 325
Intervenors’ First Amended Cross-Claim Add. 332
Intervenors’ Answer to First Amended Complaint Add. 338
Respondent’s Response to Intervenors’ First Amended Cross-Claim
Add. 347
Respondent’s Answer To Petitioners’ First Amended Original Action Complaint
Add. 414
Unopposed Motion for Relief From Addendum and Abstract Requirement and To Allow Electronic Submission of Addendum Documents and Transcribed Material and For Expedited Consideration
Add. 441
Agreed Protective Order Add. 447
Order, Motion for Relief from Abstract Requirement Denied; Motion for Relief from Addendum Requirement Granted in Part and Denied in Part
Add. 450
Intervenors’ First Amended Answer to Petitioners’ First Amended Original Action Complaint
Add. 452
Petitioners’ Exhibit 1: Ballot Question Committee Financial Report, Health Care Access for Arkansans, June 14, 2016
Add. 461
Petitioners’ Exhibit 2: Ballot Question Committee Financial Report, Health Care Access for Arkansans, July 14, 2016
Add. 469
Petitioners’ Exhibit 3: Ballot Question Committee Financial Report, Health Care Access for Arkansans, August 15, 2016
Add. 494
vii
Petitioners’ Exhibit 4: Ballot Question Committee Financial Report, Health Care Access for Arkansans, September 15, 2016
Add. 503
Petitioners’ Exhibit 5: Independent Contractor Agreement Between Health Care Access for Arkansans and 3.0 LLC
Add. 510
Petitioners’ Exhibit 6: 3.0 LLC Petition Project Training Materials
Add. 517
Petitioners’ Exhibit 7: Receipt for Initiative Petition Add. 525
Petitioners’ Exhibit 8: Facebook Discussion Add. 527
Petitioners’ Exhibit 9: E-Mail Correspondence from Greenberg to Secretary of State Election Division [2016.04.25 thru 2016.07.06]
Add. 537
VOLUME 3
Petitioners’ Exhibit 10: E-Mail Correspondence from Greenberg to Secretary of State, with Excel Spreadsheet [2016.07.07]
Add. 766
Petitioners’ Exhibit 11: E-Mail Correspondence from Greenberg to Secretary of State [2016.07.08 at 5:03 pm]
Add. 776
Petitioners’ Exhibit 12: Health Care Access for Arkansans Paid Canvasser Files [HCAA000639-HCAA000691]1
Add. 777
Petitioners’ Exhibit 13: Arkansas Criminal History Report of Russell James Baggett
Add. 830
Petitioners’ Exhibit 14: Arkansas Criminal History Report of William Emerson Burns
Add. 831
Petitioners’ Exhibit 15: Arkansas Criminal History Report of Joshua David Daro
Add. 832
Petitioners’ Exhibit 16: Arkansas Criminal History Report of Rick Duane Daro
Add. 833
Petitioners’ Exhibit 17: Arkansas Criminal History Add. 834
1 This is an excerpt of files contained in Petitioners’ Exhibit 29, which is
contained in the Electronic Addendum.
viii
Report of Linda Lou Boyd
Petitioners’ Exhibit 18: Arkansas Criminal History Report of Douglas Alan Green
Add. 835
Petitioners’ Exhibit 19: Arkansas Criminal History Report of Fifi Juanita Harper
Add. 836
Petitioners’ Exhibit 20: Arkansas Criminal History Report of Chase Mackenzie Harris
Add. 837
Petitioners’ Exhibit 21: Arkansas Criminal History Report of Archer Raymond Ladd
Add. 838
Petitioners’ Exhibit 22: Arkansas Criminal History Report of Jacqueline Marie Morales
Add. 839
Petitioners’ Exhibit 23: Arkansas Criminal History Report of Jose Ramon Rochet
Add. 840
Petitioners’ Exhibit 24: Arkansas Criminal History Report of Melinda Sue Selley
Add. 841
Petitioners’ Exhibit 25: Arkansas Criminal History Report of Jerime Shawn Willour
Add. 842
Petitioners’ Exhibit 26: 2015-16 Initiatives and Referenda Handbook
Add. 843
Petitioners’ Exhibit 27: Secretary of State Certificate Letter to Greenberg [2016.08.05]
Add. 898
Petitioners’ Exhibit 30: Paid Canvasser Signature Count Add. 899
Petitioners’ Exhibit 30A: Paid Canvassers Signature Count By Petition Part
Add. 910
VOLUME 4
Petitioners’ Exhibit 31 (Proffered): Paid Canvassers Out-of-State Current Residence Address
Add. 1378
Petitioners’ Exhibit 31A (Proffered): Paid Canvassers Out-of-State Current Residence Address Petition Parts
Add. 1383
Petitioners’ Exhibit 32: Paid Canvassers Missing Statement of Eligibility and ASP Report
Add. 1749
Petitioners’ Exhibit 32A: Paid Canvassers Missing Statement of Eligibility and ASP Report by Canvasser
Add. 1755
Petitioners’ Exhibit 33: Paid Canvassers Statement of Eligibility: No Domicile Address
Add. 1798
Petitioners’ Exhibit 33A: Paid Canvassers Statement of Add. 1813
ix
Eligibility: No Domicile Address by Canvasser
Petitioners’ Exhibit 34: Paid Canvassers Statement of Eligibility: Invalid/Incomplete Domicile Address
Add. 1846
Petitioners’ Exhibit 35: Paid Canvassers Missing Statement of Eligibility
Add. 1855
Petitioners’ Exhibit 36: Paid Canvassers: ASP Criminal Background Report Obtained By 3rd Party
Add. 1857
Petitioners’ Exhibit 37: Paid Canvasser Collecting Signatures Before Disclosure to SOS
Add. 1858
Petitioners’ Exhibit 38: Paid Canvassers Conflict Between Statement of Eligibility and Lists Submitted to SOS: Canvasser Name
Add. 1861
Petitioners’ Exhibit 39: Paid Canvasser Important Dates Add. 1890
Intervenors’ Exhibit 4: Paid Canvasser Forms for Trevor John Donarski
Add. 1901
Intervenors’ Exhibit 5: Paid Canvasser Forms for Diann Marie Gentry
Add. 1912
Intervenors’ Exhibit 6: Paid Canvasser Forms for Nicholas Todd Duenez
Add. 1926
Intervenors’ Exhibit 7: Paid Canvasser Forms for Justin Michael Collado2
Add. 1930
Intervenors’ Exhibit 8: Paid Canvasser Forms for Trisha Lee Doran
Add. 1961
Intervenors’ Exhibit 9: Paid Canvasser Forms for Add. 1973 2 The scanned copy of this exhibit was inadvertently omitted from the
transcript with exhibits electronically provided by the court reporter;
however, it is included in the original record filed with this Court. For
purposes of the addendum, Petitioners have included a copy of the
document as provided by Intervenors during the hearing before the Special
Master.
x
Tiffany R. Caster
Intervenors’ Exhibit 10: Paid Canvasser Forms for Matthew S. Chambers
Add. 1983
Intervenors’ Exhibit 11: Paid Canvasser Forms for Charles Anthony Chavez
Add. 1993
Intervenors’ Exhibit 12: Paid Canvasser Forms for Adolphus Theron Coleman
Add. 2003
Intervenors’ Exhibit 13: Paid Canvasser Forms for Bradley Collison
Add. 2014
Master’s Report and Finding of Facts Add. 2023 ELECTRONIC ADDENDUM
Petitioners’ Exhibit 28: Arkansas Secretary of State Valid Signature Report, Tort Reform – Greenberg
Add. 2041
Petitioners’ Exhibit 29: Health Care Access for Arkansans Paid Canvasser Files [HCAA000074-HCAA003699]
Add. 4242
Petitioners’ Exhibit 40: Attorney General Opinion No. 2016-038
Add. 7868
Joint Exhibit 1: Verified Petition Parts Add. 7881
Joint Exhibit 2: Culled Petition Parts Add. 29162
Intervenors’ Exhibit 1: Email Correspondence Add. 30802
Intervenors’ Exhibit 2: E-Mail Correspondence, August 5, 2016 at 2:08 p.m.
Add. 31056
Intervenors’ Exhibit 3: E-Mail Correspondence, August 5, 2016 at 9:52 a.m.
Add. 31063
Intervenors’ Exhibit 14: Names Categorized Duplicates not Duplicates
Add. 31068
Intervenors’ Exhibit 15: Duplicates to be Added Back Re: P-26
Add. 31069
Intervenors’ Exhibit 16: Duplicates to be Added Back Re: P-33
Add. 31082
Intervenors’ Exhibit 17: Duplicates to be Added Back Re: P-34
Add. 31088
Intervenors’ Exhibit 18: Duplicates to be Added Back Re: P-37A
Add. 31090
Intervenors’ Exhibit 19: Duplicates to be Added Back Add. 31093
xi
Re: P-38
Intervenors’ Exhibit 20: Culled Petitions – Incorrect Address
Add. 31095
Intervenors’ Exhibit 21: Culled Petitions – Canvasser Signature
Add. 31316
Intervenors’ Exhibit 22: Culled Petitions – Non-registered Canvasser
Add. 31514
Intervenors’ Exhibit 23: Culled Petitions – Canvasser Signed Petition
Add. 31518
xii
INFORMATIONAL STATEMENT
I. ANY RELATED OR PRIOR APPEAL (Identify)
II. BASIS OF SUPREME COURT JURISDICTION (see Rule 1-2(a)):
AMENDMENT 7, and AMENDMENT 80, § 2(D)(4), ORIGINAL ACTION
( ) Check here if no basis for Supreme Court Jurisdiction is being asserted, or check below all applicable grounds on which Supreme Court Jurisdiction is asserted.
(1)____Construction of Constitution of Arkansas
(2)____Death penalty, life imprisonment
(3)____Extraordinary writs
(4)____Elections and election procedures
(5)____Discipline of attorneys
(6)____Discipline and disability of judges
(7) Previous appeal in Supreme Court
(8)____Appeal to Supreme Court by law
III. NATURE OF APPEAL
(1) Administrative or regulatory action
(2)____Rule 37
(3)____Rule on Clerk
xiii
(4)____Interlocutory appeal
(5)____Usury
(6)____Products liability
(7)____Oil, gas, or mineral rights
(8) Torts
(9) Construction of deed or will
(10) Contract
(11) Criminal
(12) Domestic Relations
(13) X Initiative and Referendum
(Write a brief Statement limited to the space provided describing the case on appeal, and set out the causes of action (i.e., in a civil case, tort, contract, etc., or in a criminal case, the convicted offenses, whether felony or misdemeanor, and the punishment) underlying the judgment from which the appeal is taken.) This is an original action to review whether an initiative amendment to the Arkansas Constitution certified by Respondent for the general election ballot complies with the requirements of Article 5, section 1 of the Arkansas Constitution as amended by Amendment 7. This Court ordered separate briefing on the issues presented, with the sufficiency of the ballot title (Count III) briefed separately from questions regarding the Sponsor following mandatory paid canvasser procedures (Count I) and the sufficiency of signatures (Count II). The brief addressing the sufficiency of the ballot title was filed with this court on September 15, 2016. This brief addresses the failure of the Sponsor to follow the mandatory filing procedures, mandatory paid
xiv
canvasser procedures and the sufficiency of number of signatures. IV. IS THE ONLY ISSUE ON APPEAL WHETHER THE EVIDENCE IS
SUFFICIENT TO SUPPORT THE JUDGMENT? No V. EXTRAORDINARY ISSUES. (Check if applicable, and discuss in
Paragraph 2 of the Jurisdictional Statement.) Not Applicable.
( ) Appeal presents issue of first impression, (___) Appeal involves issue upon which there is a perceived
inconsistency in the decisions of the Court of Appeals or Supreme Court,
(___) Appeal involves federal constitutional interpretation, ( ) Appeal is of substantial public interest, ( ) Appeal involves significant issue needing clarification
or development of the law, or overruling of precedent. ( ) Appeal involves significant issue concerning construction of statute, ordinance, rule, or regulation. VI. 1. Does this appeal involve confidential information as defined by Sections III(A)(11) or VII(A) of Administrative Order 19? Yes X No
2. If the answer is “yes,” then does this brief comply with Rule 4-1(d)?
Yes ___No
xv
JURISDICTIONAL STATEMENT
1. All issues of law raised on appeal, expressed in the terms and circumstances of the case but without unnecessary detail. a). Whether the Sponsor followed the mandatory filing procedures and mandatory paid canvasser procedures set forth in Arkansas Code Annotated §§ 7-9-111 and 7-9-601. b). Whether the Sponsor’s Petition contained sufficient valid signatures for the initiative to be placed on the November 8, 2016 ballot.
2. I express a belief, based on a reasoned and studied professional judgment, that this appeal presents no issues of legal significance for jurisdictional purposes. By /s/ Breean Walas Attorney for Petitioners
xvi
POINTS ON APPEAL
1. Health Care Access for Arkansans did not follow the law governing
the initiative petition process.
2. Issue 4 should be stricken from the ballot, or the Court should
enjoin the Secretary of State from counting the votes for and against
it because:
a. The Petition did not comply with Arkansas Code Annotated § 7-
9-111(f);
b. Health Care Access for Arkansans never submitted a
certification that each paid canvasser had passed a criminal
background check as required by Arkansas Code Annotated § 7-
9-601(b);
c. Health Care Access for Arkansans did not obtain, at its cost, a
current Arkansas State Police criminal background search for
each paid canvasser in violation of Arkansas Code Annotated §
7-9-601(b).
d. Health Care Access for Arkansans submitted petition parts
containing signatures collected by paid canvassers who were
ineligible to do so under Arkansas law.
xvii
3. Health Care Access for Arkansans was required to follow and
comply with Arkansas law.
xviii
TABLE OF AUTHORITIES Cases
Crenshaw v. Special Adm’r of the Estate of Ayers, 2011 Ark. 22 .................... 22 Kellogg v. State, 153 Ark. 193, 240 S.W. 20 (1922) ....................................... 22 Leathers v. Warmack, 341 Ark. 609, 19 S.W.3d 27 (2000) ............................ 25 Mays v. Cole, 374 Ark. 532, 289 S.W.3d 1 (2008) ......................................... 28 McDaniel v. Spencer, 2015 Ark. 94, 457 S.W.3d 641 ......... 2, 22, 26, 27, 29, 30 Porter v. McCuen, 310 Ark. 674, 839 S.W.2d 521 (1992) .................................3 Roberts v. Priest, 334 Ark. 503, 975 S.W.2d 850 (1998) .............................. 1, 3 Ross v. Martin, 2016 Ark. 300 ................................................................. SOC. 2 Save Energy Reap Taxes v. Shaw, 374 Ark. 428, 288 S.W.3d 601 (2008) ...................................................... 3, 4, 8 Constitutional Provisions, Statutes and Rules ARK. CONST., art. 5, § 1, as amended by amend. 7 .................................... 2, 4 ARK. CODE ANN. §§ 7-9-101, et seq. .................................................................2 ARK. CODE ANN. § 7-9-111 ....................................................................... passim ARK. CODE ANN. § 7-9-126 ....................................................................... passim ARK. CODE ANN. § 7-9-601 ....................................................................... passim ARK. SUP. CT. R. 6-5(a) ........................................................................................4 ARK. R. CIV. P. 53 .................................................................................................4
xix
Other Act 1413 of 2013, ..................................................................................................2
Ab. 1
ABSTRACT
Hearing before the Honorable J.W. Looney September 22, 2016
(Record pages 1-8 have not been abstracted because they are introductory
in nature and not relevant.)
TESTIMONY ON BEHALF OF PETITIONERS
Testimony of Chase Duggar
Direct Examination
[8] Good morning. My name is Chase Duggar. I run JCD Consulting
Services doing political consulting, lobbying, and things of that nature. I
am a lobbyist. I am familiar with an organization called Health Care Access
for Arkansans. It is the ballot committee for the tort reform ballot
amendment. The directors of Health Care Access for Arkansans are Dr.
Cannon, our treasurer, myself, and Dan Greenberg serving as legal
counsel. The purpose of Health Care Access for Arkansans is just to run the
campaign aspect of passing the ballot amendment. [9]
Health Care Access for Arkansans is required to file paperwork with
the Arkansas Ethics Commission. The main purpose of Health Care Access
for Arkansans is to place a constitutional amendment on the ballot for
Ab. 2
November 8th. It is commonly referred to by the ballot question committee
as tort reform. [10]
It is my understanding that in order to place tort reform on the
November 8th ballot, that Health Care Access for Arkansans had to gather
signatures. I was part of that campaign. We started the campaign sometime
mid-April. We got it certified through the attorney general’s office and
began gathering signatures shortly thereafter. Health Care Access for
Arkansans collected signatures all the way up to July 8th of this year. I
consider Health Care Access for Arkansans the sponsor of tort reform. To
gather the signatures, we hired a company, 3.0, LLC, and they were the
ones responsible for gathering the signatures and ensuring that we got
them turned in correctly. They were paid. [11]
The finances, all contributions and expenditures, of Health Care
Access for Arkansans are subject to disclosure to the Arkansas Ethics
Commission. There are monthly filing requirements. If I haven’t seen all
the requirements for Health Care Access for Arkansans, I’ve seen at least
most of them. As director, those documents that are filed with the Ethics
Commission must be reviewed and confirmed and verified by Health Care
Ab. 3
Access for Arkansans.
3.0 is the only signature gathering company that appears on the
expenditures. Any subcontractor was covered through their contract. 3.0,
LLC, was the only signature firm paid by Health Care Access for
Arkansans. [12] I believe they have subcontracted with some others. I don’t
know who all that was. The only one the committee paid was 3.0. The
contract with 3.0 was both a set amount and variable amount. I think there
was some set cost, if I remember correctly, but a lot of it was per signature.
[13]
I don’t know if there were any payments made to the Arkansas State
Police listed on the disclosures filed with the Arkansas Ethics Commission.
[14] This document is our May filing for the ballot committee. It’s filed in
June because you have to file fifteen days after the month is over. I have
seen this document before. [15] We have to list out every expenditure in
excess of a hundred dollars. I do not see any expenses to the Arkansas State
Police. It is my understanding that any expenses to the state police for
ballot checks would be through 3.0 and then they were being reimbursed
in their monthly payments.
Ab. 4
On the very last page of the Ethics Commission filings, we have to
categorize our expenses. I do not see any expenses categorized as
background checks. I do not see any expenses categorized as canvasser
payments.
[Petitioners’ Exhibit 1 is introduced.] [16]
This is Health Care Access for Arkansans’ June report to the Ethics
Commission. I do not see any expenditures specific to the Arkansas State
Police. 3.0 is the only signature gathering canvasser. [17]. I do not see any
expenditures for background checks. I do not see any expenditures for paid
canvassers in Section 20.
[Petitioners’ Exhibit 2 is introduced.]
I recognize this document. It is our Health Care Access for Arkansans
July report. [18]. I actually signed this one. I have seen it before. I do not see
any expenditures to the Arkansas State Police. 3.0 is the only signature
gathering company we paid. I do not see any expenditures listed as
background checks.
[Petitioners’ Exhibit 3 is introduced.] [19].
I recognize this document. It is the Health Care Access for Arkansans
Ab. 5
August report that was filed in September. This would be the last report
that would show anything in regards to the signature gathering
expenditures. I do not see any expenditures for the Arkansas State Police.
There are no signature gathering firms listed on this report. That was all
before this month. [20]. I do not see any expenditures in regards to
background checks.
[Petitioners’ Exhibit 4 is introduced.]
The only canvassing firm that was paid directly from Health Care
Access for Arkansans was 3.0. No checks were written by Health Care
Access for Arkansans to the Arkansas State Police. There are no categories
identified that reflect background checks. [21].
I did not see any expenses paid to InFocus. I do not know who
InFocus is. I don’t know who Lincoln Strategy Group is. I do not see any
expenses to them. I do not see anything about Blueprint Action. I do not
know who they are. I know who National Ballot Access is, but they are not
on here. They were not paid anything by Health Care Access for
Arkansans. I do not know David Couch. I do not see David Couch listed on
any of these expenditures.
Ab. 6
I did not write the tort reform amendment. [22]. Dan Greenberg
wrote the tort reform amendment. I believe the title of the tort reform
amendment is pretty self-explanatory. It limits attorneys’ fees and caps
noneconomic damages in medical lawsuits. [23]. It does those two things.
I hired 3.0, LLC. I had not had any experience with them before. [24].
I am not aware that they have ever ran a signature gathering campaign in
Arkansas. We had a contractual agreement. I recognize this document. It is
the contract between Health Care Access for Arkansans and 3.0. I signed
this agreement on April 27th. [25]. I read the agreement before I signed it.
On the front page of the agreement it says that 3.0, LLC, is an independent
contractor and is not an agent or employee, joint venture, or partner of
Health Care Access for Arkansans. [26].
If I remember correctly, and it’s been awhile since I’ve read this, but
my understanding is 3.0 would help train all of the canvassers. Any talking
points that 3.0, LLC needed would come from Health Care Access for
Arkansans. Under the agreement, Health Care Access for Arkansans was to
file all paperwork with the Arkansas Secretary of State’s office for paid
canvassers. [27]. I cannot recall this agreement was ever amended.
Ab. 7
[Petitioners’ Exhibit 5 is introduced.]
Health Care Access for Arkansans never had a contract with InFocus.
Health Care Access for Arkansans never had a contract with Lincoln
Strategy Group. Health Care Access for Arkansans never had a contract
with Blueprint Action. Health Care Access for Arkansans never had a
contract with National Ballot Access. [28].
It’s my understanding that there was paid training done for
canvassers, but I’m not entirely sure on that. I did not train any of the
canvassers. I’m not sure if Dr. Stephen Canon trained any trained
canvassers. I’m not sure about Mr. Greenberg, either. Health Care Access
for Arkansans did not provide any training material that I am aware of. I
do believe we submitted talking points about the amendment so that they
would know what to say when they approached someone. [29].
I have never seen these documents provided by my attorneys in
discovery. They could have potentially been provided by Health Care
Access for Arkansans, but I don’t recall having seen this before. [30].
Somebody else may have sent that to them, but I don’t recall having seen
this before. [30-31]. The talking points that were being used to train
Ab. 8
canvassers was supposed to be provided by Health Care Access for
Arkansans. I don’t know where the talking points came from.
I have an understanding of how the paid canvassers collected
signatures. I think we did a little bit of door-to-door. We approached
people on the street, just normal canvassing activities. We went down to
the River Market or Walmart or Kroger. Wherever. [31]
So paid canvassers were being apparently trained to use these talking
points. Great; hi, are you a registered voter in Arkansas. Because only
registered voters can sign. Great; can you help us limit the amount of
money lawyers can make on frivolous lawsuits; this would allow doctors to
practice medicine and not always worry about getting sued; this, in turn,
will help reduce the cost of healthcare because sue-happy lawyers won’t be
filing lawsuits; what county; thank you so much for your time.
They asked what county because, by law, you have to sign on a sheet
for your county. [32].
I think these talking points accurately reflect the tort reform
amendment. I do not see any reference to caps on noneconomic damages. It
isn’t in there because it’s a term that many joe-blow people that are not
Ab. 9
attorneys don’t understand so we put it in terms that we thought would be
better understanding of the issue.
I guess you could say we left half of the amendment out.
Noneconomic damages is the noneconomic aspect of a lawsuit. [33].
(Page 34 is not abstracted because it is a conference between the judge and
attorneys and is not relevant to the issues.)
To me, I think noneconomic damages is the noneconomic damages. I
don’t know a better way to phrase that. I apologize, I just don’t know a
better way to say that. I know what they are. I believe that economic
damages is your livelihood, noneconomic damages is the extra on top of
that. Pain and suffering is an accurate description.
It looks to be that if the paid canvassers were questioned, the talking
points were what they were supposed to say. After you mention putting a
cap limit on attorney contingency fees of 33.3 percent for medical lawsuits,
this usually convinces the voters. [35].
I did not collect signatures, but I’ve discussed this amendment with
people and that is an accurate statement. Once you talk attorneys’ fees, that
usually gets people to sign. I talk about noneconomic damages. I can’t
Ab. 10
speak for every canvasser that we hired. I do not see the term noneconomic
damages on the training material. I believe this was a way to stop junk
lawsuits that increases the cost of healthcare. That’s what they were
supposed to tell them to get them to sign the petition. [36]. They are
supposed to say that the way it is set up now, lawyers are making a living
suing doctors; lawyers who are making all the money the main group that
opposes the initiative. As for all training materials, these are the only
documents provided. [37].
On behalf of Health Care Access for Arkansans, I do not know of any
other training materials that were provided to over 300 canvassers for the
tort reform amendment. I did not provide any of the training materials
myself. This is potentially all the training materials that were provided.
[Petitioners’ Exhibit 6 is introduced.] [38].
Paid canvassers had to collect signatures from May through July. July
8, 2016, was the deadline to present the petition and all the signatures. I
took them myself to the Secretary of State’s office. I believe I went
somewhere between 3:30 and 4:30, but that’s been a couple of months. I’m
not entirely sure on that. It was close to closing time. [39].
Ab. 11
Dan Greenberg was with me. After July 8, 2016, we did not have any
more paid canvassers. The only paid canvassers I hired was 3.0, LLC. I did
not train anyone. I did not do any background checks. I did not submit any
of the names of the paid canvassers to the Secretary of State’s office. Dan
Greenberg submitted those names. I don’t recall having any documents in
my possession from the paid canvassers such as background checks or
statements of eligibility. [40]. I’m not sure if Dan Greenberg had any of
those documents.
Approximately 3,000 pages of files have been provided relating to the
paid canvassers. I do not know where those documents came from. I do not
know who has possession of them. Health Care Access for Arkansans does
not have an office anywhere. We do not have files anywhere. I am not
aware of Health Care Access for Arkansans having files on any of the paid
canvassers. [41].
We turned in the form that’s required to be submitted with the
signatures along with the actual petition parts. It was the receipt form. I
recognize this document. It is two pages and is the document I was
referring to. I had received this form in advance and filled it out and
Ab. 12
brought it with the petitions. I brought the second page as well. [42]. It
talks about that we turned in 20,506 petition parts. And I turned in 131,680
signatures. And it lists the counties state’s requirements.
[Petitioners’ Exhibit 7 is introduced.]
I don’t recall turning in anything else to the Secretary of State’s office
besides the receipt form and the 20,000 pages. [43].
It looks like I turned it in at 4:37 p.m. I signed it as the petition
representative. I don’t believe I signed it in front of the notary. I don’t recall
having to hold my hand up and swear. I did not file an affidavit. I don’t
believe I turned in a list of paid canvassers.
On July 8, I turned everything in. [44]. I don’t recall Health Care
Access for Arkansans turning in any other signatures after July 8 or any
other petition parts.
I know Leslie Bellamy. She used to be the elections coordinator in
White County, which is where I’m from. She’s also from Beebe so we’ve
known each other for quite some time. I communicated with Ms. Bellamy
to see when was a good time to turn them in, make sure we didn’t show up
at the same time other people were showing up. We had five hundred
Ab. 13
boxes to deal with. [45].
Ms. Bellamy and I had been texting a while about that date and other
issues, too. It was through Facebook messages. We originally told them a
time that we were going to turn the signatures in and I said we may need
to change that. We kept needing to push it back as we were finalizing
getting our signatures in. [46].
This document is Facebook communications between myself and
Leslie. I was asking her where exactly we needed to turn in the signatures
and if they had a dolly that we could borrow. Originally I said we had
planned to bring them down at three o’clock. [47].
We had another thousand signatures coming in and I asked if we
could bring them later or if we had to bring them all at the same time. She
said they had to bring them all in at the same time. She said we have to
bring it all in now or wait until we tell you that you get the other 30 days.
The other 30 days is the cure period. In regards to Health Care Access for
Arkansans, the cure period’s not an issue. We did not get it cured because
we had submitted enough. [48].
I then asked her what the absolute cut-off time was and she said five
Ab. 14
o’clock on July 8.
[Petitioners’ Exhibit 8 is introduced.] [49]
Cross-Examination by Intervenors
I am not a lawyer. I have not had any legal training. Mr. Priebe asked
me questions about noneconomic damages in the training material and
talking points. [50].
(Joint Exhibit 1 is introduced.) [51].
I am familiar with a petition such as this. It is a petition part that
purports to contain signatures of registered voters in the state of Arkansas.
[52]. This says, “The (inaudible) is an amendment to limit attorney
contingency fees and noneconomic damages in medical lawsuits and the
ballot title is attached and forwarded herein.” What’s that say? Affirm
hearing? I can’t see that word. I’m sorry. I apologize.
I agree that the actual petition that registered voters signed contained
the title, which included the term noneconomic damages. I agree that the
ballot title is attached or affixed hereto for anybody that wants to read it. I
agree that registered voters had the opportunity to read noneconomic
damages. [53].
Ab. 15
I don’t know if I have or have not seen any statements of eligibility. I
am aware that paid canvassers that circulated petitions in connection with
this initiative signed sworn statements that they had read and understand
the Arkansas law applicable to obtaining signatures on an initiative or
referendum petition. I am aware that paid canvassers have signed sworn
statements in connection with this initiative that states I have been
provided a copy of the most recent edition of the Secretary of State’s
initiative and referenda handbook. This would tell me that the paid
canvassers were aware of Arkansas law. At least to the ones that signed
those statements. [54]. The committee at all times acted in the good faith to
get the initiative placed on the ballot. I feel the committee attempted to
comply with what was required. R. 55.
Redirect Examination
I don’t have an answer as to whether every paid canvasser signed the
statement of eligibility. I would believe they did, but I don’t know. I don’t
know if they can be paid canvassers if they didn’t. I am not an attorney.
[56]. I couldn’t say that I had a hundred percent clear understanding. I
would say that I am somewhat familiar with the requirements as the
Ab. 16
director. I’m not fully familiar with the requirements. I did not explain the
requirements to the paid canvassers. I’m not sure if Dan Greenberg or Dr.
Stephen Canon did either. If none of us did it, no one with Health Care
Access for Arkansans would have done it. [57].
Dan Greenberg
Direct Examination
I am a lawyer and I run a nonprofit organization called the Advance
Arkansas Institute. [58]. I am a practicing lawyer. My license is in good
standing. From approximately April of 2016 until August 2016, I was the
lawyer for Health Care Access for Arkansans. I don’t believe any other
attorneys represented Health Care Access for Arkansans at that time. The
directors for Health Care Access for Arkansans were Chase Duggar and Dr.
Stephen Canon, I believe. [59].
I do not believe they had any employees in terms of paid employees.
To the extent that there was an office, I always sort of thought it was at
Chase Duggar’s place of business. The ethics reports, the ethics filings, and
the Secretary of State filings were kept by our contractors, me, and a
woman named Pam White. Pam White has done some volunteer work for
Ab. 17
Health Care Access for Arkansans.
Health Care Access for Arkansans is a ballot question committee.
[60]. The purpose of Health Care Access for Arkansans is to place a
constitutional amendment on the November 8, 2016, ballot, commonly
referred to as tort reform. In order to do this, Health Care Access for
Arkansans had to gather signatures through its contractors.
I was involved in that process. Before spring of 2016, I had not been
involved in the process in any significant way. This was my first time. I did
not hire any paid canvassers. [61]. I did not hire any independent
contractors to assist Health Care Access for Arkansans in collecting
signatures. Chase Duggar was in charge of that.
At certain times of the year, the law requires monthly financial
reports be submitted to the Arkansas Ethics Commission. It requires the
disclosure of all contributions and expenditures to the campaign. I looked
over and helped prepare the documents. I think that Pam helped prepare
them; so often, she and I worked together on that. Those documents have
to be notarized. [62].
I had got a role in advising other people how to gather signatures at
Ab. 18
various times. I did not manage the gathering of signatures. I had
communications with 3.0, LLC, in regards to their gathering signatures. I
communicated with Trevor Donarski, Tim, and the third name escapes me.
I had communication with the Arkansas Secretary of State’s office. I had
phone conversations and e-mail conversations and personal visits. [63]. I
emailed various things to them. One of the things that I emailed was some
questions and proposed forms about, with respect to signature gathering.
You know, kind of a draft form for signature gathering. And another thing
I emailed was lists of people who had been background checked and were
paid canvassers. [64].
[Page 65 is not abstracted because it is a discussion about the exhibit and
not relevant].
If they are arranged chronologically, then the first email is April 25.
The email was sent to what I believe was called the elections email at
SOS.com or something like that. It’s my guess that it then gets forwarded to
the various people in the Secretary of State’s office. I sent all paid canvasser
lists to the same email, which is something like elections email at SOS.com.
My email said, “Please accept this list of paid canvassers and their
Ab. 19
residential addresses for an amendment to limit attorney contingency fees
and noneconomic damages in medical lawsuits.” [66].
The Colorado firm known as 3.0, LLC, put together the list that I was
emailing to the Secretary of State. I included their residential addresses
because I had a list of names and addresses and that’s something like a
label, I guess you’d say. It was an identification, what was attached. It was
essentially the same message that I sent on every email.
This looks to be a list of names and addresses. [67]. And although I
don’t have perfect recollection of all the names and addresses that I sent
each time, I think it’s highly likely that it was the one that I sent as an
attachment. [67-68]. This is a print off Excel spreadsheet that I sent to the
Secretary of State’s office. This is the sum total of information that I
provided on those Excel spreadsheets to the Secretary of State’s office on
the attachment. As I added new paid canvassers, I would update this list.
This email from April 26 to the Secretary of State is essentially the
same message. [68]. All I did on the attached Excel spreadsheet is add new
paid canvassers. The email from April 29 is the email I sent to the Secretary
of State’s office. This is part of the spreadsheet I sent. The Secretary of
Ab. 20
State’s office would print it off and stamp it. I did not provide the stamp.
On April 29th I started listing these out in a different format than
previously. [69].
From April 29th through July 6th, I sent essentially the same email and
this same Excel spreadsheet and just added new paid canvassers every day
or every other day.
Nowhere in my email to the Secretary of State on April 25, or the
ones that are essentially the same, did I tell the Secretary of State that the
paid canvassers had passed a criminal background check. Neither the word
certify nor certification are in the emails. [70]. And nowhere in the
spreadsheet do I say that these canvassers had passed a criminal
background check. Neither the word certify nor certification are in the
spreadsheets. None of those statements were in any of those emails from
April 25 until July 6. I did not personally carry out any background checks
on any of the canvassers. [71].
I have been told by other parties that they had passed background
checks and I had seen some of the background checks in the course of
sending these names over. It would be difficult for me to say how many
Ab. 21
background checks I saw. It would be somewhere between ten and a
hundred. Health Care Access for Arkansans had over 300 paid canvassers
on July 8. [72]. I don’t know the dates the individuals passed the
background checks; but certainly they were quite recent and immediately
prior to us sending the names of the canvassers over to the Secretary of
State. There is a requirement that paid canvassers pass a criminal
background check. [73].
Paid canvassers have to demonstrate several things before they can
start taking signatures. One of them is that they’ve had training; one of
them is that they received a handbook; one of them is that they’ve passed a
background check. So there are a number of things they have to
demonstrate before they can collect signatures.
I did not carry out the training for paid canvassers. I did not provide
the Secretary of State’s initiative and referendum handbook that was in
place in 2016 to paid canvassers. I did not provide the paid canvassers with
a copy of the statement of eligibility. [74]. I did not conduct any Arkansas
State Police background checks on the paid canvassers. I suppose you
could say I received the background checks because I had access to them.
Ab. 22
They were available to me electronically. I got them through 3.0, LLC. They
gave me access to every background check that was done. I did not look at
every background check. I looked at some statements of eligibility. [75]. I
did not look at all of them. I did not see any that were incorrectly filled out.
[Petitioners’ Exhibit 9 is introduced.] [76].
This document appears to be another one of the emails that I sent you
and I have already discussed in terms of submission to the Secretary of
State’s set of approved canvassers. [77]. I sent this July 7th. This is the Excel
spreadsheet that was attached to the email. The message is essentially the
same that I always sent to the Secretary of State when I sent the list of paid
canvassers. The words certify and certification are not included. [78]. It
does not say that the canvassers had passed a criminal background check.
July 8 sounds like it was the deadline to file the petition parts with
the Secretary of State. [79]. It’s fair enough to say this was the last set of
paid canvassers I submitted prior to the actual Joint Exhibit 1 petition. Any
paid canvasser that appears on Joint Exhibit 1 should be on this Excel
spreadsheet. You can’t turn it in on July 8 and have them collect signatures.
[Petitioners’ Exhibit 10 is introduced].
Ab. 23
July 8 was the filing date. I went with Mr. Duggar to file those twenty
thousand something petitions. Besides those 20,000 petitions, the only
other documents that were submitted that day was this receipt for initiative
petition and this appendix. I did not file any other documents. [81]. I think
the deadline was 4:30 or 5. It was at the end of the day.
I recognize this email. On the 8th of July, 2016, the time listed on this
email from me to the elections email at SOS.Arkansas.gov is 5:03. [82]. I
don’t think it is correct that I sent this email after I turned all these
documents in. I don’t think it is correct that I was at my office at 5:03 that
day. This email also contained the Excel spreadsheet. It did not contain the
words certify or certification. It did not say the paid canvassers had passed
a criminal background check. The Excel spreadsheet does not contain the
words certify or certification. It did not say the paid canvassers had passed
a criminal background check. [83].
[Petitioners’ Exhibit 11 is introduced.]
The email also does not inform the Arkansas Secretary of State’s
office that the paid canvassers had received a copy of the most recent
edition of the Secretary of State’s initiatives and referendum handbook.
Ab. 24
[84]. I do not inform the Arkansas Secretary of State that I or anyone else
had explained the requirements under Arkansas law for obtaining
signatures to the paid canvassers. [84-85].
Many people on that final submission day helped to carry the names,
the signature forms, from one place to another; and those included Chase
Duggar, myself, and employees or contractors of some kind with 3.0. [85]. I
believe I was the only one from April 25 until July 8 on behalf of Health
Care Access for Arkansans that submitted paid canvasser lists to the
Arkansas Secretary of State.
We provided 3.0, LLC, signature forms. I told them about the
handbook that was provided for signature gathering. I don’t immediately
recall whether I gave them a physical handbook or whether I told them
where it’s located on the web or gave them a printout of it. I don’t recall the
exact medium in which I gave it to them. I got a copy of the information to
them. [86]. I did not provide 300 some-odd copies. I don’t recall anything
else I provided 3.0, LLC, besides the signature forms and the handbook
with respect to third party information. Of course, you know, you might
say that I provided some thoughts and advice about what they should be
Ab. 25
doing and so forth. We talked about the portion of the statute that deals
with paid canvassers. So we went over that and that’s the kind of provision
in the discussion of the things of that provision. I went over the paid
canvasser statute with 3.0, LLC, to make sure we were on the same page.
They were supposed to do a job for Health Care Access for Arkansans and
I wanted to make sure that they were doing the job they were supposed to.
Another way to put it is that I wanted to make sure the law was followed.
[87].
With the exception of the materials we have already talked about, I
did not provide training material to 3.0, LLC. I have seen this document
before. [88]. I saw it in a meeting I attended. I never saw any of these
documents in connection with a meeting with 3.0, LLC, because I never
had a physical meeting with 3.0, LLC. I had some phone conversations
with them, so I suppose it depends on what you mean by a meeting. [89]. I
never discussed Exhibit 6 with 3.0, LLC, or any of its employees or
representatives.
