Tagarkansas

Stories about Arkansas

Arkansas Supreme Court removes third citizen initiative from November ballot, leaving three legislative referrals for voters to decide

On September 17, the Arkansas Supreme Court removed Issue 6 from the November ballot. The referendum would have allowed voters to either repeal or uphold Act 579, which was designed to amend the definition of practice of optometry to allow optometrists to perform certain surgical procedures that were previously only performed by ophthalmologists. A yes vote on the referendum would have been a vote to uphold Act 579 while a no vote would have been a vote to repeal it.

During this cycle, the Arkansas Supreme Court removed all three citizen-initiated measures from the ballot—Issue 4, Issue 5, and Issue 6—that had been certified for the ballot. The rulings were all based on certifications filed by measure sponsors that said background checks were acquired for all signature gatherers. State law requires the certifications to state that background checks were passed by all signature gatherers.

Arkansans for Healthy Eyes led the campaign in support of a yes vote. Arkansans for Healthy Eyes supported Act 579 to allow optometrists to perform some eye surgeries. Safe Surgery Arkansas (SSA) led the campaign in support of a no vote. SSA sponsored the referendum signature petition. The group opposed allowing optometrists to perform some eye surgeries and sought to repeal Act 579. Safe Surgery Arkansas paid $661,000 to National Ballot Access, a petition circulating company, to collect signatures for the measure.

Issue 6 was removed from the ballot for the same reason that Issues 4 and 5 were removed in late August. Issue 4, sponsored by Arkansas Voters First, would have created the Citizens’ Redistricting Commission for state legislative and congressional redistricting. Arkansas Voters First paid $1.1 million to National Ballot Access, Advanced Micro Targeting, and Fieldworks LLC to collect signatures for the measure.

Issue 5, sponsored by Open Primaries Arkansas, would have (a) changed primary elections so that all candidates for an office are listed on a single primary ballot, rather than on separate partisan ballots, and (b) created a top-four ranked-choice voting system for general elections for federal congressional office, state general assembly, and statewide elected offices. Open Primaries Arkansas did not report signature gathering costs.

Under Arkansas Code § 7-9-601(b)(3), sponsors are required to certify to the secretary of state that each paid canvasser passed a state and federal criminal background check. The Arkansas Supreme Court found that proponents of the three measures failed to certify that paid signature gatherers passed background checks. The certifications submitted by petitioners stated that background checks were acquired, but did not say they were passed.

Sponsors of the referendum, Safe Surgery Arkansas, said they would pursue a new ballot measure in 2022.

Three measures remain on the November ballot in Arkansas. All three measures are constitutional amendments that were referred to the ballot by the state legislature. Issue 1 would continue a 0.5% sales tax for transportation projects; Issue 2 would change state legislative term limits; and Issue 3 would change initiative process and legislative referral requirements.

Two measures on the 2018 ballot in Arkansas were declared invalid by the state Supreme Court and votes for the measures were not counted. Similarly, in 2016, the supreme court declared two measures on the ballot to be invalid and votes were not counted.

Additional reading:



Ranked-choice voting and redistricting commission initiatives blocked from Arkansas ballot

On August 27, two Arkansas citizen-initiated measures—one that would have established a redistricting commission (Issue 4) and another that would have established ranked-choice voting (Issue 5)—were blocked by the Arkansas Supreme Court from appearing on the November ballot. The measures were provisionally certified for the ballot on August 21, 2020.

The redistricting measure, sponsored by Arkansas Voters First, would have created the Citizens’ Redistricting Commission for state legislative and congressional redistricting. The commission would have been comprised of nine commissioners who are registered Arkansas voters and would have replaced the Board of Apportionment, which is currently responsible for state legislative redistricting in Arkansas. The current Board of Apportionment is comprised of the governor, the secretary of state, and the attorney general. Currently, in Arkansas, the state legislature is responsible for congressional redistricting. The measure would have also established criteria for drawing district maps.

Sponsored by Open Primaries Arkansas, the ranked-choice voting measure would have (a) changed primary elections so that all candidates for an office are listed on a single primary ballot, rather than on separate partisan ballots, and (b) created a top-four ranked-choice voting system for general elections for federal congressional office, state general assembly, and statewide elected offices, including Governor, Lieutenant Governor, Secretary of State, Treasurer of State, Auditor of State, Attorney General, and Commissioner of State Lands.

