Voters could decide how to change Constitution

By STEVE BRAWNER

The growing list of proposed citizen-led ballot initiatives in Arkansas became even longer Monday with one that would change the ballot initiative process itself.

The initiative would limit the roles of the attorney general and the Legislature regarding constitutional amendments, initiated acts and referenda. Initiated acts are laws passed directly by voters. Referenda allow voters to overturn a new law passed by elected officials.

Backers include the League of Women Voters and attorney David Couch. 

Couch led successful initiative efforts to twice increase the minimum wage and also to legalize medical marijuana. This year, he’s working on two other efforts, one to write the state’s Freedom of Information Act into the Constitution and pass a complementary initiated act, and another to remove the sales tax on feminine products and diapers.

This latest proposal covers a range of subjects. First, it would require the attorney general to either approve or substitute a ballot title within 10 days of receiving it. Proposal backers then could challenge a substitution by filing a complaint with the Supreme Court. 

Couch and his fellow supporters of the Freedom of Information Act measures started to sue the current attorney general, Tim Griffin, because of his multiple rejections of their efforts. They called it off after he certified the proposals.

The amendment also would remove the attorney general from the process of approving a referendum’s title. Instead, the title would be the same as the act it seeks to overturn.

That move comes after a group last year tried to pass a referendum overturning Gov. Sarah Huckabee Sanders’ LEARNS school reform act. Griffin eventually granted his approval. The process took half of the 90 days supporters had to collect signatures. The group ran out of time and fell just short.

Some ballot initiative backers have accused Griffin of stalling, playing politics, and generally being too persnickety. But let’s also note that these proposals could become statutory law or part of the Constitution, which is the permanent law of the land, so caution is warranted. He is not the first attorney general who has frustrated ballot initiative supporters. He has said it is not his job to make a values judgment on a ballot initiative. He recently certified one that would legalize abortion in Arkansas despite his being personally pro-life.

The direct democracy proposal also would disallow opponents from challenging a ballot title in court once the attorney general has certified it. This comes after the Supreme Court has disallowed numerous initiatives in recent years, often late in the process. The proposal also would require signature petitioners to attest under penalty of perjury that they believe their collections are genuine, while removing the requirement that collections be notarized. Opponents could still challenge signatures in court.

Several elements of the proposal pertain to the Legislature. One would forbid lawmakers from amending a constitutional amendment passed by the voters. The Constitution says they can amend with a two-thirds vote, but a 1951 court case has limited them from doing so. Couch believes the next Supreme Court could overturn that ruling. Lawmakers also would be prohibited from referring any constitutional amendment to voters that would change the ballot initiative process. Any such changes would have to come from the voters themselves.

The proposal also would prohibit any amendment from bestowing privileges including a monopoly to a specific person or business.

One final element would require lawmakers to vote on emergency classes at least 24 hours after they vote on the bill. The issue came up last year when a group sued to at least delay the LEARNS Act because lawmakers voted on the bill at the same time they voted on the emergency clause, which they commonly do. The Constitution clearly says the votes should be separate, but it’s a longstanding practice, and the Arkansas Supreme Court ruled that it could continue.

The entire proposal, ironically, now goes before Griffin. Once he certifies it, the signature collection process will begin. 

The proposal is one of many citizen-led initiatives working their way through the process, and they’re all big ones. In addition to the three mentioned above – direct democracy, Freedom of Information Act, and feminine products – other groups are seeking to legalize abortion, widen the availability of medical marijuana, make major changes to schools and alter part of the LEARNS Act, and require paper ballots.

That’s a long sentence describing what could be a long and meaningful ballot.

Steve Brawner is a syndicated columnist published in 16 outlets in Arkansas. Email him at brawnersteve@mac.com. Follow him on Twitter at @stevebrawner.