I don’t know who drafted the 3.0, LLC Petition Project document.
[90]. I did not have an understanding that 3.0, LLC, was training the paid
Ab. 26
canvassers for the tort reform project. I have some idea of the training that
they received, but I think that you’re asking about whether I’ve seen this
last page; and I don’t know the relationship between their training and this
last page. I hope that answers your question. I was not aware that this was
presented to the canvassers and this is what they were supposed to say.
[91].
I certainly helped write the proposed tort reform amendment. I
looked at various things that were already part of the law, various other
amendments and so forth. I don’t claim to be a person who can come up
with a perfect drafting all by himself, and so I think, as you know good
drafting often relies on what has worked in the past. [92]. Part of what I
had done was incorporation of language from previous amendments or
previous statutes; that sort of thing. [92-93].
With respect to Exhibit 6, I wasn’t involved with writing this page or
any kind of training that’s related to this page. I don’t know who wrote this
page. [94].
I assume the documents provided to you from my lawyers came
from the 3.0 firm in Colorado. I don’t have the original versions. 3.0 has the
Ab. 27
originals. You received everything that I have with respect to your request
for criminal background checks and statements of eligibility for all pad
canvassers that were employed to gather signatures for Health Care Access
for Arkansans. [95]. As far as I know, the other lawyers took care of
satisfying your request. [95-96]. It wouldn’t surprise me that they were
provided in alphabetical order. [96].
I think it would probably be false to say that I reviewed every single
document because this is a pretty extensive document request and there
was an issue of time. And so we divided up the labor. [97]. I did see some
of the background checks.
I see Bates No. 639 starting with a Tommy Cason, K-A-S or C-A-S.
[98]. I had a chance to look at these. This document is a statement of
eligibility. Tommy Cason, III, is either a canvasser or a proposed canvasser
depending on the time he filled out this form. [99]. This form is one of the
things they had to submit. They each had to sign this before they started
collecting signatures. The form asks for their current residence and their
permanent domicile because that is information you have to have before
they become paid canvassers. [100]. There is a set of statutory requirements
Ab. 28
that you have to fulfill in order to be a satisfactory canvasser. That is why
we have many questions on the form. This form is notarized.
I recognize Bates No. 641. It is entitled and appropriately
summarized as an Arkansas Criminal History Report. It is a background
check. [101]. I see Mr. Andrew Chambers on 653. The next one on 667 looks
like Jacqueline Collier. As I was flipping through the pages between
Andrew Chambers and Jacqueline Collier, I did not see a background
check or a statement of eligibility for Matthew Chambers. I did not see one
for Charles Chaves. I did not see one for Adolphus Cohen. [102].
[Page 103 is not abstracted because it is a conference between the judge and
attorneys and is not relevant.]
I did not see one for Justin Collado, Bradley Collison, or Tiffany
Caster. In the documents I’ve looked through there are at least six paid
canvassers that appeared on the list for which information was not
provided. [104].
[Page 105 is not abstracted because it is a conference between the judge and
attorneys and is not relevant.]
[Petitioners’ Exhibit 12 is introduced]. [106].
Ab. 29
[Page 107 is not abstracted because it is a conference between the judge and
attorneys and is not relevant.]
I believe that every paid canvasser had a criminal background check;
because I was told by the firm in Colorado that in each case, that every
canvasser had a background check. I never physically saw a background
check for everyone. I did not see a signed statement of eligibility for
everyone. I looked at the petition parts, Joint Exhibit 1. I did not look
through every single one. [108].
I was told by the Secretary of State’s office that there were some
instances of paid canvassers collecting signatures before they were
disclosed. [109]. I did not examine every single document for anything, but
there were certainly several times when I examined various documents to
see if they satisfied various tests, like making sure the paid canvassers were
eligible to do so. At a certain point the Secretary of State brought it to my
attention that there were instances where canvassers were not eligible and
had collected signatures.
One thing that the Secretary of State found was that there was a form
that looked like someone had put a lit cigarette on it and there was a hole
Ab. 30
in the document. It obscured one or more of the words in the amendment
and so that was not a satisfactory signature bearing form. There were a
number of things like that the Secretary of State brought to my attention.
[110]. The Secretary of State brought to my attention that there were some
deficiencies in certain signatures. [111]. I do not recall that the Secretary of
State’s office ever informed me that it found petition parts that listed paid
canvassers that were ineligible. [112]. We did not provide the Secretary of
State staff with statements of eligibility.
I think we keep those. I think we turned in something like 130,000 or
131,000 signatures. [113]. I think 88,000 were required to be verified. It
could have been 84,859, but I would have to look it up. There is a specific
number that doesn’t end in three zeros. I had to look at it four or five times
each time I was complying with appropriate procedures in terms of
submitting the signatures and make sure we passed the appropriate tests.
They were the procedures of the law and the Secretary of State’s office.
[114]. “It certainly is” important to follow the law.
Cross Examination by Intervenors
I certainly had phone calls with the Secretary of State’s office. I had
Ab. 31
phone conversations with Peyton Murphy. He is one of the staff lawyers at
the Secretary of State’s office in the elections department I believe. [115]. I
spoke with Peyton both in person and by phone calls. When I add all those
times together, it was maybe between five and ten hours. [116].
We talked about background checks. I did verbally certify to Peyton
that the canvassers had passed background checks. We talked about
background checks several times. [117]. Peyton and I would regularly talk
about the procedures that I needed to follow in terms of providing
signatures to the Secretary of State. And related to that was the other
matters that I needed to provide to the Secretary of State when I was
working for the Health Care Access for Arkansans. And so one of those
items is related to background checks. And I said something like, well, you
know, what should we do about background checks, shall I just get them to
you, how shall I do that.
And then Peyton said something like, no, we don’t want them, or we
don’t take them or we don’t accept them. [118]. Words something like that,
although I don’t recall the exact words. And I said in response, ok, well in
that case, what I will do is I will just make sure not to give you any names
Ab. 32
of canvassers until I have checked to see if they have passed the
background checks. That way the Secretary of State isn’t going to get any
canvassers until they have passed background checks. That was a verbal
certification.
3.0, LLC, conducted the background checks. I suppose you might say
they worked with police departments to do the background checks, but
they were the ones who took the responsibility for it. 3.0 was acting on
behalf of Health Care Access for Arkansans. [119].
This appears to be a set of emails that I sent to the Secretary of State
and we talked about this before. I sent these to an address like elections
email at SOS.gov and each contains an attachment, which is an Excel
spreadsheet of canvassers. [120]. The information on the canvassers came
from 3.0, LLC. You might say 3.0 were agents of Health Care Access for
Arkansans. I got the spreadsheet information from one of the employees or
the contractors with 3.0. It would typically either be Trevor or Tim. [121].
(Page 122 is not abstracted because it is a conversation between the court
and attorneys and not relevant.)
It was the responsibility of 3.0 to perform the background checks. In
Ab. 33
every case that I got spreadsheets from 3.0, they told me that the
background checks had been done. [123].
These are just the emails I sent to the Secretary of State with the
spreadsheets attached to them. [124]. It is not a list of all the emails I have
sent to the Secretary of State during this process.
[Intervenors’ Exhibit 1 is introduced.] [125].
I see the May 16, 2016, email. Attached to the email to the Secretary of
State’s office is an email from Tim Pollard who was with 3.0. The email
says the list below has five new names to be submitted to the SOS, all have
been background checked and signed certification forms; please submit as
soon as you’re able, thanks. That is information I provided the Secretary of
State’s office that the background checks had been done. [126]. I have
switched to Intervenors’ 1 and have the May 17 email in front of me. It
says, “the attached list has five new names that have been background
checked and have signed certification forms. They’re ready to be submitted
to the SOS at your earliest convenience. I may have another slug at the end
of the day, as well; still waiting on some more background checks.” He
states there that the background checks have been done for the canvassers.
Ab. 34
Again on the May 18 email, I forwarded information from Tim Pollard onto
the Secretary of State’s office. [127]. He again confirmed that the
background checks had been done.
On the July 7th email, there are hundreds of canvasser’s names on the
spreadsheets compared to the emails from April 26 and 29. There are nine
pages of spreadsheets if you count the notes at the end. [128]. At one point,
near the beginning of the process, they asked me to submit the information
in a slightly different form. Other than that, they gave me no directives.
The July 7th email was sent the day before July 8th, which was the day
the petitions were submitted. I don’t know that the July 8th email was sent
at 5:03 like it says at the top of the email. [129]. I have had situations where
my email and texts have one time on them but that’s not actually the time
they were sent. [130]. Nonetheless, this email was sent July 8th and I never
received communication from the Secretary of State’s office that they were
rejecting my list of canvassers. [131].
[Page 132 is a conference between the court and counsel and is not
abstracted.]
The text of the July 8 email says, “Please accept this newest list of our
Ab. 35
tort reform petitioners.” Attached to that email was a list of canvassers.
[133]. I didn’t mean to type petitioners. It was a mistake. What was
attached was the Arkansas canvasser team. It’s something like number 30
in a series of 30.
This is the contract between 3.0 and Health Care Access for
Arkansans. Section 5 talks about services being performed by the
contractor. [134]. The fifth bullet point down says it is the responsibility of
3.0 to provide education, training, and petitioner signature gatherers with
pertinent talking points and draft script material provided by the company.
As expressed in the contract, the actual training was 3.0’s responsibility.
[135].
This document is an email that has some affidavits attached to it.
[135-136]. My email says, “here’s some more affidavits that should clear up
some issues.” I had a meeting with Peyton and he had suggested that there
were some canvassers that were ineligible for various technical reasons.
And these affidavits are an attempt to fix or cure those technical problems.
There are six affidavits attached to address those problems. [136].
[Page 137 is a conference between the court and attorneys and is not
Ab. 36
abstracted because it is not relevant.]
One of the problems with one of the canvassers was that there was an
out of date address, and so one of these documents is an attempt to cure
that problem. That’s more or less true for the second canvasser as well. The
first canvasser is Scott Michael Allen. Trevor says we are submitting an
affidavit for Allen Donarski because the address that the canvasser used
was older and we had to correct that address. [137]. The second instance
here is Stephen Ruby. This says that attached to it is both his sworn
statement of eligibility form along with his new affidavit that explains why
he used a previous address. That was to address an issue that the Secretary
of State raised. Elvira Smith Hudson is the next person. I think she had
intermittently used two different names because of a marriage so we have
the third attachment that demonstrates that Elvira Smith and Elvira Smith
Hudson are the same person. [138]. The email says they were unable to
reach her to fill out an affidavit; however, this attachment includes her
sworn statement form. Elvira Smith and Elvira Smith Hudson are clearly
the same person. [139]. Finally, the last attachment says is Sabrina Lewis
used two different addresses. And so to cure that, Mr. Donarski attached a
Ab. 37
sworn statement that includes one of the addresses that she used.
[Intervenors’ Exhibit 2 is introduced.]
This is an email dated August 5, 2016, at 9:52 a.m. from Peyton
Murphy. [140]. I told Peyton that apparently two addresses for our
canvassers were switched inadvertently by our firm when our firm
supplied the canvasser list and that I’d sent them the affidavit attesting to
this and asking them to call me if it was necessary to discuss the matter.
The email says, “the attached document contains an affidavit by one of the
firm’s employees that identifies the mistake and it also includes the two
sworn statements of eligibility forms that were completed by both Darrell
Fox and Laura Marsh before they began to collect signatures. The next one
has to do with Robert Sweeney; a sworn statement of eligibility is attached
and it specifies his address is 1363 Lindenwood Grove in Colorado Springs
and it says this is the same address we submitted to the Secretary of State
along with the address he used when signing the affidavits on his petition
packets. [141].
[Intervenors’ Exhibit 3 is introduced.] [142].
Ab. 38
Redirect Examination
I was talking with Mr. Watson about the independent contractor
agreement, 3.0, LLC. We were talking about who had what duties. [143].
We are entitled to provide pertinent talking points and draft script
materials while 3.0 trains the canvassers. When it becomes pertinent to
provide the materials, we are entitled to do it. I think providing materials
when they need them is pertinent. [144]. They need materials to train all
new paid canvassers. [144-145]. There was a requirement to train the
canvassers. I take the word pertinent to mean that they had the option to
obtain materials from us.
Section 3B says, “It is the express intent of the parties, the contractors
and independent contractor and not an agent or employee, joint venture, or
partner of company contractor express…” [145].
Company is Health Care Access for Arkansans. Contractor is 3.0,
LLC. The statute makes certain requirements. I guess I would also say that
we discovered at a certain point that the statute requires some impossible
things. For instance, the state police won’t perform the kind of background
checks that the statute requires in some cases. And so it was necessary to
Ab. 39
get background checks even though the state police would not always
comply with that requirement.
The Arkansas State Police will and can provide state background
checks. [146]. I did not see every Arkansas State Police criminal
background check for each paid canvasser. I was told they were done by
the firm. I didn’t see every background check.
I did not hire David Couch to do background checks for me. I did not
hire Blitz Canvassing to do background checks for me. Health Care Access
for Arkansans did not hire Liberty Petition Projects, LLC, to do background
checks. I was the one responsible for certifying to the Secretary of State’s
office that the background checks had been done. [147].
I don’t know how this background check on Russell James Baggett
from Scott Tillman of Liberty Petition Project, LLC, got into the documents
you were provided. In some cases, I saw the background checks and some
cases I got the information from the lawyers that they had done
background checks at 3.0. 3.0, LLC, is not listed on this document. I don’t
know how they handled that internally. [148]. I told the Secretary of State’s
office on April 29 that 3.0, LLC, had told me that Mr. Baggett had passed a
Ab. 40
background check. [148-149].
[Petitioners’ Exhibit 13 is introduced.]
This is a criminal history report for William Emerson Burns. The
representing party is David A. Couch, PLLC. [149]. It is released to Alita
Bush. 3.0, LLC, does not appear anywhere on this criminal background
check. I don’t know how it got in the documents provided. I don’t know if
3.0 requested a background check on this person. [150]. It appears that
Alita Bush and David Couch did a background check. Earlier I told you
that the only people that did background checks, per my instructions, were
3.0, LLC. 3.0, LLC, did not do this background check.
[Petitioners’ Exhibit 14 is introduced.]
This is an Arkansas State Police criminal background check on Joshua
Darrow. It was released to Scott Tillman representing Liberty Petition
Project, LLC. 3.0, LLC, does not appear on this document either. I don’t
know enough about 3.0’s internal procedures to know how this document
got in with the documents counsel provided. [152].
[Petitioners’ Exhibit 15 is introduced.]
This background check is on Rick Dwayne Darrow. It was released to Scott
Ab. 41
Tillman representing Liberty Petition Project, LLC. I do not see 3.0, LLC, on
this background check either. [153].
[Petitioners’ Exhibit 16 is introduced.]
This background check is on Linda Lou Boyd. It was released to Scott
Tillman representing Liberty Petition Project, LLC.
[Petitioners’ Exhibit 17 is introduced.]
[154] This background check is on Douglas Allen Green. It was
released to Scott Tillman representing Liberty Petition Project, LLC. 3.0
does not appear on it.
[Petitioners’ Exhibit 18 is introduced.]
This background check is on Fifi Juanita Harper. [155]. It was
released to Scott Tillman representing Liberty Petition Project, LLC.
[Petitioners’ Exhibit 19 is introduced.]
This background check was on McKenzie Harris. It was released to
Scott Tillman representing Liberty Petition Project, LLC. 3.0, LLC, is
nowhere on there.
[Petitioners’ Exhibit 20 is introduced.]
[156] This background check is on Arthur Raymond Ladd. It was
Ab. 42
released to Scott Tillman representing Liberty Petition Project, LLC.
[Petitioners’ Exhibit 21 is introduced.]
This background check is on Jacqueline Marie Morales. [157]. It was
released to Scott Tillman representing Liberty Petition Project, LLC. 3.0,
LLC, is not on there.
[Petitioners’ Exhibit 22 is introduced.]
This background check is on Jose Ramone Rochet. It was released to
Scott Tillman representing Liberty Petition Project, LLC. [158].
[Petitioners’ Exhibit 23 is introduced.]
This background check is on Melinda Sue Selley. It was released to
Scott Tillman representing Liberty Petition Project, LLC. [159].
[Petitioners’ Exhibit 24 is introduced.]
This background check is on Jerime Sean Wilbour. It was released to
Alita Bush representing David A. Couch, PLLC.
Petitioners’ Exhibit 25 is introduced.] [160].
I imagine these documents were provided in the discovery by the 3.0
firm. Nowhere in those background checks does it list 3.0 as the releasing
party.
Ab. 43
The dates of these emails from Intervenors’ Exhibit 2 are both August
5. [161]. The Secretary of State wanted different information on Scott
Michael Allen. They wanted a second set of information rather than the
first information that we sent. It was an older, incorrect address. [162]. The
information had come from 3.0, LLC, to me and I sent it to the Secretary of
State. The Secretary of State at one point found the information incorrect.
Stephen Ruby originally supplied an older address that was
incorrect. I originally sent his incorrect address to the Secretary of State. I
got that information from 3.0, LLC. [163]. Sabrina Lewis has something like
two different addresses. The Secretary of State did not find the information
correct. Very generally, if the Secretary of State wanted me to fix a problem
in that process, I made an effort to fix the problem. And the Secretary of
State and their staff were the people that identified the problems.
I see the signed paid canvasser sworn statement of eligibility that was
apparently signed on the 22nd of June. [164]. She swore on that day her
name was Elvira Smith Hudson. It does not say Elvira Smith.
In the email from May 17th, I forwarded on an email saying there
were five new names that had been checked. [165]. In Intervenors’ 1 on
Ab. 44
May 17, the new names that were added were Tiffany Caster, Emma Stone,
LaDalvin Gibson, Jamar Williams, and Timothy Holt. This is information I
received from 3.0, LLC. I did not see anything related to Tiffany Caster’s
background check or statement of eligibility in Petitioners’ Exhibit 12.
There is no background, no statement of eligibility, and there’s not even a
Colorado or federal background check. [167]. I was relying on the
representations by 3.0 that whenever they sent me new people, they had
gone over the statutory requirements related to paid canvassers. If these
are the sum total of the documents that deal with people’s surnames
beginning with C, there’s nothing in here on Tiffany Caster so the
information I received from 3.0 was incorrect. [168].
Recross Examination by Intervenors
I do not know what arrangements 3.0 had with other canvassing
groups in terms of getting background checks. The forms attest that the 13
people Mr. Priebe asked me about all passed their background checks.
[169].
(Pages 170-177 are not abstracted because they are not relevant).
Ab. 45
Testimony of Josh Bridges
Direct Examination by Petitioners
My name is Josh Bridges. I work for the Arkansas Secretary of State’s
office. [178]. My title is election coordinator. I am one of four election
coordinators and have been with the office since 2015. The election
coordinators assist the county clerks and county election commissioners for
the training and implementation of voting equipment. We assist with any
technical questions on voting equipment or we also assist with any election
questions in general. We also perform other tasks around the office as
needed. I am salaried. Normal business hours for the Secretary of State’s
office are 8:00 a.m. to 5:00 p.m. [179]. Election coordinators typically work
hours parallel to the county clerk’s offices, such as 7:30 to 4:30.
I work with Leslie Bellamy. She is the director of elections. I also
work with Peyton Murphy who is the assistant director of elections. As
part of my duties with the Secretary of State’s office, I am involved in
petitions for initiated acts and constitutional amendments. For the past six
months it was decided that I would serve as the main supervisor for the
initiative and referendum petition intake process. [180]. I was responsible
Ab. 46
for training any new employees of the election division who have not been
through the process before, seeing as how I was involved with the process
in 2014. [180-181]. I was also responsible for coordinating with a temporary
personnel agency, known as ASAP, to plan and hire and use temporary
workers to assist in the intake and verification process of petitions. For the
2016 election cycle, we have four overall petitions submitted.
I am not necessarily directly involved with the sponsors and
signature gatherers prior to submission. We do receive paid canvasser lists
submitted by the sponsor, however, so there is some correspondence
involved. There is not a set standard that I am aware of for how to get the
paid canvasser lists to the Secretary of State. [181]. However, it has been the
practice, in this cycle anyway, that they are submitted electronically via
email from the sponsor to the elections division. Elections email group list
is the one I believed they used. And attached to these emails are
predominantly Excel spreadsheets that list paid canvassers.
Once I receive those emails, I immediately print out the Excel
spreadsheet and place a received stamp for the date of the email we
received. The only time stamp would be on the email itself. [182]. The
Ab. 47
emails can be obtained through the Freedom of Information requests. They
are public records. To my knowledge the paid canvasser lists are, too.
Who sends me the spreadsheets varies from petition to petition. As I
mentioned before, we did receive four petitions submitted to us. It just
varies depending on where the email was initially sent, whether it is to
Leslie Bellamy, Peyton Murphy, or the elections group email list.
Specifically, for this one, if I recall correctly, it was sent to the
elections email group list. Those emails were forwarded to me by Amanda
Whitley, who is actually in our voter registration division of the election
division. [183]. The origin of the emails appeared to be Dan Greenberg. To
my knowledge, he was listed on the AG’s opinion as the sponsor and that
is who we assumed to be the sponsor.
Generally, there is a message from Dan Greenberg asking us to please
accept this list of paid canvassers, which, as mentioned before, there is an
Excel spreadsheet attached to the email which lists the date each paid
canvasser was registered, their name, address, and I think that’s all the
information I recall. Any additional notes about that paid canvasser were
listed as well. [184]. I believe there was an appendix of notes on that
Ab. 48
spreadsheet.
It is a requirement that sponsors conduct criminal background checks
on their paid canvassers. The Secretary of State does not receive
background checks from the sponsors of the petitions to my knowledge. I
didn’t know about the statement of eligibility. I wasn’t involved with the
requirements that sponsors were responsible for. I don’t know if we
received the statements of eligibility. I mainly focused on the paid
canvasser list. I did not directly receive any background checks from Dan
Greenberg. [185]. I’m not sure if Dan Greenberg filed any statements of
eligibility prior to July 8th. Any kind of correspondence we received and the
physical copies of the Excel spreadsheets along with sample petition parts
were kept in a folder in my office called the red folder. I do not recall
receiving any background checks from Dan Greenberg. [186]. I did not
receive any statements of eligibility.
I am familiar with the initiatives and referendum book from the
Arkansas Secretary of State’s office. It is the guidelines and relevant
Arkansas law pertaining to the initiative and referendum process, which
also is a requirement for the Secretary of State to produce. This is the 2015-
Ab. 49
2016 Initiative and Referendum Handbook produced by our office. [187].
This was in effect for the calendar year of 2016.
The Secretary of State is required by law to put this handbook
together. I did not put it together. I assisted in proofing it for grammatical
errors, not necessarily relevant law. I do not provide the handbook to paid
canvassers but it is available on our website. I believe it is the law that paid
canvassers receive a copy of the handbook. To my knowledge, the sponsor
of the initiative provides that copy. [188].
Sponsors are required to submit paid canvasser lists to the Arkansas
Secretary of State. I believe that they have to certify that the paid
canvassers must pass a criminal background check. That’s all I know about
that portion of the law. As new paid canvassers are obtained, the sponsor
submits an updated list to our office. I do not know whether a paid
canvasser has really passed a criminal background check. [189]. I don’t
know if the paid canvassers actually sign the statement of eligibility. I don’t
know if the paid canvassers were trained. I don’t know if they received a
copy of this book.
[Petitioners’ Exhibit 26 is introduced.]
Ab. 50
The Secretary of State is not in possession of any information as to
whether a canvasser passed a criminal background check, signed a
statement of eligibility, or was trained. [190].
For purposes of placing a constitutional amendment on the
November 8, 2016, ballot, 84,859 signatures of valid registered voters were
required. The deadline to submit the petition parts with all the signatures
for this election cycle was July 8, 2016, at 5:00 p.m. [191].
Once we receive the petition, the paperwork is filed by Director
Bellamy. [191-192]. With me being the main supervisor, my staff and I,
along with the temporary workers that have been hired, we immediately
begin to work on the petition. The petition process for the Secretary of
State’s office comes off in two parts. Part No. 1 is the intake process and
Part No. 2 is the verification process. It gets much more detailed than that.
The actual petition parts are looked at individually to see if each
petition part has met the requirements under the law. We order adhesive
stickers with a numbering system, along with Secretary of State above that
number. [192]. We have different stations set up for the intake process and
that’s the first thing that happens, so it’s temporary workers that actually
Ab. 51
place the sticker on each page. [192-193]. So like this document out of Joint
Exhibit 1 is numbered 73097 has the Bates adhesive sticker on it. Each
petition part has a Bates sticker so each petition page can be uniquely
identified through that process. It is also for tracking purposes.
Once the adhesive sticker is placed on a number of petition parts,
they are actually placed in a folder and that folder is labeled with the
county involved with those petition parts along with the page range of the
stickers we placed. At the end of the intake process, copies are made of the
originals. Once the copies are made of each folder, the copies are actually
scanned in. [193]. Bates numbers for the tort reform petitions started with
70,001. They turned in 22,292 petition parts. A petition part is a signature
page along with the ballot language.
Once a number is placed and a folder is created for a certain page
range of petition parts, that folder with the petition parts in it goes to the
next station to be looked at for certain requirements under the law. Some
examples of that would be, if it is an original petition part, is the ballot
language in full measure of the measure completely legible, is the notary
registered with the Secretary of State’s office and is said notary expired or
Ab. 52
unexpired. [194]. We also cross reference if it is a paid canvasser to see if
the canvasser was submitted on the paid canvasser list. [194-195].
Down here in the bottom left corner is the canvasser affidavit section.
The canvasser is supposed to print their name at the top of the paragraph
of the affidavit. Below it, they are supposed to sign. They are also supposed
to provide their residence address and indicate if they are paid or unpaid.
[195].
We are checking to see if the name that appears in the canvasser
affidavit appears on the paid canvasser list submitted by the sponsor. [195-
196]. We also check to see if the residence address matches up. We are not
checking to see if they had a background check done or signed a statement
of eligibility. We do not check to see when each canvasser was submitted to
the Secretary of State’s office and whether they turned in signatures before
they were certified. [196].
A paid canvasser must be certified to our office before they can
collect signatures. I assume if they collected signatures before they were
certified the signatures wouldn’t count. But we don’t check all that because
of the time constraint. [197].
Ab. 53
If we find a petition part that has a defect, we will cull that page.
[197-198]. The process to cull a page would be to take that petition part out
of that folder and in its place, place what is called a culled sheet with the
Bates number written on that culled sheet. That way we know that there is
not a page missing but that it has been culled.
The only way we would check anything else further once a page has
been culled would be if we decide later on that petition part is ok to put
back in the main petition. We would more or less pick up where we left off
as far as intake for that individual petition part. We would check the rest of
the information required by law. [198].
Once the intake process is done with this individual petition part and
it is copied and scanned, it’s considered ready for verification. We only
verify off of the copies of the petition parts. At the very end of this, the
originals are boxed up and placed for safe keeping.
The verification process consists of a larger number of temporary
workers coming in to our training room that we lease. That number can be
anywhere from 20 to 40 temporary employees. They are trained on how to
use the petition verification software that our programmer from our IT
Ab. 54
department wrote.
Once they are trained, they are handed the copy folders or handed
petition parts of those folders and they verify to see if each individual
person that has signed the petition are registered voters. [199].
An export from the voter registration database that we house is
performed and dumped, if you will, into the software that our coder had
written. This voter registration information is current up to the date that
the petition was filed. The petition verification software is actually a search
engine for registered voters. Each individual computer is set with a filter
that corresponds with the petition part that says where the voter is
registered. With that filter set, only registered voters in that county will
show up on that individual’s screen, no other county. So if they were from
Baxter County and signed in Craighead County, we would not count that
signature. [200].
Over outside in the margin, each temporary worker is trained to
place a corresponding mark as to what happened with each individual line.
There are four marks that they are allowed to use. That would be a check
mark if they were able to validate that person. If they were not able to
Ab. 55
validate that person, it would be a circle. If that person was what we
consider a duplicate signature, a capital D was written. If they found a
registered voter that was not registered on the date that they signed the
petition, the mark used was an XS.
The temporary staff is instructed to start off with a broad amount of
information, such as a partial first name, partial last name, in order to
accurately pull enough results to search for that individual in the list of
results that come up. In the petition verification employee manual, there
are different combinations that have been provided as examples that they
are able to use, if they so choose. [201].
I instruct the temporary workers to start off broad. That way they are
able to pull information or have search results and as they have results,
they are instructed to put in more specific information into the search
fields, to where they can accurately find the individual.
For example, if they are able to find Tim Blalock in the system, they
are instructed to verify two full pieces of information. If they have done
that and they have also verified that individual was a registered voter the
date they signed the petition, they are instructed to click the “verify”
Ab. 56
button, which is actually built into the software. Once they click “verify,”
Tim Blalock’s information will dump into a certain date pool that he was a
validated voter on this petition.
This box is used during intake and also during verification. If you
notice to the right of where it says, “valid of” you will see a “10.” [202].
That 10 indicates that there are 10 signatures on that petition page. This is
before we even check any signatures to see if they are registered voters.
This is what we refer to as the initial count for this individual petition part.
That is the only thing that is written on the original petition part during
intake.
Once this petition gets to the verifications process, to the left of “valid
of” is going to be the number of valid signatures the temporary worker was
able to determine on that part. They are also required to initial and they are
also required to date. That is the general process to verify signatures on all
petition parts not culled.
The next step is reconciliation. [203]. Reconciliation consists of only
election staff employees looking to make sure that all the numbers in the
petition verification database match up with the spreadsheet that we more
Ab. 57
or less logged everything on. We want to make sure that our spreadsheet
that we entered in the initial and valid number count corresponds
accurately with the database. Once that is done and we have an accurate
number and we are aware that every petition part has been scrutinized to
the best of our ability, we then certify eligibility, if they make it, if they hit
the required number of registered voters. We add up all the verifieds.
For a constitutional amendment, if the number exceeds 84,859, the
petition parts are certified by our office. If they don’t reach that number but
are in the realm of 75% of the required list of 15 counties, they then qualify
for a cure period. [204].
A cure period would be an additional 30 days to solicit and obtain
more signatures to turn in to the Secretary of State’s office for verification
in order to hit the overall number. The only way a sponsor can submit new
information after July 8th would be if they received a cure period.
I was involved in this process with tort reform. Petitioners’ Exhibit 7
is the Receipt for Initiative Petition that was filed by the tort reform
sponsors. [205]. It appears it was filed July 8th. The top part is filled out by
the sponsor. It appears it was filed July 8th at 4:37 p.m. Leslie Bellamy
Ab. 58
accepted it on behalf of the Secretary of State’s office. The additional page
that was filed by the sponsors to our office has been referred to as the
appendix. According to our records, they filed 20,506 petition parts. [206].
They alleged 131,687 signatures were on the petition parts.
After it goes through the verification process a letter is sent to the
sponsor informing them of the result. If they are declared sufficient, we
formulate a letter of sufficiency along with a certification of sufficiency and
it is sent to the sponsor via US Mail and email.
This is the letter that was sent to Daniel Greenberg informing him
that they had met the signature requirements to be placed on the ballot. It
again restates the requirement of 84,589. [207]. The next sentence reads,
“the initial count of signatures submitted to the Secretary of State for an
amendment to limit attorney contingency fees and noneconomic damages
in medical lawsuits was 118,366. The initial count are the signature parts
after all the petition parts were culled. As of August 5, 2016, the Secretary
of State found that 92,997 were valid signatures. They met the requirement
by 8,138. [208].
After the letter goes out, we continue to do any reconciliation that
Ab. 59
needs to be done. As mentioned before, any other outlying pages that we
may not have verified signatures on. We reconcile the petition. Overall,
there were 93,102 valid signatures. The extra signatures came from any
outlying petition pages that may have been skipped over during intake or
verification. We had a few pages that may not have even had a sticker
placed on them that we found. We account for every single petition page.
There were not 22,292 petition pages according to our records. [210]. We
make sure intake is performed on every one of them and they are verified.
We are able to print off an Excel spreadsheet of valid signatures.
[Petitioners’ Exhibit 27 is introduced.]
This document is a valid signature report that has been exported
from our petition verification database. There appears to be 2,201 pages.
The first three pages look like an accurate copy of that report. This report
indicates that the names and registrant IDs appearing on the report were
verified by our office for the tort reform petition. [211].
This stack of documents represents the entire valid signatures that
the Secretary of State’s office found on each petition part. [211-212]. So if
you wanted to look at Bates number 70,002, you can look at the
Ab. 60
spreadsheet, the original, or the copy. For 70,002, there was only one valid
signature. For 70,010 there were two valid signatures. If a page were culled,
it would not be on the spreadsheet. My office provided you a copy of the
Excel spreadsheet. [212].
[Petitioners’ Exhibit 28 is introduced.]
There is a total listed on the last page of Exhibit 28. It is 93,102. The
Bates numbers started at 70,001 and went through 92,298. R. 213. The
Secretary of State’s office did not kick off signatures if the canvasser did not
pass a background check. We did not check to see if the canvasser signed a
statement of eligibility. We did not check to see if the canvasser was
trained. Nor did we check to see if the canvasser was provided a copy of
the handbook. We didn’t check to see if they provided a domicile or
current residence. [214]. We also did not check to see when the paid
canvasser was submitted to the Secretary of State’s office versus when the
paid canvasser started collecting signatures.
We did not check to see if the sponsor has complied with the
canvasser’s certification requirements. We did not necessarily check to see
if the sponsor filed a list of paid canvassers at the time the petition part is
Ab. 61
submitted, but if they submit on the day of the filing, we accept it. We do
not know if the tort reform was submitted after 5:00 p.m. on July 8th. I also
don’t look to see if an affidavit was filed with the petition parts. [215]. I
don’t make those decisions.
Because the tort reform was declared sufficient, they were not
entitled to a cure period. For addresses, we check to see if the address the
paid canvasser supplied on the affidavit of the petition part matches that of
what was supplied to us on the paid canvasser list. Whether or not it was
their current or actual residence, we do not have the ability to even check
for that. We do not check to see if they provide their domicile address.
[216]. If the address on the canvasser affidavit does not match up with that
of what was provided on the paid canvasser list, we would cull those pages
out of caution to talk with the sponsor about those pages at a later date. We
do not check the information on the statement of eligibility.
I vaguely remember talking to Dan Greenberg. I believe he had
contacted our office with a few general questions about the initiatives and
referendum process. I don’t recall what those questions were, and I helped
him to the best of my ability. [217]. I do not provide legal opinions to
Ab. 62
sponsors.
Cross Examination by Intervenors
I do not recall any other spreadsheets that I prepare other than the
valid signature report. [218]. There were four statewide initiatives filed
with our office, so a lot of that sometimes can run together as to who and
for what petition I prepare a report for. [218-219].
One thing we look at is if the canvasser’s address on the affidavit
matches the one that was supplied on the paid canvasser list. We would
have no way of knowing a canvasser moved between when his address
was submitted to us and when he turned in petitions unless it is in the note
section on the last page of the spreadsheet. [219]. If the addressed did not
match up, we would cull those petition parts for that canvasser. The beauty
of the cull process is that it is not permanent and those petition parts can be
thrown back in. Those were culled out of caution until we could speak with
the sponsor at a later date to be determined to speak about every petition
part that was culled. It appears Intervenors’ Exhibit 2 is the sponsor’s
response to some of those concerns. [220].
I was personally involved with meeting with Mr. Greenberg and
Ab. 63
Peyton Murphy on speaking about the petition parts that were culled. To
my knowledge I believe the email sufficiently addressed the concerns. I did
not make the decision, but I believe that the Secretary of State’s office was
satisfied with these statements of eligibility. [221].
Intervenors’ Exhibit 3 also is an email from Mr. Greenberg
addressing some concerns from the Secretary of State. I believe it satisfied
the concerns and the petition parts were counted. [222].
I don’t know who in the Secretary of State’s office prepared the
duplicate signature list. I do not believe I did.
Cross Examination by Respondent
We have the ability to see the running total of the duplicate signature
list without pulling the report. We can see the overall number of duplicate
signatures without pulling the report. However, the report can be pulled at
any time to see the overall total and the specific page numbers and
registered voters. [223]. Anyone could prepare the printed list from the
database by pushing a button.
The data on the duplicate signature list comes from the temporary
workers during the verification process. Once someone’s registrant ID has
Ab. 64
been verified on the petition, that individual’s information and registrant
ID goes into a data pool, which would also appear on the verified signature
report. In circulating petitions, it is apparent that individuals signed the
petitions more than once. So, if at a later date, that individual’s registrant
ID was attempted to be verified a second time for that petition, there is
what is called a “duplicate signature screen” that would come up on the
screen of the computer. At that point, it needs to be determined whether or
not that individual indeed signed the petition more than once. If that is the
case, they are added to what is called the “duplicate list” and that
individual is dumped into a separate data pool. [224].
The creation of that separate data pool occurs throughout the
verification process by the temporary employees and by Secretary of State’s
supervisory employees that are giving a second look on the pages.
Re-Direct Examination
The law says that when a sponsor provides a list of paid canvassers,
the list must include a current address. [225]. I would expect that if a
sponsor obtained new information on a paid canvasser that had already
been submitted, the information would be updated. They are able to do so.
Ab. 65
Mr. Greenberg was providing new information on canvassers in
Intervenors’ Exhibits 2 and 3. The Secretary of State’s office assumed
initially that the information was incorrect. [228]. We allowed Mr.
Greenberg to present any and all evidence and documents to update the
canvasser names and addresses. We allowed him to cure the issues after
July 8th. [227]. If he had additional information, we would have allowed
him to cure other problems as well.
Even after the cure, we are looking at 93,102 signatures. We have a
duplicate signature list because we can only verify one registered voter one
time per petition because it is required by law. If someone has signed it
twice, we kick the second signature out. [228].
It could be argued that if the Court were to say some petition parts
are invalid, some of the names on the duplicate signature list may not be
duplicates anymore and would need to be counted. If that needs to be
determined, the Secretary of State’s office will find a way. [229].
Testimony of Leslie Bellamy
Direct Examination
My name is Leslie Bellamy. I am the director of elections at the
Ab. 66
Arkansas Secretary of State’s office. I oversee the daily duties of the
Secretary of State’s office as it pertains to elections. That is campaign
finance, candidate filings, initiatives and referendums, and helping 35
counties stay in compliance with the law. I have been the director since the
end of April 2016.
I work with Josh Bridges. [230]. I am his boss. I am also Peyton
Murphy’s boss. Since I have been director of elections, I have somewhat
been involved with the initiatives and referendum petitions. I didn’t do
any verification. I just did the intake and checked on them daily to see their
progress. I took and signed the petitions in.
I also answered some questions they might have on a few of the culls
or some rejections, things like that. I mainly just made sure we were on task
for the numbers. [231].
I am familiar with the requirements and the law related to initiative
petitions and the 2015-16 Initiative and Referendum book. I do not provide
legal counsel or legal opinions to sponsors. I expect them to have their own
attorneys to make those decisions. [232]. Exhibit 7 is our standard intake for
the petition, where we receive it, how many pages they are turning in, their
Ab. 67
counties, et cetera. [232-233]. It is my signature on Exhibit 7. The top part is
filled out by the sponsors. The sponsor in this case was Health Care Access
for Arkansans and the contact listed on the page is Chase Duggar. [233].
