An Arkansas Senate committee on Thursday endorsed legislation that would shift the attorney general's authority to review the wording of proposed ballot initiatives and constitutional amendments to the state Board of Election Commissioners.
In a voice vote with Sen. Will Bond, D-Little Rock, dissenting, the Senate State Agencies and Governmental Affairs Committee recommended Senate approval of Senate Bill 346 by Sen. Matt Pitsch, R-Fort Smith, over the opposition of medical-marijuana patient advocate Melissa Fults and Family Council President Jerry Cox.
Under the legislation, the Board of Election Commissioners would consider certifying the ballot title and popular name of a proposed ballot measure after the sponsor submits signatures of registered voters to the secretary of state to determine whether they qualified for the ballot.
The Board of Election Commissioners is composed of the secretary of state as the chairman, two members appointed by the governor, and one member each appointed by the chairman of the state Democratic Party, the chairman of the state Republican Party, the Senate president pro tempore and the House speaker, according to the commission's website.
Under existing state law, the attorney general considers certifying the ballot title and popular name of a proposed ballot measure. The attorney general's certification is required before the sponsor begins circulating petitions to gather signatures to qualify their measure for the ballot.
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The legislation comes after Republican Attorney General Leslie Rutledge drew criticism from her Democratic foe in her successful re-election campaign last year for declining to certify more than 70 proposed ballot measures. Rutledge backs SB346.
SB346 also would increase the penalty for petition fraud from a Class A misdemeanor to a Class D felony. A Class A misdemeanor is punishable by up to a year in jail and a fine up to $2,500. A Class D felony is punishable by up to six years in prison and a fine up to $10,000.
"We have created a process in the state that was not in our constitution and for the lack of a better term we started using our attorney general's office as legal counsel for the development of ballot titles, and nowhere does it say we need to do that," Pitsch said.
"In fact, they are explicit in [the state constitution's] Article 5, Section 1, that ballot titles are to be submitted with signatures, certified by the Election Commission and the sufficiency of ballot signatures are to be done by the secretary of state," he told the Senate committee.
Pitsch said he has worked with attorneys for Secretary of State John Thurston, Rutledge, Gov. Asa Hutchinson, the Board of Election Commissioners and Arkansas State Chamber of Commerce.
Fults, director of the Drug Policy Education Group, said she doesn't have a problem with the Board of Election Commissioners considering certifying the ballot title and popular name of a proposed ballot measure.
But she said the bill would require the sponsor to file his proposal with the secretary of state and gather the signatures of registered voters to qualify the measure for the ballot and "then ... you take it to the election commission."
"So you have done all of 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 is no chance to correct anything that they feel is wrong. There is no chance to do anything to correct it and, so you people that 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 it will be sufficient to go on the ballot as far as the wording until it's all done," Fults said.
She said the legislation should require the sponsor of a proposed ballot measure to give the ballot title and popular name to the Board of Election Commissioners to consider certification "at the beginning when you file with the secretary of state rather than at the end."
But Pitsch said, "Our constitution is unequivocal ... the ballot title goes to the election commission for certification and the signatures go for the sufficiency test to the secretary of state.
"There is going to be a fiscal impact to the people in the petition process. If I [was] in the petition process, rather than using tax dollars to fund the attorney general for my legal counsel, I need to go find an attorney and make sure that on the ballot title [it's sufficient]," he said.
Pitsch said, "When the election commission doesn't certify it or the signatures aren't sufficient, they go directly to a [state] Supreme Court review."
Cox said, "For the last 100 years ... everybody 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?
"Up to now, it is my understanding that the word 'certify' as far as the Board of Elections meant to serve an official notice rather than to review and approve," he said. "So now we are interpreting that word in a different way. It is not an improper definition of the word.
"[But what this does is ... [turn] around and puts the cart before the horse because we are changing how we are interpreting 'certify' to where it is now that the election board gets to look at it, review it, approve it and mark it up and say yes or no to it," Cox said. "The people with lots of money that we are all concerned about buying their way to the ballot will just hire another lawyer or two and they'll just bulldoze right on through the Board of Election Commissioners. They'll go to the Supreme Court and they'll have a whole bunch of lawyers in there and they'll just hammer away.
"I would suggest that this is not an awful measure. It doesn't solve any of the problems we talked about earlier," Cox said.
Metro on 02/22/2019