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Arkansas attorney general rejects first draft of direct democracy initiative

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Arkansas attorney general rejects first draft of direct democracy initiative

Feb 21, 2024 | 3:17 pm ET
By Hunter Field
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Arkansas attorney general rejects first draft of direct democracy initiative
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Volunteers for a group that tried to qualify a referendum on the LEARNS Act for the November 2023 ballot haul boxes of signatures to the Arkansas secretary of state's office last year. (John Sykes/Arkansas Advocate)

Arkansas’ attorney general has rejected the first version of a proposed constitutional amendment intended to improve the state’s ballot initiative process, but sponsors plan to resubmit.

The text of the measure — which would change parts of the initiative process that have frustrated ballot groups, including ballot title review and signature verification, as well as bar the state Legislature from making changes to initiated amendments or ballot initiative requirements — has a “key ambiguity,” according to Arkansas Attorney General Tim Griffin.

Griffin in a letter dated Feb. 20 declined to certify the measure’s ballot language, saying the proposed amendment was unclear about how and if future initiatives could be challenged at the Arkansas Supreme Court. 

Supporters of the direct democracy initiative cannot begin collecting signatures to qualify for the November ballot without certification of the ballot title and popular name by the attorney general, but they plan to resubmit.

Griffin’s rejection highlights a continued point of contention between the AG’s office and ballot groups: To what extent the attorney general should analyze the actual text of a proposed constitutional amendment versus strictly reviewing the sufficiency of the ballot title and popular name.

Griffin has noted that the two are inextricably linked and, in opinions, repeatedly pointed to Supreme Court precedent that he says means “a ballot title cannot be approved if the text of the proposed amendment itself contributes to confusion and disconnect between the language in the popular name and the ballot title and the language in the proposed amendment.”

David Couch, an attorney who specializes in ballot initiatives and who submitted the proposal Griffin rejected Tuesday, said the AG’s review should focus on the ballot title and popular name.

The measure, which is backed by the League of Women Voters of Arkansas and a coalition of direct-democracy advocates, will be resubmitted.

“There will be no significant changes to the text,” Couch said. “It is the AG’s responsibility to write a ballot title and not the text of the measure. It is the Supreme Court’s responsibility to interpret the measure after the election and not the AG’s prior to the election.”

What would the proposal do?

The “Amendment to Amend the Initiative and Referendum Process” would limit how the attorney general may treat ballot titles submitted for his review, removing the option to reject a measure’s ballot title and popular name outright. It would give him the option of approving the submitted language or substituting language he felt better summarizes the proposal.

Griffin noted that this provision is problematic because it would put the attorney general in a bind when writing a ballot title and popular name if parts of a measure were conflicting or unclear.

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The measure would also add language to the Arkansas Constitution barring state lawmakers from amending or repealing any constitutional amendment approved by a vote of the people. The Legislature would maintain the power to amend initiated acts through a two-thirds vote of both the House and Senate.

The rejected initiative would also prohibit the Legislature from making changes to the initiative and referendum process. 

Last year, state lawmakers enacted a law increasing the number of counties from which ballot initiative groups must gather signatures to 50 from 15. That act — which came after a string of legislative efforts over the last decade to make the canvassing and initiative process more difficult — is being challenged in court by the League of Women Voters and Republican state Sen. Bryan King.

The initiative would also allow canvassers to submit signatures for ballot measures by signing a declaration under the penalty of perjury that the signatures, to their knowledge, are legitimate. Under current law, canvassers must sign petitions in presence of a notary — a major hurdle for ballot groups.

It would also prohibit future amendments from creating monopolies or giving specific powers, privileges or authority to individuals, corporations or private business entities.

Lastly, the proposed amendment would require the state Legislature to take separate votes on bills and their corresponding emergency clauses at least 24 hours apart — an issue brought to the forefront last year by the LEARNS Act and litigation challenging its effective date.