Mr. Duggar and Mr. Greenberg were both present when I received the
petition parts. I received Exhibit 7 from Mr. Duggar. This was filled out
when they came in after he did his petition receipt. I don’t think anything
else was turned in besides Exhibit 7 and the petition parts when they were
physically in my presence on July 8th at 4:37 p.m. [234]. I never received an
affidavit from Mr. Duggar or Mr. Greenberg on July 8th. [234-235]. I never
received a certification from them on July 8th. When they presented Exhibit
7 and the petition parts, they did not provide an actual list of the current
paid canvassers.
I know Mr. Duggar from White County. I knew him personally
before this. We were messaging back and forth that day occasionally. [235].
Exhibit 8 is Facebook messages Mr. Duggar and I were sending back and
forth. The dark ones are Mr. Duggar’s messages and the light ones are my
responses. He asked me what the absolute cutoff time was on July 8th and I
responded that at 5:00 p.m. we would be closing. I simply replied 5:00.
Ab. 68
[236]. Anything submitted after 5:00 p.m. on July 8th would be rejected as
untimely.
I did not review any of the lists of paid canvassers sent by Mr.
Greenberg. I forwarded them to Josh Bridges. They came to our general
elections email box at the Secretary of State to which only myself and
Peyton have access to. Josh Bridges printed them off and file stamped
them. Then we put them in a red folder. [237]. I never looked at those
emails. I did not look at the attachments. I did not see any type of
certification on the emails or the Excel spreadsheets submitted by Dan
Greenberg.
We do not receive copies of background checks for paid canvassers.
We go off the sponsor’s word. I don’t know whether they are done or not.
[238]. Typically, we do not receive statements of eligibility for every paid
canvasser. We do not go back and look to see if paid canvassers on the list
have had a background check or if they have signed a statement of
eligibility. [239]. We do not check to see if they have the correct residence
or domicile. I don’t know whether the paid canvassers were trained or how
they were trained. It is fair to say that a paid canvasser’s name and address
Ab. 69
information must be presented to the Secretary of State before they can
start collecting signatures. We do not check to see if they started collecting
before they were identified to the Secretary of State. We spot check at
times, but we do not check everyone. [240].
There were seven or eight petition campaigns going on in this cycle
with four petitions that were turned in. [241]. We keep copies of the paid
canvasser lists on file. All the information is subject to Freedom of
Information.
Cross Examination by Respondent
There are some things that the Secretary of State’s office requires in
connection with the initiative process. [242]. There are some things our
office doesn’t require. Submissions of statements of eligibility to the
Secretary of State are not required. We could make it a requirement and
nothing would disqualify it if they wanted to turn the statements in. [243].
Examination by the Court
The handbook as well as the statute says that one of the requirements
is that the sponsor has to certify that the paid canvassers have done certain
things. We do not have a particular format for the certification. An affidavit
Ab. 70
would work. [244]. I think we would accept an email. I don’t think we
would be comfortable accepting an oral statement. [245].
Testimony of Peyton Murphy
Direct Examination
My name is Peyton Murphy and I am the assistant director of the
election division at the Secretary of State’s office. I started at the beginning
of April of this year. [246]. I assist the director in overseeing the staff, set
out plans for the long-term, assist with compliance with election laws. I
have been involved with the initiative and referendum process this cycle. I
have assisted with complying with the law. I have assisted with other
duties, helping out as needed. I have worked with Josh Bridges and Leslie
Bellamy.
The paid canvasser’s submission comes in to our email account. [247].
They come in through elections mail. Leslie Bellamy and I receive those
and forward them to whoever might need a particular email. [248]. In
Exhibit 9, for example, I would forward this email to Josh Bridges and I
would keep a copy in my email account. Josh would print off the Excel
spreadsheet and put a stamp on it and put it in the red folder.
Ab. 71
Mr. Greenberg sent multiple emails throughout this cycle. I did not
always look at the list. [249]. I would generally take a glance at it, but most
of them said the same thing. So I can’t say that I really fully read each one.
They were one sentence that said, “here are a list of paid canvassers.” [250].
I looked at Petitioners’ Exhibits 9, glanced at 10, and 11 and did not
get to Intervenors’ Exhibit 1 during the break. [251]. There is an email in
here to Dan Greenberg from somebody else that says the canvassers have
passed the background checks and signed certification forms. Dan
Greenberg and Chase Duggar never certified to the Secretary of State’s
office that they had passed a background check or signed a statement of
eligibility.
The sponsor is required to certify.
I helped stack the petitions off of a cart. [252]. Based on what I have
seen, besides the petition parts and the intake document, Chase Duggar
and Dan Greenberg did not provide any other documents at that time to
the Secretary of State. I have not seen a certification of paid canvassers.
They didn’t provide a paid canvasser’s list unless it is in this stack of
emails. The deadline for submitting the filings was July 8th.
Ab. 72
Testimony of David Couch
Direct Examination
I am David Couch, an attorney. [254]. I have been involved in
signature petition drives to place initiated acts and constitutional
amendments on the ballot this election cycle. I am the sponsor of the
Arkansas Medical Marijuana Amendment. It is a constitutional
amendment. I had to collect signatures, petition parts, and that sort of
thing. We did have hired paid canvassers. [255].
My law firm’s name is David Couch, PLLC. The company that I
hired, National Ballot Access, conducted criminal background checks on
paid canvassers, but for the Arkansas State Police it had to be requested by
an Arkansas resident so it was done through my name. I was billed for
them and I paid them. I was reimbursed from the ballot question
committee. [256].
I never worked for 3.0, LLC. I never worked for Health Care Access
for Arkansans, Dan Greenberg, or Chase Duggar in the tort reform
signature gathering process.
The sponsors are required to keep paid canvasser files and National
Ab. 73
Ballot Access has possession of mine. The Arkansas State Police
background checks are included in the files.
I see my law firm’s name on Exhibit 14. [257]. I did not authorize
someone to conduct background checks for 3.0, LLC, in the state of
Arkansas. Alita Bush works for National Ballot Access. I never authorized
this to be given to Health Care Access for Arkansans. I never authorized it
to be given to 3.0, LLC. I don’t even know who that is. This background
check was done for Arkansans United for Medical Marijuana of which I am
the sponsor.
My company’s name is at the bottom of Exhibit 25. [258]. I never
authorized 3.0, LLC, to utilize my background checks. [258-259]. Arkansans
United for Medical Marijuana paid for this. I initially paid for both
background checks out of my pocket and was the reimbursed. I never got
any type of reimbursement from 3.0, LLC, or Health Care Access for
Arkansans.
Ultimately it is my responsibility as a sponsor to certify to the
Secretary of State’s office that the paid canvassers had passed background
checks and signed statements of eligibility. I did it by email. The lists were
Ab. 74
updated frequently as new canvassers came as is required by law. [259]. So
sometimes more than daily new lists were sent to the Secretary of State.
[260].
Cross Examination by Intervenors
The background checks are state background checks. [261]. National
Ballot Access is a company who collects signatures on paid petition drives.
They did the complete process. They did the criminal background checks,
both state and federal, to the extent that we could do federal. I noticed the
statement of eligibility, we drafted that. National Ballot Access would come
in and they would train the canvassers. They would get them to sign a
statement that they were trained, that they were given the notebook from
the Secretary of State’s office and the I & R handbook, and that they had no
felony. This was at my request as a sponsor. They would also sign
independent contractor agreements with National Ballot Access. [262]. We
would keep a copy of their driver’s license and we would fingerprint them
and we would keep it in a file. We’d keep those sworn statements, the
background checks, 1099 contract, and copy of photographs.
Any time a paid canvasser would come to Arkansas to work, they
Ab. 75
would have to go through the mandatory training. They would have to get
criminal background checks. Once they did those two things, then we
would send an email to the Secretary of State listing their name and the
names of previous people who had been registered, along with the
statement that they had passed the criminal background check and had the
required training.
I hired National Ballot Access. They are not a sponsor of any
initiative. [263].
Cross-Examination by Respondent
The paid canvasser affidavits provide the canvassers domicile and
their residence address if it is different from their domicile. I did not
interpret the address in the affidavit of the petition part to have to be an
address inside the State of Arkansas. [264].
(Page 265 is not abstracted because it is conference between the court and
attorneys and is not relevant).
Testimony of Allison Clark
Direct Examination
My name is Allison Clark and I go by Alli. I work for the Arkansas
Ab. 76
Trial Lawyers Association. I do media and technology and outreach. I also
do voiceover work for Soundscapes as other paid work. [266]. I have
experience in taking data, putting it into computerized form, and analyzing
that data. [266-267]. Before working for the trial lawyers, I worked for a
medical software company doing database building and software building
for electronic health records and medical records. I was the liaison between
the clients that used the software and the developers in developing it. It
involved taking a big set of data from various sources and condensing and
sorting that data into another usable, searchable form.
I do volunteer work with the Junior League of Little Rock and I do
some community outreach and I also do some theater volunteering with
Red Octopus Theater.
I have volunteered for a ballot question committee. [267]. It was the
Committee to Protect Arkansas Families. I started doing volunteer work a
little over a month ago for them. I have spent probably over 100 hours
volunteering for them. No one at the Trial Lawyers Association told me to
do that work. I have not made any money for the volunteer work.
In my particular project, I took a large number of documents and
Ab. 77
cataloged the bits and pieces from those documents. I cataloged that
information into one sortable, readable, usable database. [268]. Some of the
documents were obtained from the Secretary of State’s office and some
were from the sponsor. [269]. I do not know which piece of documents
came from which source. [270]. The documents included statements of
eligibility, the Arkansas State Police background reports, the valid
signature report from the Secretary of State, and all the canvasser
information. The canvasser information came to us in individual canvasser
information pages. [271].
These documents are statements of eligibility for the canvassers and
the ASP criminal background checks. It appears to be the paid canvasser
file that I reviewed. [272].
(Page 273 is a conference between the court and the attorneys and is not
abstracted because it is not relevant.)
These documents were part of my data analysis. I sorted through
these documents.
[Petitioners’ Exhibit 29 is introduced.] [274].
(Page 275-276 is a conference between the court and the attorneys and is
Ab. 78
not abstracted because it is not relevant.)
I did not look at every document and crunch every number. I
coordinated a large number of volunteers to come in and review these
documents and I oversaw what was happening. If there was a question, it
was to me. But I did not review every single document. I got the various
criteria as to how to sort the data from Jeff Priebe, the attorney.
What I am going to tell you is what the documents had on them and
how the data ended up in these sheets. I don’t know where they go from
here. That’s all I can tell you. [277]. I could tell you how many paid
canvassers lived on Robinwood in Burlington, GA. I would sort that. Then
I could tell you the number of signatures validated by the Secretary of
State’s office that tied to that criteria. What that information means is not
my place to testify to. [278].
Voir Dire of the Witness by Intervenors
I know what you mean by SOS signature count. It is the number that
was given to me by the state. I coordinated a large group of volunteers.
[279]. I think over the course of two weeks roughly 70 volunteers worked
on it. We have a list of those volunteers. Some of the volunteers were Jesse
Ab. 79
Gibson, George Wise, Bryce Brewer, Gary Green, Casey Tucker, and other
professionals. [280]. My testimony will be based on the work of those
volunteers. I have access to the list. Some of the individuals were licensed
attorneys, but not all. They were registered to vote. I don’t know if any of
these individuals were a party to this lawsuit. [281]. I don’t know if they
made campaign contributions to any parties in this case.
When these volunteers came in and reviewed all of these pages and
they were logging all of the information that was asked of them, I took
their handwritten listing of what they had documented and I entered it into
a digital database and then double-checked that against other information
that we had while reviewing all of this. I was responsible for taking the
petition parts and giving them to the individual volunteers. [282]. I also
gave them the criteria that I was given to give them. I was there for
questions, but I was not physically present over the shoulders of all the
reviewers. Some of them are outside of Little Rock. [283].
The results from the reviewers were on handwritten paper. [284]. It
could also have been a handwritten format that was scanned and emailed
to me. I don’t think I received any back in a searchable format. I then took
Ab. 80
that data and entered it into a spreadsheet. It was me and others who
assisted with the typing. I maybe had five assistants. It wasn’t that many.
[285]. Amanda Bolden was one, but I can’t remember all of their names.
We would key in the handwritten information into an Excel
spreadsheet. I don’t know that I have reviewed a spreadsheet from the
Arkansas Secretary of State. [286]. I relied on the accuracy of the 70
reviewers when I keyed the data in. There were guidelines for how the
reviewers were to undertake the review process. [287]. There were certain
things that we wanted them to log that were for them to decide. It was
literally looking at one of those petition pages and copying down what was
already written on the page into five columns, the Bates number, the
number of signatures that was totaled in the top right of the corner, the
name of the canvasser, the name of the notary, the date of the first
signature. All of those things were on the page already. It was just taking it
and putting it into a document. Most of the reviewers put their name on
the documents they gave me. [288]. Those documents are in a box at the
Arkansas Trial Lawyers Association office. Some signed, some did not.
[289].
Ab. 81
The information we talked about is what we wanted them to write
down so we could catalog and make it a searchable, usable document. The
criteria for review would be any piece of the information from the
signatures that was missing. If there was a blank, that would be an issue. If
the date of the first signature was after the page had been notarized, if
there was an issue with canvasser information, if the canvasser information
was missing, if any of the signatures from that page came from a town not
in that county, those were all things they were looking for. They were also
looking for things like if it was just completely illegible, but that was not
something that ended up being part of our review. [290].
On average, one person could probably do 100 petition pages. There
were roughly 22,000 petition pages. [291]. We sent the reviewers petition
pages, a list of canvasser names, and a list of cities and towns in Arkansas
and their counties for comparison.
I could look at a document, say Bates 7092, I could go back and see on
all of our review pages and know which person did that review. [292]. I
don’t have that list right at this second. I would have to go get it. But sitting
here without the list I could not tell you which reviewer entered which
Ab. 82
piece of information. [293].
Continued Direct Examination by Brian Brooks
Paid canvasser lists were in Excel format. The list of verified
signatures was in Excel format. I did not need a reviewer to do that. It’s an
electronic computer thing. [294].
Motion to Exclude the Testimony of Allison Clark
By Intervenor
Your honor, the Intervenor moves to exclude the testimony of Allison
Clark and move to exclude this witness from testifying with respect to
compilations of data or summaries of data or signature counts for the
Secretary of State. [295]. Based upon the voir dire of this witness, this
witness lacks personal knowledge to testify about summaries that were
generated based upon reviews that reach into the 70s or 80s that are not
here today to testify.
Rule 602 of the Arkansas Rules of Evidence states, “A witness may
not testify to a matter unless evidence is introduced sufficient to support a
finding that he has personal knowledge of the matter.”
Based upon the voir dire examination, this witness cannot tell, as she
Ab. 83
sits here today, which pieces of data were reviewed and analyzed, if you
will, or looked at by any individual name. That falls woefully short of the
standard required under Arkansas law, that a witness testify only to her
personal knowledge. That a witness has a proper foundation to give
testimony to this court on such an issue as critically important as initiative.
[296].
And based upon what we heard and the Court heard during voir
dire, it would be rank speculation to even posit that this witness has
personal knowledge of the data needed to derive a Secretary of State
purported signature account. And we have seen the purported summaries
that have been provided to us so far. And there are numerous ones and
they go back here almost to the counsel table. And, ultimately, they
purport to summarize data that we now know is woefully short of the
requirements under the Arkansas Rules of Evidence and Arkansas law.
Finally, if this witness is allowed to testify about estimated or
purported signature counts on file with the Secretary of State, based upon
thousands upon thousands of petition parts, she did not review nor were
reviewed under direct supervision when she is in the same room.
Ab. 84
Under Rule 403, the prohibitive value is substantially outweighed by
the unfair prejudice to my client, to the registered voters that signed these
petitions. [297]. The lack of foundation, put simply, based upon what we
have heard alone and I cannot envision a scenario upon any kind of direct
or cross examination where in light of the testimony related to the review
process, that it can be repaired.
For example, we don’t have the names of the 70 reviewers, bare
minimum information. We don’t know who they are. And we are trying to
be as efficient with the Court’s time as we can, but this is going to take
some time.
But based upon what the court has heard here in voir dire, we
strongly, respectfully move this court to exclude this witness and to strike
any testimony related to it, any data review, compilations. And once more,
all of this is based on hearsay in the purest form. [298].
Response by Petitioners
The bulk of the reviewer process, as you heard, dealt with going over
with a fine-toothed comb with each petition part. The majority of what she
will testify to is derived from the Excel spreadsheets she just talked about
Ab. 85
where you lift data from other spreadsheets and sort it in a condensed
form.
For example, the first one we are going to look at is nothing more
than a list of paid canvassers and a sort of the verified signature counts that
each paid canvasser brought in. That had nothing to do with the reviewers.
Number two, if this is excludable, we would move to exclude
everything the Secretary of State did because it was the exact same process,
a set of reviewers reporting to a supervisor who did a review of the
numbers. And, so, nobody has gotten anywhere.
This is a 1006 summary of voluminous recordings. That’s all this is.
We have taken the data and we have put it in a usable format. [299]. The
vast majority of it comes from a discreet set of documents where we have
somebody go through a box of documents and say, is there a background
check in there, is there a statement of eligibility. There either is or there
isn’t and we then coordinate that with the paid canvasser signature count
that is easily derived from the spreadsheets that we’ve gotten from the
Secretary of State’s office.
That’s what this information is about. She was in charge of sorting
Ab. 86
the data, she was in charge of building the charts and taking the
information that she got and putting it in a usable form that we can all
view in one sitting, rather than going through each individual petition part
and comparing it to something else. We can take that exercise or we can
look at a spreadsheet that allows you to see what we are talking about in
one easy, usable form. [300].
And her foundation is laid because, again, this is the exact same
process the Secretary of State’s office uses. We extract the data from one
source, put it in another, and sort it. That’s all that is done.
By Respondent
I would ask that the Court not unadmit stipulated Joint Exhibit No. 1,
the petition parts. I’m sure that Mr. Brooks is not saying that, although he
might be.
Second, as to the Secretary of State’s process, Mr. Bridges testified
that these people are all in the same room at the same time. We do all the
training. It is our database. It is data that is there in raw form. Everything is
reviewable, and not only that, we showed everyone everything, so it has
been subjected to cross examination and review at this point. [301].
Ab. 87
The Secretary’s position is what we did is entitled to the presumption
of constitutionality and we are also entitled to the presumption that what
we do is true and correct, and it is based on public records that are
admissible in this Court because they are all certified by our office. The
Secretary can certify his own records for admission, so we did.
By Intervenors
One glaring difference among many between joint exhibit over there
by the Secretary of State’s office is those are public records which is an
exception to the hearsay rule. I also have to respectfully disagree that this
review was done with a fine-toothed comb, that is not apparent from the
voir dire that I just heard. [302].
By Petitioners
I think that this is perfectly allowable under 1006, to take voluminous
documents and condense them. When they are voluminous, one person
doesn’t have to do every piece of the condensing. It is perfectly appropriate
to derive it from the sources that we have all said are the sources where
this information comes from and to boil it down into a usable, viewable
form and that’s what we have done.
Ab. 88
By The Court
I’m going to overrule the objection. I think 1006 would probably get
us there, but I think what really backs the Court into a corner is that if we
don’t do it this way and I don’t have something to go on so that I
understand their position, I’ve got to look at 20,000 pages, and do it myself
because they have been admitted. And I don’t think any of you want to
wait while I go through 20,000 pages. [303].
I understand the concern and I’m going to give you a lot of leeway in
cross-examination in pursuing things as we go through, but I just don’t see
how we get to what their allegation is in their complaint. This is their way
of saying, here is our allegation, not this is the truth. I’ve got to make some
determination and I’ll certainly weigh in your concerns.
By Intervenors
1006 requires the underlying information supporting a summary to
be otherwise admissible and that goes to the very heart of our motion to
exclude. [304].
By the Court
Your objection is overruled. I overrule your objection primarily on
Ab. 89
the basis of 1006. I want to make clear that the fact that they present this as
their allegation of whatever it uncovers doesn’t necessarily mean I believe
it or will take it at its face value. This is something the court will have to
sort out. [305].
Continued Direct Examination
The Paid Canvasser Signature Count form came from the Secretary of
State. It was in Excel format. The volunteers did not give it to me. It came
from the Secretary of State. The addresses came from the Secretary of
State’s spreadsheet. [306]. The city, state, and zip came from the Secretary
of State. I have a spreadsheet of canvassers and that is where I got the
information, not from the 70 reviewers. [307].
The SOS signature count is the total count of validated signatures by
the Secretary of State’s office per individual canvasser. The information
came from the validated signature report from the Secretary of State’s
office, not the 70 reviewers. For instance, this shows that Amber Moore, the
first person on this sheet, collected zero signatures that were validated by
the Secretary of State’s office and so on for every one of the paid
canvassers. [308].
Ab. 90
The total at the bottom of the column is 86,492. Excel computerized
the total. The first column is the Bates Number given to each individual
petition part by the Secretary of State. I got it from the bottom of the
petition pages. The reviewers got the Bates number. [309]. They got it from
the page of signatures. I did spot check the accuracy of those numbers.
The county name came from the signature petition pages that were
provided by the reviewers, and I checked their work. The column titled
“Canvasser Name” shows that the canvasser collected the names for that
page. The “Total Valid Signature” line is the total count of signatures that
were counted as validated by the Secretary of State’s office for that
individual Bates page. [310]. The total on the last page of this document
corresponds with the total amount of signatures gathered for every single
petition page that was verified by the Secretary of State’s office. [310-311]. I
have it broken down by Bates number, petition page, and canvasser. You
can check the broken down part of the information. [311].
[Intervenors object to the introduction of Petitioners’ Exhibit 30 and 30A by
adopting and incorporating the previous argument based on Arkansas
Rules of Evidence 602, 801, 802, and 403 and it failing to satisfy 1006.
Ab. 91
Petitioners respond that it is a 1006 cumulative exhibit. The Court overrules
and Petitioners’ Exhibit 30 and 30A are introduced.] [312].
This document is entitled “Paid Canvasser Out-of-State Current
Residence Address.” This information came from the Secretary of State. It’s
from a spreadsheet from either the Secretary of State or the sponsor. The
reviewers did not extract the data. The address came from the same list.
[313]. The last number is the SOS Signature Count and that came from a
separate list from the Secretary of State’s Office, the Verified Signature
Report. I’m saying verified because that is the count of signatures that the
State counted as valid, verified signatures, not what is listed on each
petition page. If the Secretary had already thrown a signature out, it was
not counted. The reviewers did not extract that data. On the last column on
the last page there is a total. [314].
This is a list of all paid canvassers who were not from Arkansas.
None of the current residence addresses are in Arkansas. That was the
sorting criteria that I was doing. If a canvasser had a current residence in
Arkansas, they would not be on the list. All these canvassers listed a
current residence somewhere other than Arkansas. [315].
Ab. 92
This is a listing of all the individual Bates numbers per canvasser,
broken down by individual pages. This was all found on the petition
pages. The Bates number along with the county were what the Secretary
gets. The reviewers participated in this. The summary sheet we went over
first was the individual Bates page and the count of signatures per page
that were counted as verified by the State’s office. This is just broken down
individually. The first page is a summary of the total per canvasser of these
validated signatures. [316].
Objection to Introduction of Petitioners’ Exhibit 31
(Intervenors object to the introduction of Petitioners’ Exhibit 31 on
the same grounds previously cited.) R. 317.
By Respondent
The Secretary does object to the relevance and this would be the same
in all three signature challenges here. The Secretary was involved in the
underlying case, McDaniel and Martin v. Spencer, which is a March 2015
case. The Secretary is charged with enforcing this law, that we would do so
in a constitutional manner, and that we should be presumed to enforce it in
a constitutional manner.
Ab. 93
The law does not say you have to provide a temporary abode address
inside the State of Arkansas. What it says is you must provide your current
residence. [318]. And we have no way of knowing what that is. So the
Secretary accepts whatever they put there. We do not believe the exhibit is
relevant for this reason. It doesn’t have to be in the State of Arkansas. Our
objection is the same in all three cases no matter who the petitioners are.
We think the Secretary did it the right way so we don’t think this particular
exhibit is relevant to this proceeding.
[Mr. Brown joins in and incorporates the Respondent’s objection.] [319].
By Petitioners
The statutory requirement is to list a domicile address and a current
residence address. The Supreme Court, in McDaniel, drew the distinction
between domicile and residence. These canvassers move around a lot and
they need to be located at a residence address while they are moving
around. Domicile and residence are two different things.
Now if they want to make some evidentiary argument or put on
some evidence that they are the same thing, that’s different. But domicile
and residence, under this statutory scheme, are two different criteria, two
Ab. 94
separate things every canvasser must list. And for an out-of-state canvasser
in Farmington Hills, Michigan, I don’t see how they could have a current
residence address in Michigan and be canvassing in Arkansas and be able
to be located by the Secretary of State’s office or anybody else, should they
need to be located. That’s the purpose of this exhibit. [320].
By the Court
I’m going to sustain the objection on the grounds of relevancy. This
only on 31, not on the previous ones because I think those are relevant. But
I don’t think the business about out-of-state residence address helps me in
any way in making the decision I have to make. So I am sustaining the
objection the Secretary has offered.
[Petitioners’ Exhibit 31 and 31A are proffered and marked for identification
purposes.] [321].
This is titled “Paid Canvassers Missing Statement of Eligibility and
ASP Report.” The first column is the name of the canvasser. The next
column is the list of registered paid canvassers and the Bates numbers of
those canvassers. That list is attached to this document. The reason given
for the signatures not to be counted is because there is a missing statement
Ab. 95
of eligibility and ASP report. I was told to look for canvassers that did not
have a statement of eligibility or ASP report. [322]. I looked for those in the
documents submitted by the sponsor. It would have come from Exhibit 29.
I went through the boxes and looked for eligibility statements and ASP
reports. Somebody went through them. [323]. The last column is listing the
total amount of validated signatures that were gathered by canvassers
missing the statement of eligibility and ASP report. That total is 5, 092.
[324].
[Page 325 is not abstracted because it is a conference with the Court and not
relevant.]
This first document from Exhibit 29 is a paid canvasser sworn
statement of eligibility. The second document is an Arkansas Criminal
History Report. [326]. It is my understanding that Exhibit 29 is the listing of
all statements of eligibility and ASP reports that have been produced by
the sponsor. [326-327]. This chart reflects the paid canvassers that are
missing the statement of eligibility and the ASP report. That information
came from the sponsor, not the Secretary. The total was 5,092 which was a
computerized total. [327].
Ab. 96
The attachments are showing all the individual Bates pages that this
canvasser, Tiffany Caster, collected signatures on and the total the State’s
office counted as valid. [327-328]. It is backup information from the overall
chart. There is the same sort of listing for each canvasser on the front chart.
The backup is to show the Court where he can look at each and every
document if he wanted to. [328].
[Page 329 is not abstracted because it is a conference and not relevant.]
Voir Dire by Intervenors
This document is entitled Paid Canvasser Missing Statement of
Eligibility and ASP Report. [330]. I created this listing. This data back here
would not have been solely created from this down here, this list. It would
have been this and the ASP and the eligibility statement. This data was
attained from the statement of eligibility and the ASP report files. To get
the valid signature count, we would have had the valid signature report
that would have gotten us these totals here. [331].
This particular part of the data compilation would have been done by
Jim Sweeney and the attorneys, the lawyers for the petitioners.
Conference with the Court
Ab. 97
By Brian Brooks
In order to be a paid canvasser and legally collect signatures, you
must have a state background check and a statement of eligibility. The
Secretary of State’s office doesn’t collect them. There is one way for us to
determine whether each paid canvasser had a statement of eligibility and a
background report, which is just what she testified to. We asked for all of
the documents revealing statements of eligibility and background reports.
We then took the list of paid canvassers submitted to the Secretary of
State’s office by Mr. Greenberg and we looked to see if every one of these
people had those two documents in that box.
This exhibit shows that these individuals indeed did not have either
document in that box. We have been told that this is the universe of ASP
reports and paid canvasser statements of eligibility that exist for this case.
And so, we are pointing out to you that these people didn’t have either
one. They couldn’t collect signatures and did. They collected 5,092
signatures. [334].
By Brett Watson
That box of documents came from 3.0. They were provided to us and
Ab. 98
we produced them in discovery.
The Court
In that case, then, I think it’s appropriate that we go ahead and allow
it because she didn’t get this from the reviewers. She got this by simply
taking the documents and doing a count. [335]. Ten canvassers were
missing both the statement and the police report. And the total signatures
they collected was 5,092. I’m going to overrule Mr. Brown’s objection.
[Intervenors make and incorporates the previous objections and is again
overruled.] R. 336.
Direct Examination Continued
The next spreadsheet is entitled “Paid Canvasser Statement of
Eligibility No Domicile or Address.” The first attachment is a paid
canvasser statement of eligibility. N/A is written in the blank for
permanent domicile address. The blank for permanent domicile address is
blank on the next page. [337]. This is a list of paid canvassers that do not
have an address listed on their statement of eligibility. The Bates number is
for their statement of eligibility. The next column is a listing of their
permanent address with is blank or marked N/A because the canvasser
Ab. 99
did not provide it. The last column is a total for signatures gathered by
those canvassers and that total is 4,818. [338].
The canvassers listed in Exhibit 32 are all missing their statement of
eligibility reports. In this report, they all have statements of eligibility but
the address is blank. [339]. Exhibit 32 and Exhibit 33 cannot duplicate the
same numbers. The statements of eligibility come from the file of the paid
canvassers statement of eligibility, not the Secretary of State. The attached
documents are a breakdown of the summary by canvasser and their
individual Bates numbers and the total number of validated signatures per
Bates number. [340].
Objection to Introduction of Exhibit 33
By Brett Watson
We want to object to this on relevancy grounds. The statute does not
require the statements of eligibility to have a domicile address in every
case. It specifically says in 7-9-601(d)(2), “Should include the current
residence address of the person and the person’s domicile if the permanent
domicile address is different from the person’s current residence address.”
There has been no evidence whatsoever that any of these individuals
Ab. 100
had a different domicile than their current residence address. And for that
reason, it is irrelevant and we will adopt and incorporate the previous
objections we have made to the introductions of exhibits and to her
testifying as well.
By Brian Brooks
We can’t know if there’s a different domicile address from the
residence address if they don’t list it. That’s why both are supposed to be
listed. The purpose of the residence address is to find out where they are
living when they are in the State of Arkansas. We can’t know without
having all the information. [342].
By the Court
There is a difference between relevancy and weight. This is probably
relevant, but I will tell you right now, I’m not going to give it much weight
because it doesn’t amount to anything. So that count of 4,818, when I
started doing my addition, it is probably going to go away because under
the statute the evidence is iffy. I don’t know what it means. We know what
the residence address is. [343]. The objection is overruled but I am not
giving the evidence much weight. (Petitioners’ Exhibit 33 and 33A are
Ab. 101
introduced.)
The next document is “Paid Canvassers Statement of Eligibility
Invalid or Incomplete Domicile Address.” On the first page of the
attachment, the canvasser lists his residence and domicile at 8862
Northwest 167th Street. The next one lists 611 N. Meridian, Apt. 10. Neither
have a city or state. [344]. The next residence address is 1830 East Johnson,
No. 32, Jonesboro, AR, 72401. The domicile is listed as 70 Sexton Cove. No
city or state. The next one has the domicile address of 3303 Country
Meadows Lane with no city or state. Same thing for the residence address.
The next one lists 850 Lost Tree Drive, No. 3, Branson, MO as the residence
and P.O. Box 71, Blue Eye as the domicile [345].
The next one lists 11966 Cheeten Oak Parkway as the residence and
domicile with no city and state. The last one is 7309 West Hampton Ave.,
No. 5502, Lakewood 80277 as the residence with a permanent address of
P.O. Box 156, Vale, South Dakota 57788. The total signature count related to
this category was 2,843. [346].
Objection to Introduction
By Brett Watson
Ab. 102
We adopt and incorporate the previous objections. Again, the statute
does not say that you must list your street address versus a P.O. Box
address. It does not say that your address has to be perfect. It simply says
your address, and these canvassers put down their addresses. It’s
substance over form.
Mr. Brooks’ clients don’t like it, but it’s not relevant because there are
addresses on there. So we move to exclude it from evidence for that reason
as well, in addition to our other objections. [347].
By A.J. Kelley
The Secretary’s objection is to the combination of the two things, the
city, state, and zip being omitted and the invalid domicile address for this
reason. The Secretary does not agree that P.O. Boxes are invalid addresses.
We don’t object to the other ones.
By Brian Brooks
Part of the address is the city and state. At least that much. You can’t
locate somebody at a P.O. Box if you needed to find them. They don’t live
at P.O. Boxes and the purpose of the statutory requirements is to be able to
locate these canvassers. Violating some of the canvassing laws can be a
Ab. 103
crime and we need to find them, not a P.O. Box. [348].
By the Court
Ok, some of this is beyond my assignment because I’m being asked to
interpret statutes. I just want the information, at this point, for purposes of
the factual determination. Mr. Brooks, separate out those that listed no city
or state and those that listed a P.O. Box and I will overrule the objection.
Linda Boyd is missing city, state, and zip. [349]. She collected 1,142
signatures. Catalina Denude is missing city, state, and zip. She collected 81
signatures. Next is Dalton Farinelli and his residence is listed as 1830 East
Johnson, No. 32, Jonesboro, AR, 72401. The domicile is listed as 70 Sexton
Cove for 34 signatures. [350].
Bryan Michael Hudson listed his address as 3303 Meadows Lane and
collected 12 signatures. Debra Murphy is next and her residence is 850 Lost
Tree Drive, No. 3, Branson, MO, and her domicile lists P.O. Box 71, Blue
Eye, for 237 signatures. The next is Darrell O’Bert and his residence and
domicile is listed as 11966 Tracton Lake Parkway and he collected 1,002
signatures. [351].
Rochelle Linlyon is next with a current address of 7309 West
Ab. 104
Hampton Ave., No. 5502, Lakewood 80277, and her domicile address of
P.O. Box 156, Vale, South Dakota 57788, and she gathered 41 signatures.
The last one is a residence address of 901 LeGrand Drive, Lansing, MI
48910 with a domicile address of P.O. Box 4062, Allentown, PA 18105, with
294 signatures. [352].
The next document is titled, “Paid Canvasser Missing Statement of
Eligibility.” The statement of eligibility wasn’t in their file. These are the
exhibits from the box. This list represents the individual canvassers that
did not provide a statement of eligibility. [353]. That total is 47. Each
person on this list would show up on the attachment.
[Petitioners’ Exhibit 35 is introduced]. [354].
(Page 355 is not abstracted because it is a conference with the court and is
not relevant.)
The next document is titled “Paid Canvasser ASP Criminal
Background Report Obtained by Third Party.” The background checks
were all introduced earlier by Mr. Priebe. The first column tells us the
name of the canvasser. The next column is the Bates number for the
background check. The next is the person who the background check was
Ab. 105
released to. The next is who that person was representing. The final column
is the SOS signature count that the canvasser collected. [356]. For instance,
the background check for Russell Bagget located at that Bates number and
released to Scott Tillman at the Liberty Protection Project has 511
signatures attributed to it, and those are verified signatures. The total for
those columns is 10,764.
[Petitioners’ Exhibit 36 is introduced over the same objections from
Intervenors.]
This document is titled “Paid Canvassers Collecting Signatures
Before Disclosure to SOS.” [357]. The left column is the name of the
canvasser. The next column is the total verified signatures. The next is the
total count of petitions. In the left hand corner on the next page, it is the
individual Bates number for the signature pages. I relied on someone to
pull those Bates numbers. [358]. I spot checked them. The next column is
the county in which the signers should reside. The date submitted means
the date that the canvasser was submitted to the Secretary of State’s office,
based off of the listing that they provided. I personally got those dates from
the spreadsheet. [359]. The date of first signature is the date of the earliest
Ab. 106
signature on the petition page of the validated signatures. I got that date
from the reviewers. The reviewers got that date from the petition page. I
spot checked their work. The last figure is the total number of validated
signatures per individual petition page by the Secretary of State. The total
is 1,825. The last column is the total petition pages and that is 471. [361].
(Petitioners’ Exhibit 37 and 37A are introduced over the same objections
from Intervenors.) [362].
This document is captioned “Paid Canvassers Conflict between
Statement of Eligibility and Lists Submitted to the SOS Canvasser Name.”
The first column is the canvasser name that came from the list provided.
The next is the Bates number on the statement of eligibility, which is found
in the canvasser file. The next is for the Bates number on the ASP
background report found in the canvasser file. [362]. The next stands for
the Bates stamping of the page that the canvassers are listed on for 7-7-
2016. The stapled exhibits are the paid canvasser’s sworn statement of
eligibility and the breakdown of the summary that is here. The last column
is the Bates number for the petition parts and the validated signatures from
the Secretary of State. [363].
Ab. 107
So for instance, Ollie Brown III is Ollie Brown III on his sworn
statement but is listed by the Secretary of State as Ollie Brown. His suffix is
missing. For Tommy Cason III, the list submitted to the Secretary of State is
missing his suffix and his surname is spelled wrong. [364]. The entire chart
points out differences in the names. This affects a total of 1,308 signatures.
(Intervenors and Respondent object on the basis of relevancy. [365]. The
Court admits Petitioners’ Exhibit 38 over the objection but states he will not
give it much weight.)
The last document is titled “Paid Canvasser Important Dates.” The
first columns are the paid canvassers names. The next column is paid
canvassers registered on 7/2016 with the Bates number. The next column is
the date of registration that I got from the paid canvasser listing. [366]. The
next Bates number is the petition part of the earliest signature and the Bates
number for that page. I relied on reviewers to give me those numbers, but I
did spot check them. The next is the date the first signatures were collected.
The next column is the Bates number of the criminal background check
from the canvasser file. [367]. The next column is the ASP report, date
under transaction ID. The next column is the Bates number for the
Ab. 108
statement of Eligibility. This chart just lists the dates things happened for
each canvasser so the judge can refer to it and find documents if he needs
them. [368].
[Petitioners’ Exhibit 39 is introduced over the same objections from
Intervenors.]
I created the majority of these charts, but I did not create every single
one of them. I have reviewed every one of them. I have absolutely checked
them for accuracy. [369].
Cross-Examination by Respondent
I am not saying the Secretary of State provided a spreadsheet
associating paid canvassers with certain petition parts. That is extrinsic
information. So on Exhibit 30 and 30A, it required some outside analysis of
how those paid canvassers are associated with each of the signatures. [372].
The same thing would apply to Exhibit 37 and 37A and 39. It was
obtained from information outside the control of the Secretary of State.
[371].
[Pages 372-376 are not abstracted. They are housekeeping matters
regarding the testimony that will be presented on 9-23-16 and not relevant.]
Ab. 109
[Joint Exhibit 2 is introduced which is the culled petitions]. [377].
[Pages 378-379 are not abstracted because they are more housekeeping
matters.]
