What disqualifies a paid ballot canvasser in Arkansas from passing a criminal background check, and how old can the offense be?

Plain-English summary

Arkansas requires sponsors of initiative and referendum petitions to run criminal background checks on every paid canvasser they hire, then certify to the Secretary of State that each canvasser "passed" the check. A state senator asked the AG three questions about how that requirement worked: what counted as passing, whether the Secretary of State could count signatures collected by someone with any kind of criminal record, and whether the canvasser had to consent before the Arkansas State Police could release the records.

On the first question, the AG read the statute strictly. A canvasser passed the check if the Arkansas State Police record showed no guilty plea, no contest plea, or guilty finding for any of the offenses listed in section 7-9-601(d)(3). Those listed offenses include all felonies plus (regardless of felony or misdemeanor classification, including any class of misdemeanor) election-law violations, fraud, forgery, and identification theft. The AG rejected two narrowing arguments often raised about background-check rules: the type of offense did not have to relate to the canvasser's duties, and there was no time limit; a decades-old offense disqualified the canvasser just as a recent one would.

On the second question, the AG said the Secretary of State could not count signatures collected by a person who was not registered with the Secretary of State as a paid canvasser, and the disqualifying offenses were those in section 7-9-601(d)(3).

On the third question, the AG read the Arkansas State Criminal Records Act to imply that the canvasser's written consent was necessary for a sponsor to obtain a state background check from the State Police. The opinion flagged that Act 1185 of 2015 would change this on January 1, 2016: from that point forward, the State Police would be authorized to disseminate criminal history information to "any person upon proper request and payment of the requisite fee and without requiring written consent of the subject of the request." The AG declined to opine on federal background-check requirements as outside the office's authority.

Currency note

This opinion was issued in 2015. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Background and statutory framework

A "sponsor" of an initiative or referendum petition is "a person who arranges for the circulation of an initiative or referendum petition or who files an initiative or referendum petition with the official charged with verifying signatures." Ark. Code Ann. § 7-9-101(10). A "paid canvasser" is "a person who is paid or with whom there is an agreement to pay money or anything of value before or after a signature on an initiative or referendum petition is solicited in exchange for soliciting or obtaining a signature on a petition." § 7-9-601(c).

Before a paid canvasser can solicit signatures, the sponsor must provide the Secretary of State with a complete list of all paid canvassers' names and current residential addresses. § 7-9-601(a)(2)(C)(i). The prospective canvasser must submit a sworn statement 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, or identification theft" in any U.S. jurisdiction. § 7-9-601(d)(3).

Under § 7-9-601(b), the sponsor must, at its own cost, obtain a current state and federal criminal record search from the Arkansas State Police on every paid canvasser within 30 days before registration. On submission, the sponsor certifies to the Secretary of State that each paid canvasser has passed a criminal background search.

The mechanics of obtaining criminal history information from the State Police are governed by a separate statute: the Arkansas State Criminal Records Act, Ark. Code Ann. §§ 12-12-1501 to 1513. The Act allows dissemination of criminal history to employers and to "any entity mandated by Arkansas law to perform background checks" through the State Police. A "requestor" includes "the employer ... or any person who has obtained the written authorization of the subject of the record." § 12-12-1503(12). Section 12-12-1506(a)(4)(A)(i) requires each requestor to maintain in its files for at least three years the written consent to obtain criminal history information.

The AG noted that this implicit written-consent requirement was about to change. Act 1185 of 2015 amended § 12-12-1506(d) to provide for dissemination "to any person upon proper request and payment of the requisite fee and without requiring written consent of the subject of the request" effective January 1, 2016.

Common questions

Does a 25-year-old fraud misdemeanor disqualify someone from being a paid canvasser?

Under this opinion, yes. The AG concluded the statute had no time limit and no requirement that the offense relate to the duties of a canvasser. Election-law violations, fraud, forgery, and identification theft were disqualifying without regard to misdemeanor or felony classification or how long ago the offense occurred.

Can the Secretary of State count signatures from a canvasser the sponsor failed to register?

No. The AG was clear that the Secretary of State could not count signatures collected by someone who was not registered. Sponsors had to make sure every canvasser on the list passed the background check and was registered before any signatures were solicited.

Did the canvasser have to sign a consent form for the state background check?

Yes, in 2015. The AG read § 12-12-1506(a)(4)(A) to imply written consent was necessary. The AG also noted that this would change on January 1, 2016, when Act 1185 of 2015 took effect and allowed dissemination without written consent.