The campaigns each submitted around 100,000 signatures on July 6. To qualify for the ballot, 89,151 valid signatures were required.

Secretary of State John Thurston (R) found on July 14 that signatures for the initiatives were insufficient on the grounds that petition circulators’ background check certifications did not comply with state law.

Under Arkansas Code § 7-9-601(b)(3), sponsors are required to certify to the Secretary of State that each paid canvasser passed a state and federal criminal background check. Arkansas Voters First and Open Primaries Arkansas campaigns submitted certifications stating that the background checks were acquired but did not say they were passed. The statements of insufficiency for the two measures came a day after Special Master Mark Hewett determined signatures submitted on January 31 for an optometry law referendum were invalid for the same reason. Hewett’s report was filed with Arkansas Supreme Court for a final determination.

The campaigns asked the state Supreme Court on July 17 to order Secretary of State John Thurston to give the campaigns at least 30 days to collect additional signatures. In Arkansas, if petitioners fail to meet the signature requirement, but the petitioners have gathered at least 75% of the valid signatures needed, petitioners have 30 days to collect additional signatures or demonstrate that rejected signatures are valid. The campaigns were granted a provisional 30-day cure period. Arkansas Voters First reported submitting an additional 50,000 signatures on August 5. Open Primaries Arkansas reported submitting an additional 59,000 signatures on August 20.

Retired Circuit Judge John Fogleman was appointed by the Arkansas Supreme Court on July 24 as a special master to resolve the disputes between Arkansas Voters First, Open Primaries Arkansas, and the secretary of state concerning petition circulator background check certifications and signature validity. Fogleman’s report was submitted to the state Supreme Court on August 10, 2020. Fogleman concluded that the Supreme Court needed to decide whether or not the campaigns’ background check certifications comply with Arkansas Code § 7-9-601(b)(3).

On August 21, Secretary of State John Thurston certified both measures for the ballot “for coding purposes and preparation purposes only, pending the outcome of the litigation.” Under Arkansas Code § 7-5-204, if the secretary of state has not determined a petition’s sufficiency by the 75th day before the general election or if a measure is being challenged in court, the measure must be placed on the ballot. If the measure is later declared insufficient or invalid, votes for the measure will not be counted or certified.

On August 27, 2020, Arkansas Supreme Court ruled in favor of John Thurston. Associate Justice Robin Wynne, who wrote the majority opinion, said, “Simply acquiring or obtaining a background check is not sufficient under the plain language of the statute. The results of the background checks are not required to be filed with the Secretary of State, and the certification is the only assurance the public receives that the paid canvassers ‘passed’ background checks.” The state Supreme Court ruled, “In sum, we hold that petitioners did not comply with Arkansas Code Annotated section 7-9-601(b)(3) when they failed to certify that their paid canvassers had passed criminal background checks. Accordingly, the initiative petitions at issue are insufficient and petitioners are not entitled to a cure period or any other relief.” Justice Josephine Linker Hart dissented, writing, “Today, the majority has disenfranchised more than 90,000 citizens. By signing the petition, these registered voters clearly manifested their desire to have these issues placed on the ballot. … there is no evidence that the certification language directly affected the validity of even a single petition part.”

The campaign managers for Arkansas Voters First and Open Primaries Arkansas said they were exploring their legal options for keeping the measures on the ballot.

Two measures on the 2018 ballot in Arkansas were declared invalid by the state Supreme Court and votes for the measures were not counted. Similarly, in 2016, the supreme court declared two measures on the ballot to be invalid and votes were not counted.

Additional reading:


Ranked-choice voting and redistricting commission initiatives provisionally certified for Arkansas ballot

Two Arkansas citizen-initiated measures—one that would establish ranked-choice voting and another that would establish a redistricting commission—were provisionally certified for the ballot on August 21, 2020. Whether or not votes will be counted for the measures is a question pending before the Arkansas Supreme Court.

