JOHN THURSTON, IN HIS OFFICIAL CAPACITY AS ARKANSAS SECRETARY OF STATE AND LESLIE RUTLEDGE, IN HER OFFICIAL CAPACITY AS ARKANSAS ATTORNEY GENERAL v. SAFE SURGERY ARKANSAS, A BALLOT QUESTION COMMITTEE AND DR. LAURIE BARBER, INDIVIDUALLY AND ON BEHALF OF SAFE SURGERY ARKANSAS

Cite as 2021 Ark. 55
SUPREME COURT OF ARKANSAS
No. CV-20-562

Opinion Delivered: March 11, 2021

JOHN THURSTON, IN HIS OFFICIAL
CAPACITY AS ARKANSAS SECRETARY
OF STATE; AND LESLIE RUTLEDGE, IN APPEAL FROM THE PULASKI
HER OFFICIAL CAPACITY AS COUNTY CIRCUIT COURT
ARKANSAS ATTORNEY GENERAL [NO. 60CV-20-4956]
APPELLANTS
HONORABLE MARY SPENCER
V. MCGOWAN, JUDGE

SAFE SURGERY ARKANSAS, A BALLOT
QUESTION COMMITTEE; AND DR. AFFIRMED.
LAURIE BARBER, INDIVIDUALLY AND
ON BEHALF OF SAFE SURGERY
ARKANSAS
APPELLEES

KAREN R. BAKER, Associate Justice

Appellants John Thurston, in his official capacity as Arkansas Secretary of State; and

Leslie Rutledge, in her official capacity as Arkansas Attorney General (collectively “Thurston”),

appeal the Pulaski County Circuit Court’s order granting Appellees’, Safe Surgery Arkansas, a

ballot question committee; and Dr. Laurie Barber (collectively “SSA’s”), request for preliminary

injunction. The order also found the entirety of Arkansas Code Annotated section 7-9-601(b)

(Repl. 2018) unconstitutional and enjoined Thurston from applying its provisions. Thurston

presents two arguments on appeal: (1) the circuit court lacked jurisdiction to consider SSA’s

request for a preliminary injunction because SSA did not present a justiciable controversy; and
(2) even if a justiciable controversy was present, the circuit court erred in granting the preliminary

injunction. We affirm.

Facts and Procedural History

The parties agree that this case is informed by two original actions before this court in

2020, Arkansans for Healthy Eyes v. Thurston, 2020 Ark. 270, 606 S.W.3d 582, and Miller v.

Thurston, 2020 Ark. 267, 605 S.W.3d 255.

In Healthy Eyes, the petitioners (AHE), an opposing ballot question committee, filed a

complaint against Thurston challenging the sufficiency of a statewide-initiative petition filed by

SSA.1 Among its many challenges to the petition, AHE argued that SSA did not register its paid

canvassers as required by law. Specifically, AHE argued that “SSA made no certification that any

paid canvasser had passed any background check,” and therefore, Thurston erroneously

included over 50,000 signatures.2 Id. at 5, 606 S.W.3d at 585.

1
SSA sought to refer Act 579 of 2019 to the people of Arkansas on the November 3,
2020 general-election ballot. Act 579 expanded the scope of the practice of optometry in
Arkansas to permit licensed optometrists to perform the following procedures: “(1) ‘[i]njections,
excluding intravenous or intraocular injections’; (2) ‘[i]ncision and curettage of a chalazion’; (3)
‘[r]emoval and biopsy of skin lesions with low risk of malignancy, excluding lesions involving the
lid margin or nasal to the puncta’; (4) ‘[l]aser capsulotomy’; and (5) ‘[l]aser trabeculoplasty.’ See
Ark. Code Ann. § 17-90-101(a)(3)(D)(i)–(v) (Supp. 2019).” Id. at 2, 606 S.W.3d at 583.

2
The following is the certification language at issue in Healthy Eyes:

In compliance with Ark. Code Ann. § 7-9-601, please find the list of paid canvassers that
will be gathering signatures on the Safe Surgery Referendum. On behalf of the sponsor, this
statement and submission of names serves as certification that the statewide Arkansas State
Police background check, as well as a 50-state criminal background check, have been timely
acquired in the 30 days before the first day the paid canvasser begins to collect signatures as
required by Act 1104 of 2017.

2
 We explained that the plain language of Arkansas Code Annotated section 7-9-601

provides that the sponsor “shall obtain” a current state and federal criminal record search and

that the criminal record search “shall be obtained within thirty (30) days before the date that the

paid canvasser begins collecting signatures.” Ark. Code Ann. § 7-9-601(b)(1), (2) (emphasis

added). Additionally, the statute provides that the background check is to be completed before

the paid-canvasser list is submitted to the Secretary of State and requires the sponsor to “certify

to the Secretary of State that each paid canvasser in its employ has passed a criminal background

check in accordance with this section. Ark. Code Ann. § 7-9-601(b)(3) (emphasis added).” 2020

Ark. 270, at 7, 606 S.W.3d at 586.

Relying on our recent case, Miller v. Thurston, 2020 Ark. 267, 605 S.W.3d 255, we

explained:

Miller argued to this court that the certification language, when viewed as a whole,
certified that their paid canvassers had passed criminal background checks and that the
Secretary violated Arkansas law in declaring the petitions insufficient for failure to
comply with the statutory requirements of section 7-9-601. In construing section 7-9-601,
we stated that

[u]nder Arkansas Code Annotated section 7-9-601, a sponsor is required both to
obtain a criminal record search on each paid canvasser and to certify to the Secretary
of State that each paid canvasser passed the criminal background check. Simply
acquiring or obtaining a background check is not sufficient under the plain language
of the statute.