What about a federal background check?

The AG declined to interpret federal law. The sponsor must comply with the federal government's own rules on who can obtain a federal background check.

Why does even an unrelated felony disqualify a canvasser?

The AG applied a plain-meaning reading of the statute. Nothing in section 7-9-601 said the offense had to relate to the duties of a canvasser, so reading such a limitation in would be an improper addition to the legislative text.

Citations

• Ark. Code Ann. § 7-9-101(10) (definition of sponsor)
• Ark. Code Ann. § 7-9-601 (paid-canvasser background check requirements)
• Ark. Code Ann. § 7-9-601(a)(2)(C)(i), (b), (c), (d)(3)
• Ark. Code Ann. § 12-12-1001 (criminal history information definitions)
• Ark. Code Ann. §§ 12-12-1501 to 1513 (Arkansas State Criminal Records Act)
• Ark. Code Ann. § 12-12-1502(a)(2), (a)(5), (b)(1)
• Ark. Code Ann. § 12-12-1503(9)(A), (10)(A), (12)
• Ark. Code Ann. § 12-12-1506(a)(4)(A)(i), (ii), (d)
• Act 1219 of 2015 (amended § 7-9-601)
• Act 1185 of 2015 (changed dissemination rules effective January 1, 2016)
• Green v. Mills, 339 Ark. 200, 4 S.W.3d 493 (1993)
• Brown v. State, 375 Ark. 499, 292 S.W.3d 288 (2009)
• Jones v. Huckabee, 369 Ark. 42, 250 S.W.3d 241 (2007)
• Arkansas Pub. Emp. Ret. Sys. v. Taylor, 2013 Ark. 37, 425 S.W.3d 738

Source

• Landing page: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/

Original opinion text

Opinion No. 2015-097
November 20, 2015
The Honorable Jon Woods
State Senator
P. O. Box 8082
Springdale, AR 72766
Dear Senator Woods:
STATE OF ARKANSAS
ATTORNEY GENERAL
LESLIE RUTLEDGE
This is in response to your request for my opinion on the following questions concerning Ark. Code Ann. § 7-9-601, as amended by Act 1219 of 2015:

1) The statute requires a sponsor to certify that each paid canvasser "passed" a criminal background search. What constitutes "passing" such a search?
a. Is the type of offense (misdemeanor v. felony, Class C misdemeanor v. Class A misdemeanor, an offense completely unrelated to the duties of a paid canvasser) relevant in determining whether a person "passes" a background search?
b. Does the period of time in which an offense occurred impact whether a person "passes" the search?
i. Is there a distinction between an offense occurring one year ago and an offense occurring twenty-five years ago?
2) Is the Secretary of State barred from counting signatures collected by a person with any type of criminal offense on his or her record?
3) Does Ark. Code Ann. § 7-9-601, or another provision of law, authorize the Arkansas State Police to provide criminal background checks on paid canvassers to a sponsor without the consent of the paid canvasser?

RESPONSE

With regard to Question 1, in my opinion, a person "passes" the requisite criminal background search when the sponsor of the petition is able to verify through the Arkansas State Police (ASP) record search that the person has not pleaded guilty or nolo contendere to or been found guilty of any of the offenses listed in Ark. Code Ann. § 7-9-601. The offenses listed are felony offenses, as well as (regardless of classification of the offense) election law violations, fraud, forgery, and identification theft. Additionally, the statute does not require that the offense be related to the duties of a paid canvasser; and there is no distinction based on the time of occurrence.

In response to Question 2, the disqualifying offenses are those listed under section 7-9-601.

As for Question 3, I believe the paid canvasser's written consent is currently necessary in order for a sponsor to obtain a state criminal background check from the ASP. As for whether a paid canvasser's written consent is necessary in order for a sponsor to obtain a federal criminal background check, it is outside the scope of my authority to interpret and opine on the requirements of federal law.

DISCUSSION

Question 1: The "sponsor" of an initiative or referendum petition may hire "paid canvassers" to gather signatures on the petition. As a precondition to obtaining signatures, however, a paid canvasser must be registered with the Secretary of State. To be registered, the "prospective canvasser" must submit certain information to the sponsor, including a sworn statement 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, or identification theft in any state of the United States, the District of Columbia, Puerto Rico, Guam, or any other United States protectorate." The sponsor must then obtain a background check on every prospective canvasser:

(1) To 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 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 prior to the registration of the paid canvasser.
(3) Upon submission of its list of paid canvassers to the Secretary of State, the sponsor shall certify to the Secretary of State that each paid canvasser in its employ has passed a criminal background search in accordance with this section.

