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1 Criminal Background Checks for Ballot Petition Canvassers 1 (2021)

handle is hein.congcourts/clbgcs0001 and id is 1 raw text is: CASE STUDIES IN EMERGENCY ELECTION LITIGATION Criminal Background Checks for Ballot Petition Canvassers Miller v. Thurston (Timothy L. Brooks, W.D. Ark. 5:20-cv-5163) Ballot measures were disqualified because their sponsors did not cer- tify that ballot petition canvassers had passed criminal background checks. A federal complaint alleged that the disqualification was im- proper because background checks did not have grades of pass or fail. The federal district court judge denied the plaintiffs relief on res judicata grounds; a similar claim already had failed in the state's su- preme court. Subject: Ballot measures. Topics: Ballot measure; getting on the ballot; matters for state courts. A September 2, 2020, federal complaint filed in the Western District of Arkan- sas challenged exclusion from the November 3 general election ballot two bal- lot measures that were disqualified because their sponsor did not certify that ballot petition canvassers had passed criminal background checks.1 Among the plaintiffs' allegations were the argument that it was not possible to certify that someone had passed a background check, because background checks do not result in grades of pass or fail.2 With their complaint, the plaintiffs filed a motion for a preliminary injunction' and a motion to expedite briefing, re- questing oral argument by September 14.4 On September 4, Judge Timothy L. Brooks agreed to hear the case on Sep- tember 14, advising the defendant secretary of state that if a preliminary in- junction is granted, any ballots without the initiatives at issue here will need to be reprinted.5 Judge Brooks denied the plaintiffs immediate relief on September 15.6 The complaint was filed six days after Arkansas's supreme court ruled that a state- ment that the sponsor had obtained background checks for the canvassers was not sufficient to certify that the canvassers had passed background checks.7 Judge Brooks found that the doctrine of res judicata therefore barred the fed- eral claim.' 1. Complaint, Miller v. Thurston, No. 5:20-cv-5163 (W.D. Ark. Sept. 2, 2020), D.E. 21; Miller v. Thurston, 486 F. Supp. 3d 1256, 1261 (W.D. Ark. 2020). 2. Complaint, supra note 1. 3. Preliminary Injunction Motion, Miller, No. 5:20-cv-5163 (W.D. Ark. Sept. 2, 2020), D.E. 3; Miller, 486 F. Supp. 3d at 1259. 4. Motion to Expedite Briefing, Miller, No. 5:20-cv-5163 (W.D. Ark. Sept. 2, 2020), D.E. 5. 5. Order at 1 n.1, id. (Sept. 4, 2020), D.E. 13; see Miller, 486 F. Supp. 3d at 1259. 6. Miller, 486 F. Supp. 3d 1256. 7. Miller v. Thurston, 2020 Ark. 267, 605 S.W.3d 255 (2020); see The Court on Aug. 27 Blocked Two Proposed Constitutional Amendments, Ft. Smith Times Rec., Sept. 6, 2020, at A9. 8. Miller, 486 F. Supp. 3d at 1265-66. Federal Judicial Center 8/17/2021 1

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