Jennifer McGill, Individually and on Behalf of the Arkansas Canvassing Compliance Committee; And Cherokee Nation Entertainment, LLC v. John Thurston, in His Capacity as Arkansas Secretary of State Local Voters in Charge, a Ballot Question Committee; And Jim Knight, Individually and on Behalf of Local Voters in Charge Intervenors

2024 Ark. 146, 698 S.W.3d 121

• Court: Supreme Court of Arkansas
• Decided: October 14, 2024
• Status: Published

Opinion

Cite as 2024 Ark. 146 SUPREME COURT OF ARKANSAS No. CV-24-492

Opinion Delivered: October 14, 2024

JENNIFER MCGILL, INDIVIDUALLY AND ON BEHALF OF THE ARKANSAS CANVASSING AN ORIGINAL ACTION COMPLIANCE COMMITTEE; AND CHEROKEE NATION ENTERTAINMENT, LLC PETITION DENIED. PETITIONERS

V.

JOHN THURSTON, IN HIS CAPACITY AS ARKANSAS SECRETARY OF STATE RESPONDENT

LOCAL VOTERS IN CHARGE, A BALLOT QUESTION COMMITTEE; AND JIM KNIGHT, INDIVIDUALLY AND ON BEHALF OF LOCAL VOTERS IN CHARGE INTERVENORS

COURTNEY RAE HUDSON, Associate Justice

Petitioners Jennifer McGill, individually and on behalf of the Arkansas Canvassing

Compliance Committee, and Cherokee Nation Entertainment, LLC (CNE), filed this

original action challenging the sufficiency of a proposed constitutional amendment

(Proposed Amendment) regarding the Pope County casino license. The petitioners’ two-count petition alleges that the decision of respondent John Thurston, in his official

capacity as Arkansas Secretary of State (Secretary), to certify the Proposed Amendment was

invalid. In Count I, the petitioners allege that the number of signatures collected is

insufficient once invalid signatures are removed from the Secretary’s count. In Count II, the

petitioners allege that the popular name and ballot title are insufficient. Local Voters in

Charge (LVC), a ballot question committee and sponsor of the Proposed Amendment, and

Jim Knight, individually and on behalf of LVC, moved to intervene in this action. In McGill

v. Thurston, 2024 Ark. 120, at 1 (per curiam), we granted expedited consideration of the

petition and the motion to intervene. We bifurcated the proceedings of Count I and Count

II and set separate briefing schedules. As to Count I, we appointed Special Master Randy

Wright to resolve the factual disputes raised in the petition. This opinion addresses Count

I, the number of valid signatures, while Count II will be addressed separately. We have

jurisdiction pursuant to Arkansas Supreme Court Rule 6-5. We deny Count I of the

petition.

LVC sponsored an initiative petition for a proposed amendment to Amendment 100

of the Arkansas Constitution to require local voter approval for certain new casino licenses;

repeal authority to issue a casino license in Pope County; and revoke any license issued for

a casino in Pope County, Arkansas. Between April and late June 2024, paid canvassers

circulated this initiative petition throughout Arkansas to obtain sufficient signatures of

registered voters to have the Proposed Amendment placed on the ballot for the November

2024 general election. On July 31, 2024, the Secretary determined that LVC had submitted

2 no less than 116,200 signatures, exceeding the required 90,704, and certified the Proposed

Amendment to appear on the November 2024 ballot.

Petitioners now challenge the Secretary’s certification of the Proposed Amendment,

alleging that Arkansas laws governing paid canvassers were violated in the initiative-petition

effort. Petitioners originally argued that LVC (1) unlawfully paid bonuses or otherwise

compensated canvassers based on the number of signatures a canvasser collected; (2) failed

to certify that all canvassers had no disqualifying criminal offenses; (3) used canvassers who

were not qualified as canvassers due to having disqualifying offenses; (4) failed to register as

paid canvassers individuals who solicited signatures while “coaching” canvassers in real time

and thus qualified as paid canvassers in their own right; (5) employed canvassers that were

not Arkansas residents; (6) failed to properly train and instruct canvassers; and (7) otherwise

failed to register and certify numerous paid canvassers.

On August 27–30, 2024, the special master heard evidence on those claims brought

by petitioners in Count I. In his forty-page final report, the special master disagreed with

petitioners’ claim that LVC did not provide the required certifications under section 7-9-

601(b)(3) (Supp. 2023), and he concluded that agents of LVC properly made the required

certifications that no paid canvasser had a disqualifying offense. The special master also

determined that LVC was not in violation of the pay-per-signature ban in section 7-9-

601(g). He found for LVC on its affirmative defense of estoppel, which was based on the

Secretary’s prior acceptance of LVC’s paid-canvasser affidavits. The special master

disqualified 5,966 signatures for incorrect residence addresses on petition-part affidavits. Last,

3 the special master found “that any other claims made by the Petitioners should be denied

for lack of proof,” leaving “no less than 110,234 validated signatures.”