....

[W]e cannot ignore the mandatory statutory language requiring certification that the
paid canvassers passed criminal background checks, nor can we disregard section 7-
9-601(f)’s prohibition on the Secretary of State counting incorrectly obtained
signatures “for any purpose.”

Id. at 2–3, 606 S.W.3d at 584 (emphasis added).

3
 Miller, 2020 Ark. 267, at [7, 9], 605 S.W.3d [at 259–60]. We concluded that a criminal
background check must be both “obtain[ed],” pursuant to section 7-9-601(b)(1), and
“passed,” pursuant to section 7-9-601(b)(3). In Miller, we held as a matter of law that the
petitioners did not comply with section 7-9-601(b)(3) when they failed to certify that their
paid canvassers had passed criminal background checks, that the initiative petitions were
insufficient, and that the petitioners were not entitled to a cure period. Miller, 2020 Ark.
267, at [9], 605 S.W.3d at 259–60.

Healthy Eyes, 2020 Ark. 270, at 8–9, 606 S.W.3d at 587. Thus, we held that Miller controls

because SSA’s certification language failed to certify that the paid canvassers had “passed” a

criminal background check in compliance with section 7-9-601(b)(3). Id. at 9, 606 S.W.3d at

587. Further, under a strict-compliance analysis, we held that SSA’s petition was insufficient for

its failure to comply with section 7-9-601(b)(3). Id.3

We now turn to the facts related to the present case. On September 4, 2020, SSA filed

its complaint in the Pulaski County Circuit Court. In the complaint, SSA challenged the

constitutionality of certain statutes governing the initiative and referendum process and sought

declaratory judgments, a temporary restraining order (TRO), and a preliminary injunction. SSA

asserted that it plans to sponsor certain initiatives to appear on the November 2022 ballot.

Specifically, in Count 1 and Count 2, SSA sought a declaratory judgment regarding obtaining

federal background checks under Arkansas Code Annotated section 7-9-601(b)(1) and (b)(3),

3
We did not reach, in either case, the impossibility of obtaining a federal background
check from the Arkansas State Police as required by section 7-9-601(b)(1). Specifically, in Miller,
we stated, “[Petitioner’s] argument that strict compliance is impossible is a red herring, however,
because the impossibility of obtaining federal background checks from the Arkansas State Police,
as contemplated by the statute, is not at issue. Petitioners did not certify that their paid
canvassers had passed any background check—state or federal.” 2020 Ark. 267, at 8, 605 S.W.3d
at 259.

4
respectively.4 SSA argued that section 7-9-601(b)(1) requires sponsors to obtain federal

background checks from the Arkansas State Police (the ASP), which is impossible. Thus, SSA

argued that subdivision (b)(1)’s requirements regarding background checks from the ASP are

unconstitutional and should be enjoined. Subdivision (b)(3) requires sponsors to certify that any

paid canvasser they employ “has passed a criminal background check in accordance with this

section.” Therefore, SSA argued that, based on the impossibility of obtaining a federal criminal

record search from the ASP pursuant to subdivision (b)(1), subdivision (b)(3)’s certification

requirement is likewise impossible. SSA requested that the circuit court issue a TRO regarding

Counts 1 and 2; issue a preliminary injunction on the enforcement of the foregoing statutes;

declare that it is impossible for sponsors to comply with Arkansas Code Annotated section 7-9-

601(b)(1)’s requirement of obtaining federal background checks from the ASP on their paid

canvassers; and declare that, because compliance with section 7-9-601(b)(1) is impossible, it is

unconstitutional under amendment 7 for section 7-9-601(b)(3) to require sponsors to certify that

their paid canvassers have passed federal background checks from the ASP.

On September 8, 2020, at the request of SSA, the circuit court entered an ex parte TRO.

The order enjoined Thurston from enforcing subdivisions (b)(1) and (b)(3) until SSA could be

heard at a preliminary injunction hearing. On the same day, the circuit court entered an order

scheduling the hearing for September 18, 2020. On September 9, Thurston filed his notice of

appeal from the ex parte TRO.

4
Count III involved section 7-9-126 and, as argued below, was not subject to the
injunction and is not at issue on appeal.

5
 On September 9, in CV-20-532 (appeal of the TRO), the record was lodged in this court

and we set a briefing schedule. Thurston also filed an emergency motion for stay of TRO and

requested expedited consideration. On the same day, in CV-20-529, Thurston filed an

emergency petition for writ of mandamus, writ of prohibition, writ of certiorari, or supervisory

writ. Thurston also filed an emergency motion for stay of the TRO and requested expedited

consideration.

On September 14, in CV-20-532, SSA filed a motion to dismiss and to stay briefing

schedule. On September 16, this court denied the motion to dismiss the appeal and granted a

stay of the briefing schedule pending an entry of the circuit court’s order granting or denying

the preliminary injunction. On the same day, in CV-20-529, we granted expedited consideration;

denied the petition; and held that the emergency motion for stay of the TRO was moot. 5

On September 18, the hearing on the preliminary injunction was held, during which Dr.

