Taking the initiative

Arkansas’ citizen initiative process has been in the news a lot lately, and will continue to be.

It’s been in the news because state lawmakers have passed a number of laws meant to combat signature collection fraud in cases where citizens seek to initiate their own laws, overturn laws passed by the Legislature through the referendum, and amend the Constitution.

It will remain in the news because those laws are about to be challenged in court, and because a ballot question committee, Save AR Democracy, has been formed supporting pro-initiative reforms.

Among the laws passed this session are five sponsored by Sen. Kim Hammer, R-Benton.

Those would require signature collectors to disclose that petition fraud is a criminal offense, require canvassers to view a signer’s photo identification, require signers to read the ballot title or have it read aloud to them, and require canvassers to submit an affidavit. The fifth law would prohibit a secretary of state from counting any signature collected by a canvasser if the canvasser has violated canvassing laws. During the committee process, Hammer made the case, with the support of citizen witnesses, that some petitioners in the last election misrepresented what an abortion-related proposed constitutional amendment would do.

David Couch, the attorney who led efforts to legalize medical marijuana and raise the state’s minimum wage, told me he’s planning a lawsuit in federal court. He and the League of Women Voters’ Bonnie Miller say all these

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laws are eroding away the initiative process. He will be asking for a preliminary injunction that would put the laws on hold until the courts rule.

Such an injunction would make it easier for Couch and Save AR Democracy to collect signatures for their own proposed constitutional amendment. The League’s statewide affiliate and its four local chapters in Washington, Benton, Pulaski and Faulkner Counties are the committee’s sponsors.

First, it would place in the Constitution what is currently in statute. It would require the attorney general to approve or modify the language of ballot titles. Once that happens, opponents must file challenges to the title within 45 days.

Second, it would amend the Constitution so the Legislature could no longer alter an amendment with a two-thirds vote. A previous Supreme Court ruled the Legislature can’t do that, even though the Constitution says it can.

Third, votes on a bill’s emergency clause would be held 24 hours after the vote on the bill itself. The Supreme Court recently ruled the votes can be held concurrently, even though the Constitution clearly says they must be separate.

Fourth, it would require referendum proposals to use the same ballot title as the bill passed by the Legislature. A referendum occurs when voters are asked to overturn a law already passed by the Legislature.

Fifth, it would allow canvassers to submit signatures under penalty of perjury rather than having to get the paperwork notarized, as is currently the case.

Save AR Democracy will probably eventually get its ballot title approved. The challenge will be collecting 90,704 approved signatures, regardless of what happens with Couch’s lawsuit. The Supreme Court has knocked numerous citizen-led initiatives off the ballot in recent years based on signature technical violations.

Couch said he will have volunteers ready to collect signatures. Those would include the League, as well as backers of the aforementioned abortion amendment, supporters of an education amendment, and backers of a marijuana expansion amendment, all of which felt they were “abused by the process.”

The League says it’s nonpartisan, which some Republicans might contest, but the other three groups are definitely not conservative. With a conservative Legislature, many initiatives naturally will come from the left because supporters can’t get laws passed through the lawmaking process.

But Couch noted that times and circumstances change and the initiative process serves not just liberal groups. In the past, conservative advocates have taken advantage of the process, too. In 1988, for example, citizens led the effort to pass Amendment 68, the state’s unborn child amendment.

The Arkansas Constitution places a high value on the citizen initiative process. The section on lawmaking starts not with the Legislature but with the initiative and referendum. Voters added that part to the 1874 Constitution in 1920. The state’s motto is “Regnat Populus,” which is Latin for “the people rule.” We’re still trying to figure out how to make it work.

We’ll always have to, as long as it’s still true.

Steve Brawner’s column is syndicated to 17 outlets in Arkansas. Email him at brawnersteve@ mac. com.