In their opening brief, petitioners challenge the special master’s findings only on the

sponsor-certification and pay-per-signature claims, thus abandoning all other claims that the

special master denied for a “lack of proof.” The portions of the record and the special

master’s findings pertinent to these two remaining claims are set forth below.

On March 22, 2024, LVC executed a contract with PCI Consultants, Inc. (PCI), to

gather signatures. Among other things, the contract required (1) that LVC provide each

petition circulator and/or petition circulator manager with approved educational talking

points for use in describing the ballot measure; (2) that PCI obtain a 65 percent validity rate,

including checking signatures against voter files supplied by LVC; and (3) that PCI submit

a weekly report to LVC. The contract also expressly authorized PCI to hire “employees

and/or contract with independent contractors to assist [PCI] in the performance of its duties

under this Agreement.”

LVC committee member Hans Stiritz testified that he understood PCI would hire

whomever it needed to carry out the canvassing. Consequently, PCI entered separate

contracts with three entities: (1) Florida Petition Management (FPM); (2) Cape Campaigns;

and (3) Engage the Voter. FPM hired Phil Dewey to run an office in North Little Rock.

Stephanie Marcynyszyn of Cape Campaigns managed another canvassing office. Berta, or

“Ashley,” Erickson of Engage the Voter managed an office in Northwest Arkansas. Dewey,

Marcynyszyn, and Erickson signed the sponsor affidavits submitted by LVC to register its

paid canvassers. Each affidavit states, “I am providing this affidavit on behalf of and at the

4 direction of Local Voters in Charge, a duly formed Arkansas Ballot Question Committee

and Sponsor . . . .”

LVC hired Nicole Gillum, an Arkansas attorney, to provide legal compliance related

to the signature gatherers. Gillum explained at the hearings how LVC operated. She testified

that PCI’s CEO contracted with three LLCs to be “managers on the ground here for this

campaign.” Gillum served as LVC’s usual contact with PCI, and PCI relayed to the

canvassing managers Gillum’s instructions on behalf of LVC. Gillum provided PCI advice

for the managers who were onboarding and training canvassers for LVC, including

instructions on how LVC wanted the work completed. She also provided instructions for

canvasser training, background checks, and submissions to the Secretary’s office on behalf

of LVC. Gillum and others drafted the contractually required fact sheet that the canvassing

managers used. She stated that she spoke with Dana Alpin-Gonzalez of PCI three to four

times a day about background checks, and Gillum cleared canvassers to be registered. Gillum

drafted the sponsor affidavits used by Dewey, Marcynyszyn, and Erickson, and she directed

that they sign them on behalf of LVC. Gillum also checked all sponsor affidavits emailed to

the Secretary’s office to confirm that they were correct.

Gillum, Alpin-Gonzalez of PCI, PCI’s CEO Angelo Paparella, Josh Bridges, the

Secretary’s assistant director of elections, and Leslie Bellamy, Director of Elections for the

Secretary, met on April 12, 2024, before any signatures were collected on behalf of LVC.

At that meeting, Gillum told Bridges and Bellamy that PCI was LVC’s canvassing company

and that Alpin-Gonzales of PCI would be making the sponsor submissions. Afterward,

Bridges accepted all of the sponsor submissions made by Alpin-Gonzales on LVC’s behalf.

5 Dewey testified that PCI hired his employer, FPM, to manage the petition drive for

LVC as well as to hire and train canvassers to collect signatures on the petition. Dewey hired

his own set of approximately 250 canvassers. Dewey testified in detail about the training

process that canvassers underwent when they were onboarded and then again when they

were hired after their background checks had cleared. This training included using the fact

sheet that was created by LVC. Dewey also executed the sponsor affidavits at the direction

of Alpin-Gonzalez on behalf of LVC.

Petitioners argued that LVC’s pay-per-signature violations were so systemic that all

signatures collected must be disqualified. In support of that theory, petitioners introduced

videos showing their investigators questioning canvassers about how they were paid. Some

videos purported to show that, in addition to compensating canvassers on an hourly basis,

Dewey gave gift cards to those who collected at least 75–100 signatures in a day. Dewey

admitted that canvassers knew they could be eligible to draw for a prize for several reasons,

including having a “good day” by collecting 100 signatures, but he testified that it “wasn’t

really assigned to a number because somebody could have brought in 150 and then drew

and somebody could have brought in 75 and drew out of it.”

