An End Run Around the Rights of the People

Arkansas stands at the brink of losing one of its most time-honored traditions, that being the rights of its citizens to gather signatures on petitions that would place a measure directly before voters. Since the success of the medical marijuana petition and the election of Republican Leslie Rutledge as state attorney general, the rush has been on to find a way undermine this right.

Last week, a Senate committee endorsed legislation that would make an enormous change to the process. With the sole dissent of Democrat Will Bond of Little Rock, the Senate State Agencies and Governmental Affairs Committee recommended full Senate approval of Senate Bill 346, sponsored by Senator Matt Pitsch, R-Fort Smith. Such Senate action usually predicts passage of a bill.

The problem lies within the requirement for a suitable ballot title, the text that must appear on the actual ballot for voters to read before casting their vote. Requirements are that the title must give an honest yet succinct explanation of what the measure would do in practice. The more complicated the proposed law, the more difficult to write an effective ballot title.

Article 5, Section 1 of the Arkansas Constitution:

Initiative and Referendum.

The legislative power of the people of this State shall be vested in a General Assembly, which shall consist of the Senate and House of Representatives, but the people reserve to themselves the power 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 also reserve the power, at their own option to approve or reject at the polls any entire act or any item of an appropriation bill.

Initiative. The first power reserved by the people is the initiative. Eight per cent of the legal voters may propose any law and ten per cent may propose a constitutional amendment by initiative petition and every such petition shall include the full text of the measure so proposed. Initiative petitions for state-wide measures shall be filed with the Secretary of State not less than four months before the election at which they are to be voted upon; provided, that at least thirty days before the aforementioned filing, the proposed measure shall have been published once, at the expense of the petitioners, in some paper of general circulation.

… Title. At the time of filing petitions the exact title to be used on the ballot shall by the petitioners be submitted with the petition, and on state-wide measures, shall be submitted to the State Board of Election Commissioners, who shall certify such title to the Secretary of State, to be placed upon the ballot; on county and municipal measures such title shall be submitted to the county election board and shall by said board be placed upon the ballot in such county or municipal election.

Unfortunately, this original wording does not provide a reasonable method by which petitioners might create a ballot title for such a measure. If the state follows the method describe above, petitioners would spend money and effort gathering signatures only to have the measure thrown out upon review by the election commissioners if they found the ballot title insufficient.

A 2013 interview of Arkansas Supreme Court Justice Elana Leigh Cunningham Wills (EW) by veteran journalist Ernest Dumas (ED) describes this problem encountered during a time she worked in the attorney general’s office.

EW: I would say that and I have said this before. It [ballot titles] was the most frustrating duty that I performed at that office. Different AGs approached it in different ways… It’s a very frustrating duty and I…When I was working for Winston Bryant we had a lot of ballot titles submitted and, you know the task of the attorney general is to be neutral on the proposal and yet to summarize it fairly and accurately. Well, the sponsor has to try to summarize it fairly and accurately first. Usually, a lot of times, they didn’t do it to the attorney general’s satisfaction, so we would try to edit that ballot title and make sure it was accurate and that the voters were not being misled by what they were being asked to vote on. Well, the problem we would run into is that sometimes it’s difficult to make a silk purse out of a sow’s ear.

ED: Yes.

EW: That’s the problem. You have a measure that may be neither concise nor clear nor, you know, sensible and yet we’re required to write a ballot title that is concise and clear and convey an accurate picture of what voters are being asked to vote on. …

ED: Well, they’re still having to rewrite the marijuana initiatives, and they’re just having to rewrite them over and over again, and the gaming things.

EW: Well, it’s frustrating. So I think when Mark Pryor came in he really took a hard look at what is wrong with this process and asked how can we get this fixed. So I think it was decided that if the text of their measure was too unclear or too uncertain for it to be summarized fairly that we had to send it back and say we can’t fix it for you but you’re going to have to fix it. Clarify this before we know how to summarize it in a ballot title. That’s led to a process of really sending it back and sending it back and sending it back until it’s…You know, the attorney general could take it over and completely redo it for them but it’s not his measure. He doesn’t know their intent and if he does that then it becomes his measure. So that’s tricky.