Laurie Barber, chair of SSA, testified that SSA intends to support an initiated act for the

November 2022 ballot. Dr. Barber further testified about the amount of time and expense SSA

has dedicated to their efforts over the past two years. When specifically asked if she had any idea

how much money it would cost to draft an initiative that would pass muster, Dr. Barber

responded, “So far . . . and it failed––we have spent over a million dollars.”

SSA presented as exhibits testimony obtained during the special masters’ proceedings for

Healthy Eyes, supra, and Miller, supra. During both hearings, Mary Claire McLaurin, ASP attorney,

testified that the ASP does not provide sponsors with federal background checks for their paid

5
On November 10, 2020, in CV-20-532, Thurston filed a motion to dismiss the appeal
of the TRO because it had expired on its own terms. We granted the motion on December 3.

6
canvassers. According to McLaurin, the FBI will not process a federal background check

pursuant to the paid-canvassers statute, and the ASP has never provided a sponsor a federal

background check under section 7-9-601(b). SSA also submitted as exhibits the special masters’

reports filed in the above cases. Both special masters found McLaurin’s testimony credible and

that compliance with the federal-background-check requirement in subdivision (b)(1) is

impossible.

On September 24, 2020, the circuit court entered its order granting SSA’s request for

preliminary injunction. The order found that the entirety of section 7-9-601(b) is

unconstitutional and enjoined Thurston from applying its provisions.

Thurston appeals. As an initial matter, we note that the circuit court’s order is not final.

Specifically, the order states: “As the Defendants have not yet filed their responses to Plaintiffs’

Complaint, as the time for answering the Complaint has not run, the Court reserves a ruling on

the prayer for Declaratory Judgment at this time.” However, Arkansas Rule of Appellate

Procedure–Civil 2(a)(6) allows for an appeal of an “interlocutory order by which an injunction

is granted.” We have said that this is a distinct basis for appeal from Rule 2(a)(1), which provides

for appeals from a “final judgment or decree.” E. Poinsett Cty. Sch. Dist. No. 14 v. Massey, 317

Ark. 219, 223, 876 S.W.2d 573, 575 (1994). An appeal taken pursuant to Rule 2(a)(6) requires

the appellant to file the record within thirty days from the filing of the first notice of appeal.

Ark. R. App. P.–Civ. 5(a). Here, the notice of appeal was filed on September 24, 2020, and the

record was timely filed on September 28, 2020. Therefore, we have jurisdiction to consider the

present case pursuant to Rule 2(a)(6).

Ark. Code Ann. § 7-9-601(b)

7
 The applicable statute, Arkansas Code Annotated section 7-9-601(b), sets forth the

background check and certification requirements that a sponsor must obtain before a paid

canvasser collects signatures:

(b)(1) To verify that there are no criminal offenses on record, a sponsor shall obtain,
at the sponsor’s cost, from the Division of Arkansas State Police, a current state and federal
criminal record search on every paid canvasser to be registered with the Secretary of State.

(2) The criminal record search shall be obtained within thirty (30) days before the
date that the paid canvasser begins collecting signatures.

(3) Upon submission of the sponsor’s list of paid canvassers to the Secretary of
State, the sponsor shall certify to the Secretary of State that each paid canvasser in the
sponsor’s employ has passed a criminal background check in accordance with this section.

(4) A willful violation of this section by a sponsor or paid canvasser constitutes a
Class A misdemeanor.

(Emphasis added.) We review issues of statutory interpretation de novo, as it is for this court to

determine the meaning of a statute. Dep’t of Ark. State Police v. Keech Law Firm, P.A., 2017 Ark.

143, 516 S.W.3d 265. The basic rule of statutory construction is to give effect to the intent of

the legislature by giving words their usual and ordinary meaning. Ark. Soil & Water Conservation

Comm’n v. City of Bentonville, 351 Ark. 289, 92 S.W.3d 47 (2002). “When a statute is clear, it is

given its plain meaning, and we will not search for legislative intent; rather, that intent must be

gathered from the plain meaning of the language used. In other words, if the language of the

statute is plain and unambiguous, the analysis need go no further.” Yamaha Motor Corp., U.S.A.

v. Richard’s Honda Yamaha, 344 Ark. 44, 52, 38 S.W.3d 356, 360 (2001). This court is very

reluctant to interpret a legislative act in a manner contrary to its express language unless it is

clear that a drafting error or omission has circumvented legislative intent. Id., 38 S.W.3d at 360.

8
We construe statutes so that no word is left void, superfluous, or insignificant, and we give

meaning to every word in the statute, if possible. Bedell v. Williams, 2012 Ark. 75, 386 S.W.3d

493 (citing Rylwell, L.L.C. v. Ark. Dev. Fin. Auth., 372 Ark. 32, 269 S.W.3d 797 (2007)).

I. Justiciable Controversy

For his first point on appeal, Thurston argues that the circuit court lacked jurisdiction

to consider SSA’s request for a preliminary injunction because SSA did not present a justiciable

controversy. Thurston argues that SSA’s claim is merely speculative and contingent because it is

entirely unknown whether SSA would be prevented from registering paid canvassers for a future

initiative, or that a potential roadblock would arise in the 2022 initiative process, which SSA

has not yet started. Specifically, Thurston argues that the fact that SSA must comply with section

7-9-601(b) if they choose to engage in the initiative-or-referendum process in the future was

insufficient to show that they face a “present danger or dilemma” from the antifraud

requirements. To support this argument, Thurston relies on Baptist Health Systems v. Rutledge,

2016 Ark. 121, 488 S.W.3d 507. In that case, the Hospital appellants sought a judgment

declaring the Arkansas Peer Review Fairness Act unconstitutional. Id. at 1–2, 488 S.W.3d at

508. Relying on the Hospitals’ references to hypothetical future events, the appellees argued that

there was not a justiciable controversy on the basis that there was no present danger or dilemma.

