By TESS VRBIN | Arkansas Advocate

A proposed amendment to the Arkansas Constitution would make it harder to pass future ballot initiatives.

Supporters of Issue 2 on the Nov. 8 ballot say constitutional changes need a certain amount of public support, while opponents say the current system gives Arkansans the voice they deserve.

Issue 2 would increase the threshold for passing constitutional amendments and initiated acts, referred to the people by both the Arkansas Legislature and citizen-led petitions, from a simple majority to 60%. Republican officials for the most part have expressed support for Issue 2, while Democratic and progressive voices have opposed it.

State Rep. David Ray (R-Maumelle) was the primary sponsor for the proposed amendment, which passed the state Legislature mostly along party lines and was approved by Republican Gov. Asa Hutchinson in April 2021.

“I think we’ll see fewer really divisive, controversial issues try to be pushed if Issue 2 passes, and I think we’ll see more issues that have broad appeal among voters,” Ray said in an interview.

Opponents of Issue 2, including members of the Arkansas Public Policy Panel, take the “if it ain’t broke, don’t fix it” approach to the proposed amendment. The APPP spearheaded the “Protect AR Rights” campaign against Issue 2.

“It’s not easy to get a citizen-led initiative on the ballot, so our position is that what has worked successfully for the past 100 years in our Arkansas Constitution is sufficient to continue,” APPP Policy Director Kymara Seals said.

A citizen-led petition for a constitutional amendment needs at least 89,151 signatures from voters in at least 15 Arkansas counties, and the signatures must be verified before the proposal can be on the ballot.

Issue 2 would not change the criteria for citizens or the Legislature to get a proposed amendment on the ballot. Instead, it would make sure that measures that pass “have something closer to genuine consensus,” Ray said.

Seals said raising the vote threshold would create an unnecessary obstacle after citizens have already faced the challenges of the petitioning process.

“If this were to pass, we would be looking at 40% or 41% of people making decisions for the majority,” Seals said. “We don’t think there’s anything right about that.”

Historical data

Between 2000 and 2020, Arkansans voted on 40 ballot measures, and 30 passed with the current simple majority threshold. Of those 30, 18 exceeded 60% of the vote.

The 12 measures that would not have passed under the proposed amendment include the legalization of medicinal marijuana in 2016. The citizen-led proposal received 53% of the vote.

Ray said this data means “good ideas” should be able to pass the higher threshold if Issue 2 is approved, while the measures that passed with less than 60% of the vote might “need to be improved upon a little bit.”

Seals said there is irony and “hypocrisy” in the fact that Issue 2 needs only a simple majority to pass. She also said Issue 2 would undermine Arkansas’ state motto, “regnat populus,” Latin for “the people rule.”

“The people can rule with 50% plus one vote,” she said. “That’s what ruling is.”

Direct democracy

A referendum on a proposed constitutional amendment is a form of direct democracy, in which the public gets to vote on policy decisions directly instead of through elected representatives as proxies. 

Arkansas’ constitution allows for five forms of direct democracy: legislatively referred statutes, legislatively referred constitutional amendments, citizen-initiated statutes, citizen-initiated amendments and the veto referendum (Veto referendums would not be impacted by Issue 2). The state does not allow the public to vote to recall officials, another form of direct democracy.

Every state has at least one of these six forms of direct democracy, the most common being legislatively referred constitutional amendments, which is allowed in every state except Delaware. Arkansas is one of 18 states that allow for citizen-initiated constitutional amendments.

Additionally, the state Legislature is allowed three proposed constitutional amendments per regular session to refer to voters.

Having so many options for direct democracy makes Arkansas unique among southern states, said Janine Parry, a University of Arkansas professor of political science.

“It’s one of the most significant ways Arkansas is as much western as it is southern,” Parry said. “Direct democracy is not southern. It really flies in the face of our conventional understanding of southern politics, [which is] known as a very closed, hierarchical, inside-baseball system.”

