Good intentions do not always make good law, a Pulaski County circuit judge ruled Tuesday in an order temporarily barring Secretary of State Mark Martin from enforcing regulations on the petition procedure that allows Arkansans to bypass the Legislature and directly pass laws.
Act 1413 of 2013 is illegally vague, making it a “crushing” burden to the citizenry, Judge Mary McGowan stated in her decision.
“To establish new requirements which are unclear and not properly defined restricts, hampers and impairs the exercise of the rights reserved to the people of the State of Arkansas,” McGowan wrote.
Proponents of Act 1413 - Attorney General Dustin McDaniel among them - touted its changes to the state’s Election Code as crucial to protect the state’s initiative and referendum process from an assault on its integrity by corrupting organized influences.
Detractors contend that the law isn’t needed to protect voters from fraud. Some also say that the law caters to Arkansas’ organized gambling interests after a proposal in 2012 to establish casinos in the state by popular vote was unsuccessful.
The constitutionality of Act 1413 was challenged in court by the leadership of two grass-roots advocacy groups, Regnats Populas and Arkansas Community Organizations, that have used the petition process to propose laws to the public.
Their lawsuit, backed by the American Civil Liberties Union, warned that Act 1413 would do more to impede citizens from being able to propose laws to their fellows than it would do to protect the process from corruption and chicanery.
The plaintiffs had asked for a preliminary injunction to prevent enforcement of Act 1413 until the measure’s legality could be decided at trial.
The judge took testimony from both sides in a two-day November hearing, then accepted legal briefs in December.
On Tuesday, the judge sided with the Act 1413’s critics and granted the injunction. The intentions of the Act 1413 authors - “stamping our fraud, forgery and false statements” - are good, McGowan stated in her decision.
But the secretary of state appears to have been able to prevent wrongdoing in the last initiative efforts, relying on existing law, she stated.
The secretary of state did “an admirable job” in disqualifying questionable signatures on petitions favoring laws legalizing medical marijuana, casinos and a natural-gas tax, McGowan noted.
“The secretary of state’s office guaranteed the citizens of Arkansas that the initiative process of 2012 was free of ‘fraud, forgery and other illegal conduct by sponsors, canvassers, notaries and petitioners,’” she wrote, citing language in the law that outlines the agency’s duties.
But McGowan found that Act 1413 appears to do more for special interests than it does for the interests of the voters, describing the impact of the law as “crushing to the citizens who wish to bring their issues directly to the people.”
“The effect of the new provisions … will mean that the citizens of the State of Arkansas will lose their ability to propose legislative measures and laws directly to the people,” her 11-page ruling states. “The effects of Act 1413 seem to impact the citizens rather than the special interests who always seem to have the money to further their goals.”
She pronounced Act 1413 unconstitutional and barred Martin, the state’s chief elections official, from enforcing it, at least until the case is decided either by a trial before her or an appeal to the Arkansas Supreme Court.
With the judge’s ruling, the law’s defenders - the attorney general and the secretary of state - can take the case in two directions.
They can opt for a trial, a longer process that would give them the opportunity to bolster their case to McGowan and try to get her to reconsider. The losing party could then appeal her resulting decision to the Supreme Court.
Or the state officials can appeal Tuesday’s ruling directly to the high court.
Representatives for McDaniel and Martin said the officials have not decided which avenue to pursue since they just learned the judge’s decision. Aaron Sadler, a spokesman for the attorney general, said state lawyers are “disappointed” by the ruling.
Attorney David Couch, who, with Bettina Brownstein of the American Civil Liberties Union, represented the plaintiffs Paul Spencer and Neil Sealy, said they are prepared to defend their case before the Supreme Court.
Couch said the judge’s findings mirror what the plaintiffs have been arguing, that the state already has good laws to protect the integrity of the process.
“The previous law worked, and there was no need for the [new] law,” he said.
Initiative and referendum, granted by the Arkansas Constitution, give to the public the right to pass or nullify state laws by popular vote. Organizers are allowed to propose a law to voters once they have collected a prescribed number of signatures from registered voters on a petition.
In her ruling, McGowan found fault with provisions that can force canvassers to stop signature-collection efforts during the petition evaluation process by the secretary of state. Previously, canvassers had been allowed to continue while the agency assessed the validity of the signatures they had already collected.
A new rule that would distinguish volunteer petition canvassers from paid ones through a provision regulating how canvassers accept “anything of value” for their efforts is illegally unclear because that term is not clearly defined, her ruling states.
The plaintiffs had complained that that section of the law could lead to criminal charges if an unpaid volunteer accepted something as innocuous as a slice of pizza for assisting in signature collection.
A provision regulating how canvassers can assist disabled signers is illegally vague because it does not state what a disability entails, the order states.
McGowan also pointed to a similarly unclear provision, which would allow regulators to strike as many as 10 signatures at a time if even one is subject to a “material defect.” The statute doesn’t define what a defect is and does not give regulators guidelines for determining whether the canvasser was deliberately attempting to commit fraud, she wrote in her findings.
Another part of the law, which requires canvassers to register with the state, has the potential to expose them to harassment, the judge ruled.
Front Section, Pages 1 on 03/05/2014