New regulations affecting how Arkansas voters can circumvent the Legislature to directly enact laws are designed to protect the integrity of the petition process, a goal that Act 1413’s critics agree with, defenders of the measure contend in the latest round of court filings.
The law was approved by lawmakers this year reacting to a fraud “epidemic” in recent efforts to win voter approval to impose new taxes for road repair, legalize marijuana for medical treatment and establish casino gambling in Arkansas, representatives for the attorney general and secretary of state contend in written arguments filed Tuesday.
The tax and marijuana proposals were rejected by voters in the 2012 general election while a lawsuit kept the casino proposal from being decided at the ballot box.
Defendants in a lawsuit challenging Act 1413, the attorney general and the secretary of state are asking Pulaski County Circuit Judge Mary McGowan to reject a request to prohibit enforcement of Act 1413 ahead of a trial in which she would decide whether the law is legal.
Community organizers Paul Spencer and Neal Sealy, who have previously mounted petition drives to propose laws to voters, have sued to overturn Act 1413, claiming the new regulations violate the state constitution’s guarantee that citizens have the right to propose and revoke laws, known as initiative and referendum. They are being represented by the American Civil Liberties Union.
Amendment 7 to the Arkansas Constitution awards a successful petition, determined by the collection of the signatures of a prescribed number of the state’s registered voters, the right to be considered by voters in the November general election.
The judge ordered the sides to submit written arguments by Tuesday after a two-day injunction hearing last month in which she heard testimony from Act 1413’s critics who say the regulations governing signature canvassing will make it unreasonably harder to organize a successful petition drive.
The next move is for the parties to offer rebuttal briefs.
Protecting the integrity of the petition process is paramount, and a goal both sides share, Assistant Attorney General Patrick Hollingsworth stated in his 24-page brief on behalf of Attorney General Dustin McDaniel. Lawmakers passed the law to put more responsibility on petition organizers to actively work to prevent fraud and forgery, Hollingsworth wrote, arguing that any resulting inconvenience is not enough to make the law unconstitutional.
“While the plaintiffs and their experts have speculated that Act 1413 will not accomplish its purpose, none challenged the validity of its stated purpose and all agreed that protecting the integrity of the process is a desirable goal,” the filing states. “Laws that add processes, even when this means greater expense or difficulty, are constitutional so long as they do not directly conflict with the language of Amendment 7.”
The law’s challengers have shown no real proof that Act 1413 will be as bad as they claim because they have not attempted to organize a petition drive under the new regulations, according to the brief.The critics can barely offer the judge more than “opinion and speculation about what might happen,” the filing states.
“The plaintiffs have put on evidence that the cost of obtaining signatures may increase by some unknown amount and that canvassers may be more difficult to obtain, but have not demonstrated even a remote possibility that they are presently prevented from exercising their constitutional rights,” the filing states. “There is no demonstrated impediment to the plaintiffs moving forward with obtaining approval of petitions and attempting to circulate them for signatures.The plaintiffs have wholly failed to demonstrate a need to preliminarily enjoin the operation of a law that must be presumed valid.”
Act 1413’s critics have to prove the law is unconstitutional, argued Martha Adcock, general counsel for the office of Secretary of State Mark Martin. But the Arkansas Supreme Court requires that the judge must begin her analysis of the law by presuming its constitutionality, Adcock states in the 15-page brief she submitted with Martin’s associate general counsel, L. Justin Tate.
The only way for the judge to bar enforcement of the law is if the plaintiffs prove they will suffer irreparable harm if Act 1413 is allowed to continue and that they are likely to win at trial, according to the brief.
“Testimony that gathering signatures might be more difficult or that the initiative process may be more costly is not sufficient to demonstrate irreparable harm. Their testimony is merely speculative and does not meet plaintiffs’ burden,” the filing states. “Their claims of putative harm are based on speculation and not based on any actual experience attempting to comply with the provisions of Act 1413.”
Arkansas, Pages 9 on 12/05/2013