A lawsuit that seeks to impose stricter standards on the way legislative-backed proposed constitutional amendments appear on the ballot should be dismissed because the issue has already been settled by Arkansas' highest court, state lawyers said Thursday, four days before early voting begins.
"They're asking this court to basically overrule the Arkansas Supreme Court," Michael Mosley with the attorney general's office told Pulaski County Circuit Judge Mary McGowan.
The "binding authority" of the high court settled the matter in a 1982 ruling, Mosley argued on behalf of Secretary of State John Thurston.
Moseley, with fellow Assistant Attorney General Brittany Edwards, further argued the litigation should be dismissed because McGowan had essentially already ruled on the issue when she rejected a similar lawsuit filed by plaintiff Andrew "Andy" Kimbrell's father-in-law, Tom Steele.
Kimbrell's lawsuit, filed a week ago, is just another way for Steele, chairman of the Arkansas Term Limits committee, "to get a second bite of the apple" after McGowan rejected his lawsuit last month, the state lawyers said.
Coincidentally, the Arkansas Supreme Court ruled Thursday that McGowan was right to throw out the Steele suit even as she was hearing arguments to decide the future of Kimbrell's suit.
Both lawsuits challenged the way the two proposed amendments, both put forth by the General Assembly, appear on the ballot, called the ballot titles.
One would change the state's term-limits laws while the other would affect how publicly endorsed constitutional amendment proposals -- initiated acts like the one that legalized medical marijuana -- are placed on the ballot.
For almost 40 years there have been two standards for such titles, depending on how the proposed amendment reached the ballot.
The titles for voter-endorsed proposals, which reach the ballot through petition drives, must meet court-imposed standards that require clarity, honesty and impartiality.
Titles for legislative proposals, however, simply can't be blatantly misleading, a "manifest fraud," the courts have ruled, further stating that those proposals do not even have to have a title.
The court's reasoning is that the process by which the General Assembly puts forth amendment proposals is subject to much more public scrutiny than petition-driven proposals get.
Steele's failed lawsuit argued that statute changes made last year by legislators meant that all ballot titles have to meet the same standard, the stricter one imposed on voter-backed initiatives. McGowan rejected that argument last month, and the state Supreme Court upheld her decision Thursday.
Kimbrell's lawsuit differs in that he is calling for the courts to recognize that times have changed and a stricter standard is required after 38 years.
"We believe it's time the court revisits that  standard and adopt a new standard," Kimbell's attorney Andrew Rittenhouse told the judge. "More stringent standards should be adopted."
What's changed is that newspaper readership has declined drastically over the past 38 years, he said. Proposals put forth by the General Assembly are required by the state constitution to be advertised in newspapers across the state for six months before the election.
But so few people read newspapers now that the court's 38-year-old assumption that newspaper publication is sufficient to ensure an informed electorate just doesn't stand up, Kimbrell's lawyers argued, telling the judge that the latest readership statistics show that at best maybe 50% of the state's voters will have read about the proposals before Election Day.
McGowan's ruling is not likely to come until next week. Kimbrell's lawyers have until the end of today to file a written response to the state's argument for dismissal.
Noting that this case will ultimately be decided on appeal to the state Supreme Court, the judge said she wanted to give both sides time to make all of the arguments they deem necessary before she makes her decision.