Id. at 4, 488 S.W.3d at 510. We agreed, noting that the Hospitals did not state that they were

violating the Act, nor did they allege a threat of imminent enforcement under the Act. Id. We

explained that “[w]ithout a sufficient factual record to show an actual, present controversy, this

9
court cannot opine on the merits of the constitutional arguments raised in the Hospitals’

declaratory-judgment suit.” Id. at 5, 488 S.W.3d at 510.

SSA argues that the present case is more properly guided by Magruder v. Arkansas Game

& Fish Commission, 287 Ark. 343, 698 S.W.2d 299 (1985), and Jegley v. Picado, 349 Ark. 600, 80

S.W.3d 332 (2002). In Magruder, the appellant challenged an Arkansas Game and Fish

Commission regulation that prohibited the taking of black bass under fifteen inches from Lake

Maumelle. In holding that the appellant had standing to challenge the regulation, we explained,

The appellant alleged he was a licensed fisherman who frequently fished Lake Maumelle.
Nothing in the record showed the commission challenged that allegation. If the
commission’s regulation is to be enforced it will have an effect on persons who fish Lake
Maumelle regardless of who owns the lake. One whose rights are thus affected by a statute
has standing to challenge it on constitutional grounds. The same rule applies to official
acts other than statutes and thus it applies to the regulation in question here.

287 Ark. at 344, 698 S.W.2d at 300 (internal citations omitted).

In Jegley, the appellees challenged the constitutionality of the sodomy statute. The

appellant argued that the appellees could not seek a declaratory judgment regarding the

constitutionality of the statute because they had not shown the existence of a justiciable

controversy by way of a credible threat of imminent prosecution. 349 Ark. at 611, 80 S.W.3d at

336. We disagreed and explained that “[w]e have not always required prosecution or a specific

threat of prosecution as a prerequisite for challenging a statute.” Id. at 618, 80 S.W.3d at 341.

Relying in part on Magruder, we found that the justiciable-controversy requirement was satisfied:

Clearly this statute is not moribund, and the State has not foresworn enforcement
of it. Appellees are precisely the individuals against whom section § 5-14-122 is intended
to operate. As they admit to presently engaging in behavior that violates the statute and
intending to engage in future behavior that violates the law, and as the State has not
disavowed any intention of invoking the criminal-penalty provisions of Ark. Code Ann.

10
 § 5-14-122, we cannot say that appellees are without some reason to fear prosecution for
violation of the sodomy statute. To hold otherwise would leave appellees trapped in a
veritable Catch-22. As long as Arkansas prosecutors exercise their discretion and fail to
prosecute those individuals who violate the sodomy statute through consensual, private
behavior, appellees and those similarly affected by the statute would have no choice but
to suffer the brand of criminal impressed upon them by a potentially unconstitutional
law. The discretionary acts of the State’s prosecutors could effectively bar shut the
courthouse doors and protect the sodomy statute from constitutional challenge. We
cannot allow this to happen.

Id. at 621–22, 80 S.W.3d at 343 (internal citations omitted).

On appeal, the question as to whether there was a complete absence of a justiciable issue

shall be reviewed de novo on the record of the circuit court. Rutledge, supra. Despite the parties’

arguments, we recently decided justiciability in the context of a preliminary injunction. In City

of Jacksonville v. Smith, this court held as follows:

Here, the circuit court has not ruled on Smith’s underlying declaratory-judgment
action, but it granted Smith’s request for entry of a preliminary injunction. In its order
granting preliminary injunction, the circuit court found that Smith had met her burden
of establishing both a likelihood of success on the merits of her claims and the existence
of irreparable harm in the absence of injunctive relief. This court has stated that “[a] party
thus is not required to prove his [or her] case in full at a preliminary-injunction hearing.”
[Ark. Dep’t of Human Servs. v. ] Ledgerwood, 2017 Ark. 308, at 9, 530 S.W.3d at 342
(quoting Univ. of Tex. v. Camenisch, 451 U.S. 390, 395 (1981)). Accordingly, we conclude
that Smith presents a justiciable controversy.

2018 Ark. 87, at 7–8, 540 S.W.3d 661, 667. Accordingly, we hold that a justiciable controversy

exists in the present case.

II. Preliminary Injunction

In determining whether to issue a preliminary injunction pursuant to Arkansas Rule of

Civil Procedure 65, the circuit court must consider two things: (1) whether irreparable harm will

result in the absence of an injunction, and (2) whether the moving party has demonstrated a

11
likelihood of success on the merits. Baptist Health v. Murphy, 365 Ark. 115, 226 S.W.3d 800

(2006). This court reviews the grant of a preliminary injunction under an abuse-of-discretion

standard. Id. The standard of review is the same for the two essential components of a

preliminary injunction: irreparable harm and likelihood of success on the merits. Id. There may

be factual findings by a circuit court that lead to conclusions of irreparable harm and likelihood

of success on the merits, and those findings shall not be set aside unless clearly erroneous, but a

conclusion that irreparable harm will result or that the party requesting the injunction is likely

to succeed on the merits is subject to review under an abuse-of-discretion standard. Id.