In three of the videos, the alleged canvassers were never identified. In another video,

the alleged canvasser states that her name is “Veronica,” but the final list of LVC’s paid

canvassers who submitted petition parts does not contain a canvasser with that name. In

other videos, the canvasser says they “might” get a gift card if they get 100 or 200 signatures

or be entered into a raffle to win a television. In 14 videos, at most, the canvasser mentions

getting, or being eligible for, $100 for 100 signatures or getting paid $4 or $5 per signature.

6 In those same videos, however, at least five of the paid canvassers also state that they are

being paid hourly. Petitioners did not introduce evidence of when a particular canvasser

drew for a prize, who made the offer to pay $100 for 100 signatures, when it was purportedly

made to any of the canvassers, or the number of signatures the canvassers collected because

of the alleged offer. 1

After the hearings concluded, the special master found that “the evidence presented

by all parties mandates the finding that LVC, the sponsor, used as agents others working

under the sponsorship of LVC, to collect signatures to be presented to the Respondent.”

He also found that LVC authorized PCI and the three canvassing managers to act on its

behalf and subject to its control. Regarding the language of Arkansas Code Annotated

section 7-9-601(b)(3), the master found that it does not limit “sponsor” to a ballot question

committee member or state that the certification is nondelegable. He determined that “[i]t

would be impractical to find that the named sponsor, LVC, could not use authorized persons

or entities to do the actual canvassing and managing of the petition question.” The master

therefore found that LVC properly certified to the Secretary that each paid canvasser in the

sponsor’s employ had no disqualifying offenses under Arkansas Code Annotated section 7-

9- 601(b)(3).

The special master also determined that, with regard to the pay-per-signature claim,

[i]t is incumbent upon the master to consider as a whole the credibility of the facts contained in the above described exhibits and what each exhibit purports 1 Petitioners reference intervenor’s exhibit 9 as a means of further showing a violation of section 7-9-601(g); however, that exhibit was not properly admitted by intervenors at the hearing and is not in the record before us. Petitioners filed a motion to supplement the record to include that exhibit, but we deny the motion.

7 to prove as to the paid canvassers method of payment. The master took into account that there were 338 paid canvassers who submitted signatures to the Respondent for this ballot measure, and the above described exhibits would at best only be 14 paid canvassers. (There were not totals of signatures collected of the 14 paid canvassers listed in the videos.) The master does not find that the Intervenors were in violation of Section 7-9-601(g)(1). It is further found the Petitioners did not meet their burden of proof of showing that the Intervenors, in their collection of signatures, conducted such with a wanton disregard for the provisions of Section 7-9-601(g)(1) that would require all signatures collected to be disqualified.

Analysis

In original actions, we will accept the special master’s findings of fact unless they are

clearly erroneous. Stilley v. Thurston, 2024 Ark. 124, at 3 (citing Roberts v. Priest, 334 Ark.

503, 975 S.W.2d 850 (1998)). A finding of fact is clearly erroneous when, even if there is

evidence to support it, based on the entire evidence, the court is left with the definite and

firm conviction that the special master has made a mistake. Id. Issues of statutory

interpretation are reviewed de novo. Zook v. Martin, 2018 Ark. 306, 558 S.W.3d 385 (citing

State v. Ledwell, 2017 Ark. 252, 526 S.W.3d 1). We construe statutes as they are read, giving

the words their ordinary and usually accepted meaning in common language. McMillan v.

Live Nation Ent., Inc., 2012 Ark. 166, 401 S.W.3d 473. Statutes are to be construed so that

no word is left void, superfluous, or insignificant, and we give meaning to every word in

the statute, if possible. Williams v. St. Vincent Infirmary Med. Ctr., 2021 Ark. 14, 615 S.W.3d

721. Statutory provisions are construed to make them consistent, harmonious, and sensible

to give effect to every part. Ark. Parole Bd. v. Johnson, 2022 Ark. 209, 654 S.W.3d 820.

I. LVC’s Compliance with Arkansas Code Annotated Section 7-9-601(b)(3)

Petitioners first argue that LVC failed to comply with section 7-9-601(b)(3).

Petitioners contend that LVC could not delegate its certification obligation “to an agent

8 outside of the LVC—that is, someone who is not an officer, member, or employee of the

sponsor.” The Secretary also argues that LVC, as the “sponsor,” could not substitute any

other person to make the certification.

Arkansas Code Annotated section 7-9-601(b)(3) provides that “[u]pon submission of

the sponsor’s list of paid canvassers to the Secretary of State, the sponsor shall certify to the

Secretary of State that each paid canvasser in the sponsor’s employ has no disqualifying

offenses in accordance with this section.” Additionally, “sponsor” is defined as “a person

who arranges for the circulation of an initiative or referendum petition or who files an

initiative or referendum petition with the official charged with verifying the signatures.”