Hearing before the Honorable J.W. Looney September 23, 2016
Allison Clark
Cross-Examination
[385] It is fine if you call me Alli. [386] I am employed at Arkansas
Trial Lawyers Association. I have been there a little over a year. My current
title is director of media technology and outreach. That has not always
been my title at the Arkansas Trial Lawyers Association. I assumed that
title I think about four months ago, three or four months ago. Before that I
was the director of membership and development. I was director of
membership and development for about a year in a few months. You are
asking if that time takes me back to April or May. [387] I’m trying to
remember. We hired a new staff member and it was whenever she started.
I can’t remember what month that was, but May roughly maybe. So I think
in around April or May 2016 my title changed from membership and
development role to the outreach role. I think so.
Ab. 110
As director of membership and development I did a lot of the billing,
just the annual monthly billing for the members. I would do some
networking events. But the job changed and that’s partially why my roles
were different at the time. That particular position has a little bit different
of a role right now. I would answer some questions from the membership
with respect to the listserv. You are asking if I directed or participated at
ATLA committee participation efforts. [388] I’m not sure what you mean
by that. You are pulling up something on the screen that is taken from the
Arkansas Trial Lawyers Association website. The website is very much
behind my current role. But as for my previous role of director of
membership you are asking to refresh my recollection of some job duties
and see if that’s what I did.
You are showing me the website. You are showing me where it says
ATLA. That is an acronym for Arkansas Trial Lawyers Association. [389] I
think this is the current webpage. You are pointing to the name of my boss
Matthew Hass. That is under the heading of staff. At the bottom it says
director of membership Allison Clark. That is me. You are asking me to
read what it says were my job duties as director of membership. It says for
Ab. 111
information about listserv, new memberships, ATLA committee
participation, and the board retreat or membership fundraising, please
contact Alli. According to that it was that but it wasn’t quite what my job
roles always ended up being. You are asking if it was more than that. [390]
I don’t how to answer that. It could have been more, but it was less about
some of the things in that too. It wasn’t quite accurate. I agree that what is
on the screen is generally accurate with respect to my job duties.
I quit that title approximately four months ago. You say you want to
focus on that timeframe at ATLA from April 2016 through today. During
that time, I continuously served as a full-time employee. I was paid a
salary. That has been the case throughout. [391] I do not get overtime. You
are asking on average how many hours per week I worked on ATLA job
responsibilities. I usually stay later to work on ATLA job responsibilities,
so I would say sometimes it was 50 to 60 hours a week doing various
things.
You are asking when I was first contacted to do anything with
respect to this initiative process. I was never directly contacted to
participate. I happened to be around when it was being discussed and I
Ab. 112
offered, but I can’t remember when it was. You are asking if it was in April
2016 or was it before that day or month. It was not April to help with this.
[392] I think it was in August. So just last month. I do not remember what
day of last month. I don’t recall if it would have been toward the end of
August. You ask if I remember how many weeks of the month of August I
worked on this effort related to the initiative to process that we’re here
about today. It was two-and-a-half or three. I’m not good with dates. It was
not a full month, but to and a two-and-a-half to three weeks.
You are asking in the month of September what percentage of my
time I have devoted to the initiative issues. I’d say about 65% of my time at
ATLA. That’s total time devoted in September to this initiative. [393] You
are asking if that is whether I consider myself to be working at ATLA or if
that would also be inclusive of any volunteer work I testified to yesterday.
I’m not sure. So you say 100% of my time I’m supposed to be working on
ATLA functions. You then ask how much of that time I actually spent
working on this initiative process. My answer is the majority of my time
was working on ATLA functions because I want to keep my job. And then
whatever I had left over to work on this initiative was put to that. I testified
Ab. 113
yesterday that I have devoted over 100 hours or so in the past two months
to the initiative process and the efforts I testified to yesterday.
I was not compensated by ATLA for that time. I was not
compensated by anybody, whether that be a company, organization, or
individual. I did not take a leave of absence from ATLA to perform any of
the duties I did with respect to my testimony yesterday. [394] I did not earn
comp time that would have changed my benefits package. As far as I know
I am being paid my ATLA salary for the time I spent testifying here both
today and yesterday. I did not tell my boss that I was here today and get
permission to be here at ATLA. I just realized that I probably should have
right when you said that. I’m not sure if he knew that I was going to be
spending at least a good part of Thursday and Friday if not both days at
trial. Someone else would have had to have told him.
You say you are going to be asking me questions that relate to all of
the exhibits that Mr. Brooks asked me about or offered into evidence. You
are saying that all of your questions relate to exhibits pertaining to
everything that I testified to yesterday. You asked me if there is a name for
the project. There is not. We can just call it the project. [396] You are saying
Ab. 114
that we will refer to all of my efforts that relate to any of my work,
volunteer or not, that relates to any of the documents or my testimony that
was discussed in my testimony yesterday as the project. You are asking
who at ATLA first communicated to me about the need for someone to
serve in my role in connection with this project whether I was contacted or
whether I was just there. It was Jeff Priebe, counsel for the Petitioners. That
would’ve been in August 2016 sometime. Before Mr. Priebe talked to me
the first time I had not done anything in terms of looking at petitions,
sending out petitions, organizing a team of reviewers, I had done nothing
with respect to this.
[397] You ask what I was supposed to do in connection with the
project. When I first started on this project, it was to oversee the petition
review and to manage the logging of the information, to make sure it
stayed in a uniform way. You ask what information I’m talking about
specifically. The parts of the petitions. By logging that meaning, when
someone came in to review a petition page, teaching them how to do that
and overseeing to make sure it was done correctly and that we had a
current log of that data. You are telling me that joint exhibit number one is
Ab. 115
all of the petition parts that the Secretary of State accepted as valid. [398]
Joint exhibit number two is three boxes from the Secretary of State. You are
asking if when I say logging the information in the petition parts if I am
referring to joint exhibit number one. Yes, that would be the documents
that I, we were, people were looking through. There were also other
documents that were used to compare to write those logs of the canvasser
listings. But as far as logging it into a datasheet, [399] that was the
information that was logged.
We would log it into a datasheet. I’ll call it a worksheet. It has several
columns and it would have all of the criteria that we were asking the
reviewers to copy straight from the petition page onto that sheet, just so it
was in a uniform format to be able to easily enter into Excel. You are asking
if the worksheet was in a hard copy form or whether an electronic copy
exists. I created one, another one-the original. I created another one on an
Excel just so I would have it and remember what it looks like in case I lost
it, a paper copy of it. It exists today is an Excel spreadsheet. [400] Probably.
I am generally familiar with the worksheet. You are asking how long the
spreadsheet is in terms of tabs or in terms of cells. You are talking about
Ab. 116
today after everything came in. You’re asking after all the data’s been
entered. There’s probably, a little over 21,000 lines of data after entering in
all the information. I did not bring that electronic worksheet with me
today.
I know what you mean when you say hard copy. A paper copy. I did
not bring a hard copy of documents that support my testimony. [401] I do
have that information and I could bring them. There is no reason I didn’t
bring them. I didn’t think I needed them.
So you asked to go back and review. The information comes in being
the petition parts and joint Exhibit 1 and there logged as I described. You
are asking if there’s anything else about the logging process that you failed
to ask me or I failed to tell you. My responses I don’t know. I don’t know
what you would need to know or what you do or do not know.
I did not personally log every petition part that came into my office.
Three other people participated in the logging process. [402] Three or four.
Excuse me. Four other people. I’m trying to think exactly but it was no
more than five. They were Amanda Golden assisted with it. And like I said
yesterday I cannot think of her last name. I’d have to look at my list to see
Ab. 117
who these people’s names were because I’m not very good at remembering
names in that way. One was Michelle. Another was Elizabeth. And I can’t
remember-I think that was it that assisted. That was it. I can’t think of
anyone else. We can accurately refer to these people in addition to myself
as loggers. I can’t remember anybody else who logged information.
[403] The other people I just referenced are not Arkansas Trial
Lawyers Association employees. I don’t remember where they’re all
employed. They came to be involved because I asked for help. And
someone would say I’ve got someone who could help you. I communicated
my need for help with various people who came in to help log. I would
communicate to them that I needed help entering the information in. You
are asking me if there is any other information I can tell you about the
loggers besides what I’ve told you in terms of who they are, where they
work or where they came from. I don’t know what else. You ask if they
were lawyers. I know they were not lawyers. I know that, but I don’t know
what they do. [404] They’re office professionals. I do not know if all of
them were working in law offices. I don’t know if they work at law offices.
You say we can agree that I know very little about these loggers other than
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what I’ve told you in terms of names.
You ask how long it took to log all the petition parts. Do you mean on
my side of light keying it into Excel or to review? You say the review
process. I didn’t have a way of timing that, but it was a time intensive
effort. Ultimately they’re all logged. I did not personally log all the petition
parts.
[405] You ask if I did not verify with the other loggers that they in
fact had logged all the petition parts. I did verify that with my own, myself.
I know what I was sending them to verify and I would compare that
against what they sent back. And I visually compared all of those to make
sure that all of the lines were there.
You say you want to make sure we’re communicating effectively.
You ask if I verified that each petition part that another logger actually
looked at that document and put it in, as opposed to when I got it back I
saw a Bates number and I said that appears to be logged. My answer is I
spot checked throughout their documents to make sure that the lines were
lining up the way they should and verified that they were entering the
correct information. Because if they didn’t, it would throw off the entire
Ab. 119
spreadsheet and I would just have to go back and do it again anyway. I
agree that I did not check every item.
[406] The loggers were logging at different physical locations. You
ask if the loggers would come in and take petition parts back to wherever
they would go and begin the logging process and the same for logger two,
logger three, logger four. My answer was some yes. Some they would come
and pick up hardcopies and some we would send a PDF of those
hardcopies. I disagree that I did not have full custody and control of all the
petition parts in a single building or a single room. We did have custody
and control over those documents because we knew exactly where they
were at every time. You ask if in terms of copies of the petition parts that
the loggers took them out of the building and went and did what they told
you was logging, you ask if we can agree [407] that I didn’t have physical
custody and control over those. Yes, but they brought those back.
The Court: Excuse me. Mr. Brown, I want to clear something up.
Based on her testimony yesterday, it appears to me you’re asking her one
question, she’s answering another. If I understood your testimony
yesterday, what you’re talking about that was put in this form that what
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you developed was actually done by the reviewers who reviewed the stuff
in those boxes; and then they gave you the form with the information in it
The Witness: Uh huh.
The Court: And that’s what you gave the loggers; am I correct?
The Witness: That’s correct.
The Court: And you [Mr. Brown] were saying about the loggers
looking at petition parts and I don’t think they did.
The Witness: That’s correct. They looked at the-
The Court: If I understand the testimony it was the reviewers who
[408] took the petition parts, entered this into some sort of form that she
had created, gave it to her, then she passed that on to the loggers.
All of these petition parts came in, and there was not one single
person who logged every single one of those 22,000 petition parts roughly.
You ask if we had multiple loggers reviewing petition parts. They didn’t
review, they copied. It was not a review process of that. It was literally
taking what was written on that page and then entering it into the form to
get it into a uniform searchable usable format.
Q: But the purpose of that exercise was for the loggers to take the
Ab. 121
copy of the petition part and log it in based upon the Bates number and
that sort of thing?
The Court: This is where the confusion is. I think you need to
distinguish and use [409] her terms, reviewers and loggers; two different
folks. If I understand it, the reviewers are the ones that reviewed the
petition parts, entered the information into that form, gave it to her, and
then she gave it to someone to log into a data system.
The Witness: Correct.
You are saying you’re trying to determine what efforts were made to
ensure that all the petition parts were accurately logged, meaning an
inventory was taken. You are saying you are unclear on how many people
participated in the effort to ensure all petition parts were logged before the
reviewers got involved. The answer is the reviewers were the first step. The
reviewers were the first people to get those petition parts. The loggers
logged it and after the review was done. [410] The reviewers would take
these documents, write it into the form, the pieces of information we
needed, give me that form, and then I would then log that into the data
Excel spreadsheet. So the data that I entered into the Excel spreadsheet that
Ab. 122
ultimately landed in the summaries I went through yesterday came from
information that the reviewers provided to me after the reviewers
reviewed all of the petition parts in joint Exhibit 1. You asked if the
information I relied upon for the summaries was the reviewer’s
interpretation of what they say they saw in the petition parts. My answer is
it wasn’t an interpretation. The information that we were retrieving from
them wasn’t up for interpretation. It was a literally copying from a piece of
paper to another piece of paper.
[411] You ask what those pieces of information were specifically that
they were provided. Whenever they received these petition sheets, we told
them we needed them to copy down--first column was the Bates number,
which is stamped at the bottom. The second column is the county in which
the page is from, which is listed at the top. The third column would be the
canvasser, which was written down at the bottom, right-hand corner, copy
that over to the third column was the date of the first signature on that
page. Just copy that down. The next column was the notary, which was
stamped at the bottom, copy that over. And then the following column was
how many signatures, the number total written in the top right-hand
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corner. And that was what was copied over. And then after those pieces of
information were copied, that’s when they could look at it to see if there
were any issues but those issues had nothing to do with the forms we
talked about yesterday. That was just a logging and catalog of those pages.
[412] You ask what I personally reviewed myself out of joint Exhibit
1. I did review some of them. I don’t know how many that would be. I
don’t recall. You ask if I can tell you the Bates numbers of the petition parts
I personally reviewed. I saw a lot of Bates numbers. And I would not be
able to recall directly those exact numbers. I’d have to refer to notes. It was
a lot. I agree that a lot is a relative term. You ask me of the 22,000 petition
parts how many of those [413] I personally reviewed. I can’t give you an
exact number. I don’t remember. You ask if it is back at the office. I have it
recorded somewhere, but I’m not sure where it is at the moment. It could
be anywhere from my car to the office to my house.
The reviewers were predominantly ATLA members. I can tell you the
names of reviewers who were not ATLA members. Sam Clark, Monica
Miller, Jeremiah Herrmann, Jason Willy, Swinson Bailey, Sam Grubb,
Shannon Cantrell, and a few more. I’d have to look, but there are people
Ab. 124
that were not [414] ATLA members that helped review. I don’t have an
exact number of total reviewers. 70s is what I testified to yesterday, I don’t
have an exact number is what I’m saying.
It is accurate that the reviewers were situated outside Little Rock or
outside of my office building and some of this stuff would be sent to them
by mail or some other means for review. Some people would physically
come to get the pages to review. And this review would take place at the
Arkansas Trial Lawyers Association office in Little Rock. [415] You ask for
a percentage breakdown in terms of how many I had to send via US mail
or electronic mail versus the ones that actually came in to do the review. I
don’t know. I don’t want to say that, quote it wrong. I’m not sure. Some
were in the office and some were sent out. I don’t know the amounts of
petitions. A good portion were sent out, but not a majority.
You ask if I have personal knowledge of how the individual reviewer
went about his or her review. I gave every single person who was involved
with it personal instruction on how to do it and how to review these pages.
I would instruct with them when they first started doing it to make sure
that it was happening the right way. But as far as what you’re asking, no.
Ab. 125
[416] As far as personal knowledge about what actually happened no. I
would not know that. You are asking if for example I know whether that
person who is designated to review actually did the review or potentially
had one of his or her staff members do the review. All that was needing to
be done is that the review was done and I would double check that
whenever they sent it back to make sure that it was actually correct. You
asked me again if I have personal knowledge whether the reviewer himself
or herself actually did the review or had for example an office personnel or
some other third party conduct the review. They would have to tell me
who was doing the review so I know who, but I don’t know what, I guess
is what you’re asking. I did not personally observe the vast majority of
those outside the office [417] actually sit down and review the documents.
Q: So since you yourself did not physically observe and monitor
the review process, you cannot testify to this court, and I don’t think you
are, but I want to confirm it, what the reviewer actually did, if he or she did
anything, correct?
Mr. Brooks: Your Honor, that’s irrelevant. It doesn’t matter
whether, for a 1006 exhibit, whether the person collecting the data sits and
Ab. 126
watches the data collector make a sheet. She’s described the process; she
didn’t look over everybody’s shoulder. And the fact that she didn’t, doesn’t
mean anything to this, these exhibits.
Mr. Brown: Your Honor, in response, one of the elements two 1006 is
the underlying [418] evidence has to be otherwise admissible. It has to meet
all the other admissibility requirements, including hearsay, including 602,
that she has personal knowledge to testify to the matter she’s attempted to
testify about. I think it’s entirely relevant whether this witness, based upon
her testimony yesterday, actually observe the review process.
The Court: It has some relevance, but I will ask you to move on fairly
soon because I think you made your point. Overruled.
The vast majority or large majority of the reviewers did not do their
work in my presence. [419] I did not see them in person do what they did.
When they send it to me, I had to verify it and check it to be correct.
Q: Based upon what was represented to you, incoming, correct?
A: Base upon those petition parts there.
Q: Or based upon what they told you they did in the review
process?
Ab. 127
Mr. Brooks: Your Honor, she’s answered the question four
times.
The Court: Yeah, I think she’s answered it. And just to be clear, Mr.
Brown, she reviewed the summary sheet that was sent back to her,
compared it to what went out to make sure that everything was included.
That’s my understanding of her testimony.
The Witness: Yes.
I don’t recall whether anything came back to me besides the
summary sheet. I don’t think so. The summary sheets [420] are in a box,
and folders and binders organized by Bates number. They are not in this
courtroom that I know of. I did not bring them. They would number in as
many sheets as petition pages we had. You ask if there are 22,000 petition
parts roughly if there would be 22,000 summary sheets that are hand
written. Well there would be one line of summary per sheet. So I mean but
say half that. I don’t know. You ask if these summary sheets were
affidavits. I don’t know what that is. You asked if the summary sheets were
sworn. I have read them. It was what I explained before. When we asked
them [421] to sit down and copy down information from the sheets, that’s
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what those summary--I don’t know if I would call it a summary sheet. It
was a catalog system.
I would not say I exclusively relied on those summary sheets
prepared by reviewers in preparation for actual work in this case. We
relied heavily on them. I relied on them. I also relied on the petition parts
themselves and my review of those petition parts, along with their
catalogs. I don’t remember how many petition parts I actually reviewed. It
was a lot, which is a relative term we know. It’s written down it’s just not
here. If I had that information in front of me, it might help. [422] You are
asking if the summary sheets I received back from the reviewers were
signed or unsigned. The majority of them were signed because I asked for
them to put their names on them so I would know who did what. Some
were not signed but they came back in a bunch and I also had it logged
almost like a checkout system. I knew who had which portion of Bates
numbers. I do not have that information with me today. I have access to it.
It’s in a readable, understandable format for me. I mean it was for my
system. The catalog system. [423] You ask if we don’t have anything from
my cataloging system here today. You have all the charts that I received. I
Ab. 129
don’t know what all you received. You represent to me that what you
received is what came into evidence yesterday. That was the summaries of
the exhibits that Mr. Brooks asked me about.
Q: And I’m talking about is any other cataloging information you
have, whether it be support or otherwise, we don’t have that because you
didn’t bring it here today, correct?
Mr. Brooks: No, Your Honor, that’s not correct. I’m going to
object to that. They [424] don’t have that because he didn’t ask for it.
Mr. Brown: Okay. We’ll move on.
Mr. Brooks: They don’t have it because they haven’t asked for it.
She can’t be beat up for not producing something she wasn’t asked to
produce. We started disclosing these charts Tuesday night.
Mr. Brown: About 72 hours ago, Judge, I think if my math is right.
The Court: Point taken.
[425] You are showing me Exhibit 30, it’s paid canvasser signature
count. I testified about this yesterday. You are asking me if I can identify
any of the petition parts I reviewed based on the names that are on here.
[426] I can’t remember which petition and Bates numbers were, that I went
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through that had these canvassers. Most likely I’ve reviewed one from
every single one of them. I do not know that for a fact. All the information
on here was derived from the information the reviewers provided to me
excluding the last column. And these address columns. This information
here would be what I would get from the reviewers. [427] I’m talking about
pages one through 419. This breakdown of individual Bates pages. Pages
one of 419 is what I’m referring to. That is what information came from the
reviewers. You are asking if I took the information contained on the 419
pages that came from the reviewers and come up with the spreadsheet that
numbers 11 pages. I took these 11 pages here that half of all of these
canvassers listed here and then the total number signature count came
from the verified signature report. And all of this address information, it
came from the canvasser file. You are asking if other than the SOS
signature count is all of the information that appears on the summary
information that came from the reviewers. This is a summary of all of this
minus the address and signature count. [428] The Exhibit 30 sticker is the
summary. I think it is correct that I’m testifying that it is summarizing the
information contained in the 419 pages that follow it. The 419 that have
Ab. 131
columns of Bates number, County, canvassers, total valid signatures, that
information was supplied by the reviewers excluding this column. So only
the Bates number, the county and the canvasser names. The total valid
signature information came from the verified signature report from the
Secretary of State’s office. I inputted that data. That was just taking raw
numbers. [429] And then when we come back to the summary, except for
the SOS signature count and the addresses, the information came from the
reviewers. The addresses came from the canvasser file. I was reviewing and
logging the canvasser file. I put that together. Back on the 419 bundle I did
not have any help when I was logging in the total valid signatures. I do
that all by myself.
[430] You are asking if I’m aware of the Arkansas Trial Lawyers
Association’s position as it relates to whether this initiative should or
should not be on the November ballot. I don’t speak for the Arkansas Trial
Lawyers, so I’m not sure. You say you’re just asking if I know what the
position is. I’m not sure. I would assume so, but I don’t think so. I would
assume I should, but I don’t, which is probably not good.
Ab. 132
Redirect Examination
[431] So far as I know, no person who has worked on this project
under my supervision has been paid any money for doing so. I have not
been paid any money. I have not asked for any money. I have made efforts
to keep my work for the committee separate from my work from the Trial
Lawyers Association. When I’m working for ATLA, I work for ATLA.
When I’m volunteering, I’m volunteering. I have put in the hours that
ATLA asks me to put in for my ATLA work. I have the ability to volunteer
my own time however I want as an employee of ATLA. [432] I did that
with respect to this project.
Recross Examination
I used my own laptop, personal laptop computer, to conduct my
work. You ask if ATLA supplied me anything in terms of equipment. I may
have printed a page.
Mr. Priebe: I don’t believe we have any rebuttal Your Honor. Looking
through the exhibits that were entered there is one I don’t think anybody
has used. It’s the Attorney General’s opinion that outlines the complete
ballot title.
Ab. 133
Mr. Watson: No objection.
The Court: I assume no one has an objection. It was attached to the
complaint originally anyway. Will just enter it as Exhibit 40.
[Exhibit number 40 was admitted.]
[Abstractor’s note: Colloquy beginning on page 433 is not abstracted as
it is irrelevant to the issues in the case. Petitioners rested.]
Argument on Motion to Dismiss
Mr. Watson: Your Honor, at this time, [435] we’d like to move to
dismiss the Petitioners’ case. We began with these basic principles
involving article 5 section 1. It is to be liberally interpreted to accomplish
the purpose of giving people the rights. That’s from Cox versus Daniel,
2008 decision from Arkansas Supreme Court. Article 5 section 1 (b)
specifically places the burden on the Petitioners to prove that the petition
was invalid. And in Becker versus McCuen, a 1990 case from the Arkansas
Supreme Court, the court said that substantial compliance is okay.
So turning to the counts that are in the complaint, and I’m just going
to take those one by one, Count one, part one, involves code section 7 – 9 –
106. The first claim under there is that there was a failure to provide the
Ab. 134
then current residential addresses of the canvasser. As you may remember
yesterday, this went to the issue of whether these canvassers were from out
of state or from in-state. And you held that their document in which they
listed these canvassers was irrelevant. You accepted our argument on that.
[436] That was paragraph 25 of the complaint about the failure to submit
current residential addresses. There’s been no evidence whatsoever on that.
The second allegation under 7 – 9 – 601 (b) (3) was that the sponsor
did not certify that the background checks had been done. The only
evidence we have is from Mr. Greenberg who said he verbally certified it.
We have evidence of emails where he was passing on from Trevor
Donarski, who said that the background checks had been done on these
canvassers. The Secretary of state, the agency that is tasked with
administering these laws accepted the certification from HCAA as valid.
The purpose of the statute was accomplished and there was substantial
compliance.
The next claim is in paragraph 27, and has to do with 7 – 9 – 601 (b)
(1). It has to do with the sponsor obtaining, at his cost, from the Arkansas
State Police, a current state or federal criminal record search on the [437]
Ab. 135
canvassers. The evidence is that the background checks were obtained with
thousands--this huge box, over 3000 pages, consists mostly of the
background checks for hundreds and hundreds of canvassers. There’s not
been substantial evidence on this. Mr. David Couch testified, in fact,
yesterday, the Petitioners own witness, about the background checks he
gets. He said he paid for them and then he’s reimbursed and paid back for
them by the committee, the marijuana committee that he is working for. So
to the extent that they’re claiming that the check has to be written from the
committee directly to the state police, even their own witness said that’s
not the way it’s done. There’s not been evidence on that ground either. So
all of Count one part one should be dismissed for insufficient evidence.
Count one, part two pertains to Arkansas code [438] 7 – 9 – 111. I will
begin by noting that nothing in 7 – 9 – 111 says the Secretary shall not
count the petitions if that section is not complied with. That’s different
from 7 – 9 – 601. And we have, obviously have our issues with 7 – 9 – 601 in
terms that we don’t think there is substantial evidence. I just talked about
that. But it’s important that 7 – 9 – 111 does not tell the Secretary not to
count the petition parts if they don’t comply with that section.
Ab. 136
Judge you’re familiar with other statutes, that if they don’t provide a
remedy, we can look at the deadlines for criminal hearings and reports
having to be done. If the statute doesn’t provide a remedy about it, the
court doesn’t enforce one.
Here again the agency tasked with enforcing this statute accepted the
petitions and it complies with 7 – 9 – 111 (f) (1) was sufficient. There’s no
other evidence otherwise.
Paragraph 33 of their first amended complaint, that has to do with
the affidavit, submitting an affidavit about the number of petitions and the
total number of signatures [439] being filed on the day of, which would
have been July 8. Mr. Duggar signed a statement that had the required
information which was how many petitions and how many signatures are
being filed. The Secretary of State accepted that as adequate compliance
with code section 7 – 9 – 111 (f) (1). That was enough. There’s no evidence
otherwise. That claim should be dismissed for lack of sufficient evidence.
In paragraph 34 of the Count one part two has to do with code
section 7 – 9 – 111 (f) (2) involving providing a statement with canvasser
names and that they had provided copies of the Secretary’s handbook and
Ab. 137
the law had been explained to them. Mr. Greenberg submitted canvasser
names throughout, including on July 7 and 8th, right around when the
petitioner names were submitted. There’s been no evidence whatsoever
that the canvassers were not given the handbook or that Arkansas law was
not explained to them. Because, judge, in Petitioners’ Exhibit 29, in addition
to those thousands of pages of background checks there are hundreds and
[440] hundreds of pages of notarized statements, they’re called statements
of eligibility, from canvasser after canvasser who says that they received
the Secretary of State’s handbook and that Arkansas law was explained to
them.
Again, the Secretary of State accepted the information that was
submitted as adequate and there was certainly more than substantial
compliance with the law in this regard. There is no sufficient evidence to
the contrary. So, Your Honor, all of Count one should be dismissed for lack
of sufficient evidence.
Going to count two, this is broken down into paragraph 46 (A), (B),
(C), (D), and so on. 46 (A), they alleged the sponsor did not conduct
background checks for the Arkansas State Police before certain paid
Ab. 138
canvassers were gathering the signatures. We have only hearsay upon
hearsay that that was the case through the testimony of Ms. Clark, that
somebody wrote something down or punch something down and she
compiled all of it. No evidence again that the background checks have not
been done. The purpose of [441] requiring the background checks were
accomplished. There is no sufficient evidence otherwise.
46 (B) goes back to the sponsor not providing the current residential
addresses. And, Judge, this is what we talked about at the outset today
involving the out-of-state canvassers; the judge rejected that evidence as
irrelevant and we certainly agree with that. There is no evidence to the
contrary for the allegation of 46 (B). It should be dismissed for lack of
sufficient evidence.
46 (C) claims the sponsor did not submit the information required
under 7 – 9 – 601 (d) before the petitioner signed the petition. Judge, what’s
required under 7 – 9 – 601 (D) is the certification that Mr. Greenberg said he
gave verbally and that there’s email evidence as well.
They claim that we did not submit a list of all canvassers names and
current residential addresses to the Secretary of State. The only evidence
Ab. 139
that submitted on that is that repeatedly, over the course of month after
month, dozens of emails, there [442] were spreadsheets with canvassers
names, canvasser addresses submitted to the Secretary of State. There is no
evidence to the contrary.
Similarly, they allege that upon submission of the list of paid
canvassers to the Secretary of State, the sponsor did not certify that each
paid canvasser has passed a criminal background search in accordance
with this section. Again we’ve talked about Mr. Greenberg’s certification
on those.
Paragraph 46 (D) has multiple subsections. One has to do with
petition parts without signatures, names, or residence addresses of
canvassers, the petition parts obtained by canvassers whose names have
not been provided to the Secretary of State, petition parts in which
canvasser verification is not notarized, is not, is notarized by more than one
notary or lacks notary signature, notary seal; and finally petition parts that
contain signatures dated after canvasser verification has been notarized. I
could be incorrect on this, judge, but I do not remember them introducing
spreadsheets [443] on those issues. To the extent they did, it was based on
Ab. 140
hearsay upon hearsay from Ms. Clark. There was insufficient evidence to
conclude that any of these allegations were met.
Nearing the end of their allegations, judge, and 46 (C) they allege
there are material defects on their face. The defects they allege were
insufficient personal data. The only evidence I can even guess that that was
referring to was failure to put Junior at the end of a name or spell Cason
and instead of Carson. Judge, that is not sufficient evidence to find a
material defect on the face of anything.
They also allege there were signatures from different counties on one
signature page that the Secretary of State accepted. There’s been no
evidence of any of those either.
For all of those reasons, we ask that you dismiss the Petitioners’
complaint entirely for lack of sufficient evidence. The objections we have
made to Ms. Clark testifying, we will [444] adopt and incorporate those
rather than regurgitating those, because I think you’ve heard them several
times already and probably don’t need to hear them again. But we will
adopt and incorporate those that none of her evidence is admissible for
those reasons.
Ab. 141
Finally, even if there were evidence on some of these things, the total
collectively does not bring the total number below the threshold of 84,859
signatures. Therefore, we asked the court to dismiss the complaint for lack
of sufficient evidence.
I feel like I need to just make sure I preserve my argument about the
constitutionality of the amendments to the acts. In 2013 and 2015 the
General Assembly amended Arkansas Code Section 7 – 9 – 111, 7 – 9 – 601,
and 7 – 9 – 126 and other provisions in 2013 and 2015. Those amendments
are unconstitutional because they impair the rights guaranteed by
Amendment 7, which is also known as article 5 section 1 of the Arkansas
Constitution; and they’re not narrowly tailored to meet a compelling
government interest. Though the Supreme Court in 2015, and looking only
at the 2013 amendments by a 4 to 3 vote, said most of the 2013 act was
constitutional. Three justices disagreed and said all of the amendments
from 2013 were constitutional. They referred to it as death by a thousand
cuts, which as this court has seen over the last day or two, that’s exactly
what Petitioners are trying to do.
But since 2013 has been added the 2015 amendments, which that
Ab. 142
added even more requirements to the people of Arkansas to try to get
signatures on the ballot. These impose an undue burden on a fundamental
right of the people to bring petitions to a vote; and therefore it’s
unconstitutional.
Strict scrutiny applies because it is a fundamental right. Strict
scrutiny restrictions cannot survive unless compelling state interest is
advanced by the statute. And the statute is the least restrictive method
available to carry out the state’s interest.
[446] That is not the case here. The Constitution gives the legislature
authority to enact laws prohibiting fraud and prohibiting other criminal
acts while getting petition signatures. It does not permit these preemptive
type procedures that we have been arguing about for over a day. There are
certainly means which are less restrictive to accomplish whatever interest
the legislature has in prohibiting and punishing fraud, which is what’s
allowed under the Constitution. This goes far beyond and they’re overly
burdensome on the people of Arkansas.
The 2013 and 2015 amendments known as acts 1413 and acts 1219
compose a series of prerequisites with which citizens, sponsors, and
Ab. 143
canvassers must comply before procuring a petition. Those prerequisites
do nothing to prohibit or punish fraud and serve only as unwarranted
impediments between the citizens of Arkansas in the free exercise of the
constitutional rights. Laws intended to preemptively thwart fraudulent
practices, such as those contained in acts 1413 [447] and 1219, are outside
the scope of amendment seven’s mandate. And therefore, they cannot rely
on amendment seven for the constitutionality. Therefore, they are not
narrowly tailored to carry out the state’s interest in prohibiting and
punishing fraud in the initiative and referendum process.
And of course the court doesn’t even have to get to this issue if it
rules in our favor on the sufficiency points, but if that were to be the case
where the court denied that, the court should deny the, should dismiss
their case as well for the fact that all the amendments and basically
everything we been arguing about the last two days are from the 2013, 2015
acts which are unconstitutional.
The Court: I have some comments about this that might shorten what
you’re going to say, but I want to hear from you in a minute. You’ve given
me a pretty good [448] summary of what would be your closing arguments
Ab. 144
against certain of the allegations. And I appreciate that because I wanted
you to do that at some point.
Part of what you asked me to do, I have no authority to do. It’s not
within my assignment from the Supreme Court to dismiss anything or to
rule it unconstitutional, but I certainly appreciate your comments on your
view of the facts and to which ones were insufficient and which ones were
not. And I’ll come back to that after I see what the other folks have say
Mr. Kelly: The Secretary’s position in every one of these cases will
be the same. It is that we believe that we acted in a constitutional manner.
We applied the law in a [449] constitutional manner. We were charged with
a duty with enforcing what the legislature told us to do in a constitutional
manner.
So we talked about some of the 111 issues, that is, where there is not a
statutory provision where it says do not count, the Secretary counted even
absent the information that should have been provided. I would like to
analogize it like this. You know, as a circuit judge, that there are certain
things that Circuit Court clerk’s used to do. I can’t take that because you
screwed up, lawyer. And the Supreme Court said well, wait a cotton
Ab. 145
picking second, you don’t have a choice because you can’t exercise any
judgments so you take whatever the attorneys give you.
That is the Secretary’s position. We take what they give and we do
our job as best we can. In 2014 in the Stevens case, let’s see if I can put this
delicately, it appeared that the master and the Supreme Court said
something to the effect of if you can get by the Secretary, you’re okay then
the Petitioners have the burden of [450] challenging the total number of
signatures. There was a fundamental shift in the law with McDaniel and
Martin versus Spencer in March 2015. No question there’s these three cases,
these three signature challenges this year because it is the first time the new
laws have been applied. So every one of these cases is going to be a
question of first impression. We understood that coming into the cycle. We
tried to be crystal clear about it in that initiative and referendum handbook
we sent out.
Unfortunately, it’s not clear to everyone and there’s issues I’ll just
give you one example. In our office, some of the staff people don’t realize
that in Spencer and McDaniel or McDaniel and Spencer, we said to the
Supreme Court that we would not enforce a requirement that canvassers
Ab. 146
update their addresses if they moved. That is, if they moved, we would still
count the thing. And I think that you heard that we rejected some petitions
for that issue. Be that as it may, that’s simply a result of, and I think you
heard this over and over, we have very intense time pressures to get [451]
these done. 30 days to review each petition, three consecutive petitions on
the same day, three exact same timelines in a federal law imposing on us,
deadlines for military overseas absentee voters to get those ballots printed
and delivered by today. So we believe that we’ve done everything we’ve
done to comply with the federal Constitution, federal law, state
Constitution and state law.
In those sections of the code where it said, we shall not count, we
didn’t count. The fundamental shift I talked about earlier which is different
than the outline in Stevens. In Stevens the master said, traditionally, these
things were subject to curing during the pendency of the Secretary’s
review. That is, I’ll call it the Martha Adcock law. Miss Adcock if you go
back 10 or 15 years, she had worked in the petition process for a long time
the Secretary’s office strictly applied some of the notary review procedures.
And she got the law changed so that if there was a minor mistake in a
Ab. 147
notary, for example, if the notary seal was missing, you could add that and
get your page [452] counted. The legislature did change that law. They did
not repeal the old law, so there’s some conflicts there. And we tried to
apply those kinds of conflicts as best we could.
At the end of the day, we think on the direct action, we would say to
the Petitioners, we think that we did things right and the count was correct.
On the cross claim, we think we did things right and the count is correct.
But I realize that the new law does not give the Secretary all the
information that the sponsors have. The sponsor has a duty to keep and
maintain their criminal background checks, those statements of eligibility,
and to comply with all of those things; none of which we have the ability to
see or review and none of which concern part of our effort.
So at that point, that’s one of the reasons why Intervenors have to
come in, in this case, and defend their own actions because we’ve never
seen some of that material. It’s what I would call extrinsic to the facial
review we do. That puts the burden on you, not us.
We ask you to [453] dismiss both the cross-claim and the direct
challenge to the Secretary.
Ab. 148
Mr. Priebe: I want to start off and just say I appreciate the candor of
Mr. Kelly just then. Part of the issue here is well they accepted it, it’s okay.
And I appreciate Mr. Kelly’s candor by finally putting that to rest, saying
they submitted it, we don’t make decisions on a lot of this stuff, we just
count them. And the ultimate decisions on the law is up to the Arkansas
Supreme Court.
But in order to respond to Mr. Watson, let me do this. The
Intervenors want to bootstrap all the statutory law under amendment five
into the standard by which amendment five is judged, which is a liberal
standard, there’s no doubt. But the great thing about amendment five,
when it was passed by the people and adopted by the people of the state of
Arkansas, they not only retained the power to provide, to put forth
initiated acts and referenda, but they also gave power. They gave power to
the [454] legislature to enact the laws to make sure that the sacred ability of
our citizens to put something on the ballot is not only done correctly, but
it’s free of fraud and it’s done right and it’s done according to the law. So
while amendment five may be liberally construed, any statute, and this
was confirmed by the McDaniel decision, statutes must be strictly
Ab. 149
construed compliance must be strict.
There’s a line of cases, Ward v Priest, state, Save Energy Reap Taxes
versus Shaw. In some of these cases it’s essential that these statutes be
strictly followed so our citizenry can have faith and confidence in the law
and in the process. And so the standard here is not, well, we substantially
complied; well we didn’t do everything right. No that’s not the standard.
The standard is did they follow the law. And Your Honor I believe that the
evidence shows that they did not.
And if you look at our allegations and if you’ll recall yesterday the
testimony of Mr. Duggar and Mr. Greenberg, and most importantly of the
Secretary of State’s three witnesses, there’s no doubt that there was no
affidavit filed by the Intervenors and they filed their petition and their
petition parts. That’s uncontroverted. There was no affidavit filed, which is
required under 7 – 9 – 111. Under 7 – 9 – 126, that petition should be
stricken at seven – nine and other statutes but that petition, the whole
petition should be stricken because they failed to comply with 7 – 9 – 111
(f) where it says they shall file an affidavit.
