On paper, Arkansas remains one of the states where citizens can change laws themselves by putting their proposals before fellow voters. In practice, though, getting constitutional amendments and changes to state law on to the ballot is getting well-nigh impossible.
On Monday, a battle-hardened group of ballot initiators who’ve won some and lost some stepped in with a proposal to make the process clearer. More importantly, their amendment would prevent elected officials from blocking people-powered lawmaking.
Ballot initiative guru David Couch, League of Women Voters of Arkansas President Bonnie Miller and other direct democracy fans are teaming up on the Amendment to Amend the Initiative and Referendum Process.
The need for a more straightforward, less obstructionist process became clear in 2020, Couch said. That’s the year that measures to establish an independent redistricting commission to end gerrymandering and another to establish ranked-choice voting got shot down by the Arkansas Supreme Court on a technicality.
The most important part of the amendment filed with the Arkansas Attorney General’s Office Monday is that it would block the state Legislature from watering down or tossing out any measure that was proposed and voted into law by the citizens.
“To me, the scariest thing is, ‘Does the General Assembly have the ability to amend a constitutional amendment by two-thirds vote?’” Couch asked. “Suppose they get the abortion measure on the ballot and it passes. Is there any way in hell to stop our General Assembly from amending that? They’re willing to roll over the will of the people. We’re trying to stop that.”
Couch was referring to an amendment that would soften Arkansas’s near-total abortion ban to allow abortion access up to 18 weeks after conception and in instances such as rape, incest or a fatal fetal anomaly. Supporters of this amendment are already out collecting signatures in hopes of hitting the magic 90,704, which is the number of names required to get on the November ballot.
Other groups are pushing to enshrine Freedom of Information Act protections and education equity in the state constitution this November. If a majority of Arkansas voters support those efforts, the Amendment to Amend the Initiative and Referendum Process could keep FOIA and education protections from being kneecapped by legislators aiming to keep all the lawmaking powers to themselves.
Chances are good that the AG’s office will sign off on the ballot title and amendment language, Couch predicted.
“It’s a very simple amendment using very simple language and concepts. There’s no reason why the AG shouldn’t approve it on first shot.”
Couch and company filed the ballot title and summary with Attorney General Tim Griffin‘s office Monday, which means an approval or rejection should be in hand by Feb. 20.
The stop-and-go process of submitting a ballot initiative or referendum title to the AG, waiting 10 days for an acceptance or (more likely) a rejection, then doing it all over again, would no longer be a source of frustration and obstruction should the Amendment to Amend the Initiative and Referendum Process pass.
“The Attorney General has used this process to delay and deny the people their right to participate in the initiative and referendum process,” the group pushing the amendment said in a summary of their goals. “Despite the Attorney General’s approval of the popular name and ballot they are still subject to challenge in the Supreme Court after the people have collected the signatures to qualify for the ballot. This amendment establishes a process where the Attorney General is required to approve or substitute a ballot title in 10 days and establishes a procedure where a challenge to the amendment be had prior to the circulation of signatures.”
The Amendment to Amend the Initiative and Referendum Process would also cut the guesswork out of referendums, or popular votes on acts passed by the Legislature. Under current rules, citizens pushing to keep a law from going into effect have to wait for the attorney general to sign off on their proposed ballot title and summary before they can begin collecting the required signatures to put a potential repeal on the ballot. Every time the AG sends them back to the drawing board, the more precious signature-gathering time is lost.
Sound familiar? This scenario played out in 2023, when a coalition of teachers and public education advocates called Citizens for Arkansas Public Education and Students (CAPES) tried to repeal Arkansas LEARNS, the multi-tentacled D.C.-style omnibus education legislation that establishes school vouchers, bans “indoctrination” in the classroom and forces public school kids to log 75 hours of volunteer time if they want to graduate.
The proposed amendment now before Griffin would eliminate guesswork, so groups can spend less time wrangling over the wording and spend more time collecting signatures.
“The people have 90 days to collect signatures on a referendum,” the group’s summary of their proposed reforms says. “Currently the Attorney General must approve the ballot title for a referendum in advance. Recently the Attorney General took 45 of the 90 days to collect signatures on a referendum away from the people by delaying approval of a ballot title. This initiative removes the Attorney General from this process and provides that the name and ballot title are the name and title of the act as assigned by the General Assembly.”
Keeping the power with the people sounds like a swell idea, but it turns out that lots of politicians would rather keep power to themselves. Republicans run every branch of Arkansas state government, and they’ve not been coy about their hostility toward citizen-initiated amendments and referendums.
State legislators tried to get Arkansas voters to hand over their power with a blessedly unsuccessful 2022 proposal that would have required a 60% vote for citizen-initiated amendments to go into effect, instead of just a simple majority. Arkansans were not fooled and rejected this trickery at the polls.
Still, Republican officials continued piling up constitutionally questionable blockades to keep the populus from regnating. During the 2023 session, Arkansas lawmakers passed a law that makes collecting the signatures required to get amendments on the ballot much harder. That law is now being challenged in court.