Sponsored by Open Primaries Arkansas, the ranked-choice voting measure would (a) change primary elections so that all candidates for an office are listed on a single primary ballot, rather than on separate partisan ballots, and (b) create a top-four ranked-choice voting system for general elections for federal congressional office, state general assembly, and statewide elected offices, including Governor, Lieutenant Governor, Secretary of State, Treasurer of State, Auditor of State, Attorney General, and Commissioner of State Lands.

The redistricting measure, sponsored by Arkansas Voters First, would create the Citizens’ Redistricting Commission for state legislative and congressional redistricting. The commission would be comprised of nine commissioners who are registered Arkansas voters and would replace the Board of Apportionment, which is currently responsible for state legislative redistricting in Arkansas. The current Board of Apportionment is comprised of the governor, the secretary of state, and the attorney general. Currently, in Arkansas, the state legislature is responsible for federal congressional redistricting. The measure would also establish criteria for drawing district maps. All meetings of the commission would be publicized and open to the public.

The campaigns each submitted around 100,000 signatures on July 6. To qualify for the ballot, 89,151 valid signatures are required.

Secretary of State John Thurston (R) found on July 14 that signatures for the initiatives were insufficient on the grounds that petition circulators’ background check certifications did not comply with state law.

Under Arkansas Code § 7-9-601(b)(3), sponsors are required to certify to the Secretary of State that each paid canvasser passed a state and federal criminal background check. Arkansas Voters First and Open Primaries Arkansas campaigns submitted certifications stating that the background checks were acquired but did not say they were passed. The statements of insufficiency for the two measures came a day after Special Master Mark Hewett determined signatures submitted on January 31 for an optometry law referendum were invalid for the same reason. Hewett’s report was filed with Arkansas Supreme Court for a final determination.

The campaigns asked the state Supreme Court on July 17 to order Secretary of State John Thurston to give the campaigns at least 30 days to collect additional signatures. In Arkansas, if petitioners fail to meet the signature requirement, but the petitioners have gathered at least 75% of the valid signatures needed, petitioners have 30 days to collect additional signatures or demonstrate that rejected signatures are valid. The campaigns were granted a provisional 30-day cure period. Arkansas Voters First reported submitting an additional 50,000 signatures on August 5. Open Primaries Arkansas reported submitting an additional 59,000 signatures on August 20.

Retired Circuit Judge John Fogleman was appointed by the Arkansas Supreme Court on July 24 as a special master to resolve the disputes between Arkansas Voters First, Open Primaries Arkansas, and the secretary of state concerning petition circulator background check certifications and signature validity. Fogleman’s report was submitted to the state Supreme Court on August 10, 2020. Fogleman concluded that the Supreme Court must decide whether or not the campaigns’ background check certifications comply with Arkansas Code § 7-9-601(b)(3).

On August 21, Secretary of State John Thurston certified both measures for the ballot “for coding purposes and preparation purposes only, pending the outcome of the litigation.” Under Arkansas Code § 7-5-204, if the secretary of state has not determined a petition’s sufficiency by the 75th day before the general election or if a measure is being challenged in court, the measure must be placed on the ballot. If the measure is later declared insufficient or invalid, votes for the measure will not be counted or certified.

Two measures on the 2018 ballot in Arkansas were declared invalid by the state Supreme Court and votes for the measures were not counted. Similarly, in 2016, the supreme court declared two measures on the ballot to be invalid and votes were not counted.



Fate of four initiatives in Arkansas uncertain due to state law requiring signature gatherers to certify that they passed background checks

A veto referendum concerning eye surgeries, which was certified on January 31 to appear on the November ballot, is awaiting a final determination from the Arkansas Supreme Court about whether it will remain on the ballot.

 

Arkansans for Healthy Eyes (opponents of the veto referendum effort) filed a lawsuit on February 28, 2020, alleging that Safe Surgery Arkansas, the sponsors of the veto referendum effort, fraudulently gathered signatures and misled petition signers. On April 2, 2020, the Arkansas Supreme Court appointed Special Master Mark Hewett to conduct a hearing and review petitioners’ claims and to submit a report of his findings to the court.

 

Arkansas state law requires sponsors to certify to the Secretary of State that each paid canvasser passed a state and federal criminal background check. Safe Surgery Arkansas certified that the “background check, as well as a 50-state background check, have been timely acquired.”