When an appeal reaches a court via an order granting a preliminary injunction, the

appellate court will not delve into the merits of the case further than is necessary to determine

whether the circuit court exceeded its discretion in granting the injunction. Id. The sole question

before the appellate court is whether the circuit court “departed from the rules and principles

of equity in making the order,” and not whether the appellate court would have made the order.

Id. at 121–22, 226 S.W.3d at 806–07.

A. Likelihood of Success on the Merits

Thurston argues that SSA failed to show a likelihood of success on the merits because

the antifraud requirements contained in section 7-9-601(b) serve important interests and are well

within the General Assembly’s authority under amendment 7. Thus, Thurston contends that

contrary to the circuit court’s novel interpretation of section 7-9-601(b) that sponsors are

required to perform an impossible task, compliance may be accomplished in a myriad of ways.

12
 This court has held that “to justify a grant of preliminary injunction relief, a plaintiff

must establish that it will likely prevail on the merits at trial.” W.E. Long Co. v. Holsum Baking

Co., 307 Ark. 345, 351, 820 S.W.2d 440, 443 (1991) (citing Smith v. Am. Trucking Ass’n, 300 Ark.

594, 781 S.W.2d 3 (1989)). The test for determining the likelihood of success is whether there

is a reasonable probability of success in the litigation. Custom Microsystems, Inc. v. Blake, 344 Ark.

536, 42 S.W.3d 453 (2001).

Thurston correctly notes that article 5, section 1 of the Arkansas Constitution, as

amended by amendment 7, requires—not merely authorizes—the General Assembly to enact law

“prohibiting and penalizing perjury, forgery, and all other felonies or other fraudulent practices,

in the securing of signatures or filing of petitions.” However, this same section of our

constitution also provides protection for the people of Arkansas. Specifically, article 5, section 1

reserves to the people of the State of Arkansas the right to propose legislative measures, laws,

and amendments to the constitution, and to enact or reject the same at the polls, independent

of the General Assembly, and sets out the procedure for doing so. Section 1 also prohibits

unwarranted restrictions, stating that

[n]o law shall be passed to prohibit any persons or persons from giving or receiving
compensation for circulating petitions, nor to prohibit the circulation of petitions, nor
in any manner interfering with the freedom of the people in procuring petitions[.]

This section further provides that “[n]o legislation shall be enacted to restrict, hamper or impair

the exercise of the rights herein reserved to the people.” Ark. Const. art. 5, § 1.

In finding that SSA is likely to succeed on the merits, the circuit court made the

following findings:

13
 A sworn affidavit from an attorney for the Arkansas State Police stated that
Arkansas State Police cannot obtain and has never obtained a federal background check
on paid canvassers under Ark. Code Ann. § 7-9-601(b)(1). The special masters in both
proceedings found that it was impossible for sponsors to comply with the federal
background check requirement.

The statute’s provisions block the Plaintiffs from being able to exercise their
initiative and referenda rights under Amendment 7 because the Act created at least two
requirements with which compliance is impossible. Such requirements violate
Amendment 7’s prohibition on laws that interfere “with the freedom of people in
procuring petitions” and that “restrict, hamper or impair the exercise of the rights herein
reserved to the people.”

....

The Court agrees with the Plaintiffs’ argument that “it is difficult to imagine a
more textbook example of a statute that restricts, hampers, or impairs Arkansas initiative
and referenda than one like the federal-background-check requirement with which
compliance is impossible.”

As noted above, Ark. Code Ann. § 7-9-601(b)(1) and 601(b)(3) are
unconstitutional for the same reason: they require sponsors to do the impossible on pain
of either committing a crime under Ark. Code Ann. § 7-9-601(b)(4) or having their entire
petition set aside for lack of signatures under Ark. Code Ann. § 7-9-601(f).

During the hearing on the preliminary injunction, SSA presented as exhibits testimony

obtained during the special masters’ proceedings for Healthy Eyes, supra, and Miller, supra. As set

forth above, during the Healthy Eyes hearing, Mary Claire McLaurin, ASP attorney, testified that

the ASP does not provide sponsors with federal background checks for their paid canvassers.

According to McLaurin, the FBI will not process a federal background check pursuant to the

paid-canvassers statute, and the ASP has never provided a sponsor a federal background check

under section 7-9-601(b).

During the Miller hearing, McLaurin testified that the only background checks the ASP

can perform for sponsors seeking background checks on paid canvassers are Arkansas

14
background checks. She explained that even though section 7-9-601(b)(1) states that the

background checks shall be obtained from the ASP, “the wording of the statute is not sufficient

to grant the . . . sponsors the authority under the FBI, the Department of Justice guidelines.”

Further, McLaurin testified that there is no way for a sponsor of a statewide initiative or

referendum to obtain a federal background check from the ASP.

The circuit court also considered the special masters’ reports filed in the above cases.

Both special masters found McLaurin’s testimony credible and that compliance with the federal-

background-check requirement in section 7-9-601(b)(1) is impossible.

Considering the evidence presented at the preliminary-injunction hearing, we cannot say

that the circuit court clearly erred in finding it impossible to obtain a federal background check

from the ASP. However, our analysis does not end there because Thurston contends that

compliance with the antifraud requirements of section 7-9-601(b) is not impossible; rather, it

can be accomplished in other ways.

