Arkansas committee OKs bill to make it harder for citizens to put initiatives on the ballot

A state Senate panel on Thursday advanced a proposal to make it harder for citizen-led petitions to qualify for the ballot, going even farther than a constitutional amendment Arkansans rejected from the Legislature in 2020.

The Senate Committee on State Agencies and Government Affairs sent Senate Bill 260 to the full Senate in a split vote after questions were raised about whether the bill is constitutional.

The bill would require canvassers to gather signatures from at least 50 counties — up from the 15-county threshold laid out in Article 5 of the Arkansas Constitution — to get a referendum, initiated act or constitutional amendment on the statewide ballot.

It would also increase the number of signatures that canvassers must gather in each of those 50 counties and remove the so-called cure period for petitions that get close but fall short of the requisite number of signatures upon inspection by state election officials.

Sponsors Sen. Jim Dotson (R-Bentonville) and Rep. Kendon Underwood (R-Cave Springs) said the bill would protect the state Constitution from “out-of-state special interests” and give more rural counties a greater voice in the process.

Sen. Clarke Tucker (D-Little Rock) and several opponents who testified against the bill said it was clearly unconstitutional because constitutional provisions can’t be changed through statute, instead requiring a constitutional amendment.

Article 5, Section 1 of the Arkansas Constitution states: “Upon all initiative or referendum petitions provided for in any of the sections of this article, it shall be necessary to file from at least 15 of the counties of the State, petitions bearing the signature of not less than one-half of the designated percentage of the electors of such county.”

Underwood, an attorney, said he believed the bill would pass constitutional muster.

“The Constitution sets a floor but it does not set a ceiling,” he said.

Tucker, also an attorney, pointed to Article 5’s “Unwarranted Restrictions Prohibited” clause: No law shall be passed “to prohibit the circulation of petitions, nor in any manner interfering with the freedom of the people in procuring petitions.”

Past efforts

The Arkansas General Assembly over the last decade has passed laws and referred constitutional amendments to make the citizen-led initiative process more difficult.

Many lawmakers have been frustrated with the process after several successful ballot initiatives — including the legalization of medical marijuana in 2016 and casinos in 2018 — saying those types of issues shouldn’t be in the state Constitution.

In 2020, the General Assembly referred Issue 3 to the ballot, but roughly 56% of Arkansas voters rejected the proposed constitutional amendment.

The amendment would have required canvassers to gather signatures from at least 45 counties and moved up several petition deadlines among other things.

Then last year, the Legislature referred Issue 2 to the ballot. It would have required a 60% majority to pass most statewide ballot initiatives. It too failed after roughly 59% of Arkansans rejected it.

Misty Orpin, the executive director of Common Ground, a nonpartisan group that promotes the political middle ground, noted the similarity between Issue 3 of 2020 and SB 260.

“The people of Arkansas already said they don’t want to do this,” she said.

Closing arguments

Senate President Pro Tempore Bart Hester (R-Cave Springs) thanked Dotson and Underwood for bringing the bill, saying it would protect the Constitution from out-of-state billionaires.

“This protects the average voter in Arkansas,” he said.

Tucker disagreed, arguing it flies in the face of the state motto, “Regnat populus,” latin for “The people rule.” Grassroots, citizen-driven initiatives would be less likely to have the means to mount an initiative campaign, but wealthy individuals and interests would still have the means, he said.

“It’s, in my judgment, clamping out the voices of the people and only allowing the richest voices to do it,” Tucker said, urging other committee members to look at the intent of the framers’ of the Constitution.

Sen. John Payton (R-Wilburn), who supported the bill, said the framers lived in a very different time, with limited technology and transportation.

“I think they thought they were setting a pretty high bar at 15 counties,” he said.

The bill will next be considered by the full Senate before going to the state House of Representatives.

Dotson amended the bill to include an emergency clause, meaning the bill would take effect immediately after being enacted into law. A bill with an emergency clause requires a two-thirds majority to pass in both chambers of the General Assembly.