Arkansas Supreme Court rules signatures must be counted for Optometry Referendum

A veto referendum effort in Arkansas is moving forward after a state supreme court ruling on Thursday ordered the secretary of state to count the signatures submitted by proponents.
The referendum seeks to overturn Act 579 (House Bill 1251) which amended the definition of practice of optometry to allow optometrists to perform surgical procedures. Safe Surgery Arkansas, sponsors of the referendum petition effort hope voters will overturn HB 1251 and are advocating for a no vote on the referendum.

HB 1251 amended the definition of practice of optometry in state law to allow optometrists to perform certain surgical procedures including the following:
1. injections, excluding intravenous or intraocular injections;
2. incision and curettage of a chalazion;
3. removal and biopsy of skin lesions with low risk of malignancy, excluding lesions involving the lid margin or nasal to the puncta;
4. laser capsulotomy; and
5. laser trabeculoplasty.

Sponsors reported submitting about 84,000 signatures on July 23, 2019. To qualify for the 2020 ballot, 53,491 valid signatures are required. The Arkansas Secretary of State’s office said proponents submitted 23,953 signatures and therefore failed to qualify for the ballot. Arkansas Secretary of State John Thurston (R) declined to count 61,065 signatures submitted by proponents, saying they were not collected in compliance with Act 376 (House Bill 346) of 2019, which changed the laws governing the initiative process in Arkansas. Among other things, Act 376 required sponsors to submit certain required sworn statements from paid circulators to the secretary of state before the circulator collects any signatures. Generally, laws become effective 90 days after they are signed by the governor unless they constitute an emergency. Act 376, signed by the governor in March, contained an emergency clause that was designed to apply the new laws to petitions that were already being circulated.

Alex Gray, attorney for Safe Surgery Arkansas, filed a lawsuit in the Arkansas Supreme Court against Arkansas Secretary of State John Thurston (R) on August 13, 2019. The plaintiffs alleged that the emergency clause was unconstitutional and that the signatures they submitted were valid and should be counted by the Secretary of State’s office. The state supreme court ruled 4-3 in favor of Safe Surgery Arkansas on December 12, 2019.

The supreme court wrote that the test for determining whether a law is not an emergency is “if reasonable people would not think that the facts stated constitute an emergency.” In Act 376, the legislature wrote that the bill constituted an emergency in order “to avoid confusion in petition circulation.” The supreme court ruled that this did not constitute an emergency. In the majority opinion, the court wrote, “the only purpose this emergency clause can functionally serve is to simply bring Act 376’s new requirements into operation at an earlier time (effectively voiding referendum efforts brought pursuant to the otherwise-then-still-existing legal framework). Here, this would disenfranchise over 60,000 Arkansas citizens who have expressed through their signatures the desire to hold a referendum on Act 579 on the November 2020 ballot, all because the legislature decided (1) that it was time to add additional requirements for procuring those signatures, and (2) that those additional requirements should become effective immediately.”

Three constitutional amendments referred to the ballot by the state legislature are certified to appear on the 2020 ballot. The measures concern a 0.5% sales tax for transportation, term limits for state legislators, and changes to the initiative and legislative referral processes.

From 1996 to 2018, an average of four measures appeared on the ballot during even-numbered years in Arkansas. During even-numbered years between 1996 and 2018, 73% (35 of 48) of statewide ballot measures were approved by voters, and 27% (13 of 48) were defeated.

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Additional reading:
Arkansas 2020 ballot measures
Laws governing the initiative process in Arkansas
Changes in 2019 to laws governing ballot measures