With more ballot initiatives coming up, reproductive rights advocates hope to continue their impressive winning streak. But in light of recent events in Arkansas, conservatives hope they have found a way to stop the bleeding: by using arcane rules favored by voter-obsessors to prevent voters from speaking out on reproductive rights in the first place.
Under Arkansas law, abortion is now a crime unless the patient’s life is in danger. Arkansasians for Limited Government supported a ballot initiative that would legalize the procedure up to 18 weeks of pregnancy, with certain exceptions afterward. The initiative did not attract the support of major national groups because it drew the line relatively early in pregnancy, but the proposal nonetheless seemed to set a powerful example: If it succeeded, it might have set a blueprint for success in other deeply conservative states. ALG had initially insisted that messages focused on reproductive justice or even the health crisis caused by Dobbs might not go down so well in states that Donald Trump clearly won in 2020. Instead, the group had focused on the issue of government overreach, attacking the state’s existing laws as too strict, without accepting more comprehensive protections that were part of initiatives supported by voters in states like Ohio or Michigan.
Even before the ALG push, Republicans in Arkansas had taken steps to make it harder for voters to campaign, increasing the number of precincts required to successfully vote from 15 to 50. Now the state Supreme Court may have laid out a plan for conservatives who want to keep the issue away from voters entirely.
In July, ALG submitted more than 100,000 signatures in support of its proposal – far more than needed to meet the state minimum. But the Secretary of State rejected about 14,000 signatures because the group did not simultaneously submit a document authenticating the names of paid poll workers and confirming that they had been trained in relevant election rules. Repealing this obscure provision means Arkansas voters will have no chance to vote on reproductive rights in November.
Republicans using ballot secrecy for their own ends is obviously nothing new. Since Trump’s attempts to overturn the 2020 election, conservatives on state and local election boards have occasionally delayed certification of election results, citing concerns about voter fraud or various technicalities. Georgia’s election board recently issued new rules requiring election results to be certified only after a “reasonable investigation.” A separate rule required election officials to verify vote totals before counting certain types of ballots. Election observers worry that these kinds of strategies could be used to undermine confidence in the election, sow distrust, or foment anger or even post-election violence.
Conservatives are now also using obscure election laws to crack down on abortion initiatives. Last week, the Arkansas Supreme Court voted 4-3 to uphold the Secretary of State’s decision to disqualify more than 10,000 signatures, stressing that Arkansas for Limited Government had not gathered all the required information about paid poll workers at once.
The opinion was odd. The majority and dissent disagreed on what the plain text of the state law required, but the reasoning behind the majority’s interpretation – that the minister needed to gather all the information to ensure the smooth running of the election process – seemed odd, since ALG had already been providing the required certification on an ongoing basis – and most of it well before the Secretary had to consider all the signatures submitted. Then there was the fact that the Secretary chose not to give ALG a grace period to correct any errors. The justices who dissented noted that the Secretary had been far less strict in dealing with similar problems involving paid poll workers on other ballot initiatives. The difference, it seemed, was that this time it was about abortion.
The court’s decision doesn’t necessarily spell the end of efforts to put abortion on the ballot in Arkansas. But it offers a possible strategy for other conservatives who don’t want voters to have a say in abortion rights. This new system draws heavily on the work Republicans have done around election certification and voting. First, the decision outsources the power to torpedo ballot initiatives to opaque election officials or state judges who rarely lose reelection campaigns. Arkansas, which selects the state’s Supreme Court justices in nonpartisan elections, has seen its court shift to the right after the death of a sitting justice allowed Gov. Sarah Huckabee Sanders to choose a successor. Sitting state judges may be comparatively difficult to hold accountable, even when their rulings are controversial.
Second, focusing on obscure minutiae — like filing certifications for paid poll workers — could help conservatives contain the backlash. That makes it easier for Republicans to downplay what really appears to be going on: not an effort to persuade voters to support fetal rights, but a campaign to dissuade voters from making a decision. That shift allows Republicans to frame ballot initiatives not as part of a fight over reproductive health — a fight Republicans are definitely losing — but as a fight over election integrity and the rule of law. And by focusing on the most arcane election rules, conservatives can hope to make it harder for voters to understand what happened or organize in response.
It is possible that anti-abortion voters would have won a fair vote in Arkansas. Some states remain fairly conservative on abortion, particularly in the Deep South. But the court’s decision is a reminder that many Republicans are unwilling to risk alienating voters. decide.
