The Arkansas Supreme Court on Thursday quashed an effort to allow the public to approve or reject a 2019 law allowing optometrists to perform a wider range of surgeries, ending hopes for the last remaining citizen-initiated ballot measure in this fall's elections.
The court, in a 6-1 ruling, again pointed to issues with background checks obtained by the group that opposed the optometry law -- Safe Surgery Arkansas -- on behalf of paid canvassers who collected tens of thousands of signatures for the referendum to appear on the ballot.
Similar issues with a law requiring that paid canvassers pass background checks doomed three initiated proposed constitutional amendments for the Nov. 3 general election ballot.
Chief Justice Dan Kemp, writing for the majority, said state law clearly requires that groups paying canvassers must certify to the secretary of state's office that its canvassers have "passed" an Arkansas State Police background check. But the language in Safe Surgery Arkansas' submission to Secretary of State John Thurston merely stated that the group had "acquired" the background checks.
The court hewed to a similar rationale last month in the case of Bonnie Miller v. Thurston et al., in which the same majority of justices disqualified a pair of citizen-initiated ballot measures proposing significant changes to Arkansas' methods of holding elections and drawing political districts.
A fourth proposal, one to allow as many as 16 new casinos to operate in the state, was voluntarily withdrawn by its backers in August after Thurston said he would not count the proposal's signatures because of a lack of certification that the canvassers had passed background checks.
"In the case at bar, Miller controls. Here, the June 13, 2019 certification language of SSA, under which 51,911 signatures were counted by the Secretary as valid, failed to certify that the paid canvassers had "passed" a criminal background check," Kemp wrote in Thursday's decision.
Both court decisions followed reports by special masters assigned by the court to review the facts of each case. Both reports determined that the groups lacked enough signatures to qualify for the ballot if signatures collected by disqualified canvassers were not counted.
Kemp was joined in the majority by Justices Rhonda Wood, Robin Wynne, Courtney Hudson and Karen Baker.
Justice Josephine "Jo" Hart dissented, as she did in the Miller case.
After the court's ruling, three other statewide issues remain on the general election ballot. Those proposed constitutional amendments -- which include a permanent extension of the state's 0.5% sales tax to fund highways, changes to legislative term limits and adding tougher requirements to get issues on the ballot -- were all proposed by the Legislature in 2019.
Groups aligned on either side of the fight over Act 579 of 2019, the law on optometrists, have raised millions of dollars ahead of the fall campaign season, though much of it was spent on legal fees.
The law expanded the scope of practice for optometrists to include administering injections, performing some types of laser surgery and other procedures previously limited to ophthalmologists, who receive more years of medical training.
Vicki Farmer, the chairwoman of Arkansans for Healthy Eyes, the group that sued to block the referendum effort, released a statement Thursday praising the court's decision. The group has largely been funded by optometrists and industry groups, according to filings with the state Ethics Commission.
"Patients across Arkansas will now have improved access to quality eye care from the doctor of optometry they know and trust," Farmer said.
Safe Surgery Arkansas -- which has reported most of its funding from ophthalmologists, eye surgeons and other medical groups -- has argued that the law could put patients at risk if allowed to take effect.
"An overwhelming majority of Arkansans agree that surgery should be performed by surgeons, and it's a shame that voters will not have the opportunity to express themselves at the ballot on this critically important health issue," Safe Surgery Arkansas Chairwoman Laurie Barber said in a statement Thursday. "Despite today's ruling, we are not at all finished fighting for patient safety. It's too important, and it matters to too many Arkansans."
The law was put on hold from taking effect when Safe Surgery Arkansas filed the requisite number of signatures last year. While the court's ruling should lift that moratorium, attorneys said, it remains unclear when exactly the law will take effect.
The Arkansas Board of Optometry must write new rules permitting optometrists to perform new procedures once the law takes effect. The board's president, Bryant Ashley, referred comment on Thursday to the group's attorney, who referred comment to the Arkansas Department of Health, which referred comment to the attorney general's office.
Amanda Priest, a spokeswoman for Attorney General Leslie Rutledge, said the office is reviewing the court's decision.
Promoters of the law, however, said the law was ready to take effect immediately.
"At 10:00 this morning, that stay was lifted with the Arkansas Supreme Court's mandate," Amanda Story, a consultant for Arkansans for Healthy Eyes, said in an email Thursday.
In a court filing entered Thursday in a separate legal action, Safe Surgery Arkansas stated that it is already "looking ahead to November 2022" for another referendum on the law.
The filing was made in a separate lawsuit filed by Safe Surgery Arkansas earlier this month challenging the requirement that paid canvassers obtain and pass a state police background check. In the filing, attorneys for the group claim that the law is impossible to comply with, because the state police agency does not conduct the federal background checks that the law requires.
That lawsuit is set for a hearing this morning in Pulaski County Circuit Court.
Information for this article was contributed by Michael R. Wickline of the Arkansas Democrat-Gazette.