table of contents - arkansas times exhibit 5—certification letter to election officials from...

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

mailto:[email protected]



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




Respondent’s Answer Add. 116

Motion to Intervene Add. 141



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 2—Certification Opinion from Attorney General

Add. 217

Exhibit 3—Receipt for Initiative Petition from Secretary of State

Add. 230


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 8—Canvasser Submission Add. 270




Exhibit 12—Email With Canvasser Submission Add. 308

Exhibit 13—Listing of Signatures from Out-of-State Canvassers

Add. 316



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


Add. 31082


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.


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


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.


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.


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.


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].


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].



[Petitioners’ Exhibit 12 is introduced]. [106].

Ab. 29



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


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].


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.


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].


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].


This background check is on Linda Lou Boyd. It was released to Scott

Tillman representing Liberty Petition Project, LLC.


[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.


This background check is on Fifi Juanita Harper. [155]. It was

released to Scott Tillman representing Liberty Petition Project, LLC.


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.


[156] This background check is on Arthur Raymond Ladd. It was

Ab. 42

released to Scott Tillman representing Liberty Petition Project, LLC.


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.


This background check is on Jose Ramone Rochet. It was released to

Scott Tillman representing Liberty Petition Project, LLC. [158].


This background check is on Melinda Sue Selley. It was released to

Scott Tillman representing Liberty Petition Project, LLC. [159].


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.


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.


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].


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.


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.


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].


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.


(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

Ab. 118

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

Ab. 130

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


[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.


Intervenors’ Exhibit 12 is all three documents for Adolphus Coleman

and it’s his Arkansas criminal history report, his paid canvasser sworn

Ab. 173

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 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]


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.


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.


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.


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.


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.


[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.


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;

24

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

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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