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2 issues keep ballot spots, justices rule

by Michael R. Wickline | October 16, 2020 at 7:20 a.m.
Great Seal of Arkansas in a court room in Washington County. Thursday, June 21, 2018,

The Arkansas Supreme Court on Thursday decided not to remove from the Nov. 3 election ballot two proposed constitutional amendments, one that would make it more difficult to qualify proposed measures for the ballot and the other that would eliminate lifetime term limits for state lawmakers.

The state's high court upheld Pulaski County Circuit Judge Mary McGowan's Sept. 9 dismissal of a lawsuit filed by Tom Steele, chairman of the Arkansas Term Limits committee, against Republican Secretary of State John Thurston. Steele's lawsuit aimed to remove the proposed amendments from the general election ballot.

Chief Justice Dan Kemp wrote the court's majority opinion and Justice Rhonda Wood wrote a concurring opinion.

In a dissenting opinion, Justice Shawn Womack said the circuit court lacked subject-matter jurisdiction and Steele's appeal of McGowan's ruling should be dismissed.

In another dissenting opinion, Justice Josephine Linker Hart said the proposed amendment on ballot issues should be removed from the Nov. 3 general election ballot.

[RELATED: Full coverage of elections in Arkansas »]

The proposal that would make it tougher for Arkansans to qualify proposed constitutional amendments, initiated acts or referenda for the ballot is Issue 3. The proposed amendment also would increase the vote threshold for the Legislature to refer proposed amendments to voters.

The proposed constitutional amendment that would eliminate lifetime term limits for state lawmakers is Issue 2.

Both proposals are the subject of another pending lawsuit in McGowan's court.

In its 2019 regular session, the Arkansas General Assembly voted to refer those proposed constitutional amendments and a third one on highway funding to voters.


In his appeal of the circuit court's dismissal of his suit, Steele argued that McGowan erred in ruling that the ballot titles of Issue 2 and 3 were sufficient because, he contended, with the passage of Act 376 of 2019, all ballot titles should be evaluated under Amendment 7 instead of Article 19, Section 22, of the Arkansas Constitution.

But the court's majority opinion said the Article 19, Section 22, standard is a different and less demanding one than that employed for Amendment 7 initiatives and the court has previously rejected the invitation to apply one uniform standard to all proposed amendments.

The court said it agreed with McGowan's ruling that there is nothing in Act 376 that explicitly overrules prior rulings utilizing Article 19, Amendment 22.

"The plain language of Act 376 allows a 'qualified elector' to 'challeng[e] the sufficiency of' a proposed constitutional amendment in one of three ways -- by challenging the text, ballot title, or popular name of the proposed constitutional amendment," the court said.

"Nowhere in Act 376 does it expressly state that this court must review a constitutional amendment proposed by the General Assembly under amendment 7. Further, we have stated that the Arkansas General Assembly is presumed to be aware of our decisions...We see no reason to depart from our well-established precedent in reviewing a constitutional amendment proposed by the Legislature under article 19, section 22 of the Arkansas Constitution."

Thus, the court ruled that Article 19, Section 22 of the Arkansas Constitution governs the ballot titles of Issue 2 and 3.


In his appeal, Steele also argued that the ballot titles of Issues 2 and 3 are misleading and insufficient and fail to inform the voters of their specific proposals and, as a result, the substantial changes made by the two amendments constitute manifest fraud.

In its majority opinion, the court said it has stated that Article 19, Section 22, doesn't require a ballot title, and any ballot title offered is intended to identify and distinguish the amendment rather than to inform the voter.

The court said the Issue 2 ballot title states that the amendment is known as the "Arkansas Term Limits Amendment" and proposes "amending the term limits applicable to members of the General Assembly."

The Issue 3 ballot title states that its amendment will "amend the process for the submission, challenge, and approval of proposed initiated acts, constitutional amendments, and referenda," the court said.

"Here, these two ballot titles sufficiently identify and distinguish the proposed amendments from others on the ballot and in the public," the court said.

The court said it also agreed with McGowan that the Issue 3 ballot title does not constitute manifest fraud because it "refers to all proposed constitutional amendments; those proposed by the public and those proposed by the [Arkansas] General Assembly."