If you go back, also 7 – 9 – 111 (f), there’s no doubt, it’s undisputed,
Ab. 150
Mr. Duggar, Mr. Greenberg, and all the Secretary of State’s personnel state
when they filed those petitions there was no list of paid canvassers and
there was no certification whatsoever that’s required under subsection f of
7 – 9 – 111. Again, it says they shall also submit the following: a statement
identifying the paid canvassers, a statement signed by the sponsor. And
let’s not forget here, they’re trying to muddy the water. The sponsor is
Health Care Access for Arkansans. And it says the sponsor shall do these
things
[456] It’s not a well they can do them or they should do them; no,
shall. Uncontroverted evidence showing there is not one piece of testimony
that any certification or any paid canvasser list was filed when they filed
their petitions. They’re going to claim, that, well, at 503, Mr. Greenberg
may have sent that list. Well, a, it was outside the time frame, but, b, that
list didn’t even contain the necessary information that he certified, that
those, that the paid canvassers passed, were trained, had passed a
background check, and had a statement signed a valid eligibility. Again, 7
– 9 – 111 (f) on the paid canvasser list in the statement there is no evidence
to the contrary. They didn’t follow the law.
Ab. 151
We’ve talked a lot about the paid canvasser list that Mr. Greenberg
sent. And there’s a reason why he sent them. Because under 7 – 9 – 603 (b)
(3), they have to submit paid canvassers before that pay canvasser can
collect one signature. When he sends that list he has to--shall certify--[457]
7 – 9 – 601 (b) (3), again, not should, not could, it’s a shall certify to the
Secretary of State that each paid canvasser has passed a criminal
background search in accordance with this section. And it’s clear he didn’t
use those words. It’s also clear that he doesn’t have any idea what was
done.
Mr. Watson made a big deal about those documents. Well yeah we’ve
shown to them that there’s documents that are missing. And what’s
interesting is that statutes also say the sponsor shall keep the information
for three years. They have to keep every bit of it. And the evidence is
undisputed that Dan Greenberg and Mr. Duggar didn’t have any of it.
They had to go get it from somebody. They’re not in possession of it. That’s
held by somebody else. It’s not held by the sponsor according to the law.
And again 7 – 9 – 603 (b) (5), 7 – 9 – 126 (b) (3) and (8) and other statutes all
say if they don’t do these things you cannot count.
Ab. 152
7 – 9 – 601 (b) (5) says any signatures incorrectly obtained or
submitted under this [458] section shall not be counted by the Secretary of
State. Now, that’s not AJ’s duty to enforce that statue, it’s the Arkansas
Supreme Court. But if you take out all their paid canvassers, and there’s
been undisputed evidence that their paid canvassers submitted over 86,000
signatures, we would have to kick off eight, a little over 8000. Paid
canvassers submitted 86,000, the lion share. Because they failed to follow
the statutes all paid canvasser signatures shall not be counted.
Now going down the list that Mr. Watson went down, and I
apologize if I skip around, again, 7 – 9 – 601 (d) (2), also mandatory; that
the canvasser shall submit a current residence address and the person’s
permanent domicile address if the address is different. We went through
this yesterday and we believe that the evidence shows that over 8000
signatures of paid canvassers had a discrepancy between the out-of-state
address with the resident address and the domicile. There’s a reason for
this. There’s a reason that the [459] state law requires it. And that’s because
they’ve got to go find these people to find out the truth. And when you
don’t have complete information, when you don’t comply with the
Ab. 153
statutes, again, all out-of-state paid canvasser signatures should be stricken
for failure to follow the law.
I mean, all these failures, these aren’t little legalities or technicalities.
These are choices that the Intervenors made. Mr. Greenberg and Mr.
Duggar made these choices. We’re not tripping them up on technicalities.
They just decided not to follow the law. Again with the discrepancy and
with the failure to provide both addresses under 7 – 9 – 126 and 601, those
signatures shall not be counted.
Criminal background checks. The law again requires that this
sponsor obtain at its own it cost, 7 – 9 – 601 (b), the sponsor must obtain at
its own cost from the department of state police a current state and federal
records search of every paid canvasser and it has to be done within 30
days. First of all, the sponsor didn’t obtain one of them. It was another
third [460] party. And we’ve also shown the other background checks that
were done by somebody else. Who knows how they were done. They
ended up in that box. But Mr. Couch and these other groups, they weren’t
sponsors of this. They weren’t working for the sponsor. So any criminal
background check that was not completed and any criminal background
Ab. 154
check that was not done at the cost of the sponsor should be kicked out.
Not only does that take out all the signatures, but if you also look,
there was over 10,700--this is Exhibit 36; 10,764 background checks that
were done by somebody else besides 3.0 LLC. 10,764 even if you kick out
everything else, still meets the burden of a little over 8000 signatures.
Going on, the failure to have signed statement from paid canvassers
under 7 – 9 – 601 (d) (3), again a mandatory requirement. If you look under
Exhibit 32, there was over 5000 signatures obtained by paid canvassers
with no statement of eligibility or background check. There were only 47
signatures obtained by canvassers without a statement of eligibility. But
again, these numbers start adding out fairly significantly.
And again failure to have statement of eligibility, failure to have a
background check, which was testified to by Mr. Greenberg, he doesn’t
know. He doesn’t know what’s in that box. He doesn’t know who obtained
them. There has been evidence to show that these allegations are true and
correct and that those signatures should not be submitted.
The next section, paid canvassers collected signatures before
information being provided to the Secretary of State; again under 7 – 9 –
Ab. 155
601, these failures result in the signatures being kicked out. That’s 1825
signatures. I believe that’s evident in Petitioners’ exhibit number 37.
So, in short, I’ve tried to narrow the issues down, Your Honor. But in
looking at our allegations in our amended complaint, in looking more
importantly at the evidence that [462] has been presented, we believe that
we have not only met the burden of proof, but we’ve exceeded the burden
of proof to show that this initiative, this tort reform was not done pursuant
to law. They didn’t follow the law. Under Ward V Priest and under a
whole line of cases in Arkansas Supreme Court, they shall follow the law.
They have to follow the law and their failures are their own fault. They’re
not mine, they’re not Mr. Brooks is, they’re not Ms. Walas’s. It’s their own
fault and their own petition should be stricken.
I just want to touch on the constitutionality. I understand the court’s
position, but what’s interesting is the Intervenors allege that some of these
laws that were passed in 13 are unconstitutional. Well they already were
held constitutional by the Arkansas Supreme Court in a 4-3 decision. And I
understand that counsel for Intervenors likes to cherry pick one statement
by Justice Joe Hart where she said death by a thousand cuts. And in her
Ab. 156
dissent, I appreciate what she says in her dissent, but again those statutes
were held constitutional.
[463] If you look at the enabling, the findings made by the legislature
in Senate Bill 821 in 2013, the Arkansas legislature passed these laws
because they 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 in addition, the citizens of the state of Arkansas
have an expectation that their right of initiative and referenda will be
respected and will be free of any illegal conduct by sponsors, by paid
canvassers, and by those trying to get these on the ballot.
So again the 13 laws are constitutional. Whether we like them or not,
they are. The laws in 14, there’s no substantial difference. Because the
legislature found that if paid canvassers and sponsors don’t follow the law,
they try to skirt around the requirements, they’re trying to get these things
on the ballot. To protect our Constitution requires more.
And I’m sorry I’m sounding like a closing argument, but we believe
that based [464] on all the evidence, that we’ve met our bird. You’re a
Ab. 157
factfinder, but I believe that there is sufficient evidence there and we
appreciate courts time in we believe that these statutes are constitutional.
The Court: Let me just make a couple of comments and then we’ll see
where we are. And part of this is in response to your motion. Obviously,
I’ll deny any motion to dismiss because I don’t think that’s within my
authority to do that. Obviously, I can’t rule unconstitutionality, that’s not
within the assignment that I have. My assignment was pretty direct, and
that was to put together a report that interprets the facts that either support
or do not support Petitioners’ allegations. That’s essentially [465] what it
said. And so when I structure my report, it’ll be around, you kind of went
through them, Mr. Watson, but each of the counts and the allegations in the
counts and anything else that has come up during the course of this
discussion that needs to be addressed. And it’ll be just my factual analysis
as best I can interpret as to what went on and what was done. And I won’t
tell the court, now you must rule that the Secretary should or should not
have counted these things. I’ll just simply say this many number or
whatever based on the facts. And at the proper time, we can talk a little bit
more about that.
Ab. 158
I guess we’re at the point right now where we shift to you and
determine whether or not you all wish to proceed on your cross-claim, if
there’s any parts of that that you want to present evidence on.
[Abstractor’s note: Respondent rested without putting on any
witnesses.]
Testimony on Behalf of Intervenors
Trevor Donarski
Direct Examination
[468] I am Trevor Donarski. I did work in connection with gathering
signatures recently in the state of Arkansas for an initiative process. My
connection was keeping everything organized from the very beginning. My
main role throughout the whole process was background checks and make
sure [469] everyone had the proper forms before we submitted people to
the Secretary of State. It’s kind of my main objective the whole time. I did
my work in connection with the Health Care Access for Arkansans
otherwise known as HCAA.
3.0 LLC is a branch from one of our other canvassing firms that
specifically just for petition work. The other canvassing firm is Blitz
Ab. 159
Canvassing.
My title in connection with my work was field manager. In
connection with the initiative process for Health Care Access for Arkansans
I spent time in Arkansas. I was back-and-forth from April until the first of
July when we turned in the signatures. [470] That is April 2016.
I can explain what companies like 3.0 LLC and Blitz Canvassing do.
3.0, like I said, it’s specifically just for petition work. Blitz Canvassing is
more of like a door-to-door get out the vote where you’re promoting
candidates. And the whole work, I guess, deals with a lot of recruiting
because as you can see it takes a lot of people to get these type of projects
done. So that’s kind of the main part, too, with the canvassing firm, just get
enough people to get the job done.
3.0 and Blitz Canvassing are related companies. We all work
together. There’s multiple people that work for both firms. It just kind of
depends on what type of project we’re working on.
Although they might not be related, I work with other canvassing
type companies across the country. I will describe the way I typically find
myself working with other canvassing firms across the country. [471] Most
Ab. 160
projects we still oversee the whole project as a whole; but we generally
subcontract other work out to other firms that already have their
connection of canvassers. Our main purpose in most of these projects is
overseeing the whole thing. And then we rely on our other subcontractors
to bring in more people to collect signatures. In this case with 3.0 we
subcontracted out work for canvassing purposes with multiple other
companies. That’s very common in my industry. We typically work with
the same groups of people throughout different projects because everyone
kind of has the same views.
Most recently 3.0 has participated in canvassing activities for
committees such as HCAA primarily in Colorado and then Arkansas. [472]
We were going to do projects in other states but nothing has come through
yet.
I have done canvassing work where ultimately there’s been a
challenge brought by some party either for or against an issue and that
thing is for that or that initiative has worked its way up through the court
system. I am not a lawyer. You ask if our work was criticized. The one
thing that was criticized was a voter registration thing because in Colorado,
Ab. 161
you have to be a registered voter to collect signatures. Some of the people
we had collecting signatures would move and they didn’t update their
voter registration, so their signatures technically got thrown out, but they
ended up counting them at the end of the day in court. I have an
understanding that in my line of work by its very nature there’s going to be
challenges and sometimes legal challenges. [473] I am aware of that when I
begin a new initiative process.
Blitz Canvassing does its work more broadly than Colorado and
Arkansas. We’ve been in multiple states. Especially the past two years.
This is what I did with my work as it relates to this matter. I came out
here at the very beginning of the project, contacted the Arkansas State
Police to figure out how we needed to get those background checks, and so
we set up a portal with them. I was the one who was constantly getting the
emails from our other subcontractors of their recruits. I’d get their personal
information to be able to submit federal background checks and also the
Arkansas State background check.
And then also, the whole time after they pass the background checks
and whoever the subcontractor was [474] would bring those people in, and
Ab. 162
then they would fill out the SOS form, the sworn statement form. They
would also send me an email or a text picture. Because sometimes we’re
on-the-fly, so sometimes it would be through a text. Most times, it’s
through email of a picture of that form just showing that it was complete.
At that point I can put them or submit them to Dan Greenberg and
then he would submit those names to the Secretary of State.
A lot of other things I did to with overseeing was just make sure our
signature count was getting to where it needed to be. So like two days a
week we would bring everyone in and they turn in the signatures. We
would go through and count them, make sure that they were all notarized
correctly. I would oversee that while I was here sometimes too.
[475] You are showing me Petitioners’ Exhibit 29. You represent to
me that it contains background checks and statements of eligibility. You
asked me to pick a statement of eligibility and a background check, the first
one I see. Get all the information in there that’s related to one person. You
are asking Christina to pull up HCAA 74 through 83. The first document I
see is a paid canvassers sworn statement of eligibility. [476] This document
is just certifying that whoever the name is in this, the canvasser, that they
Ab. 163
know the law for collecting signatures here in Arkansas and that they
haven’t committed a felony or committed fraud in any way. Then they’re
testifying to those three facts saying that it is true. And that’s why we
decided to have a notary take part in this piece of paper.
You represent to me that there are 3629 documents in Exhibit 29. I
was involved in gathering and collecting sworn statements of eligibility
and background checks in connection with the matter we’re here about.
[477]
You are pulling up HCAA 74. You asked me to read the first line. It
says I, Joseph Adam Adamapolis, being duly sworn on oath or solemn
affirmation do state and attest to the following facts. I have read and
understand the Arkansas law applicable to obtaining signatures on an
initiative or referendum petition.
To my knowledge that statement is in there due to the Secretary of
State handbook. [478] I am familiar with the Secretary of State handbook.
You are handing me Petitioners’ Exhibit 26. This is the Secretary of State
handbook that I just referred to. This is what we primarily would read
through to figure out what we need to do here with collecting signatures.
Ab. 164
And we use it for the trainings too. The table of contents has a section
related to paid canvassers. It’s on page 10.
[479] Going back to Joseph Adamapolis and the sworn statement, the
sworn statement is notarized. He is telling me that he’s been provided a
copy of the most recent edition of the Secretary of State’s initiative and
referenda handbook. Without going through the documents that are in the
box next to me, this is indicative of what I have seen and done with respect
to signed sworn statements of eligibility as it relates to the handbook.
Those are returned back to me. The sworn statements of eligibility.
Joseph Adamapolis is swearing to me that he has read and
understands the Arkansas law applicable to obtaining signatures on an
initiative or referendum petition.
I will read the third bullet point. I have not pled guilty or nolo
contendere to or have been found guilty of a criminal felony offense or in
violation of election laws, fraud, forgery, or identification theft in any state
of the United States, the District of Columbia, Puerto Rico, Guam, or any
other United States protectorate. Mr. Adamapolis is stating to me under
oath or rather sworn statement that he’s not been convicted of those things.
Ab. 165
I had no reason while this process was going on when I got a sworn
statement such as this to disbelieve any of those affirmations made. It’s just
because it was a sworn statement.
[481] You are blowing up the bottom half of 74. As far as I know a
notary section like this where in this instance Ms. Detar is attesting or
stating that she saw Mr. Adamapolis sign this form is the way it went on all
of these documents.
Turning the page, I see the Arkansas criminal history report. It’s page
75. [482] This document is what we received from the Arkansas State Police
after they ran a criminal check of this individual throughout their database.
This criminal history tells me that there is no criminal history found for this
subject. It says it’s released to me, Trevor Donarski. It says I am
representing Blitz Canvassing, LLC. [483] Blitz Canvassing LLC was on
this form in connection with my name just because I use that. I really didn’t
think two things of it when I was setting up the account. And that address
there is our PO Box for Blitz Canvassing, so I know we needed that info.
The way it works when I was doing it is that I would set up an
account with the Arkansas State Police and then request background
Ab. 166
searches, or somebody did. When I created the account I put Blitz
Canvassing in one time and then that’s what was put on every form.
You are going to page 76. This is a federal background check. With all
the work we do, we always go through ABS to do all of our federal
background checks on people that we want to contract with. There is a
state background check and a federal background check. This is the federal.
This does every state that this individual had an address in or has ever
been to. As far as I know I did this for each one of my canvassers that I
participated in as far as I know.
Going to 81, and highlighting that big portion, this is every county
that was searched. And I’m not real familiar with how our background
check guy does [485] this. My only thing is that he knows their driver’s
license or birthdate, different addresses that associated with these
individuals, so then he checks those areas. Going back to 79 and
highlighting a certain area it says no criminal cases were found using the
subject’s name and birth date. That is the type of information we see on the
various reports.
You and I met for the first time last night. I initially provided you and
Ab. 167
Mr. Watson statements of eligibility and background searches on the paid
canvassers. [486] That was within the last few weeks. I gathered up all the
documents. We had them in banker boxes. You asked me about some
background searches that were missing last night in our meeting. You gave
me the names of the people who were missing on background searches.
You showed me the names. [487] You are showing me Petitioners’ Exhibit
32. You are showing me the first page. That’s what I saw last night. In
response, I recognized all the names right off the bat. And I could have
sworn that we had those forms on file. So from there I asked them if I could
still get the files, if it was too late. And they said yeah definitely we can still
get them. So I called one of the guys that was at our office and he pulled
those files and then sent me the forms we needed. As for why those forms
for at least most of the people listed on Exhibit 32 were not sent originally,
I’m assuming when you asked for them we did not have any clue they
needed all the forms so we stayed up all night and we were trying to send
them all through the scanner. And we were sending them in chunks of like
eight or 10 because the document would get too big to send over an email.
And there must have just been a chunk that must have got lost in an email.
Ab. 168
[488] I don’t know that for an absolute fact. It’s what I assumed it to
be. The background searches and statements of eligibility I located last
night were in the same physical location as the others that were provided. I
just went back to the original file.
[489] The document you handed me is an Arkansas criminal history
report, the same report that we previously talked about. You marked it as it
Intervenor four. The person listed is Trevor Donarski, myself. I am familiar
with the document. The name stated on there is the subject all the way
through. [490] This document is the same or substantially similar to what I
looked at as an exemplar of Petitioners’ Exhibit 29. This is a document I
recognize that I received or my company received in connection with this
work in the canvassing field. It is in particular in relation to this matter in
Arkansas.
Mr. Brown: Your Honor, at this time, I’d move to introduce Exhibit 4.
Mr. Priebe: I’m going to object. We haven’t received these documents.
We requested these documents two weeks ago. We obtained a big box of
documents last Friday. In our spreadsheets we notified counsel the list of
people where files were not provided. And we just found out last night, for
Ab. 169
the first time ever, that these other files exist. I object to the introduction
based on delayed production and the failure to [491] produce and the
failure to notify counsel that these were even in existence.
The Court: I didn’t quite get Mr. Brown whether the I-4 was
something you were presenting that he is and it’s [492] just an example or
were you intending to introduce a whole series of these?
Mr. Brown: Intending to introduce a series of them. Most all except
one, I believe, that were the names contained on Petitioners’ Exhibit 32
yesterday. I think one is not present.
The Court: Okay. And the starting one is his?
Mr. Brown: Correct, yeah.
The Court: The one you’re trying to introduce now? Okay. Well I
understand the concern that Petitioners have, not having received these. I
think I’ll let you go ahead and do it, subject to their objection. Get them in
the record and then we’ll see.
Mr. Brown: Can I just for the record make a statement? Counsel for
Intervenors found out about these exhibits that I’m about to go through last
night. Within not very long at all maybe an hour or so once we knew we
Ab. 170
could get them we notified [493] Petitioners’ counsel. Petitioners’ counsel,
and their discovery responses--you know this is all been on a short
timeframe. When we asked for documents, they put E through X, Blank
space, because they were still working on their exhibits. And we didn’t
know what those were. Well those came in Tuesday night, going to 11
o’clock. So, the timeframe everybody’s on and I just want to make that
record.
The Court: I understand that. And I’ll let Mr. Priebe make his record.
Mr. Priebe: I just want to make a continuing objection to any
questioning over--I understand the court’s going to allow this in, but I
would continue to object to any questioning of these documents and
continue my objection. Can I just have the same objection to all the
introduction of any background checks that came in or any of these
documents that came in today?
The Court: Will note that that’s a continuing objection to all of them
and maybe [494] you can speed up because we understand what
happened. You found them last night; you let them know. We’re all on a
short leash, and that’s kind of part of my reason for leniency here. So let’s
Ab. 171
go ahead and try to get them in and then will take them for what they’re
worth.
[Intervenors’ exhibit number four is admitted.]
You are handing me a series of documents marked Exhibit 5. This
includes all three documents that we provided. The Arkansas State
criminal history report, the federal background check, and the [495] sworn
statement of eligibility. This is consistent with the work I did in connection
with this matter. This record is for Diane Gentry. You are handing me
Intervenors’ Exhibit 6. This is the same three documents, Arkansas criminal
history report, sworn statement of eligibility form and then also our federal
background check on Nicholas Duenez. This document was received in
connection with my work. [496] Intervenors’ Exhibit 7 is for Justin Collado.
It’s his paid canvasser sworn statement of eligibility form, the Arkansas
criminal history report and also the federal background check. These are
documents I received in connection with my work in canvassing on this
matter. Exhibit 8 is the Arkansas criminal history report for Tricia Doran
along with her paid canvasser sworn statement of eligibility and also her
federal background check. I did all of this. Exhibit 9 [497] is the paid
Ab. 172
canvasser sworn statement of eligibility form for Tiffany Caster along with
her federal background check and her Arkansas criminal history report. I
processed these three forms. My answer would be the same to this exhibit
as has been to the previous ones. You are handing me Exhibit 10.
[Exhibits 5,6,7,8 and 9 are admitted over Petitioners’ objection.]
[498] Exhibit 10 is for Matthew Chambers. It’s his paid canvasser
sworn statement of eligibility form, his Arkansas criminal history report
and also his federal background report. This is the type of documentation I
did receive in connection with my work canvassing in this matter.
[Exhibit 10 is admitted over Petitioners’ objection.]
[499] You are handing me Intervenors’ Exhibit 11. All these
documents are for Charles Chavez. It’s his Arkansas criminal history
report, his paid canvasser sworn statement of eligibility form and also his
federal background check. This record I received in connection with my
work.
[Exhibit 11 is admitted over Petitioners’ objection.]
Intervenors’ Exhibit 12 is all three documents for Adolphus Coleman
and it’s his Arkansas criminal history report, his paid canvasser sworn
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statement of eligibility form and his federal background check. [500] The
date on the Arkansas criminal history report is June 3, 2016. The date on
the federal form is June 3, 2016 as well. This is a record I received in
connection with my work.
[Exhibit 12 is admitted over Petitioners’ objection.]
Exhibit 13 is documents for Bradley Collison. It’s his Arkansas
criminal history report along with his federal background check. These are
records I received in connection with my work. [501]
[Exhibit 13 is admitted over Petitioners’ objection.]
You are showing me the front page of Petitioners’ Exhibit 32. I see the
names on there. I can tell you the names, background checks that we just
went through that also appear on Petitioners’ Exhibit 32. [502] Bradley
Collison is one, Adolphus Coleman, Charles Chavez, Matthew Chambers,
Tiffany Caster, Tricia Doran, Justin Collado, Nicholas Duenez, Diane
Gentry and me.
You asked me to talk to you about training and the training process
as far as I know in connection with this matter in Arkansas. The people that
we hired directly that were working under 3.0, they were subcontracted.
Ab. 174
We had a PowerPoint and also another form that was a script that was
related to this initiative. We would also go through the rules of collecting
signatures here in Arkansas. We definitely touch on all the fraudulent
things. That’s kind of the main talking point throughout most of our
trainings with canvassers.
You are showing the Petitioners’ Exhibit 6. [503] It’s our PowerPoint
that we used when we were on boarding people for this project. [503] The
last page is essentially like a script or what we would provide the
canvassers as a couple talking points to use. I know who prepared the
PowerPoint portion of Exhibit 6. Alyssa Sylvester. I added some stuff to it
too. Alyssa Sylvester is another contractor with 3.0.
This is the purpose we developed the PowerPoint. A lot of it is just to
kind of follow with the canvassers, give them a background on the project.
It’s what we used pretty much on every project from the canvassing firm to
the petition firm. We always use PowerPoint to just give an [504] overview.
We tailor it to what specific states require. Depending on what state or
what the issue is. So this one, because it was statewide, we were talking
about how you can collect signatures from the entire state but we’ve also
Ab. 175
had projects where you have to collect them from certain congressional
districts. So that a different project would be about that.
The resources we use to put together the PowerPoint, the main thing
was the language on the ballot of course. And then the third page the top
10 things to know about signature gathering in Arkansas. The one thing
that’s a lot different in Arkansas compared to where we’re used to
collecting signatures in Colorado is each petition packet has to all be from
one county, all the people that sign. So in other states where we petition,
you can just sign whatever county you’re in. So this took a lot of getting
used to [505] for our canvassers. We already know that you can’t sign the
petition until you’re in front of a notary and all kinds of things like that.
I referred to the script that’s in Exhibit 6. My boss Josh Penry
prepared the script. He kind of always will throw together scripts for
projects we’re doing, to help with the issue, make it more understandable.
If you were to read word for word to a signer, they don’t understand until
they read it themselves. [506]
I did not personally train all of the paid canvassers that were
forwarded to the sponsor. As far as I know that would be someone who
Ab. 176
ran a company that had those canvassers for the subcontract type deal that
I was talking about. The information I was looking for to verify that these
canvassers had been trained, the main form was the sworn statement of
eligibility form. I was taking the word of the paid canvasser if that name
appeared on that sworn statement of eligibility. At that point in time I put
them on the Excel sheet and then sent them to Mr. Greenberg.
Cross Examination by Petitioners
[508] I live in Denver Colorado. I have never lived in Arkansas. I got
here yesterday. I actually don’t know who is going to end up paying for
my trip here. Someone is going to pay for it. Someone paid for me to get
here. [509] I don’t know if they are paying for my time. I don’t know how
I’m getting paid. I paid for my own dinner last night. I’m staying at the
Hilton. I traveled by myself.
You ask if I’m a businessman. I’m trying to get into it eventually.
3.0 LLC and Blitz Canvassing are for-profit businesses is my
understanding. We don’t do petition drives for free. Primarily we work for
Republican candidates for the most part. [510] Primarily conservative
issues. Republican candidates in Colorado primarily mostly through Blitz.
Ab. 177
3.0 is a brand-new little company. It’s more of just our petition branch.
My position with Blitz is field manager I’ve probably been in that
position 1 ½ years now. I started out canvassing. From the very bottom,
canvassing with them and then stuck it out past elections. Blitz Canvassing
works more with groups than candidates in Colorado. [511] And Arkansas.
If we work for a candidate or a group for an election all our contributions
and expenditures are public record in Arkansas and Colorado I think. I
don’t handle the books. I think Blitz Canvassing is licensed to do business
in Colorado. I don’t know if it’s licensed to do business in Arkansas. I don’t
know if 3.0 LLC is licensed to do business in Colorado. [512] You ask if it
would surprise me to know that it is not. I really don’t know. You ask if it
would surprise me to know that 3.0 is not licensed to do business in
Arkansas. I don’t know. I don’t do any of the business part of the company.
I’m not part of that.
You ask if I’m familiar with the court room and ballot challenges. I
have been to one hearing. I don’t know. I have heard about a John Kyser
campaign. Blitz Canvassing was not working with those. Not to my
knowledge. [513]
Ab. 178
You ask when we were first notified by someone in Arkansas about
the tort reform. Just for collecting signatures out here initially there was
some talk at the beginning of April I think. Then nothing came from it. And
then kind of those last couple of weeks of April, they’re like, oh yeah, we’re
going to do this. So that’s when we started planning for it. My main contact
was my colleagues, which Josh Penry was one of them, and then Tim
Pollard. My main contact from Arkansas would probably have been Chase
Duggar. I never really contacted him much. [514] My boss he put me in
connection with him. We got here and said this is our client; maybe you
guys can go out and have drinks. But we never really talked about the
project. There were times throughout the project where Chase would email
me about certain events that were going on in Arkansas as possible places
to go to collect signatures. So Chase was my main contact person. I
contacted Dan Greenberg the most though through that email chain every
day. The email chain where I sent the list of canvassers.
I don’t know how much 3.0 LLC was paid to conduct this campaign
in Arkansas. I have no idea. [515] I was paid the same as I’m always paid.
I’m salaried.
Ab. 179
3.0 incurred expenses in this campaign. I don’t know if it was
reimbursed by Health Care Access for Arkansans for those expenses. I
didn’t do any of the bookkeeping, so I don’t know. They see the bills. I’m
not sure how they do them. I don’t know if it was 3.0 or Blitz who was
getting paid. [516] It could have been one or all of them. Who knows.
This is the first time I’ve done a petition campaign in Arkansas. I
contacted the state police about getting this set up because they do all
theirs through the portal. I was the one who did that. I remember agreeing
to some disclosures in order to be able to do that electronically. You ask if I
remember having to be familiar with the Arkansas law regarding
background checks. I just remember having to get the Arkansas State Police
check. For people to canvass. In regards to what specifically I was required
to do in order to get that I don’t recall. [517] I just had their information
and submit background checks for that portal. We were contracting them
out. They were all contractors under us. No one is like employees with our
business, as you can see, so everyone is contractors. So we get information
from the contractors to run background checks on them.
I am not an employee of 3.0 LLC. I am a contractor. I am an
Ab. 180
independent contractor. [518] I don’t have my own business or whatever. I
am paid a salary. I have to file my own taxes on that salary. You ask if I
have an agreement, a contractual agreement with 3.0 LLC. I have one with
Blitz Canvassing. I don’t have a contract with 3.0 LLC.
You ask if 3.0 LLC itself actually got the background checks. I did
them myself.
Mr. Brown: I’ve got to object to the extent that this gets into legal
conclusions about who, an independent contractor, Blitz, 3.0. He’s testified
he doesn’t have any knowledge about business aspects.
[519] Mr. Priebe: He testified on direct he was about the business
aspects.
The Court: I think he can answer the question. I don’t know where
we’re going with it but he can answer it.
You’re asking if it was me going through Blitz Canvassing not 3.0
LLC getting the background checks. It was me doing the background
checks. I have not looked at the contract 3.0 LLC had with Health Care
Access for Arkansans.
[520] You are asking how I familiarized myself with the laws of the
Ab. 181
state of Arkansas in regards to paid canvassers. I would read through the
handbook and then also Tim Pollard would narrow down a couple things I
needed to do. When I say handbook I’m talking about Petitioners’ Exhibit
26. We read through this. The whole thing. Well, I mean, there was some
parts I skipped when it talks about--I mean--I read the stuff that was
specific to what I was doing out here. Which was paid canvassing. I feel
fairly comfortable with the contents of this book. [521] If one of my paid
canvassers came to me and said I’ve got a question about this book I’ve got
some questions I could answer the question. I believe so.
I trained some paid canvassers. Probably at most 30. This is what I
did to train those approximately 30 canvassers. First we process all their
paperwork. Went through those background forms, all that. And then I’d
bring them in and then we go over that PowerPoint that was brought up
and also the script; and then I also provided them with this handbook and
would go over the rules here and collect signatures. [522] The main one
was like the county thing because we’re not used to that. All the people
that I was particularly training here were from Arkansas.
So I’d go through that, we go through the part that talks about no
Ab. 182
ditto marks, just the correct way to sign a petition. Because a lot of people
don’t know that ditto marks or--they think that they could write a date or
something like that, on those top or the page where there are the signature
lines. So we go over you can’t write anything there. If a person can’t fill
that out, then a third party has to do it, you can do it and we’re very clear
about that in our training.
I made copies of this book. The original copy. I handed this out to
people I trained. [523] I provided to the subcontractors like 200 copies of
these I printed off at one time for them. And also there is a link. So there’s a
link to the Secretary of State so we provided that to other contractors, like
their managers. We said, hey, everyone that’s going to canvas with you
guys needs to have this handbook. I don’t have personal knowledge that
each and every paid canvasser received one of these.
I went through the PowerPoint that I went over with Mr. Brown with
the paid canvassers who I trained. I trained myself. Just by reading through
it. [524] I mean, we’ve done petition drives before to where every, every
petition, you know, is a little different; so we tried to go through some of
the main points in language, too, of the amendment. You asked if when I
Ab. 183
sign that affidavit that said I’d been trained what I meant was I trained
myself how to do it. I mean, I went over the stuff with my boss in this
handbook before we started collecting signatures out there. I don’t believe
my boss has ever done work here in Arkansas before. I don’t think so.
You ask if we told the canvassers what they were collecting
signatures for. Once we had the training, they pass the background checks,
the people I personally trained, they knew what it was about before they
came on board. I also had to tell some of the paid canvassers what it was
about. I told them it was an initiative to limit attorney [525] contingency
fees on medical lawsuits. That was like the broad overview of it. I’d let
them know that the way it is right now there’s an increase in the cost of
healthcare because a lot of doctors don’t want to operate here because of all
the medical lawsuits. I have never personally talked to a doctor who didn’t
want to operate here because of medical lawsuits. I just went off talking
points I had.
So I would tell paid canvassers A) the frivolous attorneys’ fees and
medical lawsuits and B) that doctors aren’t working here because of
lawsuits. I would also let them know that what this is doing is it’s limiting
Ab. 184
the attorney, the contingency fees for medical lawsuits to 33.3%, so it’s
capping those. A lot of people don’t understand that [526] there is no, you
know, the cap and all of that. That was the main stuff I talked about with
the canvassers. I can’t think of any other main points right now. You are
asking if we told them that we are capping attorneys’ fees at 33 1/3%,
medical loss, frivolous medical lawsuits, and doctors can’t work here. I
mean, the doctors not--can’t work here we didn’t say it like that, you know.
We just said it increases cost of healthcare here. You know, at times, you
know, doctors may not want to operate here because of those frivolous
lawsuits. And then, like I said, though, the main talking point was limiting
attorney contingency fees. On medical lawsuits. We made sure to talk
about medical lawsuits rather [527] than just limiting attorney contingency
fees. That would get people to sign it.
This back page is the talking points. This is Petitioners’ Exhibit 6. This
is the script that was given to paid canvassers who I trained. So whenever
we do these projects, we give them kind of like an overview. Because not
everyone’s [528] going to read that line-by-line, so we just kind of give
them a rough overview of what a script would look like. And that rough
Ab. 185
overview was frivolous lawsuits and capping attorneys’ fees. Down at the
bottom there’s talking points that were provided to paid canvassers that if
they were asked some questions about what this is about that these are the
things they we’re supposed to tell them, the potential signers. And
essentially, like the bullet point number three, a lot of work we do when
we’re out there, people will always ask who supports this, why are you out
here doing this, so that’s why that point’s there.
I cannot tell you the name of one doctor in the state of Arkansas who
supports this. That’s just what I’ve heard. I don’t know of any doctors
personally. The talking points say after you mention attorney and [529]
limiting how much they’re able to make, this usually convinces the voters,
which means to sign the petition. This is the way to stop junk lawsuits that
increase the cost of healthcare. And we talked about doctors in Arkansas
support this.
Going to the last one, it says the way it set up now, lawyers are
making a living suing doctors, lawyers who are making all the money are
the main group that opposes this initiative. That’s the last talking point.
This form here is the only talking points or script I ever saw.
Ab. 186
This was a three-month campaign. My main thing throughout this
whole project was directly related to the background checks and those
forms. [530] During the three-month campaign this was the only script and
the only talking points that I saw.
Going to Exhibit 26 I still have my handbook. On page 39 there’s a list
of criminal offenses regarding petition fraud and the information that I
reviewed in preparation. Section F up at the top says knowingly
misrepresents the purpose and effect of the petition or the measure affected
for the purpose of causing a person to sign a petition. Under subsection C
it’s a criminal offense, petition fraud is a class A misdemeanor. I don’t
know what a class A misdemeanor is in the state of Arkansas.
[531] You are showing me a page out of joint exhibit number one.
Those are all the petition parts. This is Bates number 79299. It’s just
random. If Petitioners had questions about this form they can ask me. [532]
This signature is John Turner. It looks like Mr. Turner signed this
6/3/2016. You write the date because that’s the date that they sign the
petition. In they write it because the Secretary of State needs that to know
when that person was registered to vote, I believe. I don’t know if he wrote
Ab. 187
that on 6/3/16. It seems correct. If John Turner had actually signed that on
June 5 we would not have told our canvassers to mark out and sign the real
date. [533] We told the canvassers not to touch any of the like 10 signature
lines right there. They weren’t allowed to do any of that. If Mr. Turner
signed the wrong date we’d leave it and then the Secretary of State would
throw it out. As for whether we would submit documents knowing that it
had incorrect information, we would turn in everything we had.
I don’t know how we knew, like when I’m looking at this right now, I
can’t tell if that date of signing is right or wrong. I collected some of these.
When I collected some of them I made sure that the date of signing was
correct. Absolutely correct. [534] Because as a paid canvasser I would not
sign this if that information had not been correct. I told my paid canvassers
to do the same thing. Paid canvassers in the state of Arkansas can only
collect signatures after they have had a state police background check,
statement of eligibility, and have been disclosed to the Secretary of State.
And the federal background check.
I did not submit the list of paid canvassers to the Arkansas Secretary
of State’s office. No one with 3.0 LLC did. You are showing me Petitioners’
Ab. 188
Exhibit 10. It is an email from Mr. Greenberg to the Arkansas Secretary of
State’s office and it has an Excel spreadsheet attached to it. I did the Excel
spreadsheet. At the beginning Tim Pollard would do it some days and then
I kind of took over throughout the project. To the best of my knowledge the
information was correct when I submitted. I would not submit false
information. But as you can see the note 1 below or see the note 1. [536]
When I go back through them, I’d see that there were issues and how I
transpose the addresses from my Excel spreadsheet to the spreadsheet. I
would make note of it.
I am on this list. I’m at the very bottom. I was disclosed 4 – 26 – 16. So
I was telling Mr. Greenberg that I had passed my background check. [537]
And signed my statement of eligibility. Well, the only thing is those first
dates here, I sent an email to Dan Greenberg. And then as soon as I sent
that my boss is like, hey, we need that Secretary of State form. So this first
group of people it was when we first started the process and we didn’t
know for sure the forms that were needed. Then as we got further down
the list, and that’s when we made sure everyone had the SOS forms. It’s
like this one. A lot of these people, we ran background checks on them, but
Ab. 189
they didn’t come out here until May. So you’ll see that a lot of their sworn
statement forms are from like sometime in May. But yeah this first list was
people that we knew passed the background checks. I submitted my own
background check.
You are directing my attention to Intervenors’ Exhibit 4 which is my
criminal history report. I entered this information into the Arkansas State
Police portal and then it takes a little while and then it shoots back a report.
Sometimes they take over a day or over the weekend to get them back.
So this date of 4/26 on the requester information that’s the date I got
my background check back. [539] I talked to them and they got to the point
where they would turn it around that same day as long as I got it to them
in the morning. I could probably look it up on the portal. That shows when
the record was submitted and when it was completed. When I would
receive this back from the portal I would automatically hit print. Looking
at the top, left-hand corner, the whole top line. It says 4 – 28. It also has the
portal web address. You ask if it appears that I submitted this on the 26th
and got it back on the 28th. [540] I believe that may have been when I
printed it. So you run the background check then you have two weeks after
Ab. 190
it comes back to view it online and print it. You can still view it, so there’s
times where I view it but I wouldn’t print it because I was like doing a lot
of stuff remotely. I was flying back and forth, so a lot of it would come
through. You ask if there were a lot of times I printed the reports exactly on
the date I got it back. I think for the most part I saved a lot of them like it’s
a PDF or I would print them if I was working out here. Once I got to the
Denver office, I’d have my list to start printing and going through and
filing. Down here at the bottom in other words I’m not really sure. I mean,
it was always changing the whole time.
