Attorneys file briefs with state Supreme Court on wet/dry appeal

Both parties have submitted written arguments to the Arkansas Supreme Court so it can consider Circuit Judge John Thomas’ decision to count questionable signatures in the petition drive to get the wet/dry issue on the Nov. 4 ballot.

On Friday, Oct. 17, Thomas ruled that several questioned signatures would count, and ordered that County Clerk Rhonda Cole, the defendant, certify an additional 146 signatures. He declared that those who signed a petition on the same day they registered to vote believed that “he or she was a registered voter and entitled to exercise all rights as a registered voter.” He added that any signatures that Cole’s office deleted “solely because (both documents) were signed on the same date shall be added as valid signatures.”

Andi Davis, attorney for plaintiffs Bill Viser and Rick Mays, wrote in her opening argument that Thomas’ ruling was “clearly erroneous.” She cited Hoyle v. Priest, a 2001 case in which the Eighth Circuit Court ruled that a “legal voter ... is defined as a citizen who is registered to vote at the time the citizen signs the petition.” The judge in the case went on to say that a person is eligible to sign a ballot petition “once his voter registration card is received and acknowledged by his county registrar.”

Ralph Ohm, Cole’s attorney, wrote in his brief that there are two issues at hand in the appeal.
The first issue, he wrote, is whether it is proper to count signatures in which the signee admitted to having filled out his voter registration form on the same day he signed the petition. Ohm wrote that he “happens to agree with the appellants that this violates Amendment 51.”

The second issue, he wrote, is whether the appellants have offered sufficient evidence to prove the total number of signatures needed was not met. “It is on this issue that (the appellants and I) disagree,” he wrote. Twenty-eight witnesses testified in court Sept. 30 that they signed the voter registration at the same time.

“Even if every one of those witnesses’ signature is stricken, the petition still has sufficient numbers to enable it to be placed upon the ballot,” Ohm argued.

Davis disagreed. There were two witnesses who testified during the hearing in September that their signatures had been forged. “There was another witness who could testify that two of his friends had signed the petition and registered to vote alongside him,” she wrote. “That means that there were over 28 signors specifically shown to have registered to vote on the same day as they signed the petition ... it is not necessary to show that over 28 signors signed the petition and registered to vote on the same day.”

Ohm wrote to the Arkansas Supreme Court that some people signed both documents at the same time, but that Thomas concluded that this fact “was not a fatal flaw to the validity of the signature and did not violate Amendment 51.”

Davis wrote to the state Supreme Court, “What it shows is that there was a pattern of practice among the circulators of the petition.” With all the witnesses who testified, “it evidenced a pattern of the circulators to deceive the county clerk so that she would certify the signors who were not qualified voters.”

Ohm argued that Thomas’ decision “is correct — even if the process to getting there was not.”
In conclusion, Davis wrote that “it is well established in case law, statute and the Arkansas Constitution” that for a signature on a petition to count, his voter registration application has to have been received and acknowledged by the county clerk. She also argued that “there was definite fraud” on the canvassers’ part in that they verified petition signatures and dates “when it is clear from a layman’s eye that the same person penciled in the date for the entire petition on several of them.”

In addition, she argued there were several witnesses who testified seeing this done. “All of this combined,” she wrote, is evidence of “a clear intent to mislead the office of the county clerk so as to ‘trick’ her into certifying those signatures when in fact they should have been stricken as invalid.”

Ohm wrote in his conclusion that he and Cole “respectfully prays (the Arkansas Supreme Court) affirm (Thomas’ decision), dismiss appellants’ complaint with prejudice, allow the issue to be placed on the ballot” and “grant (Cole) all other just and proper relief to which this Court deems her to be entitled.”

Davis said Monday that the Supreme Court should make a decision by today or Friday.