Steele has not overcome the "'enormous hurdle' of the manifest fraud standard," the Supreme Court said.

"Thus, viewing the facts in the complaint in the light most favorable to Steele, we hold that the circuit court properly ruled that Issue 2 and Issue 3 comply with the requirements of article 19, section 22 of the Arkansas Constitution," according to the court.


Steele also argued that Issue 3 is not a single-subject proposal, but one containing three separate and disparate constitutional amendments.

The Supreme Court said it has held under Amendment 19, Section 22, there is no violation of the separate issue requirement as long as all of the proposed amendment's parts are reasonably germane to each other and to the general subject of the proposal.

"Based on our review, Issue 3 allows for amendments through public-initiated acts, referenda or the Legislature," the high court said Thursday.

"It does not violate the same-subject provision because its parts are reasonably germane to each other and to the general subject of the amendment," the court said. "We conclude that the circuit court properly ruled in this instance. Therefore, we hold that the circuit court properly dismissed Steele's complaint."


In her dissenting opinion, Hart said Issue 3 should be removed from the ballot.

One part of Issue 3 is directed at a measure generated by the people and two other parts affect how the Legislature proposes constitutional amendments, she said.

All three parts concern different processes for amending the constitution, Hart said.

"Yet, the majority affirms the circuit court's finding that these different procedures are 'reasonably germane' because '[t]he general subject of Issue 3 is the various procedures in which Arkansas law can be amended: through public initiated acts and amendments.'

"That single sentence should provide all the clues necessary to decide that Issue 3 contains disparate proposals," Hart wrote in her dissenting opinion. "The phrase 'various procedures' can only indicate that there is more than discrete change to the constitution that should be 'submitted as to enable electors to vote on each amendment separately.'"

Attorney David Couch, who represented Steele, said Thursday, "It's disappointing that measures sent to the voters by the politicians are not held to the same strict standards as those initiated by citizens.

"No voter will actually know what they are voting for when they cast their vote on Issues 2 and 3," Couch said in a written statement. "The Supreme Court permitted this deception by the politicians while during this same election cycle removed all three measures proposed by the people for a hyper-technical reason."

Thurston spokesman Kevin Niehaus said in a written statement, "We do not have a comment."

A spokeswoman for Republican Attorney General Leslie Rutledge said, "The Attorney General is pleased the Arkansas Supreme Court ruled that Issue 2 and Issue 3 are constitutionally valid.

"This decision will give Arkansas voters the opportunity to consider both issues during this election," said Rutledge spokeswoman Stephanie Sharp.


Issue 3 would require initiative or referendum petitions to have a certain percentage of valid signatures from each of 45 counties. The designated percentage would be based on the votes in each county in the most recent gubernatorial election. The constitution now sets that minimum at 15 of Arkansas' 75 counties.

The proposed amendment also would:

• Require initiative petitions for statewide measures to be filed with the secretary of state by Jan. 15 of the year they would be voted on. They are now required to be filed by four months before the election.

• Eliminate the 30-day cure period, which gives more time to gather signatures if the sponsor of a proposed ballot measure falls short on valid signatures but turns in at least 75% of the required number.

• Require a challenge to the sufficiency of a statewide petition to be filed no later than April 15 of the year of the general election in which it shall be voted on.

• Require a three-fifths vote -- up from the current majority vote -- in the 100-member House of Representatives and 35-member Senate to refer a proposed constitutional amendment to voters.

Issue 3 would become effective Jan. 1.


Issue 2 would remove lifetime term limits for state lawmakers.

Lawmakers are now limited to a maximum of 16 years in the House, the Senate or a combination of service in both chambers. (Senators' two-year terms required by once-a-decade redistricting don't count toward that 16-year limit.)

Issue 2 would allow current lawmakers and any legislator elected Nov. 3 to serve under the current term limits, with the difference that once they hit the limit, they would be eligible to hold office again in the future after four years.

Then, the proposed amendment would prohibit future lawmakers elected after Jan. 1, from serving more than 12 years in a row. However, those lawmakers, once they have served 12 years consecutively, would be able to serve in the Legislature after taking a four-year break. The 12 years would include two-year Senate terms resulting from the once-a-decade restricting process.

Issue 2 would become effective Jan. 1.


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