I see down at the bottom where it says you have to have a signed
Arkansas State Police criminal background check consent form. [541] We
did not have every paid canvasser fill that out on that form. We had a
different disclosure form that we’d have most of them fill out. We did not
use the Arkansas State Police background check form that they require. We
used our authorization form that we use for our background checks. I was
under the assumption that we could use our background form for it. You
ask if I’ve printed off any of these forms for these lawyers. My main focus
was the background checks and the SOS forms when I was going through
Ab. 191
and printing everything.
I myself was sure not to start collecting signatures before April 26. I
passed on April 26 and I sign the affidavit on the April 26 too. I don’t know
if I collected signatures in Boone County. I was at a post office here. You
ask if I know where Boone County is. I think it’s one of the counties nearby.
You say no it’s pretty up north. North of Harrison. You ask if I never went.
I respond yeah.
[543] You are showing me my form, Bates number 70492. I signed it
down here under this sworn statement. It says that the first signature
appears on 4 – 14 – 16. They must’ve put that because that happens. The
first two signatures are April 14 of 2016. That’s what it shows. I honestly
[544] don’t know if I was out here on April 14. I wasn’t qualified on April
14 because I not been disclosed to the Secretary of State. I was submitted on
4 – 26.
I just talked about some of these background checks that I went
through with Mr. Brown. The ones we talked about this morning. I
honestly don’t know when I first printed those off for sure. They could’ve
been at different times, but I knew I had them all and I knew I had them on
Ab. 192
the dates they needed to be. The ones we got last night were already in the
file. That’s why it was easy for us to get them. I don’t know the exact date
when I was notified that Health Care Access for Arkansans did not have
those background checks I had this morning. It was a couple of weeks ago.
[545] No. So we sent the whole form over to Brett. And from there, he took
a look at them and, you know, I never was aware that we had missing
ones. In the only thing I can think of, why there was those eight that were
missing, is like I said earlier, we sent them through the scanner and they
got lost in the email. But, I mean, we had them. They’re in the files. I don’t
know.
You ask if Mr. Greenberg had any of those files. I have those files. Mr.
Greenberg didn’t have any. Chase Duggar didn’t have any of them. It was
all Blitz Canvassing. I have them all.
You are asking about Bradley Collison. That’s going to be I 13. Mr.
Collison past his background check on 6/22/16. I can’t tell you the date he
signed a statement of eligibility because we didn’t have it on file. [547] His
name was disclosed to the Secretary of State’s office on 6/22. You are
showing me petition part 70377, which is part of joint Exhibit 1. This is for
Ab. 193
Bradley Collison. [548] It’s down here on the lower left. And again he was
submitted to the Secretary of State on June 22 and he may have passed his
background check on June 22. The date of the signatures that appear on
70377 is 6/14/2016. Keeping reading through 6/15/2016. It looks like nine
people signed on June 14 of 2016 and one person signed on June 15, 2016.
He wasn’t allowed to collect signatures on those dates. I don’t know for
sure because I think this is one of the canvassers for a subcontractor but he
probably didn’t get paid for those signatures. [549] Those signatures were
submitted to the Secretary of State’s office and those were incorrect.
Mr. Brown: Objection. That’s complete lack of foundation.
The Court: The foundation was that he took that out of
Mr. Brown: Mr. Priebe is representing them to him, I think that it’s
not in evidence that this witness has heard. I just think it’s improper; lacks
foundation.
Mr. Priebe: The one I showed him is in Joint Exhibit 1.
Mr. Brown: My objection is to the representation.
The Court: Okay good enough. I understand your objection and Mr.
Priebe [550] understands the restriction. On to the next question.
Ab. 194
Going to Adolphus Coleman, he was one of the people who we went
over this morning. His background check was done on 6/3/2016. He was
disclosed to the Secretary of State’s office on June 3. [551] Showing me
Bates number 88452 which is part of joint Exhibit 1 the date for this
signature collected by Mr. Coleman is 5/4/16. That would have been prior
to him being authorized to collect signatures. But, I mean, mistakes like this
[552] happen all the time on dates, like where a person probably thought it
was still five when they should have written six. So it’s really hard to tell
whose fault this is. It could have been signed on 4 May 2016. Or it could
have been on June 2. A lot of people make these date-of-signing errors
when they’re doing petitions.
_ I don’t know if there are errors in joint Exhibit 1. In these petitions. I
can’t say yes or no whether that is an error. I was just saying there could’ve
been. We don’t know for sure. The only thing that I would look at here is it
was notarized on the sixth day of June 2016. The notary date is when the
canvasser signs. It’s when the canvasser turned in the petition.
I don’t believe Emma Stone was in those this morning. You are
showing me Bates number 3090. You are representing to me that that box
Ab. 195
of documents is documents that Health Care Access for Arkansans
provided to you that I testified about this morning were all of my files. You
are representing to me that this is just one of them. Ms. Stone got her
background check done on 5/16/2016. She was submitted to the Secretary
of State’s office on 5/17. [554] You represent to me that Bates number 86989
is part of joint Exhibit 1. Emma Stone signed 86989. The date of the first
signature collected says 4/19/16. That would be April 19 prior to her
passing her background check and prior to her being at the Secretary of
State’s office.
I agree that of the nine canvasser files [555] that I brought with me
this morning at least three of those people’s names appear on signatures
that are part of Joint Exhibit 1 petition parts that have signatures prior to
them being disclosed to the Secretary of State’s office. But as I said, there’s
issues with people and they have the day of signing, so you can’t--it’s like a
hard line to figure out the date of signing. You saw most of the signatures
on that last exhibit were 5/19/16, so a person that signed the signature
probably was doing it on 5/19 but they wrote the wrong date. Or they
wrote the right date. I give that to you. Or they wrote the right date and
Ab. 196
people were collecting signatures prior to being disclosed to the Secretary
of State’s office and prior to state police. And you ask if my firm went
through all the petitions. [558] We did a lot of validation. I wasn’t directly
related with the validation. We subcontracted that out too. We did about
3000 signatures ourselves then another firm did most of the verification. It
was Lincoln Strategy Group. I would send them the SOS list to. That way
they knew what signatures not to count in our grand total on whether or
not a canvasser was approved. I’m trying to make sense there. So we sent
them the same list that we were sending the Secretary of State so they knew
what signatures to account for what petitioners.
When Mr. Brown was asking me some questions this morning I
pulled out some paperwork for Joseph Adamapolis. I still have that
information in front of me. His background check was done on [558]
5/20/2016. He was submitted to the Secretary of State’s office on June 2,
2016. So he shouldn’t have been collecting signatures before June 2. You are
showing me Bates number 75316. I see Joseph Adamapolis down here in
the bottom left-hand corner. [559] The date on the signature on Bates
number 75316 is 5/24/2016. And he wasn’t disclosed to the Secretary of
Ab. 197
State until June 2. So depending on the subcontractor and what they do he
probably didn’t get paid for the signature. It was still submitted to the
Secretary of State’s office.
Redirect Examination
This is my first time to testify in court. [560] You are showing me
Bates number 70492. Mr. Priebe was talking to me about these first two
signatures up here at the top. They are on 4/14/16. The last date of the
signature Mr. Priebe didn’t ask me about is 5/14/16. The notary says I
signed in her presence on May 16, 2016, which is two days after May 14.
[561] It’s certainly not however many days it is from April 14. People make
mistakes all the time. Nobody’s perfect.
You represent to me that the Secretary of State certified the petitions
that were submitted to the Secretary of State to become on the November
ballot. You ask what I know about the process the Secretary of State has
internally to validate and verify. I just know they go through and check all
the signatures. The date to make sure it’s correct. You asked me what
circumstances can lead to discrepancies like that based upon my experience
doing canvassing work. So that example right there, I don’t even think I
Ab. 198
was out here on the 14th. So the fact that a person that signs on 4/14/16,
most times, if a person sees that date in their signing on that date, they’re
going to see that date on the top and sign that [562] date. It’s kind of funny
because we’ve run into some petitions where it will show three dates of
5/10/2016 when it is 5/10/2016, but someone will make a mistake and
write 4/10/2016. And then the next row of signatures is 4/10/2016.
At the end of the day though signatures were signed on 5/10/2016.
There’s been times like that. Sometimes you’re in a hurry when you’re
getting the signatures to where the canvassers try to look it over as much as
they can. But they are also trying to grab someone else to collect another
signature. So at times they’ll see and then like, oh dang it, those two
signatures aren’t going to count towards my total for the day.
We do our best. And like signatures that we validated and the other
validation firms, they do their best to throw out signatures like that. So we
don’t even count those in our overall totals. But as you saw in some of
those, some of those signatures will still count towards our total because
they were on the correct date; so that’s why we would continue to submit--
or I didn’t submit it.
Ab. 199
[563] Other circumstances that could lead to human error off the top
of my head include after we would have some of the turn ins and the
notary--because sometimes, --those notaries would sit there for 10 hours at
night, going through and notarizing every packet as the signature collector
was in front of them with their ID and all that. And they’d miss signing
their name on some or they miss stamping it. That’s human error at the end
of the day, when we still collected all the signatures. That’s just another
example. I’m trying to think of other ones. It’s just a lot of paperwork in all
the petitions you do. I knowledge that the dates Mr. Priebe went through
do not match the date of submission. I’m just saying it’s human error. [564]
I don’t know personally.
Recross Examination
It appears that Danny Harness, run the Gay Harness, and Tony G.
Reese signed this petition. [565] The first two signatures have a date before
I was authorized to collect signatures. You are showing me page 43 out of
exhibit number 28, which is the valid signature report. This is the ones the
Secretary of State held valid. Three signatures were counted for petition
part 70492. All three of them.
Ab. 200
[566] The Court: Let’s just make it clear. I think from the testimony
from Mr. Bridges yesterday that’s not something they check so that’s why
they showed up there.
Mr. Priebe: Correct. That’s not something that the Secretary of State
checks.
The Court: That’s right. The Secretary of State doesn’t check that
because it’s not something they can do in their system the way it set up.
Mr. Kelly: Just so we’re clear about that, the testimony was that we
don’t accept it but we don’t have time to check it.
Examination by the Court
[567] When I sent the list of paid canvassers once I got the
background check and everything done I sent that to Mr. Greenberg. I sent
it by email. It was up to him to pass it on. I did not make direct
submissions to the Secretary of State. I was not involved in getting him any
other information.
[568] You are asking if there was a time when we use someone other
than Blitz Canvassing to get background checks. So we would use them at
times from the other petition companies out here just because they’d show
Ab. 201
us that this person has no felonies. But at the end of the day, we still would
make sure to run our – – like if we’re waiting on a background check to
come through, we would use their evidence that they, that person did pass
a background check of some sort. They had the same process as we did, the
other petitions out here. So once we saw that they pass on their
background check, we figure that they pass on [569] ours to. But we still at
the end of the day would run them through our background check portal.
Recross Examination
You are showing me Petitioners’ Exhibit 36.
[Abstractor’s note: Intervenors renewed their objection to the
summaries. The objection was overruled.]
Q: We’ve gone through that box, okay? The box of stuff, we’ve
gone through what you’ve provided to these lawyers last night, and I will
represent, based on your [570] testimony this morning, that in that box,
there were not Blitz Canvassing background checks for Russell Baggett,
Linda Boyd, William Burns, Joshua Darrow, Ricky Darrow, Douglas
Greene, Vicki Harper, Chase Harris, Arthur Ladd, Jaclyn Morales, José
Rochet, Melinda Selley, and Jermine Wilbourne. Do you dispute that those
Ab. 202
are not in that box?
Mr. Brown: I object. And the reason I object is because the testimony
will be clear, Mr. Donarski picked out one document, if the courtroom
remembers, of that box. In the representation that’s the premise of this
question is that Mr. Donarski has gone through this box. That is incorrect
and I object on that basis.
Mr. Priebe: These documents came from his company.
The Court: Well, let’s back up. Obviously, there was some effort last
night to try to fill out the missing gaps and his question is premised on
your allegation that some of these are missing, right?
Mr. Priebe: These were all done by third [571] parties. All of these
witness background checks Mr. Couch testified to, these were ones that
were not contained in the documentation that was provided by counsel
either in that box or what was provided this morning.
Mr. Brown: My objection is simply this. It’s preface by Mr.
Donarski has gone through this box.
The Court: Yeah. We understand he has not. I understand on that
basis.
Ab. 203
Mr. Brown: And I’m referencing Exhibit 29.
The Court: So the question has to be do you have information on
those particular ones that would not be included in your box?
The Witness: I’m unaware unless I got time to go through and
look.
[572] The Court: How many people are on that list? I forgot.
Mr. Priebe: 13 people. 10,764 signatures.
Lucas Talburt
Direct Examination
[578] I am Lucas Talburt. I work for Frost PLLC, certified public
accountants. I am an IT and data specialist.
You asked me to look at some things in this case. One of the things
you asked me to do was to look at the duplicate spreadsheets from the
Secretary of State’s office. [579] You asked me to compare the duplicate
spreadsheet to the valid signature spreadsheet. That is also from the
Secretary of State. You asked me to see if there were any duplicates present
that weren’t duplicates. I believe we found eight. I prepared a spreadsheet.
You just handed me the spreadsheet that I prepared that lists those
Ab. 204
individuals who were on the duplicate list but were actually not on the
voter registration list.
[Intervenors’ Exhibit 14 is admitted.]
[580] You also asked me to look at some spreadsheets that the
Petitioners produced. You asked me to see if the court were to grant their
request to throw certain petition parts out, if some of the duplicate
signatures would then no longer be duplicates and the count. I look first at
the exhibit. I have in front of me what says Exhibit 36 at the top of the
spreadsheet that I created. [581] I would look initially at Petitioners’ Exhibit
36 titled paid canvassers ASP criminal background report obtained by
third party. I would match the canvassers with the Bates numbers that
corresponded to them and one of the documents provided by you guys.
Kutak Rock. I would get the Bates numbers and then I would compare
those to the valid signatures and pull all the valid signatures that were
associated with those Bates numbers. So those would be removed. I would
then compare those removed signatures to the duplicate listing that was
provided by the Secretary of State to see if there were any removed
signatures that were on that that would make those duplicate signatures no
Ab. 205
longer duplicates. [582] I came up with 576 signatures
[Intervenors’ Exhibit 15, spreadsheet, was introduced.]
At the top of Intervenors’ Exhibit 15 it says Exhibit 26. That is because
when I was seeing the information yesterday morning, that was the exhibit
number. What I came to give you my findings last night, the exhibit
numbers had changed. So it should actually say Petitioners’ Exhibit 36 at
the top of Exhibit 15.
[583] You also asked me to look at another of Petitioners’ exhibits to
make the same kind of determination about what duplicates would come
back in if the judge invalidated the petition parts that were on the
particular Petitioners’ exhibit. This is Petitioners’ Exhibit 33, paid
canvassers statement of eligibility no domicile address. I went through
basically the same process as with the previous exhibit. I got Bates numbers
that corresponded to the particular individual that was noted. I then went
and removed those signatures that pertained to that Bates number from the
valid signature list and compared them to the duplicate listing. [584] I came
up with 261 signatures. The total is on the last page of my spreadsheet.
[Intervenors’ as Exhibit 16 was introduced.]
Ab. 206
You just handed me Petitioners’ Exhibit 34 titled paid canvassers
statement of eligibility invalid/incomplete domicile address. You asked me
to check and see if any of the signatures that were removed due to this
challenge would be present on the duplicate listing. [585] I came up with 81
signatures.
[Intervenors’ Exhibit 17 is admitted.]
You asked me to go through a similar process with regard to
Petitioners’ Exhibit 37. I pulled the Bates numbers that are listed on
Petitioners’ Exhibit 37. I compared those Bates numbers to the valid
signature listing, pulled those signatures that would relate to those Bates
numbers and then compared them to the duplicate signature list. I used
37A of Petitioners’ exhibit. [586] I came up with 92 signatures.
[Intervenors’ Exhibit 18 was admitted.]
You asked me to go through a similar process with regard to
Petitioners’ Exhibit 38. I pulled the Bates numbers in relation to the names
on the initial list, compared those Bates numbers back to the valid
signature [587] listing, pulled those signatures out and then compared
them to the duplicate listing. I came up with 45 signatures. That is on the
Ab. 207
second page of my spreadsheet.
[ Intervenors’ Exhibit 19 is admitted.]
Mr. Kelly: The Secretary has no basis to dispute this information
primarily because of the lateness of the hour, but my understanding is he
has a testified that he has used SOS electronic versions of documents, and,
so, we believe that it is admissible evidence or already [588] consented
evidence. We can’t dispute it.
Cross Examination by Petitioners
I started this project at 8:30 yesterday morning. I was first contacted
about this project when I received a cull from one of the partners at my
firm Wednesday at about noon. It was Cheryl Sheffield. The first time I
looked at any of the information in this case was [589] yesterday at about 9
o’clock. 9 AM. The first time I talked with one of the lawyers about that
was yesterday at 8:30 AM. I have never testified before. I am not doing this
for free. Kutak Rock is one of our clients now. [590] I don’t know what I’m
charging per hour. I don’t know what my partner is charging per hour.
Cheryl Sheffield is in charge of that. I write down my hours and turn them
in. Billing is not my department. I typically charge my clients $152 an hour
Ab. 208
for my services. I have put roughly 12 hours in this case. No other partners
helped.
I was supplied this information in a combination of Excel
spreadsheets and PDFs. The Secretary of State documents were in Excel
spreadsheets. All of the exhibits were in PDFs. [591] I use software I have
on my computer to convert those. I went back and checked to see if the
software had done it correctly. I took one list and compared it to another
list. I just did a side-by-side comparison using key fields that are unique to
each record. I do not know if any of the signatures that appear on exhibits
14 through 19 have any other problems besides being duplicates. I do not
know if the date of birth is wrong. I don’t know anything else about the
signatures. [592]
I have 16 in front of me. After I ran these documents I reviewed them
and checked them to make sure everything was right. That’s part of what I
do is an accountant. At the end of Exhibit 16 I have 261 records. That’s the
summation total of all the records on here. I do not believe there are
duplicates on here. You point out Johnny Ray Gatlin is on their three
different times. That would be a mistake on my part. Lonita Juniel Lea
Ab. 209
[593] is another mistake. Carmen Elaine Thomas I counted too many times.
That’s another mistake. Cherie Nicole Mays is another mistake. Teri A Fry
is another mistake. Sharlene Nicole Brown is another mistake. Shamika
Miesha Harris is another mistake. Martez Jamaar Riddle is another
mistake. LaTessa B Sargent is another mistake. Jordan Erin Childress three
times is a mistake. Trevor Dean Stensrud is another mistake.
Because of those mistakes and 16 my numbers are too high.
I have Exhibit 17 in front of me. [594] Jacqueline Kennedy Baker is
listed twice in exhibit number 17 and that appears to be another mistake.
Mark Alan Hart is another mistake. Karen Lee Pitto is another mistake. My
numbers on Exhibit 17 are incorrect.
The Court: Before the witness leaves the stand, I’m having a little
senior moment with this. You are going to have to help me. Taking what I
understand he did, and that was taking the various exhibits where they
have pointed out things that they contest, you take those names out [595] of
the system that he is taking them out of the valid list. And then he
compares it so that some of them that have been taken out of the duplicate
list. How does that help you, I guess, is my question.
Ab. 210
Mr. Watson: I don’t want to end up testifying judge.
The Court: No-no. I will let anybody respond to it. I’m just having,
conceptually, a problem with what difference does it make? Maybe you can
do it through the witness.
Redirect Examination
Q: On the far right side, scroll up to the top of the page. It lists the
petition page number--at the top--that that name is from. And, so, I will try
and do this for the witness so I don’t testify.
[596] What does this indicate to you if Baker Jacqueline Kennedy was
on two different petition page numbers from the duplicate list?
A: There were two records of her in there.
Q: So, basically, she wasn’t just a duplicate, she was a triplicate?
A: Yes.
Mr. Watson: And, so, when he ran that through, it did not close
out her entirely. They were triplicates. Does that answer your question,
Judge?
The Court: I’ll have to let this sink in a little bit. I assume the idea is
that if she has been taken out of the duplicate list, but she is already taken
Ab. 211
out of the valid list--I’m just struggling.
Mr. Watson: I’ll explain it to you. The Petitioners have gone
through and introduced spreadsheets saying
The Court: Certain people should be eliminated.
Mr. Watson: Yeah--these should be taken out because of certain
reasons. So we had him take [597] that spreadsheet and he figured out who
all’s name would be kicked out if the court grants that. What if their names
are kicked out and they were on the duplicate list, well they are actually
not a duplicate anymore and the Secretary of State counts those. And so
that’s why he came in and said the signatures are
Mr. Brooks: I’m going to object to that. There is no foundation to
the Secretary of State didn’t count the duplicates.
The Court: I will let you respond, Mr. Brooks. But let me let him
finish because I asked for this. I’m just trying to get some explanation. So
go ahead Mr. Watson that I let them respond.
Mr. Watson: Well, when the names are kicked out, if a person’s
name is on that list and they are removed and they were also on the
duplicate list they’re not a duplicate anymore.
Ab. 212
The Court: They don’t exist anymore.
Mr. Watson: If their petition part was kicked out.
The Court: Oh, okay. Now I get it.
Mr. Watson: If they would stay on that duplicate list, then they
would no longer be duplicate. Their name would be counted. And our
whole purpose of going through this was to show that, obviously, we don’t
think that the court should grant the request for this but if the court does,
those names would need to be added back in. Obviously, we don’t want
the duplicates and quadruplicate’s to be added back in.
Tab The Court: Let me ask Mr. Brooks or Mr. Priebe to add any thoughts
as to what you think is going on here.
Mr. Brooks: All I was saying was, with respect to the evidence
that we’ve heard thus far, I have not heard anybody from the Secretary of
State say that when they went through the process, if a duplicate was then
removed from one of the petition parts or one that they had signed
previously, that they would then be pulled back in the box of verified
signatures. Maybe they do maybe they don’t. But [599] right now, that is
not a fact in evidence. That is counsel’s assumption about what would
Ab. 213
happen. And maybe it’s true and maybe it’s not, maybe we need them to
say what they do. That it is not in evidence right now.
The Court: I understand. Thank you. Thank you both. I appreciate
the assistance
Mr. Priebe: I move to strike the testimony of Mr. Talburt. A, there has
been no foundation. There has been no foundation laid for his analysis. He
has relied on information that is not in evidence in this case, which the
duplicate list has not been entered into evidence. And he admitted and I
appreciate and I respect for what he did he admitted that his spreadsheets
are replete with mistakes. And so on that basis I would move this court to
strike his testimony. And if this court does not strike his testimony, I [600]
would ask this court to give his testimony no weight whatsoever.
Mr. Watson: First of all, the witness indicated exactly what he
did. Mr. Priebe never objected at any point in time to the testimony that
Mr. Talburt was providing so he waived any objections that he might have.
In terms of replete with mistakes, Mr. Priebe pointed to two of the
exhibits and some additions that were there. I don’t think that is an
admission that they were replete with mistakes. It is simply an indication
Ab. 214
that those names are on more than one petition part. And so for those
reasons we believe you should deny the motion to strike.
The Court: The motion to strike is denied. It goes to the weight of his
testimony as opposed to anything else.
Josh Bridges
Direct Examination
[601] Q: Mr. Bridges, if the Secretary of State’s office identifies
something as a duplicate signature, but then later learns that the first
signature is valid, will the Secretary of State then go back and consider that
signature valid?
Mr. Kelly: I have an objection for this reason. In our [602] pleadings,
we raised the unclean hands defense, that is, because it is a misdemeanor
criminal conduct to sign more than one time, you should not be allowed to
defend that misconduct. I have not waived that. I did see the evidence
come in. I understand, I didn’t object to the evidence, but I think asking
him for that legal conclusion is improper.
Mr. Watson: Two things, I didn’t ask for legal conclusions, just
asked what they did. The second is, that is an argument that he can
Ab. 215
certainly make in his brief.
The Court: Maybe so. Go ahead. You may answer the question.
If we were to get signatures back in that were thrown out by some of
the exhibits presented in this case, we would specifically request that the
court order us to do so. You say you are asking if during the process that
the Secretary of State goes through initially to determine the signature is a
duplicate [603] but then subsequently determines that it is not a duplicate,
for whatever reason, if the Secretary of State’s office would then count the
signatures. From my hypothetical standpoint, absolutely.
Mr. Watson: Judge I want to explain a little bit about what I’m
about to do here. The culled petitions are all in already as joint exhibit
number two, the set of three boxes there. Because the culled petitions are
not as a whole in a convenient format to challenge, for example, if they--I’ll
give you testimony here in a little bit--but if I have a method for not just
pulling those up and introducing them, what I’m going to do is give Mr.
Bridges sets of the culled petitions and introduce those exhibits. It will help
the court in going back and reviewing things.
The Court: Sounds reasonable.
Ab. 216
You are pulling out page number 79696. It has been culled, [604] but
otherwise it is in the form that the Secretary of State requires. You are
asking me to look at the top paragraph and start reading with I am a on the
third line from the bottom. It reads I am a registered voter of the state of
Arkansas. And my printed name, date of birth, residence, city or town of
residence, and date of signing this petition are correctly printed after my
signature. When a document is culled or a petition part is culled there is a
cover sheet attached to it. [605] The petition number at the top corresponds
with the Secretary of State adhesive sticker that was placed at the bottom of
the original petition part. So when it says petition part 81664 that is what it
is in reference to. On the left-hand side of the sheet are listed various bases
that a petition part could be culled. The options are the same on every
culled petition page. On the one you have up on the screen the other boxes
checked. It also reads canvasser address does not match list. It is
referencing the paid canvasser list submitted by the sponsor to our office.
So when the Secretary of State culls a petition part for the canvasser
address [606] being incorrect or not matching, that is based on the
spreadsheet that the sponsor provided the Secretary of State’s office.
Ab. 217
Hypothetically if the address had changed over the course of the
canvassing for example if somebody submitted on April 26 and then on
June 1 they changed their address but the Secretary of State was not
notified we might cull the petition part because her address had not been
updated on the June 1 list. However, if I may, as mentioned before in my
testimony from yesterday, we do have a meeting with the sponsor once the
cull process has been completed, so to speak, to give the sponsor the
opportunity to reconcile any of the cull sheets to have them back into the
main petition. If the sponsor satisfies the Secretary’s office with proper
paperwork that would show that this address is legitimate for that
canvasser, hypothetically of course, we would be more than willing to put
those petition parts back in.
I was in the first meeting with the sponsor of this particular
amendment. I believe it has [607] also been stated in the testimony that
there was an additional meeting. I was not at all the meetings.
The stack of papers appears to be petition parts that were culled
because of incorrect address or if the address does not match the list.
Mr. Watson: I would like to move that stack of documents that I
Ab. 218
have provided Mr. Bridges, which are a list of petition parts that were
culled because of incorrect canvasser address as Intervenors’ Exhibit 20.
Mr. Priebe: I’m going to object, I still don’t believe the proper
foundation has been laid for whatever that stack of documents is, how
many petition parts, what particular petition parts are included in the
stack. We don’t know.
Mr. Kelly: [608] This is a document that I did speak about yesterday
when I was talking to you, generally, at the close of the Petitioners’ case.
The Secretary’s office did represent to the Supreme Court that we would
not do this, that we would not cull documents for incorrect canvasser
addresses, explicit in our brief in 2014. The only defense I have to these is
that we did give the sponsor the opportunity to tell us that we were wrong.
These, they did not challenge, so we are where we are. That’s it.
Mr. Watson: These have already been admitted into evidence. If
Mr. Priebe would like Mr. Bridges to go through and read off each culled
petition part number on this document, we can certainly do that
The Court: I don’t think it’s necessary. He’s got a copy of them and
they have been admitted, so go from there. I do [609] recall testimony from
Ab. 219
yesterday and I think it was maybe Mr. Bridges who verified that
somewhere in all of this, there is an email which cure--if we can use that
term--occurred and the email is dated August 5. The cure occurred on a
certain number of these and I assume some of those were because of this
very thing. I don’t know that we know that today.
Mr. Watson: I think the testimony was that none of those are
going to be the culled petitions.
The Court: Those were moved to the other, so that has already been
taking care of.
Mr. Watson: We could ask Mr. Bridges about that, I think.
The Court: Please. So we will refer to the August 5 that were moved
back into the valid stack; is that correct?
The Witness: That is correct.
The Court: Okay. Nevermind.
Mr. Watson: The basis for moving to introduce these is because
it’s our argument that the Secretary [610] of State’s office cannot--that there
is no requirement in the law that canvassers continuously update the
Secretary of State’s office of the address. The requirement is that when the
Ab. 220
canvasser provides--the statute calls for when the canvassers information is
first submitted to the Secretary of State’s office, that the address has to be
included then. It is not required to update it throughout the whole entire
process.
The Court: All right. Go ahead and put it in, for whatever purpose it
is.
[Intervenors’ exhibit number 20 is admitted.]
Mr. Watson: Did you say for whatever purpose it is? The
purpose is we are saying they should not have been culled--as part of our
cross-claim--and the signatures on the sheet should have been counted.
The Court: Has anybody done any kind of analysis of how many
were talking about?
Mr. Watson: I know it, but I can’t testify.
The Court: [611] Right. Exactly.
Mr. Watson: Bur in closing statement, I’m going to say there are
this many in here because we can comment on that. I know you don’t want
to--you can go through and verify whatever I say in closing statement.
The Court: All right. Just go ahead and present your case.
Ab. 221
Mr. Priebe: I would like to continue an objection to this.
The Court: Yes, sir. I think I even understand it. Now, I see why it’s
an objection.
Mr. Watson: Did you not understand what we were saying?
The Court: No, I understand what you are saying. He is objecting
that no one has laid the foundation for all of this and that you are going to
present the stack. And I’m just saying, well, it looks like I’m going to have
to go through the stack because nobody can tell me--nobody that you have
as a witness can tell me what it represents [612] in terms of numbers.
You just handed me a stack of documents that appears to be petition
parts that were culled for no canvasser signature. It is Bates number 84949.
On the cover sheet for the first one the box checked is no canvasser
signature or more than one canvasser signature. [613] When the petitions
come back into the Secretary of State’s office the Secretary of State looks for
whether there’s a printed name and a signature on the petition part in the
canvasser section. And they look to see that it has been notarized. The
notary’s last line says and that I personally witnessed the signature of the
canvasser. So the notary is saying that she saw the canvasser put their
Ab. 222
name on this document. [614] There is no requirement at the Secretary of
State’s office that the signature has to be in cursive. They can print their
signature.
You asked me to look at Delissa Laster. It says I and then somebody
has written in Delissa Laster. The notary has told us that they have seen
Ms. Laster apply her name to this document. You are asking me if there is
no other name and Ms. Laster is indicated nowhere else on there, is that not
her signature? I would disagree with that statement. I would assume then
that the notary is not telling the truth. That is because Ms. Laster only put
her name in the part up above where it says I Ms. Laster and then not put it
below where it says signature. [615] The designated signature line on the
approved petition part is blank, therefore, I would disagree with your
statement.
Q: Even though the notary has said she has seen Ms. Laster put
her name on there?
Mr. Priebe: I’m going to object. The document says what it says, Your
Honor. Mr. Watson is testifying that Ms. Laster did anything or what the
notary is thinking or saw, I’m going to object on that. That’s all speculation.
Ab. 223
And Mr. Watson can’t testify.
Mr. Watson: Well, Mr. Priebe knows that the notary says, I saw, I
personally witnessed signature of the canvasser. The canvasser apparently
wrote something over there Your Honor.
The Court: I understand. And to the extent the document speaks for
itself, that’s what we will take it to say.
The Witness: I would like to make a comment on this please if it’s
okay. As a notary myself if, just hypothetically, obviously, I cannot notarize
a petition part because [616] of my duties at the Secretary of State’s office,
but I have notarized official disclosure documents for previous roles in my
office and I am still currently a notary. If a petition part such as this was
presented to me to be notarized, I would ensure that not only is the top of
the canvasser affidavit filled out with, I would prefer, printed name there,
even though it does not designate or say printed name. I would very much
have the signature line filled out by the canvasser.
Mr. Watson: I’m going to move to strike that comment because
he has not been identified as a notary, a witness about notaries, or in any
way been identified as an expert.
Ab. 224
The Court: It’s just what he would do.
Mr. Watson: Will you just take it for that judge?
The Court: I’m just taking it as a statement of what he would do if he
were in this position.
Q: Are you saying your way is the only way?
Mr. Kelly: Objection.
Mr. Priebe: [617] Same.
The Court: Let’s move on. Get this stack in here. And I will try to
count them this weekend sometime if I think they need to be counted.
[Intervenors Exhibit 21 is admitted over Petitioners’ objection.]
Mr. Kelly: I just want to make sure I make it explicit on this one. The
Secretary is the administrator of the notary database and is charged with
enforcing notary law. That training that Mr. Bridges spoke about or the
method he would do this is something that we do put in place and we try
to enforce through our office. And there is crystal clear Arkansas Supreme
Court case law that says it is improper for a notary to notarize in advance
of the signature. So we do what the Supreme [618] Court has told us to do.
We don’t allow it. Our objection is to the use of these for any purpose other
Ab. 225
than they were culled for that failure. We would not ordinarily count these
for any petition. We have not done so in the past and I don’t think that we
should do so in the future.
You have just handed me three petition parts. Those were culled for
not a registered canvasser. The canvassers name on those three parts is
Alicia Williams. [619] You are putting on the screen the final page of the
canvasser list from Mr. Greenberg’s July 7, 2016, email. Note 6 reads
incorrect last name was submitted for Alicia Williams. She is listed as
Alicia Miller. However, her name is Alicia Williams. She presides at 6600
Lancaster Rd., Apt. 58, Little Rock, AR 72206. You ask if the Secretary of
State’s office saw this information during the culling process. During the
intake process, the temporary workers that we use are instructed to, as I
mentioned in my previous testimony, cross reference the paid canvasser
list to every petition part in order to determine if that paid canvasser is on
the list. [620] During the tort reform intake process, it was notated with the
temporary workers that were employed during the intake process, that
there is a notes section on the canvasser list that was provided to let them
check. Any time an issue came up with a certain name, we had two sets of
Ab. 226
eyes on every one. I remember countless times asking the workers at that
particular station that particular day, did you check the notes section to
make sure that no changes were made. And if I had a reply of yes we
moved on. This could simply be chalked up to human error. I believe those
three petition parts should be counted. That is a total of 29 signatures.
[Intervenors’ Exhibit 22 was received over Petitioners’ objection.]
You are asking me what was the basis for this petition part being
culled. [621] There is no basis notated on the cover sheet. I have the master
spreadsheet so I can look at it. I can refer to the master spreadsheet and I
did previous to this morning’s proceedings. The reason this was culled is
simply type of culled in the spreadsheet. I’ve taken a look at the sheet
myself this morning, previous to this, and determined that this page was
culled due to notary seal being a legible.
[Abstractor’s note: Intervenors did not introduce this exhibit.]
On the culled petition you just handed me the stated basis for the
petition being culled is [622] canvasser did not sign petition. In our opinion
that as a basis for not counting a petition.
Mr. Kelly: I ask that the witness not offer an opinion for a non-count
Ab. 227
on that sheet.
The Witness: Apologies.
On this particular petition the canvasser signed the petition in one of
the 10 places. They canvassed their own signature. According to my
understanding the Secretary of State removes the entire petition if a
canvasser signs and one of the petition lines. That’s in addition to the
canvasser line he signed.
[Intervenors’ Exhibit 23 is admitted.]
Mr. Kelly: The Secretary has no objection for this reason. [623]
Having issues rarely presented to us, we went back and looked at case law
and there is a 1956 case that says explicitly a canvasser can canvas his or
her own signature. So I apologize for the misunderstanding in our office.
It appears that 10 signatures are on that page.
Cross Examination by Respondent
[624] You are asking me to look at Intervenors’ 20. You are asking me
to look in the upper right-hand corner where it says for office use only,
space, valid of, space, and then by and date. When there is not a number
present in the right-hand side of the valid of that tells me that this page was
Ab. 228
culled before an initial count took place on this page. So simply at the
station or to stations before that took place. So it was culled on the front
and not counted for any purpose. So the judge can’t go through and check
how many signatures on the page according to our account. [625] If there is
a number to the right of that line that tells me that it was culled near the
end of the intake process. I believe it would go into the initial count. I
believe it is correct that the Secretary did not even provide an initial count
of the signatures on that Intervenors’ number 20.
You asked the same questions regarding Intervenors’ 21 referring to
the ones that don’t have canvasser signatures. That would apply the same
to this set of lists. You pulled a page out of there, page 76189 from Garland
County. [626] That has a number total on it. Down in the lower left it says
4/10 and it looks like on the side of the page there are checkmarks on that.
Those were not placed on there by the Secretary. Those marks were on
there when the petitions were turned in. That looks like it was a validation
prior to submission.
I will tell you how the cull meeting generally runs and what happens.
Previous to the meeting, Peyton Murphy went through all of the culls and
Ab. 229
sorted the culls by reason and grouped them together to make the meeting
just go by smoother. Once we met with the sponsor, we went through
every group or stack of culled pages to discuss why they were culled. The
sponsor is then given the opportunity to argue to have those culls thrown
back. If the sponsor can provide [627] satisfactory evidence that they
should have been thrown back, then we make that decision and comply.
I recall that on August 5 the Secretary sent a letter to the sponsor in
this case indicating that there were 92,000 some such number of valid
signatures. I also recall Petitioners’ number 28 the Secretary’s valid
signature report. It is 93,102 I believe. What happened between that Friday,
5 August and the next week that I remember about this petition is during
that time, we were still in the process of reconciliation, as mentioned in my
testimony, I believe yesterday. We were still reconciling pages going
through and making sure everything was counted. During the
reconciliation process the number is subject to change. You asked me if this
sponsor addressed some of [628] the concerns that were raised in the cull
meeting of the initial information outside the four corners of the petition. I
believe there were some affidavits filed. To the best of my knowledge the
Ab. 230
disparity between the 92,000 on Friday the fifth and the final number that
were talking about here, the parts that were included, they should be in
joint exhibit number one already counted. They should not be in joint
exhibit two, the culls.
Cross Examination by Petitioners’
You are pointing to some of the petitions where there is a line where
the signature, the person’s name, the signature, date of birth are all blacked
out or crossed out. [629] Our office does not do that. I do not know who
does. I assume the sponsor or some of the other people do that. I assume
the sponsor has the ability to go through each one of those petitions and
strike out any signature that it does not wish to present. I don’t know the
legal basis of that. If they give us a petition part that has 10 signatures and
one of them is stricken out, we will go ahead and analyze and potentially
count the other nine. We would not count the strikethrough, but we would
count the other nine. They can do that and it’s perfectly okay with the
Secretary of State.
To my knowledge the Secretary of State’s office gave the sponsor in
this case every opportunity to present any evidence they wanted regarding
Ab. 231
these culls or any [630] other petitions that it wished to count. To my
knowledge the sponsor did not present any evidence to support its
reasoning to me prior to this hearing regarding Intervenors’ number 21, 22,
23.