Ark. Code Ann. § 7-9-101(10) (Repl. 2018). The term “person” is also defined as “any

individual, business, proprietorship, firm, partnership, joint venture, syndicate, business

trust, labor organization, company, corporation, association, committee, or any other

organization or group of persons acting in concert.” Ark. Code Ann. § 7-9-402(11)(A)

(Repl. 2018). Considering the plain language of these statutory definitions, a wide range of

groups or people can qualify as “the sponsor” for purposes of section 7-9-601(b)(3).

Here, LVC contracted with PCI, who in turn contracted with three separate

canvassing companies, to gather signatures in support of the ballot initiative. Together, these

three groups acted in concert to arrange for the circulation of an initiative petition and to

then file the petition with the Secretary. We conclude that under the broad statutory

definition of “sponsor,” found in Ark. Code Ann. §§ 7-9-101(10) and –402(11)(A), Dewey,

Marcynyszyn, and Erickson were eligible to sign the certification. As a result of our

conclusion, we need not address the estoppel argument raised by LVC.

9 II. LVC’s compliance with Arkansas Code Annotated section 7-9-601(g)(1).

Petitioners next argue that the special master erred in finding that petitioners did not

carry their burden of establishing violations of the pay-per-signature prohibition in Arkansas

Code Annotated section 7-9-601(g)(1). They cite (1) Dewey’s admission that he paid

canvassers additional money when they had a good day; (2) videos of different canvassers

who mentioned eligibility for a $100 bonus if they collected 100 signatures; and (3) evidence

of gift-card purchases. According to petitioners, these “violations” require a categorical

disqualification of all validated signatures obtained by all paid canvassers in Dewey’s employ.

Petitioners, however, are incorrect.

The pay-per-signature ban is found in section 7-9-601(g), which provides that

(g)(1) It is unlawful for a person to pay or offer to pay a person, or receive payment or agree to receive payment, on a basis related to the number of signatures obtained on a statewide initiative petition or statewide referendum petition.

(2) This subsection does not prohibit compensation for circulating petitions but only compensation for obtaining signatures when the compensation or compensation level is impacted by or related to the number of signatures obtained.

(3) A signature obtained in violation of this subsection is void and shall not be counted.

(4) A violation under this subsection is a Class A misdemeanor.

The plain language of subdivision (g)(3) requires proof of a causal link between the alleged

violation and the signatures obtained as a result of the alleged violation. There is no

categorical exclusion under section 7-9-601(g). Thus, only the signatures obtained due to

10 an impermissible payment or offer to pay are “void and shall not be counted.” Ark. Code

Ann. § 7-9-601(g)(3).

While petitioners produced multiple videos as proof of an unlawful offer to pay under

subdivision (g)(1), they never offered evidence of the total number of signatures collected

by the 14 paid canvassers recorded in the videos. Furthermore, none of those paid canvassers

reported when they were offered $100 for 100 signatures or who made the unlawful offers.

An improper offer without more is not enough to invalidate signatures. See Walther v. FLIS

Enters., Inc., 2018 Ark. 64, at 11, 540 S.W.3d 264, 270 (“We do not interpret language to

render one section dispensable.” (citing Ozark Gas Pipeline Corp., 342 Ark. 591, 29 S.W.3d

730 (2000); Surplusage Canon, Antonin Scalia & Bryan Garner, Reading Law: The Interpretation

of Legal Texts 174–79 (2012))). Additionally, the special master found that petitioners’ videos

were not credible evidence of violations of subdivision (g)(1), and Dewey’s testimony

supports this finding.

As petitioners have not provided any argument or convincing authority showing that

the special master clearly erred in his rejection of petitioners’ claims, we deny the petition

on Count I.

Petition denied.

Mandate to issue immediately.

David A. Couch; McDaniel Wolff, PLLC, by: Scott P. Richardson, Bart W. Calhoun, and

Brittany D. Webb; Quattlebaum, Grooms & Tull PLLC, by: John E. Tull III, E.B. Chiles IV,

R. Ryan Younger, Meredith M. Causey, and Glenn Larkin, for petitioners.

11 Tim Griffin, Att’y Gen., by: Jordan Broyles, Sr. Ass’t Att’y Gen., Christine A. Cryer, Sr.

Ass’t Att’y Gen., and Justin Bracher, Ass’t Att’y Gen., for respondent.

Friday, Eldredge & Clark, LLP, by: Elizabeth Robben Murray, Kimberly D. Young,

Kristopher B. Knox, and Kathy McCarroll, for intervenors.