 

In his report on July 13, Special Master Mark Hewett found that state law—§ 7-9-601(b)(3)—requires sponsors to certify that canvassers passed the background checks and that Safe Surgery Arkansas’ certification said instead that the checks were acquired.

 

Alex Gray of Safe Surgery Arkansas said he was confident that the Supreme Court would allow the signatures to stand. A supreme court ruling is expected in mid to late August.

 

On July 14, 2020, Arkansas Secretary of State John Thurston determined that signature petitions for three citizen initiatives for which proponents submitted signatures on July 6 are insufficient based on the requirement that sponsors certify that canvassers passed background checks and said his office was barred from counting the signatures that were submitted.

 

Arkansas Wins in 2020, sponsors of an amendment to authorize 16 additional casinos, did not file the certification. Similarly to Safe Surgery Arkansas, the Arkansas Voters First and Open Primaries Arkansas campaigns submitted certifications stating that the background checks were acquired but did not say they were passed. Arkansas Voters First is supporting an amendment to create an independent redistricting commission. Open Primaries Arkansas is supporting a top-four open primary ranked-choice voting initiative. Safe Surgery Arkansas, Arkansas Voters First, and Open Primaries Arkansas used petition gathering company National Ballot Access to gather signatures.

 

The campaigns asked the state supreme court on July 17 to order Secretary of State John Thurston to count the signatures and give the groups at least 30 days to collect additional signatures. In Arkansas, if petitioners fail to meet the signature requirement, but the petitioners have gathered at least 75% of the valid signatures needed, petitioners have 30 days to collect additional signatures or demonstrate that rejected signatures are valid.

 

David Couch, attorney for the redistricting and ranked-choice voting measures, said he would file an amicus brief in the veto referendum case that is pending supreme court action.

 

The state legislature has referred three constitutional amendments to the 2020 ballot that would (1) make permanent a 0.5 percent sales tax to fund transportation otherwise set to expire in 2023, (2) change term limits for state legislators, and (3) change initiative process and legislative referral requirements.

 

From 1996 through 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 in Arkansas were approved by voters, and 27% (13 of 48) were defeated.

 



Hodges resigns from Arkansas House to take new job with community college

Grant Hodges (R) resigned from the Arkansas House of Representatives on July 10. Hodges’ resignation came just before he started a new job as the executive director of community and government relations at Northwest Arkansas Community College on July 13.
Hodges’ resignation was expected after he announced his acceptance of the new role in late June. First elected to represent District 96 in 2014 and re-elected in 2016 and 2018, Hodges did not file to run for re-election this year.
Hodges’ resignation creates the second vacancy in the chamber this year. The first was created when Chris Richey (D) resigned less than two weeks prior to Hodges, after moving out of his district for an employment opportunity. With the departure of Hodges and Richey, the current partisan composition of the Arkansas House of Representatives is 75 Republicans and 23 Democrats. Ten incumbents in the chamber, including Richey, did not file to run for re-election this year. Of those, Richey was the only Democrat.