I want to refer back to Petitioners’ exhibit number 26. I am referring
to page 39 of the booklet, Bates number 58 and 59. [631] I am familiar with
this book. I did not help write it. I helped proof it. On page 58 of the
Secretary of State’s handbook it lists the criminal offenses for it appears to
be petition fraud. The title of the code is petition fraud. You asked me to
read under 5 – 5 – 601 (b) (1) (B) what the handbook says about petition
fraud. It says a person commits the offense of petition fraud if the person
knowingly signs his or her name more than one time to a petition. So
according to this a registered voter commits petition fraud potentially by
signing his or her name more than one time to a petition. [632] Mr. Watson
talked to me about duplicate signatures earlier. That’s why we don’t count
duplicates. And regarding duplicates the sponsor has the ability to go in
and cross out duplicate signatures before they are presented to us. Previous
to submission.
Ab. 232
You asked me to turn the page under [633] (f) (5). It reads if the
person acting as a sponsor files a petition part of a petition with the initial
charge of verifying signatures knowing that the petition or part of the
petition contains one or more false or fraudulent signatures, unless he culls
for fraudulent signature clearly stricken by the sponsor before filing.
Mr. Watson also asked me a question about why we require the
canvasser not only to print their name but also to sign your name on the
signature block. It is so it may be properly notarized. That is a requirement
of the Secretary of State. I believe it is also a requirement of the law.
You asked to look at culled petitions [634] exhibit Intervenors’ 21.
You say your first questions are going to relate to all these, 20, 21, 22, 23. It
is correct that none of these petitions on these exhibits have gone through
the full verification process at the Secretary of State’s office. It is a
possibility that there may exist one or more reasons why these signatures
on these petitions, these exhibits 20 through 23, that there may be other
reasons why those signatures may not be counted. That’s a possibility. I
believe I stated in my testimony yesterday that anything the sponsor has
proven--any culls that need to be thrown back into the main petition, we
Ab. 233
perform intake basically where we left off on each individual petition part
to ensure that there are no further issues. None of these petition parts in
these petitions have gone through that further review to see if there are
other reasons why it kicked back.
You asked to turn to page 79704 in the first exhibit. [635] I see that at
least two of these signatures lack a complete date of birth. It’s possible that
if we run that signature and can’t verify that date of birth those signatures
may not be counted. You asked to go to Bates number 78530. It says the
county this petition is from is Jefferson. And I see down here it says Rison.
I believe Rison is in Cleveland County. You are correct that that individual
signature may not be counted for that person outside of Jefferson County
under our further analysis. [636]
You asked to go to the next page again this is Jefferson County. I see
the signature on the six line and it looks like a date of birth is 6/3/13.
That’s honestly not the correct date of birth. That signature may be kicked
off.
You ask what is wrong with the signature number seven. It’s the
wrong county from the top. Again that signature may not be counted.
Ab. 234
You asked to go to 79557. It says Miller County. [637] I see on number
three it reads Erica. She just wrote Erica. No last name. In my opinion that
is not a valid signature. You ask to go down to number nine and number
10. Number nine I see the address Texarkana, Texas. People outside the
state of Arkansas can’t sign these. That appears not to be a valid signature.
I agree that from what I saw there is going to be further analysis of
these culled petitions before we can say that they are all counted.
You asked to go to Intervenors’ 21. [638] This is the culled petitions
no canvasser signature. These have not been further verified or further
scrubbed by the Secretary. Bates number 89975 says Washington County.
There are potential issues with signatures number two and number three.
There is a potential issue with number seven signature. And for sure with
number five and number nine, these have been marked and the Secretary
of State’s office doesn’t do that. And it’s okay if you want to mark through
every signature you can do that. [639] I see an issue with signature number
eight. It is halfway stricken through. The city, county, and date of signing is
blank. And it looks like the majority of the residence is blank. I would say
that signature is not valid. So for Intervenors 21 we can’t just go in and
Ab. 235
start counting and say they are all valid. There is further scrutiny.
You asked to go to number 22. This is where Mr. Watson was asking
about invalid canvasser. You asked to go 282879. Signature number three
the date of birth is listed as 6/2/16. That could potentially cause issues
invalidating [640] the signature. Number five, like address, that could
potentially cause additional issues for that signature not getting counted.
On the next page Bates number petition part Exhibit 22, 82880. Voter
registration is public record. I see Mr. Merlin or Mr. Martin. It’s kind of
hard to read his address. If hypothetically you looked up his address and it
is 4719 W. 23rd St. in Little Rock Arkansas there could potentially be issues
with that signature. But if we can match the full name [641] and full date of
birth at that point we would know that he is still registered in Pulaski
County. Hypothetically, we could count that. It’s going to take a lot further
analysis.
In number seven because it is an illegible signature and a failure to
print the name there are potential issues with that signature.
Redirect Examination
At the top of the petition part page of all these the individual signed
Ab. 236
that they are registered voters in Arkansas. Other than issues that Mr.
Priebe pointed out to me that could be potential issues [642] I am not aware
of any other evidence that these people are not voters of Arkansas. We
validated over 93,000 signatures.
Recross Examination by Respondent
In the Secretary’s analysis of these pending petitions the Secretary
tried to treat every petitioner the same way. The Secretary tried to enforce
the law in a constitutional manner in every case. The Secretary tried to
apply the same standard to everyone. When the Secretary erred he tried to
err on the side of the voter as opposed to a canvasser. No one told me to
testify differently in this case as opposed to any other case that we’re going
into. [643] I sat through the entire case of the marijuana case on Monday
and Tuesday of this week. I will sit through the case with you next week on
casino.
Mr. Watson: We have no further witnesses. We rest. And just as
an abundance of caution, do renew our motion to dismiss and adopt and
incorporate all our previous arguments and our previous motions.
The Court: Thank you. Still overruled.
Ab. 237
Closing Statements
[644] The Court: I mentioned to you that I’m going to be fairly
flexible with you in terms of what you are to say in your closings. I’m
asking you to bear in mind what my job is because there are some things
that I have nothing to do with. So don’t go into things and spend a lot of
time on things you know I don’t have anything to do with. I’ve got to stick
with the factual matters in terms of all your allegations and how to look at
the proof in [645] this thing so I’m going to turn it to Mr. Priebe first and go
from there.
Argument by Petitioners’
Mr. Priebe: We are here today because of one reason. And that is
[646] Health Care Access for Arkansans, the sponsor of tort reform, made a
choice. And it’s the choice that they made after Mr. Greenberg read the
law, after Mr. Duggar talked with him. But they made a decision to follow
a path to try to get tort reform on the ballot and the path that they chose
was wrong because they made choices in their work. They made the choice
not to follow the law. Now, it’s their choice. They had the materials. They
had the law. Mr. Greenberg is even a lawyer. They had the ability to follow
Ab. 238
the law and they made what I believe is a conscious choice to have
shortcuts to get this thing on the ballot for whatever means. But the path
they chose was wrong. I believe that the facts that we have presented the
last 48 hours reflect that. And I want to hit on some of what I think are
pretty big facts.
First of all, 3.0 LLC is not an agent of Health Care Access for
Arkansans the contract says so, Mr. Greenberg said so. Mr. Trevor whoever
he works for he doesn’t [647] work for 3.0. 3.0 is not an agent. Anything
they did cannot be imputed for the benefit of Health Care Access for
Arkansans. And I’ll explain in a little while why think that’s important. But
it’s clear. The contract says, in black-and-white, that 3.0 is not an agent.
The second big fact that I think we have had to understand going
through all this is fraud. The handbook that we went over with Mr. Trevor,
I believe, to his dismay and with Mr. Bridges here. There are criminal
offenses for petition fraud that makes it a crime and there’s a reason why
it’s in the handbook. I mean, there is a reason why the Secretary of State
puts it in this handbook. It’s not because they need to fill up pages. It is
because they think it is important because actions of fraud cannot inure to
Ab. 239
the benefit of Health Care Access for Arkansans.
And the two big pieces of fraud that I see is first of all Trevor today
talked about how he and some other people [648], whomever, but they all
went through every one of these petitions, the 21,000, Joint Exhibit 1. They
went through them. They knew what was in there. They knew the
problems. They knew that there were canvassers that had not been
disclosed, canvassers that had not had background checks. They knew that
there were dates on there that canvassers were collecting.
Trevor even admitted today, he collected--I mean, there were
signatures that he submitted on his watch that were dated prior to him
being disclosed to the Secretary of State. They knew it, but they still gave it
to the Secretary of State’s office and made them go through to see what I
truly believe, to see that they could skirt through because the Secretary of
State’s office is limited in its ability to look at everything. That’s not a
criticism of Mr. Kelly or Mr. Kelly’s client. It’s just they don’t have the
ability to look at--compare paid canvasser dates. They don’t have the
ability to know state background checks [649] have been done. They don’t
have the ability to know the statements have been done. They don’t have
Ab. 240
the ability to know what training has or has not been done. They don’t
have the ability and that’s why we’re here.
But I truly believe that the Intervenors knew it. They just tried to skirt
through it, to change our Arkansas Constitution. I believe that’s wrong.
But the biggest piece of fraud, according to the Secretary of State’s
handbook, is in the training. They were trained on the script, and in the
training materials that were provided, those paid canvassers were told,
follow script, please do not ad lib. They were trained to follow the script.
And this script is great, to go out to registered voters, to Kroger, to the
River Market, to Walmart, can you help us limit the amount of money
lawyers can make him frivolous lawsuits?
First of all, as a lawyer I don’t know how I could make money on
frivolous lawsuits. But they use these words and there is a reason why,
because they want to get [650] them on the signature because 3.0, the more
signatures they get, the more 3.0 is going to pay them.
And that’s what Trevor said today. He said, well, they just needed to
get signatures. They need to get signatures. They are going to get paid.
And that is how they get signatures, by misrepresenting tort reform and
Ab. 241
what is on the ballot and misrepresented the law in the state of Arkansas.
This is put in the talking points. If they were questioned, they were
told, here, this is what you say, put a cap on--a limit on attorneys’ fees,
contingency fees, how much they are making, junk lawsuits, doctors in
Arkansas support this. There is not been one doctor in the state of Arkansas
that has been up to here. There is not one piece of evidence that there is any
doctor to support this. That lawyers make a living suing doctors.
And what the problem is, judge, is that these talking points in this
training mentions nothing about the second biggest [651] part of tort
reform, and that is capping noneconomic damages to $250,000. I didn’t say.
Chase Duggar said, it would cap noneconomic damages at $250,000. And it
is not there.
And it is not in there for a reason because they couldn’t get the
signatures if it was in there. If they told these people in the state of
Arkansas what was really in there, those petition parts wouldn’t be
counted.
I don’t believe that Health Care Access for Arkansans should benefit
one iota from what the Secretary of State in this says is fraud.
Ab. 242
Misrepresenting the effect and purposes of a petition is fraud. And I know
they are going to say well they could read it. They could read it. I’ve been a
lawyer for 11 years, no I take that back 15 years. It takes me a while to read
that thing. And there has been no evidence that people actually sat there
and read it and they knew what they were signing. There was no evidence
and actually, they offered for them [652] to say, here, you can read this.
That’s not in their training, not to say, look, read this. No, it’s to say, oh,
this stuff is all about lawyers and attorneys’ fees.
So they should not benefit from fraud. That is exactly what the
Arkansas legislature addressed when it passed 2013 Senate Bill 821 and put
in those new requirements because it said, under section 183 “sponsors and
paid canvassers may have incentive to knowingly submit forged or
otherwise invalid signatures in order to obtain additional time to gather
other signatures and submit supplemental petitions. The citizens of the
state of Arkansas have an expectation that their right of initiative and
referendum will be respected and the process will be free of fraud, forgery,
and other illegal conduct by canvassers, sponsors, notaries and petitions.”
The legislature knew what it was doing, I give them credit, when it
Ab. 243
passed that bill. We have seen why today, [653] in the last two days.
The other big piece of evidence that I want to talk about is Alli. Alli
lead a monumental task of taking these 20 some thousand petitions and
trying to organize them and put them in a form that we could see. She is
not a paid expert. She is not an accountant; she did her best.
She did her best with the information that was supplied from the
Secretary of State and from the Intervenors. Was it perfect? No, it’s not
perfect, but the problem is, judge, there has not been one piece of evidence
today presented by the Intervenors either in cross-examination of Alli or by
one of their witnesses, that the numbers that she came to were wrong. Not
one. Not once did they go and point out and say Ms. Alli this canvasser
shouldn’t be counted or this one should be, or your numbers are off, or
your addition. They didn’t say it once. Not one piece of evidence was
introduced to refute the numbers that she came up with.
[654] Now, the Intervenors may not like the process, but these
numbers are important because if you look at these numbers, and if we
even give the Secretary of State credit for the 93,102 signatures, the
Intervenors only made their mark by approximately 8200. By my
Ab. 244
shorthand math a few minutes ago I have 8243. That is the number that
they were over the limit and we believe that based on the evidence, that
they are now under that.
First, and it’s not on here because I did not put it on here, but the first
is the lack of affidavits. I talked about it this morning. Arkansas code 7 – 9 –
111 (f), they shall file an affidavit. The sponsor shall. They didn’t.
Greenberg said he didn’t. Duggar said he didn’t. The Secretary of State’s
office confirmed it, there is not an affidavit filed. And if that is the case,
then no signatures are to be counted because the petition is defective, it is
immaterial, and it doesn’t meet requirements of the law.
Now number two, it’s on here. Failure [655] to file paid canvasser list
and statement. And what this talks about his Arkansas code 7 – 9 – 111
after is the statement that the sponsor and I quote shall also submit a
statement identifying all the paid canvassers by name and a copy of the
book and that they explain the requirements under Arkansas law for
obtaining signatures under 7 – 9 – 111 (f), they shall do that. And it is
undisputed, they didn’t. There was no certification whatsoever at the time
they filed their petition. The only thing that was filed was the little receipt
Ab. 245
and those petitions.
Now Mr. Greenberg in an act of who knows why at 5:03 tried to send
a list of paid canvassers, but it wasn’t even effective because it still didn’t
have a certification. Even if you say 5:03 is okay, which I don’t think it is,
but they still had no certification. They shall do it.
And the failure to do that constituted material defects, failed to
follow the law, and under Arkansas law, no signatures should [656] be
counted. And I will give Mr. Kelly credit, the Secretary of State, because
today they were very blunt with this court when they said, it is not their
job to look to see. All they can do was count those petitions. That is not
their job. And that is why the law allows us to present proceedings like
this.
The third area, failure to certify all paid canvassers with submission
of names. I think it is crystal clear that in all the certifications by Mr.
Duggar or Mr. Greenberg to the Secretary of State none of those, not one of
them, contained a certification that met the requirements of 7 – 9 – 601
(b)(3) where it says that the sponsor shall certify that each paid canvasser in
its employ has passed a criminal search in accordance with this section.
Ab. 246
And I know why Greenberg did it. Because he didn’t know. They had
a duty. Greenberg confirmed this. Duggar confirmed this. Trevor even
said, hey, I didn’t do it, I didn’t submit anything to the [657] Secretary of
State. Even the Secretary of State’s own people said, no certification. And if
that is the case, they failed to follow the law and under 7 – 9 – 601 (b) (5)
and 7 – 9 – 126, those signatures shall not be counted. And so if you look at
the paid canvasser signatures, our numbers, unrefuted by anyone, 86,492.
And that is just the verified. But 86,000 if they fail to do that 86,492
signatures get kicked. Again their choice.
_ Then we start looking at the subparts of our case. For the background
checks done by others, 10,764 signatures, no dispute, whatsoever. In
Arkansas law it says the sponsor shall at his own cost obtain background
checks from the Arkansas State Police. First of all, Health Care Access for
Arkansans never incurred that cost. They never obtained the background
checks. Some Blitz Canvassing some entity that doesn’t have any relation
to this they got a lot of them. I don’t think those are valid under the law.
But even if you said that they were you have to look at that list, that went
undisputed, [658] of people who failed--who they did not have background
Ab. 247
checks and they use these others--like David Couch and these others. How
they got in, David Couch doesn’t know. He didn’t authorize them to. There
is no evidence 3.0 or Blitz ever obtained those. And if that’s the case, those
signatures are invalid under the law. 10,764 again the number that went
undisputed for Ms. Alli.
And then if you look at paid canvassers with no statement or
background checks, some dispute in regards to that as the new evidence
that appeared last night out of the blue. But still I don’t believe that
sufficient. I don’t believe that evidence should come in and I believe that
the sponsor, as the law says, the sponsor has a duty to keep that
information for three years. The sponsor did not have any of this
information. I stand on my objection that the new documents produced
today should not come in. That would equal 5092 signatures.
[659] Paid canvassers with no domicile address on the eligibility
statement, and again the law requires a domicile address, permanent
address, 4818 signatures.
Here is one that bothers me more so, and I think it provides evidence
to show, out of all these problems, the signature on petition parts before
Ab. 248
the paid canvassers were disclosed to the Secretary of State, 1825, including
signatures from Trevor, which goes to show and goes to support all our
other arguments to say, look, Greenberg didn’t know what was going on.
Blitz Canvassing, I don’t think they knew what was going on. Their lack of
communication--they didn’t. And Greenberg I think I know why he didn’t
certify, because he did not know he could. He never looked at any of it,
1825 signatures, including the ones from Trevor. And the last on the list,
paid canvassers with no statement of eligibility, again unrefuted, 47.
And there have also been some things that have come out that, I
think, goes to [660] our case. And that is this. The Secretary of State’s
people testified if the Intervenors had any problems with any of the culls or
any of the ones that weren’t counted, they gave them every opportunity.
They did. They actually added some back in for them. But they didn’t do
this. They didn’t challenge any others, anything, until we brought the facts
out that the law would not count them. And so now all of a sudden, whoa,
whoa, whoa. Let’s add some more back in. They haven’t exhausted their
administrative remedies. They had an opportunity to do it and they failed
to do it. And they shouldn’t be allowed to do it now.
Ab. 249
Even if you say that they are allowed, or even if the court were to
find that they are allowed to add back signatures, I still don’t know how
many signatures they want to add back in. I give the accountant credit. He
admitted to his mistakes, numerous, numerous mistakes and I give him
credit for that. But even if you add those signatures, even if you [661] say,
all their signatures they were presented were correct--which I don’t think
they are--still, it doesn’t meet those numbers up there, 86,492; 10,764; 5092.
And the testimony was the duplicates and any overlap have been
addressed in those numbers. Even if you, which I don’t think you should,
but even if you do add every one they want to add back in, it doesn’t even
come close to meeting the statutory requirement and the constitutional
requirement, 84,859 signatures.
And, again, they didn’t refute our claims. They didn’t refute the law.
And now, we started hearing about halfway through this hearing, well we
substantially complied. We substantially complied. Okay. In all the
pleadings it’s that they always complied and now they start saying
substantially. That is not the test. That is not okay. You’ve got to get all the
way to first base, you can get halfway there and say you’re okay.
Ab. 250
The Arkansas law, yes, amendment five is [662] to be liberally
construed because it is a process that the voters gave themselves when they
passed the Constitution, but it is a process that is governed by laws that
were dictated by Arkansas legislature. They put those laws in for reasons
and they have tightened them up the last few years for other reasons
because of the evidence and their findings of fact that they have in their
own statutes. And those statutes, those requirements are strict. There is no
wiggle room. Either they did it or they didn’t.
In this case, I believe the facts should show, the facts did show, that
by their own actions and their own choices, the Intervenors failed to follow
the law. It wasn’t some little technicality buried down at the bottom of the
statute book. No it was there in the handbook. It is their choice.
And our Constitution is too important. Our Constitution, in order to
change it, and in order to give--in order to change that sacred document,
whether it be a document, [663] whether it be an amendment, no matter
what amendment it is, but the right to a trial by jury under amendment
seven is too important. It’s too important to allow fraud, too important to
allow failure to follow the law. It is too important for that. And I ask this
Ab. 251
court, I know I can’t ask for conclusions of law from you and I wish I could.
But I ask that the facts that this court finds and puts in its report reflect
what I have argued this afternoon and reflect the fact that these actions I
have spoken of, about fraud and about failures. And again thank you
Judge Looney we appreciate your time and we appreciate your effort.
Argument by Respondent
Mr. Kelly: Our primary defense is going to be just what Mr. Bridges
testified, which is, the Secretary endeavors to do these things in a
constitutional manner. He is entitled to substantial deference in his
application of law, and he believes [664] that he applied the law
consistently, constitutionally, fairly, to all the petitions in this process this
year.
I do acknowledge that there was a substantial change in the law we
have talked about earlier, after Spencer versus Martin, Martin versus
Spencer, or McDaniel and Martin versus Spencer in March 2015. I would
caution the court about the differences in the new statutes. 7 – 9 – 111 does
not have a do not count provision. 7 – 9 – 126 and 7 – 9 – 601 both do. We
believe the Secretary applied those as best he knew, but as we previously
Ab. 252
discussed, there is not substantial information concerning criminal
background checks, statements of eligibility, training, things like that that
are outside of the Secretary’s view and remains outside of the Secretary’s
view until litigation begins.
We also heard, unfortunately, there are a few things that the
Secretary is too pressed for time to be able to finish effectively. One
example is, I want to say the 1800 total signatures where the [665] signature
of that voter was made prior to the canvassers’ registration date. We are
not saying that that’s okay. That got through our screen. That is simply the
way things are.
There are going to be a number of issues of first impression for the
Supreme Court to consider. On one of those, for example, the residency
issue. The temporary residency of the canvasser. The Secretary believes
that he has applied that law constitutionally in all three cases that are
pending in the same manner. That is, that the Secretary did not require a
temporary abode address located within the state of Arkansas in order to
comply with the, quote, temporary residence of the canvasser. If a
canvasser told us he or she lives at 604 E. 6th St. in Chicago, Illinois we
Ab. 253
accept that as true. If there is a different address concerning permanent
domicile, that is not something the Secretary would know because that
information is not ever given to the Secretary. It comes out in discovery,
but [666] that is all.
In all three cases, that is a huge category of challenges because it is so
easy to challenge because it is on the face of every petition part, as well as
on the spreadsheets of the canvasser lists that come through to the
Secretary’s office now.
On that issue, remember the Secretary is charged not with enforcing
the Arkansas Constitution, but with enforcing the United States
Constitution and there is a plethora of case law in the eighth circuit
concerning the petition process. And I would just lead the court to believe
that we have done enough research to understand that in the eighth circuit,
at least, and we believe in the United States Supreme Court as well,
requiring a temporary residence address inside the state of Arkansas for
canvassers probably would not pass US constitutional muster, and that is
why we did what we did, and we did it the same way for all four.
On the cross claim, the Secretary tried to provide the opportunity to
Ab. 254
every sponsor the same opportunity to come back and say [667] that we
did a bad job on the culls and that they should be readmitted. In this case,
the testimony from Mr. Greenberg himself is that we did in fact admit
some of the culls after his affidavit showing about the residency issue. And
I think that number is reflected in the total count that everyone admits is
correct, 93,000 whatever number it is.
We agreed with the intervenors when they brought up areas where
we did the wrong thing on the culls, a couple of minor, limited instances.
We disagreed when we believe the Secretary did the right thing and
applied the law correctly.
We ask you to dismiss both the Petitioners and the Intervenors’ cross-
claim. We do want to reserve all the legal issues and all of our legal
arguments that were raised in the answer, the answer to the amended
petition, the answer to the cross-claim, and the answer to the amended
cross-claim, so that we could raise those properly with the Supreme Court.
I do thank you for some of [668] the things you have done for us. I
realize I made a mistake on my notes. Let me go back up and just caution
you of one more issue about this issue concerning the quote affidavit upon
Ab. 255
its submission. This is an issue in all three cases. The affidavit requirement
is limited in the Arkansas Constitution. I direct you to page 19, the petition,
the verification process. I understand the code says one thing. The
Secretary has long, for decades, has applied this part of the Constitution to
show that an affidavit does not need to be submitted upon submission of
the petition. And I understand that the code is in conflict. We believe we
did the constitutional thing, which, as far as I know, every previous
Secretary has done as well. I can’t cite to case law but on the face of the
Constitution, the affidavit requirement is limited.
Argument by Intervenors
[669] Mr. Brown: The first thing I want to say is that the
petitioner has the burden of proof. The petitioner bears the obligation to
prove to you, and to, ultimately, the Supreme Court of Arkansas that the
Secretary of State of Arkansas’s decision to validate roughly [670] 93,000
signatures should be overturned. It should be tossed out despite the
People’s effort to get not a constitutional amendment enacted, to get a
constitutional amendment on the ballot so it can be voted on.
I just removed from joint Exhibit 1, I haven’t counted them, but many
Ab. 256
boxes that contain the signatures of the people of Arkansas that have asked
the Secretary to certify this ballot initiative. I just want to point out that
these petitions that have been validated by the Secretary’s office that have
been in this courtroom since the beginning of this trial contains the
signature of the people that sign them. According to the Secretary of State,
it also contains instructions to canvassers and signers signed by the
Arkansas Atty. Gen., Leslie Rutledge.
I will just cover it summarily. These crimes, put that in quotes, that
are covered, right here, by the Atty. Gen. of Arkansas. Only registered
voters may [671] sign, under instructions to canvassers and signers. We
move on to the ballot title itself. All of this talk about the talking points that
were given to canvassers. They have something to say, all of that.
At least, according to this petition I pulled out of joint Exhibit 1. It
could be compared to what the ballot title is. Anybody that wanted to read
it had an opportunity to read it. And it’s literally legal size paper, two
pages front and back. So to conclude that it was just willful ignorance,
passive ignorance, or misleading, when the canvassers approached and
whatever they said simply is nothing more, based upon the evidence that
Ab. 257
has been presented, than pure speculation, not when faced with the reality
that this evidence that is contained in Joint Exhibit 1 was also presented
when the signatures were collected.
The path they chose, the path my clients chose. The path my clients
chose was the one that was afforded under the Arkansas Constitution to
make an effort to get an initiative on the ballot so the [672] people of
Arkansas could decide.
In keeping with what you asked, I’m going to reserve the statutory
and compliance arguments, the constitutionality of various statutes for the
Supreme Court because I have read the per curiam and I believe that your
scope relates to facts and finding of fact and what it says. So I will do that
and I will reserve those arguments for later.
Background checks. Background checks, we have a box here. Exhibit
29 of the Petitioners. My recollection is it is roughly 3400 or 3500
documents in that box. In that box or what we have heard repeatedly for
two days are sworn statements of eligibility that is part of what is in that
box. A sworn statement of eligibility, I would respectfully submit for those
of us in the law and lawyers, is also called an affidavit or sworn statement,
Ab. 258
rather, excuse me. A sworn statement, as far as I can tell is an affidavit. I
will call it that, but what more can you get?
I’m not going to read it [673], you have seen it. You have read it. But
there has not been--well, I will read this part. I guess I take that back. I
canvasser being duly sworn on oath or solemn affirmation do state and
attest to the following facts, and then it lists what we have talked about. It’s
notarized, the one I’m looking at.
Let’s talk about the proof. There is not been one witness come into
this court and testify that any person that signed an affidavit or sworn
statement of eligibility forged their name, did so without having read and
understand Arkansas law applicable to obtaining signatures on an
initiative or referendum petition, or did so without having been provided a
copy of the most recent edition of the Secretary of State’s initiative and
referendum handbook, or did so without having been convicted of serious
crimes and other criminal conduct. Not one. And this is despite the fact
that what we now know, is that the Arkansas Trial Lawyers Association,
who has every right to [674] oppose whatever they want to oppose, as does
any group in the state of Arkansas. They have as much information on this
Ab. 259
going down to that, they can tell you, where it says, Texarkana Texas
versus Texarkana, Arkansas. It has become clear to me, at least, that they
have covered these petitions with a fine-tooth comb, or their attorneys
have. And not one came in here to testify that any of these statements or
signatures on the sworn statements of eligibility are false. Fraud? Really?
Not a single person, as far as I know, it certainly didn’t come out in
the testimony, that appeared on these petition parts that were validated
through the Secretary of State’s office came in here, to this court, and
testified that they were subject to misleading statements about the
initiative. They did not have all of the paperwork, anything was untoward
about what the canvassers were out there doing. The proof simply is not
there. And anything consistent with that is simple argument and
advocating on behalf of a position. And [675] when it comes to law, the
distinction and differences could not be more critical.
Criminal background checks, Exhibit 29. I have not seen one in this
court or presented in evidence that I’m aware of, where they didn’t pass
the background check. They don’t like who got them, they don’t like who
the requesting party is. Okay. The objective and the purpose that any law
Ab. 260
relating to keeping out convicted criminals was accomplished with clear
background checks.
Did my client, 3.0, or the canvassers do everything perfect? No. But
what human does? There was testimony that nobody is perfect. That is the
standard to which at least the Petitioners are wanting to hold the sponsor,
and frankly if the same rules apply to any person or organization in the
state of Arkansas that wants to do what my client wanted to do, and that is
to get an initiative on the ballot for a vote. Death by a thousand cuts. I think
that those words have played out over and over and over. If ultimately the
[676] Supreme Court should strike this from the ballot.
Not a single notary that has been on any of these validated petitions
came here and testified that she, in fact, did not do or see what he or she
stated or swore to. Not one. That is prima facie proof, right there, although
we don’t have the burden. But none of the signatures of canvassers, as it
appears on validated petitions or petitions, for that matter, are inaccurate.
Now, let’s talk about the testimony, and I just simply forget her last
name, but Alli. And with all due respect to Alli, my criticisms are not
obviously personal but they sure are about her testimony. Alli is employed
Ab. 261
by the Arkansas Trial Lawyers Association. That is not the problem, in and
of itself. The problem is Alli relies on information from people the
predominant number of we don’t even know the names of that went
through--she believes, because she was not present--she believes did a
review. She did tell us a few of the names. I don’t [677] know, five or 10 of
the approximate 70, 75, whatever the record reflects. But the remaining, she
could not recall, although there is a list somewhere that she has access to.
But from the proof in this case, she couldn’t recall the other sources of her
information, the other unnamed sources of information. Couldn’t be a
clearer definition of hearsay. Could not be a clear definition of hearsay.
These summaries that Alli referred to and prepared and the signature
counts and other tabulations that appear on those, I recognize they are into
evidence, but those summaries are entitled to little, if any, weight at all.
Under the law you cannot accurately demonstrate sufficient evidence to
meet the Petitioners’ burden based upon Alli’s testimony. And accuracy
here is, perhaps, the most critical thing in terms of counting petitions,
invalidated petitions, being accurate.
This is not a time for court to take summaries of information and, oh,
Ab. 262
we may be off by a few [678] here, we may be off by a few there. It’s a
summary. Don’t get me wrong, it’s going to be much more expedient to
have a number right there. It looks good, but for purposes of validating or
invalidating a ballot initiative, accuracy is paramount, and I don’t believe,
based on the totality of her testimony and the documents introduced
through her, that she even comes close or the testimony and evidence even
comes close to the standard required under the law.
Not to mention the inherent bias. The inherent bias. And I’m not
being cynical. I’m not being critical, personally, of any reviewer. But ATLA
members reviewing themselves have an interest in the outcome, as I do.
I’m a lawyer. But the inherent bias by that being the bar--the greater. If
these are analogous to tests and we are sending these off to be graded, and
the grader has a stake in the outcome, I think that goes to weight, and
certainly does not support or meet the Petitioners burden.
[679] Now I have to address, also, for one last point, this fraud
statement that has been thrown around. As far as I know, there has been no
claim for fraud. There’s been no claims filed against the Secretary or the
Intervenors for fraud. I mean, engaged in criminal conduct? We have
Ab. 263
repeatedly shown the Secretary’s handbook. We have read the criminal
code. And I think, if it’s not expressed, it is certainly in implicit implication
that somebody engaged in criminal conduct, and that is also called being a
criminal. Did anybody come in here and testify that anybody is under
indictment? Did anybody come in here and testify that anybody has been
convicted of a crime? Fraud? No, no.
You heard Mr. Duggar testify that he tried in good faith, the
committee had tried in good faith to get this on the ballot. And they did. It
passed muster with the Secretary of State’s office. On the contrary, there’s
been no evidence of fraud. David Couch came in and testified. Wait, before
David Couch [680] came and testified, we were hearing a lot of things
about, oh, on this background check, Blitz Canvassing, LLC XYZ PLLC and
all these others. And after David Couch got off the stand I didn’t hear
much more about that because I think it was national ballot. That’s what
they do for him.
Smoke no fire. Or what is presented as smoke and no fire. Dan
Greenberg testified he did what he thought was the right thing. He did
what he thought he should do. Let’s take the characterization, you know,
Ab. 264
sloppy. He did what he thought he should do. He was acting in good faith.
There is no evidence to the contrary.
Mistakes. What has happened here is that mistakes have been turned
into mountains of the Petitioners. As I understand it, there was mistakes
made by the sponsor. There were mistakes made by the Secretary’s office
that they candidly admit there is mistakes by witnesses. But when it all
boils down, what is left? And that is [681] the proof.
The proof. I will end where I began. And that is this petition part
from the Joint Exhibit 1. And all of the language that is front and back, you
combine this, on which approximately 93,000 signatures appear. You
combine that, you add it with the sworn statements of eligibility, or
affidavits that have been unrefuted, no evidence that somebody didn’t sign
where they said they were, you add it to the completed criminal
background checks, and that equals failed burden of proof, anyway you
slice it.
Further Argument by Petitioners
Mr. Brooks: I will be real short and focused really on what Mr.
Brown had to say on a couple of points.
Ab. 265
The canvasser fraud, training problem, I think what you didn’t hear
defended is as [682] important is what was said. What you never heard
defended by anybody from the Intervenors is that that script that Mr.
Donarski testified was used to train canvassers was accurate because it was
not. It was misleading, and nobody has denied it. What you heard was,
well, we didn’t bring anybody in here to say, I was misled by it. The
training was what it was. It is in evidence and the conclusions you can
draw from it are clear.
It was said that the Intervenors follow the path allowed by the
Constitution of the state. Yes, if you follow the road signs on the path. You
can’t just walk wherever you want to. The legislature has set out the road
signs. You have to follow them. The Supreme Court calls them minimal
requirements. It isn’t hard for a lawyer to read, file an affidavit with the
petitions and to know what an affidavit is. It isn’t hard for a lawyer to read
the words certify that there has been a background check that has passed
and know what it means to certify. Those things were not done.
[683] Mr. Greenberg chose his own path, not the one that the
Constitution and the statutes allowed. And nobody is asking the sponsor to
Ab. 266
be perfect. We’re asking the sponsor to do what the minimal rules set forth
by the legislature, recognized by the Supreme Court as valid, in order to
get to the end product. That is all anybody has asked for.
He had pointed out that we did not bring witnesses into say this and
say that and say the other thing. What wasn’t attacked, other than Ms.
Clark, which I will get to in a moment, was nothing that we brought up
and pointed out as being incorrect, which I think is a good way to run
directly into comments about Ms. Clark in her testimony. It, I’m sure, was
not lost on you. It wasn’t lost on Mr. Brown. Mr. Priebe had at his
fingertips the information necessary to pull up from this mountain of
documents to cross-examine witnesses from the information gathered and
sorted by Ms. Clark. How many times did Mr. Priebe throw on [684] the
screen or hand to witness a document that was wrong? None. Not once.
How many times did the Intervenors or the Secretary of State come to the
podium and hand Ms. Clark a document and point out to her there was
some conclusion reached in one of the spreadsheets that was wrong? Zero.
Not once. How many times did a witness put on either by the Respondent
or the Intervenors come to the stand and say yes I have read what Ms.
Ab. 267
Clark did and her information is incorrect?
All you have got to do judge is go to the numbers that were pointed
out on those documents, look at the source they point to and you will see,
just as they saw, that the information is correct. The best way to attack the
information as unreliable is to point it out. Nobody did. The only thing that
was attacked was where she works, and the fact that volunteers she could
not name by name replied on a sheet, or used a sheet that she laid out and
then checked to build her data. That is classic use of 1006 evidence. It was
perfectly [685] appropriate. Nobody has pointed to any flaw in it. And its
reliability is without question.
I do respect the 131,000 people, and my clients respect, that 131,000
signatures are on petitions. But that’s not the end of the story. Changing
the Arkansas Constitution is a significant thing to do. We need to make
sure that the road that is marked out is correctly followed and that
shortcuts are not taken. The intervener didn’t do that. They don’t even
deny that it wasn’t done.
We have the ability to check behind the work that was done to make
sure the road was followed correctly and it wasn’t. And for that reason,
Ab. 268
your finding should indicate the flaws that are in the process and suggest
to the Supreme Court that this petition should not be allowed on the ballot
and if it is that the votes for or against it shouldn’t be counted.
SOC. 1
STATEMENT OF THE CASE
Health Care Access for Arkansans (“HCAA” or “the Sponsor”), a
ballot question committee, is the sponsor of a proposed initiated
constitutional amendment with the popular name “An Amendment to Limit
Attorney Contingency Fees and Non-Economic Damages in Medical
Lawsuits” (“the Tort Reform Amendment”). Ab. 1-2, 17; Add. 2030. Its
directors are Intervenors Chase Dugger and Dr. Stephen Canon, and its
attorney is Daniel “Dan” Greenberg. Ab. 1, 16. On July 8, 2016, HCAA filed
its initiative petition, including petition parts containing 131,687 purported
signatures (“the Petition”), with Respondent Mark Martin, Arkansas
Secretary of State (“Secretary of State” or “the Secretary”). Ab. 10-12; Add.
2025. The Secretary determined that the Petition contained 93,102 valid
signatures, a mere 8,243 signatures in excess of the 84,859 threshold, and
certified the Tort Reform Amendment to appear on the November 8, 2016,
general election ballot. Add. 898, 2025.
Petitioners filed this original action on September 1, 2016, seeking an
order to invalidate the initiated amendment and asking that the Secretary be
enjoined from canvassing and certifying any votes cast for the Amendment
at the general election. Add. 1-115. An amended petition was filed on
SOC. 2
September 14, 2016, and presents three separate counts. Add. 186-324. Count
I challenges HCAA’s failure to follow and comply with Arkansas law on the
certification of paid canvassers, the gathering of signatures, and the filing of
the Petition. Count II challenges the Secretary’s certification that HCAA filed
the requisite number of valid signatures in order to place the proposed
amendment on the November 2016 general election ballot. Count III
challenges the sufficiency of the ballot title certified by the Secretary.
This Court bifurcated consideration of Counts I and II from
consideration of Count III. Ross v. Martin, 2016 Ark. 300 (2016). In that order,
this Court also appointed Judge J.W. Looney as Special Master to determine
whether the allegations in Petitioners’ complaint pertaining to Counts I and
II are true. Id. In accordance with this Court’s mandate, the Special Master
held a two-day hearing after which he issued his report and findings of fact.
Add. 2023-2040. Initially, the Special Master set forth the procedural history
of this petition process and stated that by the Secretary’s count of verified
signatures, the Sponsor met the valid signature requirement for initiated
amendment by a mere 8,243 signatures. Add. 2025-2026. After issuing his
findings of fact, the Special Master concluded that Petitioners’ claims were
supported by the evidence; specifically,
SOC. 3
1. The failure of the Sponsor to certify to Respondent Secretary that criminal background checks had been completed on each paid canvasser as required by A.C.A. § 7-9-601(b)(3) could be a material defect and disallow the counting of all signatures under A.C.A. § 7-9-601(b)(5) which is a “do not count” instruction. 2. Solicitation of signatures by paid canvassers before their names were submitted to the Respondent Secretary resulted in 1825 signatures that should not be counted under A.C.A. § 7-9-126(b)(3)(A).
