The Arkansas Board of Election Commissioners on Monday signed off on the ballot title and popular name of a proposed referendum on the fate of a 2019 state law that allows optometrists to perform a broader range of surgeries.
In a voice vote, with Chairman and Secretary of State John Thurston not voting and with no audible dissenters, the seven-member board heeded its staff's recommendation to certify the title and popular name as meeting the standards of state law.
The decision marked the first time that the board has considered certifying a proposed ballot measure's popular name and ballot title under Act 376 of 2019, which shifted that responsibility from the attorney general to the election commissioners board.
The proposed popular name is "An Act to Amend the Definition of the 'Practice of Optometry.'" The ballot title is a longer description of the proposed referendum to have voters decide whether Act 579 of 2019 lives or dies. The law allows optometrists to perform some procedures previously limited to ophthalmologists and other eye specialists.
The board's certification of the ballot title and popular name satisfies one of the two requirements for a proposed measure to get on the ballot under state law.
The other requirement is for the secretary of state to certify that the sponsor has submitted enough valid signatures of registered voters to get the proposed referendum on the ballot, which the measure's sponsor wants the Arkansas Supreme Court to compel Thurston to do.
The board's certification is now required after the sponsor of a proposed ballot measure turns in the signatures of registered voters to the secretary of state. Previously, the attorney general's certification was required before the sponsor began collecting signatures.
Thurston's office concluded Aug. 2 that the sponsor failed to submit enough valid signatures of registered voters to qualify the proposed referendum for the Nov. 3, 2020, ballot. The petition needed 53,491 signatures but had only 23,953, according to Thurston's office.
The measure's sponsor -- the Safe Surgery Arkansas committee and its chairwoman, Dr. Laurie Barber of Little Rock -- has challenged the Republican secretary of state's decision to apply Act 376, "disenfranchising 61,065 legal voters who petitioned the Secretary to certify a referendum petition to the November 2020 ballot," according the committee's filing. Act 376 adds a new filing requirement for canvassers.
After the board's meeting, Alex Gray, an attorney for the Safe Surgery Arkansas committee, said that "there are numerous provisions of Act 376 that we believe are unconstitutional."
After Monday's board meeting, Amanda Story, a spokeswoman for the Arkansans for Healthy Eyes committee that supports Act 579, said in a written statement that "we believe the referendum process ended two weeks ago, when the secretary of state rejected more than 60,000 unlawfully solicited signatures as invalid."
"We think the ballot title is insufficient, and we'll challenge it, if necessary. At this point, we're focused on implementing Act 579 and giving Arkansas patients improved access to quality eye care," she said.
The staff of the Board of Election Commissioners found that the proposed referendum was "not misleading and that a vote 'FOR' the measure results in a vote expanding the practice of optometry, whereas a vote 'AGAINST' the measure does not allow the expansion of the practice of optometry," the board's legal counsel Chris Madison wrote in a memo dated Aug. 2 to board Director Daniel Shults and to the board.
"Fortunately, this was a compact piece of legislation, and the ballot title I think accurately reflects the legislation, so you get the connection between the title and what is actually happening," Madison told the board.
Officials for Safe Surgery Arkansas and Arkansans for Healthy Eyes have disagreed about whether the filing of petitions with signatures of registered voters on July 23 suspended Act 579 from taking effect on July 24.
Act 579 will allow optometrists to administer injections around the eye, remove bumps and lesions from the eyelids, and perform certain types of laser surgery now performed by ophthalmologists -- specifically capsulotomy, a surgery performed after cataract surgery, and trabeculoplasty, a procedure to reduce pressure from glaucoma.
Optometrists are still banned from doing cataract surgery and radial keratotomy surgery and selling prescription drugs.
The law also requires the state Board of Optometry to establish credentialing requirements for a license to administer or perform the now-legal procedures. It also requires each optometrist who meets the certification requirements for authorized laser procedures to report to the board regarding the outcome of the procedures and to also report to the state Board of Health.
During this year's regular legislative session, supporters of Act 579 said it would allow optometrists to use more of their training and would provide easier access to eye care for patients in rural areas. But the law's opponents, including groups representing ophthalmologists and other physicians, argued that it would put patients at risk.
In a report filed Thursday with the Arkansas Ethics Commission, the Safe Surgery Arkansas committee reported raising $482,950 in contributions last month and spending $478,902.58 in the same period. That increased the total amount raised to $656,200 and the total expenses to $629,042.56, mostly for petition canvassing, leaving $27,157.44 in the bank as of July 31.
The Arkansas Ophthalmological Society contributed $150,000 to the Safe Surgery Arkansas committee in June, according to the filing. Among other contributors, the Arkansas Retina Club in Little Rock gave $75,000, while Little Rock Eye Clinic chipped in $70,000 and Retina Associates PA of Little Rock pitched in $40,000 last month, according to the latest report.
Arkansans for Healthy Eyes also submitted its financial-contributions report to the Ethics Commission on Thursday, saying it raised $97,675 in contributions and spent $62,498.10 last month. That increased the amount the committee has raised to $105,675 and the amount spent to $74,920.71, leaving $30,754.29 in the bank as of July 31.
The committee's largest contributions last month included $10,000 apiece from the Kentucky Optometric Association, Louisiana Optometry Association, Ohio Optometric Association, Oklahoma Association of Optometric Physicians, and optometrists R. Dean Gurley and Matthew Jones of Blytheville, according to the report.
The state Board of Election Commissioners comprises Thurston; Bilenda Harris-Ritter, representing the state Republican Party; James Harmon Smith III, representing the state Democratic Party; Charles Roberts, representing the Senate president pro tempore; William Luther, representing the speaker of the House; and James Sharp, representing the governor.
Shults said he expects Sebastian County Clerk Sharon Brooks, a Republican, to succeed Clark County Clerk Rhonda Cole, a Democrat, on the commission through an appointment by Republican Gov. Asa Hutchinson. Hutchinson spokesman J.R. Davis confirmed Monday night that the governor plans to appoint Brooks.
A Section on 08/20/2019