… I think the way you read it, it’s not required until you submit your signatures to the secretary of state. The statute providing for the attorney general’s review is not in the Constitution. It’s a statute that was passed in the ‘50s saying that the attorney general should review it.[1]

The 1950s statute led to the following rule:

Prior to circulating the petition and gathering signatures, a Sponsor of a statewide initiative or referendum petition must submit the proposal to the Arkansas Attorney General. The full text of the measure along with a proposed popular name and ballot title must be submitted. The Attorney General will issue an opinion on the popular name and ballot title. If rejected, the Sponsor can amend and resubmit to the Attorney General.[2]

Now Pitsch with his Senate Bill 346 seeks to reverse that rule and statute and put the petitioners in an untenable position. In last week’s hearing, Melissa Fults, the moving force behind the medical marijuana petition effort through three election cycles, testified at the hearing.

“So you have done all this work, and tried to do everything right, and at the end, the Election Commission can say, “Oh, no, we don’t like your word. It is done. You are out.” There’s no chance to correct anything they think is wrong [about the ballot title or popular name] and so people who have been out there working for over a year and spent anywhere from $50,000 to $200,000 even with volunteers, have done it for nothing because we don’t get to know if [the title or popular name] will be sufficient to go on the ballot.[3]

Ironically, also testifying against the bill was Family Council president Jerry Cox:

“For the last 100 years … everybody a has read the constitution a certain way and now we are reading the constitution a different way and that hinges on the word ‘certify’ and what does that word mean?”

Pitsch argues that the wording in the Arkansas constitution is “unequivocal.” His take on the law is that the details of its implementation have been misinterpreted. Pitsch admits that the requirements of SB346 will result in greater expense to petitioners. “There is going to be a fiscal impact to the people in the petition process,” he states.

That is an understatement and avoids the key point. Despite his advice that petitioners “find an attorney and make sure that on the ballot title, [it’s sufficient],” the fact is that without the review and certification of the ballot title before the collection of signatures, few if any citizen initiatives will be mounted.

Which, perhaps, is the underlying intent. It’s no secret that our governor along with many other conservatives now in control of state government are not happy that marijuana is now growing legally within the state’s borders, and that it will be available to thousands of Arkansans medically certified for its legal use. It’s also no secret that like many other states, a strong effort is underway to legalize, regulate and tax the production and sale of marijuana for recreational use.

Oh, the shame.

Somehow previous attorneys general managed to muddle through this process in the interest of upholding the intent of Article 5 until the election of the current AG, Leslie Rutledge, who was sued last year for stonewalling. The case was appealed to the Arkansas Supreme Court.

In a brief order today the Arkansas Supreme Court granted attorney David Couch’s request for an order requiring Attorney General Leslie Rutledge to approve his proposed initiated act to raise the minimum wage or submit a more acceptable version within three days.

Rutledge has refused 70 of 70 requests for ballot initiatives since 2016. She’s claimed they were unclear and said they were so unclear that she couldn’t fix them. She argued it was wholly in her discretion to decide on the sufficiency of the ballot titles.

Couch, who’d submitted a proposal for an increase in the minimum wage virtually identical to one approved for the ballot and adopted a couple of years ago, argued that the state law required Rutledge to approve or improve ballot submissions within three days. To do otherwise violates the Arkansas Constitution’s provision of initiative power to the people.[4]

In presenting his measure to committee, Pitsch argued rather disingenuously that petitioners can simply hire an attorney to write a ballot title and provide whatever other assistance might be needed for a petitioner to meet approval. But he has no idea what he’s talking about. In my personal experience in the early days of the medical marijuana efforts in 1999, a total of three ballot titles were written over a period of months by an attorney before the attorney general finally approved a version. In the case cited above, the litigant is an attorney.

The state moved in the right direction in the 1950s with its statute requiring AG review of a ballot title. The intent of the original Article 5 of the Constitution guaranteeing the right of citizens to petition must be upheld. Requiring petitioners to gather all signatures before learning whether the ballot title will be approved is in virtually all cases an insurmountable barrier to this right. If Ms. Rutledge can’t muster the wherewithal to do her duty, then it’s beholden on the state to make provisions. The Pitsch bill takes the matter in the wrong direction.