First, Thurston argues that far from finding section 7-9-601(b) impossible to comply with,

our straightforward reading in Miller is one of the permissible interpretations. Thurston relies

on a footnote that states, “[T]he standard for having ‘passed’” a criminal background check

appears to be having no criminal conviction for a felony offense or a violation of the election

laws, fraud, forgery, or identification theft as stated in section 7-9-601(d)(3).” Id. at 8 n.4, 605

S.W.3d at 259 n.4.6 Thus, Thurston contends that a certification to that effect is certainly not

impossible for sponsors to provide and would satisfy the antifraud requirements.

6
Section 7-9-601(d)(3) states:

15
 When reviewing the precise statute at issue in the present case, we explained that “[t]he

first rule in considering the meaning and effect of a statute is to construe it just as it reads, giving

the words their ordinary meaning and usually accepted meaning in common language.” Miller,

2020 Ark. 267, at 7, 605 S.W.3d at 258–59 (quoting Berryhill v. Synatzske, 2014 Ark. 169, at 4,

432 S.W.3d 637, 640). We explained that pursuant to section 7-9-601, a sponsor is required

both to obtain a criminal record search on each paid canvasser and to certify to the Secretary of

State that each paid canvasser passed the criminal background check. See Ark. Code Ann. § 7-9-

601(b)(1), (b)(3). In an attempt to comply with subdivision (b)(3)’s certification requirement that

the canvassers had “passed” the background check, the sponsors certified that criminal

background checks had been timely “acquired.” We held that this certification was insufficient

under that statute and explained that “[s]imply acquiring or obtaining a background check is not

sufficient under the plain language of the statute. The results of the background checks are not

required to be filed with the Secretary of State, and the certification is the only assurance the

public receives that the paid canvassers ‘passed’ background checks.” Id. at 7–8, 605 S.W.3d at

259. We then stated that “the standard for having ‘passed’ a criminal background check appears

to be having no criminal conviction for a felony offense or a violation of the election laws, fraud,

(d) Before obtaining a signature on an initiative or referendum petition as a paid
canvasser, the prospective canvasser shall submit in person or by mail to the sponsor:

...

(3) A signed statement taken under oath or solemn affirmation stating that the person
has not pleaded guilty or nolo contendere to or been found guilty of a criminal felony
offense or a violation of the 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[.]

16
forgery, or identification theft as stated in section 7-9-601(d)(3).” Id. at 8 n.4, 605 S.W.3d 259

n.4. The petitioners went on to argue that strict compliance with the statute was impossible due

to the impossibility of obtaining the federal background checks from the ASP as contemplated

by subdivision (b)(1). However, we considered this argument to be a red herring because the

petitioners did not certify that their paid canvassers had passed any background check—either

state or federal. Id. at 8, 605 S.W.3d at 259.

Despite Thurston’s arguments to the contrary, having found that the petitioners did not

certify that the canvassers had passed any background check, we declined to consider the

impossibility of obtaining a federal background check from the ASP. Now with the issue squarely

before us, and in construing subdivision (b)(1) just as it reads, it is clear that the federal

background check is to be obtained “from the Division of Arkansas State Police.” Taking into

consideration the testimony above, this is impossible. Further, subdivision (b)(3) mandates that

the sponsor shall certify to the Secretary of State that each paid canvasser in the sponsor’s employ

has passed a criminal background check in accordance with this section. Because subdivision

(b)(3) requires the sponsor to certify that the impossible requirement contained in subdivision

(b)(1) has been satisfied, it follows that compliance with subdivision (b)(3) is likewise impossible.

In light of this determination, a certification consistent with the standard set out in footnote 4

in Miller would not suffice.

As an additional means of compliance, Thurston argues that history shows that

compliance is not merely theoretical. Thurston argues that since the enactment of section 7-9-

601(b) in 2015, initiative sponsors—including SSA—have successfully registered their paid

canvassers. Specifically, Thurston notes that in July 2019, SSA certified that they had “obtain[ed]

17
a criminal background check for each paid canvasser in compliance with § 7-9-601” for a

previous referendum. Healthy Eyes, 2020 Ark. 270, at 2, 606 S.W.3d at 584 (noting SSA’s

certification that “the canvassers listed below have each passed a criminal background check

from the Arkansas State Police within 30 days of canvassing”). Thurston argues that this

certification was sufficient to meet the statutory requirement, and the signatures collected by

canvassers covered by that certification were accepted and counted. Id. at 3, 606 S.W.3d at 584.

While this certification may have previously been accepted, as set forth above, we had

not yet determined that compliance with section 7-9-601(b)(1) is impossible. Again, given the

impossibility of complying with subdivision (b)(1), subdivision (b)(3)’s requirement that “the

sponsor shall certify to the Secretary of State that each paid canvasser in the sponsor’s employ

has passed a criminal background check in accordance with this section” is likewise impossible.

Further, despite having registered paid canvassers and collected signatures in the past, according

to the plain language of section 7-9-601(b), this was apparently done in violation of the statute

as it is impossible to comply with subdivisions (b)(1) and (b)(3).

Next, Thurston argues that in order to “obtain” the necessary background checks from

the ASP, the ASP will fingerprint the background-check applicants and then an applicant can

submit his or her fingerprints for federal background checks. Thus, Thurston contends that

because the ASP plays a critical role in obtaining the federal background check, this is sufficient

to satisfy the statute.