Your first question concerns the requirement, under section 7-9-601(b)(3), that the sponsor certify to the Secretary of State "that each paid canvasser in its employ has passed a criminal background search in accordance with this section." I believe it is clear, when read in context, that this means the sponsor has verified through the ASP criminal record search that the person has not pleaded guilty or nolo contendere to or been found guilty of any of the offenses listed in section 7-9-601(d)(3). All felony offenses are included. But in addition, election law violations, fraud, forgery, and identification theft are included without any reference to an offense classification. Therefore, such offenses (election law violations, fraud, forgery, and identification theft) are disqualifying whether they are felonies or misdemeanors (of any class).

Moreover, it is irrelevant when the offense occurred or whether it related to the duties of the prospective canvasser. This conclusion follows from established rules of statutory construction. A statute must be construed just as it reads, giving the words their ordinary and usually accepted meaning in common language. There is no suggestion on the face of section 7-9-601 that to be a disqualifying criminal offense, the offense must somehow relate to a canvasser's duties. Nor is there any suggestion that the offenses are conditioned on the time of occurrence. It must therefore be concluded that an offense is covered regardless of whether it relates to the duties of a paid canvasser or when it occurred.

Question 2: The Secretary of State cannot count signatures collected by a person who is not registered with the Secretary of State as a paid canvasser. The criminal offenses that will prevent a person from being registered with the Secretary of State are those listed under section 7-9-601(d)(3): "a criminal felony offense or a violation of the election laws, fraud, forgery, or identification theft ...."

Question 3: With regard to a state background check, Ark. Code Ann. § 7-9-601 clearly provides that a sponsor will "obtain ... from the [ASP], a current state ... criminal record search on every paid canvasser." However, the actual "dissemination," i.e., disclosure, of criminal history records is governed by separate statute. It is therefore necessary to review the body of law governing the dissemination of criminal history information in order to determine the applicable procedure for a sponsor to obtain the "criminal record check" contemplated by section 7-9-101.

My review indicates that the applicable law in this regard is the Arkansas State Criminal Records Act, Ark. Code Ann. §§ 12-12-1501–1513. Employers obtain criminal history information on employees under this act. The employer is a "requester" who can apply and be approved by the ASP to receive the criminal history information. An "employer" for this purpose means "a person or an entity that employs the services of another or for whom an employee works and receives payment of wages or salary." It seems clear that this definition includes the "sponsor" of an initiative or referendum petition, who must "certify to the Secretary of State that each paid canvasser in its employ has passed a criminal background search ...."

The sponsor is therefore allowed access to a paid canvasser's criminal history information as a "requester" under the Criminal Records Act. In response to your particular question concerning the canvasser's consent, the act appears to contemplate the employee's written consent: each requestor that is allowed access to criminal history information under this subchapter shall maintain in its files for at least three (3) years the written consent to obtain the criminal history information given by the applicant, employee, student, or prospective student.

This provision does not explicitly require written consent. But I believe it does so by implication, particularly when it is considered in light of the provision that follows, which authorizes access by the Public Defender Commission "without the consent of the subject of the request." I note, additionally, that the ASP interprets the above provision to require written consent. In my opinion, that is a reasonable interpretation and one that is likely to withstand scrutiny if challenged.

It is therefore my opinion in response to Question 3 that the paid canvasser's written consent is currently necessary in order for a sponsor to obtain a state criminal background check from the ASP. (There may be a question whether such consent will still be required after January 1, 2016. I do not address that question herein, but will simply note that on and after that date, the Criminal Records Act, as amended by Act 1185 of 2015, will provide for the dissemination of criminal history information by the ASP to "any person upon proper request and payment of the requisite fee and without requiring written consent of the subject of the request." Ark. Code Ann. § 12-12-1506(d) (Supp. 2015).)

It is outside the scope of my authority to interpret and opine on the requirements of federal law. I therefore cannot answer your question as it relates to the necessity of a paid canvasser's written consent prior to a sponsor obtaining a federal background check.

Sincerely,
LESLIE RUTLEDGE
Attorney General