Direct democracy measures reach the statewide ballot and are approved most often in Washington state, Oregon and California, Parry said.

‘Dumb ideas’

The “runaway” initiative petition process in those states has gotten out of hand, Ray said. California, for example, had 17 initiatives on the ballot in 2020.

Issue 2 would create a “check” against both legislatively referred and citizen-led initiatives that would not actually be in the public’s best interest, Ray said.

Ballot issues in Arkansas have more often come from the Capitol than from the electorate, and “historically, there have been a lot of dumb ideas that the Legislature has asked voters to weigh in on,” Ray said.

He said one example is the 2014 amendment that prohibited corporations from donating to Arkansas political candidates. The measure also expanded term limits in both chambers of the Legislature, which Ray said he disagreed with.

One of the amendment’s sponsors, former Sen. Jon Woods (R-Springdale), was sentenced to federal prison in 2018 after being convicted of several federal crimes, including accepting kickbacks.

Ray spoke in favor of Issue 2 Thursday evening during a Zoom forum hosted by the APPP. Bill Kopsky, the APPP director, was the primary voice against the amendment.

Kopsky said the issue of too many ballot measures is “a California problem or an Oregon problem in Arkansas that we don’t have.” He also said Arkansans tend to be informed about the issues they support.

“I think it’s really strange that we have politicians here who don’t trust Arkansas voters,” Kopsky said. “At the end of the day, who do you trust more to do what’s in the best interest of the state: Arkansas voters, or a bunch of politicians and special interests at the Capitol? I for one put my faith in Arkansas voters.”

Ideological divides and special interests

Douglas Reed, a professor of political science at Ouachita Baptist University, said “reasonable people can disagree” on the potential impacts of Issue 2, but it would be difficult to undo or alter any of those impacts down the road if the Legislature or the public is dissatisfied.

“Tweaking the constitution after the fact is much heavier lifting than if it’s a piece of legislation that’s been passed and you have buyer’s remorse and say, ‘That was a bad idea,’” Reed said. “In the next legislative session, you can address that, but trying to amend the constitution to fix those kinds of things is a much, much more difficult kind of process.”

Gubernatorial candidate Chris Jones and lieutenant gubernatorial candidate Kelly Krout, both Democrats, have said they oppose Issue 2. Ricky Dale Harrington Jr., the Libertarian candidate for governor, has also said he opposes the measure.

Lt. Gov. Tim Griffin, the Republican candidate for attorney general, and Republican gubernatorial candidate Sarah Huckabee Sanders have expressed support for Issue 2.

Attorney General Leslie Rutledge, the Republican candidate for lieutenant governor, has said she believes it should be difficult to amend the state constitution but has not publicly expressed support for Issue 2.

Ray said a check on the initiative process could benefit Arkansans of all political ideologies, not just Republicans.

“Arkansas voters are overwhelmingly conservative, so [a simple majority] would approve all sorts of ballot questions that left-of-center voters might find anathema to their values and beliefs,” Ray said.

Kopsky and Ray agreed during Thursday’s forum that special interest groups with large amounts of money should not be able to use the state’s direct democracy mechanisms to their advantage. 

Ray said Issue 2 would make this less possible by limiting the impact of “deceptive advertising campaigns” at the ballot box, while Kopsky said special interest groups already have too much influence on state government.

“The ballot measure process was put in our constitution so Arkansas voters can take a good idea and bypass that whole political system, bypass all those special interests and get something done themselves,” Kopsky said. “Now some politicians, if they don’t like the decisions that voters have made, are trying to rewrite the rules, and that’s just wrong.”

Reed said he understood the concern about moneyed interests campaigning for an amendment because it “is not truly a citizen-initiated act,” but he also said he understood the argument against altering a system that has succeeded in the past.

“This is a good kind of question to raise because [Issue 2] is not a slam dunk,” Reed said.