Again, in construing subdivision (b)(1) just as it reads, it is clear that the federal

background check is to be obtained “from the Division of Arkansas State Police.” Accordingly,

we disagree with Thurston’s position that the ASP’s role in fingerprinting background-check

18
applicants satisfies the statute’s requirement that the background check be “obtained” from the

ASP.

Having found that subdivisions 601(b)(1) and (b)(3) are impossible to comply with, we

hold that the circuit court did not abuse its discretion in determining that SSA demonstrated a

likelihood of success on the merits.

B. Irreparable Harm

Thurston argues that the circuit court erred by finding that irreparable harm will result

in the absence of the preliminary injunction. Irreparable harm is “the touchstone of injunctive

relief.” United Food & Commercial Workers Int’l Union v. Wal-Mart Stores, Inc., 353 Ark. 902, 905–

07, 120 S.W.3d 89, 92 (2003) (citing Wilson v. Pulaski Ass’n of Classroom Teachers, 330 Ark. 298,

954 S.W.2d 221 (1997) (holding that the prospect of irreparable harm is the foundation of the

power to issue injunctive relief)). Further, we have said that harm is normally considered

irreparable only when it cannot be adequately compensated by money damages or redressed in

a court of law. AJ & K Operating Co., Inc. v. Smith, 355 Ark. 510, 140 S.W.3d 475 (2004).

On the issue of irreparable harm, the circuit court found that

[t]he Plaintiffs presented testimony from Dr. Barber as to the expense and time
consuming efforts necessary in exercising initiative and referenda rights. As the
impossible requirements found in Ark. Code Ann. § 601(b)(1) and § 601(b)(3) prevent
SSA from registering any paid canvassers, SSA cannot begin the initiative process for the
2022 cycle. The Court finds that a preliminary injunction is necessary as otherwise, SSA
will be irreparably harmed as money damages will not be a remedy.

We agree with the circuit court’s finding that SSA will be irreparably harmed in the absence of

a preliminary injunction.

19
 Thurston challenges the preliminary-injunction order on multiple grounds related to

whether SSA demonstrated irreparable harm. First, Thurston argues that SSA can register paid

canvassers even if it is impossible to obtain a federal background check from the ASP. Thurston

contends that in previous cases, SSA and others have registered their paid canvassers and

collected signatures, and they have offered no evidence that the antifraud provisions have ever

prevented them from registering canvassers and collecting signatures.

Despite SSA’s having registered paid canvassers and collected signatures in the past, we

reject this argument based on the impossibility of compliance with subdivisions (b)(1) and (b)(3)

as set forth above.

Second, Thurston argues that the circuit court’s finding that SSA cannot begin the

initiative process if the antifraud requirements are not enjoined was clearly erroneous. Thurston

contends that SSA can take the very first step of the initiative process—filing a draft proposal of

their initiative pursuant to section 7-9-1077—without having to worry about section 7-9-601(b)

compliance. However, as SSA correctly notes, a sponsor must comply with both section 7-9-107

and section 7-9-601 prior to gathering signatures on the petition.8 Stated differently, even if SSA

7
Section 7-9-107(a) provides: Before any initiative petition or referendum petition
ordering a vote upon any amendment or act shall be circulated for obtaining signatures of
petitioners, the sponsors shall file the original draft with the Secretary of State.

8
Next, Thurston correctly notes that section 7-9-601 regulates the hiring and training of
paid canvassers only. Thurston goes on to suggest that SSA could submit their proposal now and
begin the petition-circulation process by enlisting the help of volunteer canvassers. SSA responds
that the Arkansas Constitution forecloses this argument because it states that the General
Assembly cannot pass a law forcing sponsors to use voluntary canvassers instead of paid
canvassers: “No law shall be passed to prohibit any person or persons from giving or receiving
compensation for circulating petitions, nor to prohibit the circulation of petitions, nor in any
manner interfering with the freedom of the people in procuring petitions . . . .” Ark. Const. art.

20
has satisfied section 7-9-107(a) by filing the original draft with the Secretary of State, SSA still

cannot begin gathering signatures until it complies with section 7-9-601(b), which is impossible.

Below, SSA presented evidence of irreparable harm through the testimony and affidavit

of Dr. Barber. We cannot say that the circuit court’s findings regarding Dr. Barber’s testimony

detailing the time and expense necessary to exercise SSA’s initiative and referenda rights were

clearly erroneous. Further, the circuit court was correct in its finding that SSA cannot begin the

initiative process for the 2022 election cycle because the impossible requirements found in

subdivisions (b)(1) and (b)(3) prevent SSA from registering any paid canvassers.

Based on our standard of review, we hold that the circuit court did not abuse its

discretion in determining that SSA demonstrated that irreparable harm will result in the absence

of an injunction.

C. Overbroad

Thurston argues that even if the federal-background-check requirement is invalid, the

circuit court’s preliminary injunction is grossly overbroad. Thurston contends that there is no

justification for enjoining the requirement that sponsors obtain state background checks from

the ASP or the remainder of the antifraud provisions. Specifically, Thurston argues that section

7-9-601(b)(1)’s requirement that sponsors obtain state background checks is unproblematic and

should not have been enjoined. Thurston argues that the circuit court could have stricken “and

federal” and retained the state-background-check requirement. Alternatively, Thurston argues

5, § 1 (“Unwarranted Restrictions Prohibited”). Despite having raised this issue in his reply brief,
Thurston now argues that forcing the sponsors to use volunteer canvassers is a red herring.

