In the final days of the 2013 legislative session, the General Assembly passed a law taking away the attorney general’s authority to create popular names for proposed constitutional amendments referred to voters by the Legislature.
But the new law failed to say who would “fix and declare” popular names in the future.
Before the session ended in April, lawmakers also voted to refer three proposed constitutional amendments to voters, but didn’t give any of them popular names.
Now, it’s unclear who will give them names as well as when the namings will take place.
The state constitution requires that proposed constitutional amendments be distinguishable by voters and be clearly named to give voters an idea of what the measures would do. Several Arkansas Supreme Court decisions have required that the titles “distinguish and identify” the proposals.
So the three proposed amendments waiting to be placed on the ballot won’t move forward until someone gives them a name.
Rep. Andrea Lea, R-Russellville, said the glitch in the new law, Act 1413, was likely an accident caused by timing.
“This is an unintended consequence of the act,” she said. “I’m open to having a discussion with the attorney general to determine how to move forward. This was presented at the end of the session when everything is getting passed in a short period of time.”
The 19-page act made several changes to the initiative and referendum process. The biggest one put restrictions on paid canvassers who gather signatures for ballot measures, requiring them to register with the secretary of state.
Supporters of the bill argued that the requirements would address issues of fraud they believed were present in the petition process for initiated acts.
The secretary of state’s office recently asked Attorney General Dustin McDaniel whether he still had legislative authority to name General Assembly-referred constitutional amendment proposals. It also asked him to name the three proposed amendments if he was able to do so.
On Monday, the attorney general indicated he doesn’t believe he has power to name the proposals.
“…Legislative clarification is plainly warranted, so that the procedure for identifying and distinguishing legislatively proposed amendment on the ballot is clearly established,” Deputy Attorney General Elisabeth A. Walker wrote in an opinion.
“Pending such clarification, however, it is my opinion that the Secretary of State may supply a popular name as a means of identifying [the measure] on the ballot. My office is available for consultation in this regard.”
All ballot questions, whether initiated by popular petition or by the Legislature, require a popular name and ballot title.
Before the 2013 changes, the law clearly gave the attorney general’s office the duty of assigning a popular name and a ballot title to amendments the Legislature approved for the ballot. The changes struck some of that language, specifically eliminating the role of the attorney general’s office.
Section 7-9-204 of that law allows the Legislature to designate a ballot title and popular name in the joint resolution approving the amendment for referral to voters. However, Walker points out in the opinion that none of the three resolutions attached to the questions recently sent by the secretary of state’s office to McDaniel included either a title or name.
Lea said Tuesday that the issue with the law as written centers on striking the attorney general’s role and replacing it with permissive language allowing, but not requiring, the General Assembly to give the measures a popular name.
“Those two competing sections need to be addressed,” she said.
The three constitutional amendments voted on by the Legislature and submitted to the attorney general’s office are:
An amendment proposed by Rep. Warwick Sabin, D-Little Rock, that would establish some ethics-rules changes and adjust term limits for lawmakers to allow a total of 16 years of service in either legislative chamber. It would also establish an independent commission to establish salaries for lawmakers and other elected officials.
An amendment sponsored by Sen. Jonathan Dismang, R-Beebe, that would allow the Legislature to pass a law requiring that administrative rules for state agencies be approved by a legislative committee before going into effect.
An amendment sponsored by Sen. Bill Sample, R- Hot Springs, that would deny groups circulating petitions to get measures on the ballot an additional 30-day window to collect signatures if too many of the signatures on their original petitions are deemed invalid by the secretary of state.
As of Tuesday, none of the measures had a popular name or ballet title, but legislators said they hope to fix that early next year.
“We have a meeting of the Joint State Agencies Committee scheduled in January to deal with the constitutional amendments,” said committee chairman Sen. Eddie Jo Williams, R-Cabot. “I’ve had several emails about the issue, and we plan to discuss it then in detail and put together a plan.”
Williams said he didn’t want to guess what kind of clarification would be needed to close the gap in the legislation until the the committee heard testimony from both the attorney general’s office staff and the Bureau of Legislative Research. He said his hope is the fix won’t require taking time away from the budget during the forthcoming fiscal session.
“It shouldn’t be necessary to deal with it during the fiscal session. Our intent is to try to stick to budget matters,” he said. “If it is necessary, we would be in contact with the governor, and both the Senate and the House to try to get a resolution quickly.”
Other language in the act is also being challenged in a lawsuit in Pulaski County Circuit Court by a group that says the changes to the rules and requirements for canvassers will make it unreasonably harder to organize a successful petition drive. That matter is pending in court.
Arkansas, Pages 11 on 12/25/2013