3. The failure of Sponsor to maintain statements of eligibility on 6 canvassers as required by A.C.A. § 7-9-601(e) would disallow 47 signatures.
4. If the use of third party criminal background reports by the Sponsor and its agent is considered a violation of A.C.A. § 7-9-601(b)(1) then 10,764 signatures would be disallowed.
Add. 2039.
This brief is directed to Counts I and II and requests that this Court
accept the Special Master’s findings that the Sponsor does not have sufficient
valid signatures to support placing the tort reform amendment on the ballot.
In addition, Petitioners point out that other facts found to exist by the Special
Master, or known to exist without dispute, require additional signatures
counted by the Secretary to be disallowed. Petitioners request that Issue 4 be
stricken from the ballot or the Secretary of State should be enjoined from
counting the votes for and against it.
1
ARGUMENT
Health Care Access for Arkansans violated and ignored the statutory
procedures put in place by the Arkansas General Assembly to prevent fraud
during the initiative and referendum process. The Sponsor also failed to
require or ensure that 3.0 LLC, the independent contractor HCAA employed
to facilitate its petition-signature gathering, followed the applicable law. The
paid canvassers collected the signatures in violation of the law as a result.
The fraudulent practices were rampant. It started with HCAA, and flowed
through the entire process.
The law required HCAA and its canvassers to comply with the simple
and straightforward procedures for amending the Arkansas Constitution.
These procedures must be followed so that the public can be assured that the
petition-gathering process is fair and free from fraud. Requiring strict
compliance with the Arkansas statutes governing the “gathering of voters’
signatures are entirely reasonable so as to ensure the State’s initiative process
will not be abused.” Roberts v. Priest, 334 Ark. 503, 517, 975 S.W.2d 850, 856
(1998) (Glaze, J., concurring). It is correct to exclude “signatures which
resulted from canvassers and [a sponsor] who consciously disregarded
Arkansas law.” Id. This is what must occur here.
2
I. APPLICABLE PRINCIPLES OF LAW
Article 5, § 1 of the Arkansas Constitution, as amended by Amendment
7, reserves to the people the right to propose legislative measures, laws, and
amendments to the constitution, independent of the General Assembly. The
section also requires laws to be enacted to facilitate its operation; specifically,
that “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.” Article 5, § 1, as amended by Amendment 7, further
provides that laws may be enacted to facilitate its operation.
Consistent with this “broad mandate,” McDaniel v. Spencer, 2015 Ark.
94, at 20; 457 S.W.3d 641, 655, the General Assembly enacted numerous laws
for purposes of preventing fraudulent practices by sponsors of initiative
petitions and the paid canvassers under the sponsor’s employ. See ARK.
CODE ANN. §§ 7-9-101, et. seq., 7-9-601. The General Assembly found that
“passage of this act will make sponsors and canvassers more accountable to
the people of this state, facilitate the initiative process, conserve state
resources, and help to restore the confidence and trust of the people in the
initiative process. Act 1413 of 2013, at § 1(d). The Legislature sought to
“protect[] the integrity, fairness, and efficiency of their ballots and election
3
processes” with the enactment of these laws. Roberts, 334 Ark. at 517, 975
S.W.2d at 856 (Glaze, J., concurring).
It must be remembered that “the circulator or canvasser of an initiative
petition is comparable to an election official.” Porter v. McCuen, 310 Ark. 674,
677, 839 S.W.2d 521, 522 (1992). The power wielded by the sponsor, as
circulator of the petition, and the canvassers carrying the petition, prior to
an election, is weighty thus compliance with these laws is mandatory and
this Court must strike an initiative petition if it does not strictly adhere to the
statutory requirements. See Save Energy Reap Taxes v. Shaw, 374 Ark. 428, 434,
288 S.W.3d 601, 604 (2008). The “onus of complying with the simple and
straightforward procedural requirements of Ark. Const. Amend. 7 lies solely
with the sponsor of the proposed constitutional amendment, regardless of
the substantive nature of the measure.” Roberts, 334 Ark. at 517, 975 S.W.2d
at 856 (emphasis added) (Glaze, J., concurring). The statutory requirements,
which the Sponsor was “required to comply [with] in gathering voters’
signatures are entirely reasonable so as to ensure the State’s initiative process
will not be abused.” Id. Thus, “[w]here, as here, the sponsor fails to comply
with and ignores and abuses these simple procedural requirements,
established by our Constitution to protect all the residents and taxpayers of
4
Arkansas, neither the Secretary of State nor this court can cure such a
deficiency resulting solely from the sponsor’s conscious disregard of the
Constitution’s requirements.” Id. (emphasis added).
The sufficiency of statewide initiative petitions “shall be decided in the
first instance by the Secretary of State, subject to review by the Supreme
Court of the State, which shall have original and exclusive jurisdiction over
all such causes.” ARK. CONST. art. 5, § 1, amended by ARK. CONST. amend. 7;
see also ARK. SUP. CT. R. 6-5(a). When a special master has been appointed
and has issued findings of fact, this Court accepts the master’s findings of
fact unless clearly erroneous. ARK. R. CIV. P. 53.
II. HCAA, THE SPONSOR, CHOSE NOT TO FOLLOW THE LAW.
HCAA chose not to follow the rules. It made no inadvertent mistakes.
The Sponsor knew the law. Ab. 21, 27-28. Yet, at the fact finding hearing,
HCAA attempted to pass the “compliance buck” to 3.0 LLC, an independent
contractor, to fulfill its duties under the statutes. See, e.g., Ab. 2, 6, 18-19, 25,
32; Add. 2031. But the contractual agreement between HCAA and 3.0 LLC
holds that 3.0 LLC “is an independent contractor and not an agent or
employee, joint venture or partner of [HCAA].” Add. 510. The contract
required HCAA to provide all certification/affirmation forms for paid
5
canvassers and that HCAA would “submit all necessary documents and
filings with the Arkansas Secretary of State for paid canvassers.” Add. 511.
3.0 LLC, under the direction of the Sponsor, conducted training of paid
canvassers fraught with misleading information. Chase Dugger agreed that
telling voters that lawyers were going to make less money, and leaving out
that the amendment would limit a voter’s ability to recover certain damages,
usually got people to sign the petition. Ab. 9. Dugger admitted that paid
canvassers were trained to not mention any cap on non-economic damages
because, “it’s a term that many joe-blow people that are not attorneys don’t
understand …” Ab. 8-9.
Compounding these misleading statements, the Sponsor sent paid
canvassers out to gather signatures when they had not been properly vetted
under the statute. Background checks had not been obtained, by or at the
cost of HCAA, from the Arkansas State Police prior to paid canvassers
collecting signatures. Ab. 5, 32; Add. 200-201, 1890-1900. Paid canvassers
collected signatures before a statement of eligibility containing the
information required by Section 601(d) had been received by the Sponsor.
Ab. 1, 29; Add. 1855-1856, 1890-1900. Paid canvassers collected signatures
prior to being disclosed to the Secretary. Ab. 29; Add. 1858-1860.
6
These acts of noncompliance are the tip of the iceberg. The Sponsor
never certified that it had complied with the background check procedures
of Section 601(b) when it submitted the list of paid canvassers to the
Secretary of State through Dan Greenberg. The list of paid canvassers
provided to the Secretary was incomplete and defective. The Sponsor
provided incorrect names of paid canvassers, leaving out a suffix, or in one
instance, provided the incorrect surname and no suffix. Add. 2034. These
defects are material. Ollie Brown III is a different man than his father, Ollie
Brown, Jr., and his grandfather, Ollie Brown. Likewise, Tommy Cason III is
a different person than Tommy Carson. HCAA chose not to correct these
discrepancies. The failure to follow the statutory procedures renders the
petitions collected by paid canvassers a nullity. See Save Energy Reap Taxes,
374 Ark. at 434, 288 S.W.3d at 604.
Greenberg admittedly did not follow the required procedures but
weakly contends he cured these defects because he “verbally certified” that
background checks had been obtained, at HCAA’s cost. A review of the
testimony reveals that Greenberg never “verbally certified” anything. The
term was fed to him during examination by HCAA’s lawyer. Ab. 31. Even
so, verbal certification is not contemplated or permitted under the statute,
7
and the Secretary of State would not have accepted a “verbal” certification.
Ab. 69-70, Add. 2032.
The Sponsor ignored and willfully violated the “simple and
straightforward” requirements contained in Section 601. HCAA’s conduct is
a shining example of the type of “unscrupulous sponsors” the General
Assembly sought to defeat with the enactment of the mandatory paid
canvasser procedures. Act 1413 of 2013, § 1(b)(2). The General Assembly put
these measures in place to hold sponsors and canvassers “more accountable
for their actions in gathering signatures from registered voters.” Id. at §
1(c)(1); see also § 1(d), supra. This Court has a duty to uphold the Legislature’s
intention, to apply the law to the Sponsor strictly and find that the signatures
should not have been counted due to HCAA’s multiple violations of
Arkansas law.
III. ISSUE 4 SHOULD BE STRICKEN FROM THE BALLOT, OR THE COURT SHOULD ENJOIN THE SECRETARY OF STATE FROM COUNTING THE VOTES FOR AND AGAINST IT.
A. HCAA’s petition did not comply Section 7-9-111(f).
When filing a petition with the Secretary of State, the Sponsor “shall
bundle the petitions by county and shall file an affidavit stating the number
of petitioners and the total number of signatures being filed.” ARK. CODE
8
ANN. § 7-9-111(f)(1) (emphasis added). Without the affidavit, “the entire
petition becomes suspect and the entire canvassing effort is called into
question.” Save Energy Reap Taxes, 374 Ark. at 434, 288 S.W.3d at 604.
Additionally, when paid canvassers are used to obtain signatures, a sponsor
“shall also submit” the following:
(A) A statement identifying the paid canvassers by name; and
(B) A statement signed by the sponsor indicating that the sponsor: (i) Provided a copy of the most recent edition of the Secretary of
State’s initiatives and referenda handbook to each paid canvasser before the paid canvasser solicited signatures; and
(ii) Explained the requirements under Arkansas law for obtaining signatures on an initiative or referendum petition to each paid canvasser before the paid canvasser solicited signatures.
ARK. CODE ANN. § 7-9-111(f)(2). Strict compliance with Section 111(f) is
required “so that our citizenry can have faith and confidence in the election
process, and the General Assembly has so mandated.” Save Energy Reap
Taxes, 374 Ark. at 434, 288 S.W.3d at 604.
On July 8, 2016, HCAA filed its Petition with the Secretary of State at
4:37 p.m., 23 minutes before the 5:00 p.m. deadline. Ab. 10-12; Add. 525,
2031. This 5:00 p.m. deadline was confirmed to HCAA by the Secretary of
9
State’s office earlier that day. Ab. 13, 67-68; Add. 533. HCAA’s submission
consisted of two things and only two things: the Petition, Add. 7881-30801,
and the Receipt for Initiative Petition (with appendix), Add. 525-526. See Ab.
11-12, 22, 67; Add. 2025-2026, 2031. Greenberg, who was present with
Dugger when the Petition was filed, later emailed an updated paid canvasser
list to the Secretary at 5:03 p.m. Ab. 23, Add. 776. Greenberg did not state in
his email that the list was being submitted pursuant to Section 111(f)(2). Id.
Neither of the provisions above were met.
1. An affidavit was not submitted with the Petition.
HCAA did not submit an affidavit when it filed its petition with the
Secretary of State. Ab. 67, Add. 2031. Dugger admits that he did not execute
one when he filed the Petition. Ab. 12. Greenberg also admits that he didn’t
file an affidavit. Ab. 23. The Secretary’s Director of Elections, Leslie Bellamy,
confirmed that on July 8, 2016, when she accepted HCAA’s petition from
Dugger and Greenberg, she did not receive an affidavit from either man. Ab.
67. HCAA’s failure to include an affidavit with the filing of its Petition is
fatal; the Petition is materially defective and facially invalid. See ARK. CODE
ANN. § 7-9-111(f)(1). None of the signatures can be counted. ARK. CODE ANN.
§ 7-9-126(b)(7).
10
The Secretary of State’s Office claims the Secretary is not allowed by
law to refuse a petition for lack of the Section 111(f)(1) affidavit because it is
beyond the Secretary’s statutory authority. Ab. 144-145. If the Secretary
cannot enforce that provision of law, then it is incumbent on this Court to
ensure compliance. HCAA failed to comply, and the Petition should be
rejected.
2. No sponsor statements were submitted with the Petition.
HCAA also was required to submit two statements along with its
petition. ARK. CODE ANN. § 7-9-111(f). The first statement must identify the
paid canvassers by name. ARK. CODE ANN. § 7-9-111(f)(1). The second
statement requires that the sponsor state that it had provided the Secretary
of State’s Initiative and Referenda Handbook, Add. 843-897, and that it had
explained Arkansas law applicable to paid canvassers before the paid
canvasser began collecting signatures. See ARK. CODE ANN. § 7-9-111(f)(2).
HCAA did not do this. Add. 2031. The Secretary’s employees confirmed that
neither of the requisite statements were filed with the Petition. Ab. 67, 71.
Greenberg admits that no statements were filed indicating that the
sponsor provided paid canvassers with the Secretary’s initiatives and
referenda handbook. Ab. 23-24. HCAA also did not file a statement
11
indicating that it had explained the requirements under Arkansas law for
obtaining signatures to each paid canvasser before the paid canvasser
solicited signatures. Ab. 24. Both Greenberg and Dugger admitted that they
did not turn in a list of paid canvassers when they submitted the Petition.3
Ab. 12, 23. Clearly, as the Special Master found, the requirements of Section
111(f)(2) were not complied with when HCAA filed its petition. Add. 2031.
HCAA’s failure to comply with Section 111(f)(2) means that its Petition
is defective on its face. The signatures contained in the materially defective
petition parts cannot be counted. ARK. CODE ANN. § 7-9-126(b)(7). The
Petition was clearly deficient at the time of filing. None of the signatures
should, or can, be counted under Arkansas law.
According to the Secretary of State’s Office, the Secretary is not
3 Greenberg attempted to avoid HCAA’s non-compliance with this section
when he sent an updated list of paid canvassers to the Secretary of State at
5:03 pm on July 8, 2016. Ab. 23; Add. 2031. This untimely email did not cure
the petition’s defects; the list was not submitted with the Petition and it was
sent after the deadline for filing. And it didn’t cure all of the defects in any
event because it left out the required statements.
12
allowed by law to refuse a petition for lack of the Section 111(f)(2) statements
because that is beyond the Secretary’s statutory authority. Ab. 144-145. As
the Secretary cannot enforce that provision of law, either by choice or by
authority, it is incumbent on this Court to ensure compliance. HCAA failed
to comply and the Petition should be rejected.
B. HCAA never certified to the Secretary of State that each paid canvasser had passed a criminal background search.
Arkansas law requires any sponsor who utilizes paid canvassers to
collect petition signatures to submit a list containing each paid canvasser’s
name and current residence address. ARK. CODE ANN. § 7-9-601(a)(2)(C).
Along with registering the name and current residence of each of its paid
canvassers, HCAA “shall certify to the Secretary of State that each paid
canvasser in its employ has passed a criminal background search” obtained
by the sponsor in accordance with Section 601(b). ARK. CODE ANN. § 7-9-
601(b)(3) (emphasis added). HCAA never did this. Add. 2032. Greenberg did
not do this and he agreed that not one of the lists he submitted included the
word “certify” or “certification.” See, e.g., Ab. 20, 22, 23; Add. 2032. The lists
he submitted did not even mention background checks. Ab. 23; Add. 537-
776. A basic reason for this failure is that HCAA never itself obtained the
13
required background checks and did not know if, in fact, background checks
had been completed. Ab. 20-22, 29. Greenberg knows he did not provide the
verification; yet, during the hearing he testified that he made a “verbal”
certification. Ab. 31-32; Add. 2032. Not a single person from the Secretary’s
office confirmed this. Director of Elections Bellamy testified that verbal
certification would not be accepted. Ab. 69-70; Add. 2032. It is undisputed
that the Sponsor submitted lists of paid canvassers to the Secretary without
certifying that each paid canvasser has passed a criminal background check.
Add. 2032. None of the signatures collected by paid canvassers can be
counted. ARK. CODE ANN. § 7-9-601(b)(5).
The law clearly requires the sponsor “[u]pon submission of its list” to
include the background check certification. ARK. CODE ANN. § 7-9-601(b)(3).
The Special Master found that “[t]he failure of the Sponsor to certify to [the]
Secretary that criminal background checks had been completed on each paid
canvasser as required by A.C.A. §7-9-601(b)(3) could be a material defect and
disallow the counting of all signatures under A.C.A. §7-9-601(b)(5) which is
a ‘do not count’ instruction.” Add. 2039. The Special Master is correct.
HCAA’s failure to certify that its paid canvassers had passed criminal
background checks is a material defect, a clear violation of a statutory
14
requirement that requires that all 84,492 signatures, Add. 909, “shall not be
counted for any purpose.” ARK. CODE ANN. §§ 7-9-126(b)(3), 7-9-601(b)(5).
C. HCAA did not obtain, at its cost, a current Arkansas State Police criminal background search for each paid canvasser.
The law requires that a sponsor “shall obtain, at its cost,” a current
criminal background check from the Arkansas State Police. ARK. CODE ANN.
§ 7-9-601(b)(1) (emphasis added). No one from HCAA obtained, at HCAA’s
cost, a single background check. Ab. 4, 21-22; Add. 2032. It is undisputed
that HCAA did not directly obtain the criminal record search on prospective
canvassers required by Section 601(b). Add. 2032; Ab. 4, 21-22. Instead,
HCAA pointed the finger at 3.0 LLC to get and keep criminal background
checks. Ab. 11, 20-22, 29. However, this was never set forth in the contract
with 3.0 LLC; a contract which specifically states that 3.0 LLC is not an agent
of HCAA. Add. 510-516, 2032; Ab. 6, 38. It appears that 3.0 LLC, in turn,
subcontracted the task to Trevor Donarski, a paid canvasser and
independent contractor employed by another company, Blitz Canvassing
LLC. Ab. 179-180.
The majority of the Arkansas State Police criminal background checks
were requested by Donarski on behalf of Blitz Canvassing. Ab. 165, 180; see
15
also Add. 4242-7867. Donarski was not an employee or agent of HCAA. Ab.
179-180. He was not an employee of 3.0 LLC either. Id. He wasn’t even an
employee of Blitz Canvassing; he was an independent contractor of that
canvassing firm. Id. This litany of subcontractors is too far removed from
HCAA to satisfy the requirement that the sponsor obtain the criminal record
search from the Arkansas State Police.
It is also notable that no record exists that HCAA paid anyone for
performing background checks. Its financial disclosures reveal only a
contract payment to 3.0. Nothing is listed for Blitz Canvassing, Trevor
Donarski or the Arkansas State Police. Add. 466-468, 476-481, 488-493, 498-
502, 508-509. Nothing in the record reveals how HCAA obtained
background checks at its own expense.
Even if Donarski could be considered an agent of HCAA for purposes
of Section 601(b), problems with the background checks still exist. It is
undisputed that “criminal record checks were obtained by someone other
than either “3.0 LLC” or the Sponsor.” Add. 2033. A review of the paid
canvasser files revealed that 12 paid canvassers had a background check
obtained by a third party with no affiliation to 3.0 LLC or HCAA. Add. 2033.
Ten background checks were obtained by Scott Tillman on behalf of Liberty
16
Petition Project LLC. Ab. 39-42; Add. 1857; see also Add. 830, 832-841. Two
more reports were obtained by Alita Bush on behalf of David Couch PLLC.
Ab. 40, 42; Add. 1857; see also Add. 831, 842. Again, no one from HCAA
could explain how these got into the files. Add. 2033. Not Dugger. Not
Greenberg. Indeed, HCAA was adamant that it only contracted with 3.0 LLC
to perform the background checks. Ab. 3, 5, 11, 39. When a background
check is not obtained by the sponsor, none of the signatures collected by that
paid canvasser can be counted. ARK. CODE ANN. § 7-9-601(b)(5).
Those 12 paid canvassers obtained signatures on HCAA’s initiative
petition. Add. 1857; see also Add. 899-909. HCAA submitted signatures
gathered by those canvassers, 10,764 of which were included by the
Secretary in its final signature count. Add. 2033. These signatures were
incorrectly obtained and submitted. As the Special Master found, these
10,764 signatures must be disallowed. Add. 2039.
D. HCAA submitted petition parts containing signatures collected by paid canvassers who were ineligible to do so.
1. Paid canvassers solicited and obtained signatures before registration
with the Secretary of State. A list of canvassers must be provided to the Secretary of State before
a signature is solicited by that paid canvasser. ARK. CODE ANN. §§ 7-9-
17
601(a)(2), 7-9-126(b)(3). This law was blatantly and repeatedly ignored in this
case. Here, 132 paid canvassers obtained petition signatures before his or her
name was submitted to the Secretary. Add. 1858-1860. “A comparison of
signature dates on petitions with the canvasser submission date for
canvasser names reflects that 1,825 [verified] petition signatures were
obtained by paid canvassers before the canvasser’s name was submitted to
Respondent Secretary.” Add. 2033; see also Add. 1858-1860. The solicitation
of signatures by paid canvassers before their names and current residence
addresses are submitted to the Secretary of State is against the law. As the
Special Master concluded, these 1,825 signatures shall not be counted under
Section 126(b)(3)(A). Add. 2039.
2. Paid Canvassers solicited and obtained signatures before an Arkansas State Police criminal background search was done.
Arkansas law mandates that “[t]o verify that there are no criminal
offenses on record, a sponsor shall obtain, at its cost, from the Department
of Arkansas State Police, a current state and federal criminal records search
on every paid canvasser to be registered with the Secretary of State.” ARK.
CODE ANN. § 7-9-601(b)(1). A paid canvasser cannot begin collecting
signatures until the sponsor has registered the paid canvasser with the
18
Secretary and certified that the paid canvasser has passed a criminal
background search. ARK. CODE ANN. §§ 7-9-601(a)(2)(C) & (b)(3). It is
undisputed that HCAA did not certify a single paid canvasser as passing a
criminal background check. Add. 2032, 2039. Ignoring the absence of any
certification, other problems exist because paid canvassers began collecting
signatures before passing any criminal background check. Donarski
confirmed that paid canvassers were allowed to begin collecting signatures
even if the background check had not been obtained. Ab. 191, 192-197, 200-
201. Sixty paid canvassers4 collected at least one signature before passing a
4 Aric Adams, Marcaylo Amadei, Josias Andujar, Mariah Arnold, Maceon
Battle, Jennifer Bell, Teresa Belongia, Steven Berry, James Bishop, Maria
Bottorff, William Burns, Tommy Cason III, Charles Chavez, Adolphus
Coleman, Ross Compeau, David Copeland, Matthew Cosgrove, Lasha
Davis, Michael Davis, Catalina Denoon, Darren Domek, Trevor Donarski,
Elizabeth Durden, Fifi Harper, Tammie Harris, William Hess, Blake Hobart,
Mark Humphrey, Sean Jackson, JB Kelly, Lisa Lantzsch, Sebrena Lewis,
Jametrich Lovelace II, Kristopher Maddox, Sonless Martin Jr., Tina McClure,
Mykel Metcalf, Sandra Miller, Debra Murphy, Devan Navarrette, Edward
19
criminal background check. Add. 1890-1900, 1901, 1993, 2003. These
canvassers account for 20,785 of the 93,102 signatures verified by the
Secretary. See Add. 899-909. Any signature collected by a paid canvasser
before passing a criminal background check was “incorrectly obtained” and
“shall not be counted.” ARK. CODE ANN. § 7-9-601(b)(5). Accordingly, 20,785
signatures were improperly gathered and should be disallowed.5
3. Paid canvassers collected signatures without signing a Statement of Eligibility.
Prior to obtaining any petition signature, a paid canvasser must
provide specific information to the sponsor. See ARK. CODE ANN. § 7-9-
601(d). A prospective canvasser “shall submit” a statement of eligibility “to
O’Brien, Jessica O’Brien, Vivant Oh [sic – correct name in Vincent Ott],
Steven Reed, Michael Rhodes, Gary Robinson, Kalief Rollins, Glen Schwarz,
George Simons, Torin Smith, Emma Stone, Tabitha Stowers, Nicholas
Turpin, Etelmina Valenzuela, Jacquelyn Valrie, Laura Westley, Kendal
Westmoreland, Corrie Zastrow and James Zastrow. Add. 1890-1900.
5 Petitioners note that some of these signatures should also be excluded on
other grounds, discussed infra.
20
the sponsor” and the “sponsor shall maintain” this information “for each
paid canvasser for three (3) years after the general election.” ARK. CODE ANN.
§ 7-9-601(d) & (e). While these paid canvassers were required to complete a
statement of eligibility, Ab. 27-28, 162-163, HCAA “did not directly obtain
the ‘eligibility statements’ … but depended on the independent contractor
‘3.0 LLC’ to obtain and retain these statements.” Add. 2031. Even assuming
that this process satisfies Section 601(d) and (e), six paid canvassers were
allowed to collect signatures even though no statement of eligibility exists.
Add. 1855, 2032. The signatures collected by these ineligible paid canvassers
account for 47 of the 93,102 verified signatures. As the Special Master found,
“[t]he failure of Sponsor to maintain statements of eligibility on 6 canvassers
as required by A.C.A. § 7-9-601(e) would disallow 47 signatures.” Add. 2039.
4. Paid canvassers collected signatures even though they were never correctly registered with the Secretary of State.
The law requires that HCAA submit the correct name and current
residence address of any paid canvasser to the Secretary of State prior to that
canvasser beginning to collect signatures. ARK. CODE ANN. § 7-9-601(2). If a
person collects signatures prior to being registered with the Secretary, none
of the signatures he gathers can be counted. ARK. CODE ANN. § 7-9-126(b)(3).
21
The accuracy of this information is important, as it is the only way for the
Secretary to fulfill its signature verification duties under the law. For
instance, in reviewing the petition parts, the Secretary of State’s office
compares the printed name, signature and current residence address
contained in the canvasser affidavit with the paid canvasser list provided by
the Sponsor. Ab. 51-52, 61. If that name does not match, then the petition is
culled. Ab. 53, 61. The purpose of this provision, and the Secretary’s review,
is to ensure that the canvasser collecting the signatures is the same person
listed as a paid canvasser. It prevents fraud.
A review of the paid canvasser files revealed statements of eligibility
for six paid canvassers not included on any list submitted to the Secretary.6
Add. 2034. Yet, HCAA submitted petition parts containing signatures
6 Petitioners note that two additional canvassers were listed with an incorrect
surname and included on the Rule 1006 summary chart introduced as
Petitioners’ Exhibit 38. Add. 1861. Petitioners are not challenging the
signatures collected by these two men, Jordan DeVault and Darren Domek,
as the incorrect surname was likely due to a clerical error by Donarski in
preparing the list.
22
collected by Ollie Brown III, Tommy Cason III, Jametrich Lovelace II, Sonless
Martin Jr., Guillermo Martinez Jr., and Lance Stephenson II. Add. 1861. Each
of these individuals provided his full name, including the suffix, on his
Statement of Eligibility. Add. 1882-1883, 1886-1889. None of these men are
included on any of the lists of paid canvassers Attorney Greenberg provided
to the Secretary of State. Add. 537-775. Yet, they collected signatures as paid
canvassers which were then submitted by HCAA to the Secretary of State.
Add. 1863-1864, 1867-1877.
The absence of a name suffix is a fatal defect. See Crenshaw v. Special
Adm’r of the Estate of Ayers, 2011 Ark. 222, at 4 (holding that where a mistake
in naming a party is so substantial or material as to indicate a different entity,
the mistake is fatal). It has long been recognized that “[w]hen the middle
name is used to designate and distinguish different persons, then it becomes
very material.” Kellogg v. State, 153 Ark. 193, 198, 240 S.W. 20, 22 (1922).
Likewise, the entire omission of a name suffix, e.g., “Jr.,” “III,” etc., is material
because more than one person bears the exact same name; the suffix is
necessary for the Secretary of State to determine who is collecting petition
signatures as a paid canvasser.
Thus, HCAA submitted a list of paid canvassers containing the names
23
of individuals who did not collect 1,258 of the 93,102 signatures counted by
the Secretary. And while it is true that individuals with similar names were
included on the list, these men were not. That cannot be, nor has it been,
denied. Instead, HCAA contends that the suffix of a person’s name does not
matter. It does. And the 1,258 verified signatures collected in violation of
Section 601(a)(2) shall not be counted. See ARK. CODE ANN. § 7-9-126(b)(3).
5. Paid canvassers solicited and collected signatures even though they had not provided a domicile address to the Sponsor.
A domicile address must be provided. In many instances, however,
including Trevor Donarski who trained the paid canvassers and obtained
these records, the person wrote “same.” See, e.g., Add. 1902, 4339. Even more
prospective/paid canvassers wrote their address twice – once as the current
residence address and then as the domicile. See, e.g., Add. 1882, 1886, 1973.
When a domicile address is provided, the paid canvasser can be located if a
problem arises and the State needs to locate him. When a domicile address
is not provided, the State cannot locate a paid canvasser. That is the purpose
of this statutory requirement. McDaniel, 2015 Ark. 94, at 7, 457 S.W.3d at 649.
Here, “in [thirteen] eligibility statements, paid canvassers listed no
domicile address although a current residence was listed.” Add. 2033-2034;
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Add. 1798. Another person wrote “N/A.” Add. 1799. These responses are
insufficient as they provide no information as to the whereabouts of the paid
canvasser’s domicile. This is information that a paid canvasser is required to
provide the sponsor, and a sponsor is required to possess, prior to the
canvasser collecting any signatures. ARK. CODE ANN. § 7-9-601(d)(2). Clearly,
HCAA did not have the requisite information to allow these 14 paid
canvassers to begin collecting signatures. Yet they did; 4,818 of the 93,102
verified petition signatures. Add. 1798-1845, 2034.
In other instances, prospective canvassers provided an incomplete
address. Add. 2034. It is important to remember that part of a person’s
address is the city and state in which she lives. This can be indicated by
writing the city, state and zip code. Or, at a minimum, the zip code. Yet, five
canvassers listed only a street address, not city, state or zip, as their
permanent domicile address. Add. 1847-1850, 1852. Four of these canvassers
also provided an incomplete current residence address. Add. 1847, 1848,
1850, 1852. There is no way to locate them. In violation of Section 601(d)(2)
these five paid canvassers collected 2,271 of the 93,102 petition signatures
verified by the Secretary of State.
Still others provided a post office box as their “permanent domicile
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address.” Add. 1851, 1853, 1854. By definition, a ‘“domicile’ requires an
actual residence plus the intent to remain in a particular place.” Leathers v.
Warmack, 341 Ark. 609, 618, 19 S.W.3d 27, 34 (2000). A post office box is not
a domicile. One cannot reside in a post office box. And while these paid
canvassers did provide a current residence address, each current residence
was outside of Arkansas and in a different state than the post office box.
Add. 1851, 1853, 1854. Consequently, locating these individuals will be
difficult if the State needs to follow up on an issue with the signatures these
canvassers gathered. The three canvassers who provided a post office box as
domicile address collected 572 of the 93,102 petition signatures verified by
the Secretary of State.
In sum, 22 canvassers did not list a valid domicile address on their
Statement of Eligibility. These canvassers were ineligible to collect
signatures as a paid canvasser. See ARK. CODE ANN. § 7-9-601(d). Yet, they
account for 7,661 of the 93,102 signatures verified by the Secretary of State.
Each of these signatures should be struck and should not be counted.
6. Paid canvassers collected signatures even though they had not provided a current, in-state residence address to the Sponsor.
The law requires that the sponsor have, on file, each paid canvasser’s
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current residence address. ARK. CODE ANN. § 7-9-601(d)(2). The sponsor is
required to provide this address to the Secretary before the person can begin
collecting signatures as a paid canvasser. ARK. CODE ANN. § 7-9-601(a)(2)(C).
A paid canvasser’s “current residential address” is the place where he or she
is residing during the time the paid canvasser is collecting signatures. See
McDaniel, 2015 Ark. 94, at 7, 457 S.W.3d at 649 (explaining that as used in
Section 7-9-601, “the term ‘current residence address’ is juxtaposed with
‘permanent domicile address,’ clarifying what is meant by the use of both
terms”). It is the Sponsor’s responsibility to provide the Secretary of State
with a correct and up-to-date list. ARK. CODE ANN. § 7-9-601(a)(2)(C)(ii).
HCAA did not do this.
Most paid canvassers provided an out-of-state residence address as
their current residence address. Add. 1378-1382. This is a red flag when it
comes to the collection of signatures for an initiative petition within the State
of Arkansas. The signatures must be collected within the borders of our state.
It necessarily follows that the canvassers collecting those signatures also
reside, whether temporarily or permanently, within the State. Having a
current residence address on file allows a sponsor and the Secretary to locate
a paid canvasser, as needed. It shows where the paid canvasser is living
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when he or she is collecting signatures in the State of Arkansas. It insures a
degree of accountability and protects the integrity of the initiative and
referendum process. Because the current residence address must be
included when a paid canvasser is registered by a sponsor so that the
Secretary can verify petition signatures, the accuracy of this information is
paramount. Without correct information, the Secretary has no way to verify
the accuracy of the information within the canvasser affidavit contained on
each petition party. See ARK. CODE ANN. § 7-9-126(b)(2).
IV. TO PROTECT THE INTEGRITY OF THE INITIATIVE AND REFERENDUM PETITION PROCESS, “IT CERTAINLY IS” IMPORTANT TO FOLLOW THE LAW.
The statutory procedural requirements at issue in this case place a
“minimal burden on sponsors and paid canvassers.” McDaniel, 2015 Ark. 94,
at 6, 457 S.W.3d at 648. Signatures collected in violation of these laws are
invalid and shall not be counted. ARK. CODE ANN. §§ 7-9-601(b)(3) & (5).
HCAA knew this; yet, it chose to follow its own path and ignore the road
signs put in place to keep sponsors on the path.
First, HCAA chose to employ paid canvassers to collect petition
signatures. The Sponsor, therefore, was required to comply with the simple
and straightforward procedures for the hiring and training of paid
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canvassers. See ARK. CODE ANN. § 7-9-601. One requirement is that the
Sponsor must register all paid canvassers with the Secretary. Like the
requirement that a voter be registered before signing a petition, requiring
paid canvassers to be registered with the Secretary of State before circulating
a petition is “good policy.” Mays v. Cole, 374 Ark. 532, 540, 289 S.W.3d 1, 6
(2008).
Second, HCAA’s Attorney Dan Greenberg knew that the law required
the sponsor to provide a certification that the paid canvassers had passed a
background check. The Secretary of State has no other way of verifying the
veracity of petitions circulated pursuant to Amendment 7 by paid
canvassers. The Legislature created these checks and balances, consistent
with the purposes of Article 5, section 1, as amended by Amendment 7, to
prevent fraud and assist the Secretary of State in maintaining a fair election.
Requiring HCAA to follow the statutes protects the integrity of the process.
Likewise, by placing a “minimal burden” on the sponsor to self-police
its paid canvassers, the General Assembly created a system that allows the
Secretary to fulfill its duties under the law. The Secretary of State’s office
does not have the man power, or the ability, to make sure that paid
canvassers have passed a criminal background check. Ab.68-69. Yet, by
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requiring the sponsor to certify that each paid canvasser has passed a
criminal background search, the Secretary does not have to worry about
whether a paid canvasser is a felon or otherwise ineligible to collect
signatures for an initiative petition. The same can be said about the other
requirements applicable to paid canvassers under Section 601.
The statutory procedures effectuate “[t]he State’s 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 the 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.” McDaniel, 2015 Ark. 94, at 6, 457 S.W.3d at 648. Or, as
Justice Wood wrote, these statutes “are consistent with the General
Assembly’s duty under article 5, section 1, of the Arkansas Constitution to
prevent fraudulent petition-gathering practices.” Id. at 20, 457 S.W.3d at 655
(Wood, J., concurring in part, dissenting in part).
Further, and despite HCAA’s pleas of “good faith” and “substantial
compliance,” the Secretary cannot modify or ignore the statutory
30
requirements because HCAA wants it to. Simply put, a half-hearted “we
tried” does not negate HCAA’s decision to ignore mandatory procedures
and submit a Petition without an affidavit. An unsubstantiated “verbal”
certification that background checks were performed, made by a person who
did not obtain the background checks and maybe saw between 10 and 100
of them, does not equate to a certification under Section 601(b)(3). These
violations, and all others discussed above, are clear. There is no doubt that
HCAA’s Petition is invalid. To hold otherwise threatens “the integrity of the
petition-gathering process.” McDaniel, 2015 Ark. 94, at 22, 457 S.W.3d at 656
(Wood, J. concurring in part, dissenting in part).
CONCLUSION
HCAA’s Petition was materially defective due to the Sponsor’s
unapologetic failure to follow the law and should be rejected. This is justice,
perpetuated under the laws of this State which were enacted to protect
Arkansans from fraud and illegal attempts to change the Constitution of this
great state. Thus, Issue 4 should be stricken from the ballot or Respondent
should be enjoined from counting the votes for and against it.
Respectfully submitted,
/s/ Brian G. Brooks
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Brian G. Brooks, 94209 Brian G. Brooks, Attorney at Law, PLLC P.O. Box 605 Greenbrier, AR 72058 Telephone: (501) 733-3457 [email protected]
/s/ Jeff Priebe Jeff Priebe, 2001124
James, Carter & Priebe, LLP 500 Broadway, Suite 400 Little Rock, AR 72201 Telephone: (501) 372-1414 [email protected]
/s/ Breean Walas Breean Walas, 2006077 Walas Law Firm, PLLC P.O. Box 95458 North Little Rock, AR 72190 Telephone: (501) 246-1067 [email protected]
Attorneys for Petitioners
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CERTIFICATE OF SERVICE
I served a copy of this document upon the following on the 5th day of October, 2016.
Brett D. Watson P.O. Box 707 Searcy, Arkansas 72145-0707 Telephone: (501) 281-2468 AJ Kelly General Counsel and Deputy Secretary of State PO Box 251570 Little Rock, AR 72225-1570
KUTAK ROCK LLP Jess Askew III David L. Williams Frederick H. Davis Dale W. Brown 124 West Capitol Avenue, Suite 2000 Little Rock, Arkansas 72201-3706 Telephone: (501) 975-3000
/s/ Breean Walas
Rule 1-8 CERTIFICATION
I hereby certify that I have served on opposing counsel an unredacted and, if required, redacted PDF document that complies with the Rules of the Supreme Court and Court of Appeals. The PDF document is identical to the corresponding paper document from which it was created as filed with the court. To the best of my knowledge, information and belief formed after scanning the PDF document for viruses with an antivirus program, the PDF document is free from computer viruses. A copy of this certificate has been submitted with the paper copies filed with the court and has been served on all opposing parties.
/s/ Breean Walas