21
that the circuit court could have stricken “from the Division of Arkansas State Police” from the

statute and retained “a sponsor shall obtain . . . a current state and federal criminal record

search.” To support this position, Thurston relies on Ex parte Levy, 204 Ark. 657, 163 S.W.2d

529 (1942). In Levy, we explained that

[t]he constitutional and unconstitutional provisions may even be contained in the same
section, and yet be perfectly distinct and separable, so that the first may stand, though
the last fall. The point is, not whether they are contained in the same section, for the
distribution into sections is purely artificial, but whether they are essentially and
inseparably connected in substance. If, when the unconstitutional portion is stricken out,
that which remains is complete in itself, and capable of being executed in accordance
with the apparent legislative intent, wholly independent of that which was rejected, it
must be sustained. . . . If a statute attempts to accomplish two or more objects, and is
void as to one, it may still be in every respect complete and valid as to the other. But if
its purpose is to accomplish a single object only, and some of its provisions are void, the
whole must fail, unless sufficient remains to effect the object without the aid of the
invalid portion. And if they are so mutually connected with and dependent on each
other, as conditions, considerations, or compensations for each other, as to warrant the
belief that the Legislature would not pass the residue independently, then, if some parts
are unconstitutional, all the provisions which are thus dependent, conditional, or
connected must fall with them.

204 Ark. at 659, 163 S.W.2d at 531 (quoting Cooley’s Constitutional Limitations 210 (6th ed.)).

SSA responds that the circuit court correctly determined that the impossible federal-

background-check requirements of subdivisions (b)(1) and (b)(3) were inseparably linked with

the remainder of section 7-9-601(b). To support its position, SSA relies on our standard set forth

in McGhee v. Arkansas State Board of Collection Agencies, 375 Ark. 52, 289 S.W.3d 18 (2008). In

that case, we explained that to determine whether the invalidity of part of an act is fatal to the

entire legislation, we look to (1) whether a single purpose is meant to be accomplished by the

act and (2) whether the sections of the act are interrelated and dependent upon each other. Id.

22
The mere fact that an act contains a severability clause is to be considered but is not alone

determinative. Id.

As SSA correctly points out, striking just the federal criminal-record search while

retaining section 7-9-601(b)’s other requirements regarding a state criminal-record search cannot

be consistent with the General Assembly’s intent. Section 7-9-601(b) is contained in section 4 of

Act 1219 of 2015. The remainder of section 4, codified at section 7-9-601(d)(3), makes clear that

the General Assembly was not only concerned with Arkansas convictions but also with

convictions in “any state of the United States, the District of Columbia, Puerto Rico, Guam, or

any other United States protectorate[.]” Likewise, we reject Thurston’s argument that the circuit

court could have stricken the requirement that the background checks be obtained “from the

Division of Arkansas State Police.” Clearly the General Assembly intended for background

checks to be obtained from the ASP. Therefore, completely removing the ASP from any

involvement runs contrary to the General Assembly’s intent.

Next, we consider whether section 7-9-601(b)’s provisions are interrelated and dependent

upon each other. In doing so, we have recognized the efficacy of severability clauses when part

of an act is unconstitutional but other provisions are valid, and we have had no difficulty in

removing words or phrases––or even entire sections––from statutes when those provisions

offended constitutional limitations upon legislative action. Levy, 204 Ark. 657, 163 S.W.2d 529.

If an act is constitutional in part, the valid portion will be sustained if complete in itself and

capable of being executed in accordance with the apparent legislative intent. Id. The

constitutional and unconstitutional provisions may even be contained in the same section. Id.

23
If a statute attempts to accomplish two or more objects and is void as to one, it may still be in

every respect complete and valid as to the other. Id.

While not alone determinative, we note that Act 1219 lacks a severability clause. McGhee,

supra. Here, a review of section 7-9-601(b)’s subdivisions establishes that they are all related to

the criminal background check. Subdivision (b)(1) requires the sponsor to obtain “from the

Division of Arkansas State Police, a current state and federal criminal record search on every

paid canvasser to be registered with the Secretary of State.” Subdivision (b)(2) mandates that the

criminal record search shall be obtained within thirty days before the date that the paid canvasser

begins collecting signatures. Subdivision (b)(3) requires the sponsor to “certify to the Secretary

of State that each paid canvasser in the sponsor’s employ has passed a criminal background

check in accordance with this section.” Subdivision (b)(4) states that a “willful violation of this

section by a sponsor or paid canvasser constitutes a Class A misdemeanor.” Because all of section

7-9-601(b)’s subdivisions relate to the criminal background check, we hold that they are

interrelated and dependent upon each other. Therefore, we disagree with Thurston’s position

that the circuit court’s preliminary injunction was grossly overbroad.

In sum, we cannot say that the circuit court abused its discretion in determining that

SSA demonstrated a likelihood of success on the merits and that irreparable harm will result in

the absence of an injunction. Accordingly, we affirm.

Affirmed.

Leslie Rutledge, Att’y Gen., by: Nicholas J. Bronni, Ark. Solicitor Gen.; Vincent M. Wagner,

Dep. Solicitor Gen.; Dylan L. Jacobs, Ass’t Solicitor Gen.; and Emily J. Yu, Attorney.

24
Steel, Wright, and Gray, PLLC, by: Alec Gaines and Nate Steel, for appellees.

25