Three Arkansas initiative campaigns submit signatures by Monday deadline

The signature deadline for citizen initiatives in Arkansas passed on Monday, July 6, 2020. Sixteen initiatives were filed targeting the November 2020 ballot in Arkansas. Three campaigns submitted signatures. All three measures were constitutional amendments, which means 89,151 valid signatures are required to qualify for the ballot.
1. Arkansas Voters First sponsored a constitutional amendment to create an independent redistricting commission. The group submitted over 100,000 signatures, which means it needs a signature validity rate of approximately 89 percent to qualify the initiative for the ballot. The measure would create the Citizens’ Redistricting Commission for state legislative and congressional redistricting. The commission would consist of nine commissioners and would replace the Board of Apportionment that is currently responsible for state legislative redistricting in Arkansas. The current Board of Apportionment is made up of the governor, the secretary of state, and the attorney general. In Arkansas, the state legislature is responsible for federal congressional redistricting. The measure would establish qualifying criteria for members and would restrict individuals from serving if they were, within the last 5 years, an elected official, lobbyist, political party officer, political action committee employee, or if they were the spouse of any such individuals. The measure would establish criteria for drawing district maps.
2. Arkansas Voters First also assisted Open Primaries Arkansas in collecting signatures for a constitutional amendment to establish a top-four primary, ranked-choice voting general election system in Arkansas for federal and state offices. Over 94,000 signatures were submitted for the measure, which means a signature validity rate of approximately 95 percent is required. Under the measure, the top four vote-getters in the primary would advance to the general election. Candidates would all appear on the same ballot regardless of political affiliation and could choose to have their political affiliation included on the ballot. In the general election, voters could rank up to four candidates. If a candidate receives a majority (50%+1) of votes, he or she would be elected. If no candidate secures a majority of votes, the candidate with the least votes would be eliminated and votes would be redistributed according to voters’ next choices. This would occur in rounds until one candidate has a majority of votes. As of 2020, no states utilized a top-four primary for state or federal elections. A measure to establish top-four ranked-choice voting is on the November in Alaska and may appear on the ballot in North Dakota.
3. Arkansas Wins in 2020 submitted over 97,000 signatures for a constitutional amendment to require the Arkansas Racing Commission to issue 16 casino licenses in 14 counties. This means the group needs a signature validity rate of approximately 92 percent. The amendment specifies which companies will receive the licenses. Issue 4, approved by voters in 2018, authorized one casino each for specified licensees in Crittenden, Garland, Pope, and Jefferson Counties.
In 2018, the signature petition for Arkansas Issue 4 had a signature validity rate of 72 percent. In 2016, the petition for Arkansas Issue 6 had a signature validity rate of 92 percent.
Based on a sampling of 143 citizen-initiated measures on the ballot from 2006 through 2018 across the country, successful petitions featured an average signature validity rate of 75.33 percent. Signature verification processes and petition requirements vary widely by state.
Four measures are already certified to appear on the 2020 ballot in Arkansas. The state legislature referred three constitutional amendments to the ballot that would (1) make permanent a 0.5 percent sales tax to fund transportation otherwise set to expire in 2023, (2) change term limits for state legislators, and (3) change initiative process and legislative referral requirements. A veto referendum concerning eye surgeries is also on the ballot.
From 1996 through 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 in Arkansas were approved by voters, and 27% (13 of 48) were defeated.


Four state legislators resign at the end of June

Four state legislators in three states stepped down from their positions on June 30, bringing the number of state legislative vacancies that have occurred this year to 75.

The former legislators had a cumulative total of more than sixty years of legislative experience among them. Gary Jackson (R) had served in the Mississippi State Senate since 2004. Gary Chism (R), another Mississippi legislator, first began serving in the state’s House of Representatives in 2000. Jerry W. Tillman (R), who left the North Carolina State Senate, was first elected to the chamber in 2002. Chris Richey (D) first joined the Arkansas House of Representatives in 2013.

The process by which state legislative vacancies are filled varies by state. In both chambers of the Mississippi state legislature and in the Arkansas House of Representatives, the governor must call a special election to fill the vacant seat. In the North Carolina Senate, the governor is responsible for appointing a replacement senator.

As of July 2020, 48 state legislative special elections have been scheduled for this year in 25 states. The elections will decide 17 previously Democratic and 31 previously Republican seats. The partisan composition of state legislatures nationwide as of July 1 is 46.8% Democratic and 52.2% Republican, which has remained consistent since April of this year.

Additional reading:



Arkansas Voters First, redistricting initiative sponsors, file lawsuit seeking relief from signature petition requirements

Arkansas Voters First, sponsors of an initiative to create an independent redistricting commission, filed a lawsuit against Secretary of State John Thurston (R) on April 22.

To qualify for the November ballot, sponsors need to submit 89,151 valid signatures by July 3, 2020. Signatures for Arkansas initiatives must be collected in person. Currently, none of the 26 states with a process for citizen initiatives allow electronic signature gathering.

The group seeks relief from certain signature petition requirements, such as in-person signature, witness, and notary requirements. The group asked to be allowed to gather electronic signatures and asked for the deadline to be extended by one month to August 3, 2020. Thurston said he does not have the power to suspend the signature requirements.

The lawsuit said, “Close, in-person interactions are necessary to any effort to gather wet signatures for an amendment to be placed on the ballot. However, given the severe restrictions on the ability to physically interact with others, Plaintiffs cannot comply with Arkansas’s formal constitutional and statutory signature requirements. Given the current circumstances, Arkansas’s requirements unduly burden Plaintiffs’ fundamental First and Fourteenth Amendment rights under the U.S. Constitution.”

