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Judge to decide on public rights in petition process

by John Lynch | November 15, 2013 at 4:47 a.m.

One Arkansas voter apparently liked the idea of placing a tax on natural gas to pay for road repair so much that he signed a petition 33 times to get the issue before voters.

The same man similarly favored legalizing marijuana for medical purposes so he signed that petition more than 20 times, Pulaski County Circuit Judge Mary McGowan heard in testimony Thursday.

The judge is preparing to consider whether new regulations on how Arkansas citizens can circumvent the Legislature to directly pass laws should be allowed to stand. The regulations took effect in April.

The public’s right to pass or nullify state laws through a petition process known as initiative and referendum is enshrined in the state constitution and supported by the First Amendment of the U.S. Constitution.

A successful petition, which includes collecting the signatures of a prescribed number of the state’s registered voters, wins the right to be considered by voters in the November general election.

The constitutionality of the regulations created by Act 1413 of 2013 is being challenged by an ACLU-backed lawsuit, with opponents of the measure calling on McGowan to block the regulations ahead of a trial that would determine their legality.

The new law requires that voters who sign a petition provide their addresses and birth dates. It also requires that petition sponsors submit the names and addresses of any paid canvassers to the secretary of state before they can collect signatures and requires paid canvassers to provide petition sponsors with photographs of themselves and signed statements that they have not been convicted of a crime related to election fraud, forgery or identification theft. It invalidates signatures collected by canvassers who have not submitted the required information.

To prevail in the lawsuit before McGowan, the measure’s critics must demonstrate there is no way the regulations can go into effect without contradicting pre-existing law.

Act 1413 illegally weakens the petition rights as described in Article 5 of the state constitution, the American Civil Liberties Union claims.

Attorneys for the act’s defenders, Secretary of State Mark Martin and Attorney General Dustin McDaniel, told the judge the regulations are a legitimate expression of the Legislature’s duty to fight election fraud and prevent wrongdoing.

Martha Adcock, general counsel for the secretary of state, said it’s too soon to critique the new regulations since no one has even had a chance to try them yet.

The several examples brought before the judge of a single voter signing a petition multiple times appeared to highlight the differences in the sides.

Assistant Attorney General Patrick Hollingsworth said the new regulations were designed to prevent that kind of fraudulent activity.

But how big a problem is fraud, asked attorney Bettina Brownstein on behalf of the lawsuit’s plaintiffs, two men who have attempted to get campaign-finance and minimum-wage initiatives before voters.

They told the judge no one in Arkansas has ever been convicted for petition fraud, and there’s no indication anyone has ever been charged with that crime.

A registered voter’s signature is only valid once per petition, and can even be struck if the voter signs it outside his home county. The voter who signed the gas-tax and marijuana petitions was never charged, and the secretary of state’s screening process, which predates the new regulations, kept him from influencing the outcome, according to testimony.

The gas tax never made it to the ballot, and while the marijuana petition drive was successful, the proposal was rejected by voters.

The two plaintiffs testified Thursday, the first of a two day hearing about whether McGowan should temporarily enjoin the law.

Neil Sealy, director of Arkansas Community Organizations, an advocacy group for poor and struggling Arkansans, and Paul Spencer, a high-school government teacher and founder of Regnant Populus, a proponent of campaign-finance changes, testified that new regulations would significantly impede their grass-roots efforts to enact new laws.

Under the previous law, getting an initiative before voters was an 8 on a 10-point difficulty scale, Sealy testified. The new regulations will bump that difficulty level up to 9.9, he warned.

Both men said new restrictions targeting professional canvassers who are paid to collect signatures have the potential to be so draconian that they worry they could face jail time if they give a volunteer who has been collecting signatures a piece of pizza or a bottle of water.

Proceedings resume at 9 a.m. today, with testimony from professional petition canvassers and a national expert in initiative law. McGowan has not said when she would decide on the request for a temporary injunction but did indicate she would accept written arguments after today’s proceedings conclude.

Arkansas, Pages 9 on 11/15/2013

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