The initiative would create the Citizens’ Redistricting Commission for state legislative and congressional redistricting. The commission would have nine commissioners. It would replace the Board of Apportionment that is currently responsible for state legislative redistricting in Arkansas. The state legislature is currently responsible for congressional redistricting. The measure would establish qualifying criteria for members and would restrict individuals from serving if they were, within the last 5 years, an elected official, lobbyist, political party officer, political action committee employee, or if they were the spouse of any such individuals. The measure would establish criteria for drawing district maps.

On March 19, 2020, Arkansas Voters First suspended signature-gathering efforts due to the coronavirus pandemic but stated they planned to complete signature gathering before the deadline for the 2020 ballot when restrictions were lifted. When the group filed its lawsuit on April 22, Arkansas Voters First Director Bonnie Miller said, “We have a right to petition our government to amend our constitution. We don’t have the luxury of waiting until next year. If we are denied access to the ballot this year, Arkansas could be stuck with unfair and unrepresentative districts for another ten years.”

Most states are required to draw new U.S. congressional district lines every 10 years following completion of the United States Census (those states comprising one congressional district are not required to redistrict). In 35 of these states, state legislatures are primarily responsible for redistricting. In seven states, independent commissions draw congressional district lines. In one state, a politician commission draws the lines.

In 36 of the 50 states, state legislatures are primarily responsible for state legislative redistricting. Independent commissions draw state legislative district lines in 10 states. In four states, politician commissions are responsible for state legislative redistricting.

In 2018, voters in five states approved changes to their redistricting systems for state legislative districts, congressional districts, or both. Ohio, Colorado, Michigan, Missouri, and Utah featured measures, with Ohio’s on the ballot in May and the rest on the ballot in November. In Michigan, Missouri, and Utah, the redistricting measures were put on the ballot as citizen initiatives. In Ohio and Colorado, the measures were referred to the ballot by state legislatures, compromising with the proponents of citizen initiative efforts.

Ballotpedia is tracking changes to ballot measure campaigns, procedures, and policies and ballot measure-related lawsuits in response to the coronavirus (COVID-19) pandemic.

Additional Reading:
Arkansas Redistricting Commission Amendment (2020)
Changes to ballot measure campaigns, procedures, and policies in response to the coronavirus (COVID-19) pandemic, 2020



Arkansas Supreme Court limits judicial deference to state agencies

An April 9 Arkansas Supreme Court ruling limited how much deference agency interpretations of law would receive in the future. The court ruled in Meyers v. Yamato Kogyo Co. that the court should determine the meaning of state laws for itself and should not defer to state agency interpretations.

Justice Shawn Womack delivered the opinion of the court and cited “the risk of giving core judicial powers to executive agencies in violation of the constitutional separation of powers” if they did not clarify how courts were supposed to review agency decisions.

Womack wrote that the power and responsibility to interpret laws lies with the judicial branch while the executive branch enforces laws made and interpreted by the legislature and courts. He went on to say that by “giving deference to agencies’ interpretations of statutes, the court effectively transfers the job of interpreting the law from the judiciary to the executive. This we cannot do.”

Womack added that the court would review all future agency interpretations of statutes on a _de novo_ basis, which means without relying on the agencies’ conclusions. He wrote that the court would interpret unambiguous laws based on the clear meaning of their texts. In cases where the law in question is ambiguous, he wrote that agency interpretations of ambiguity would only be one of many tools the court would use to determine the meaning of the law.

Special Justice Scott Hilburn joined the opinion written by Justice Womack. Justice Karen R. Baker concurred with the decision but did not write a separate opinion. Chief Justice Dan Kemp did not participate in the case. Justice Josephine Hart wrote a dissenting opinion focusing on the facts of the case and not judicial deference in general.

Click here to learn more about judicial deference.

Click here to learn how other states have responded to judicial deference.

Additional reading:
Journey: Judicial review
Shawn Womack
Arkansas Supreme Court
The Administrative State Project

Click here to read the Arkansas Supreme Court decision.



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