Oral arguments set in lawsuit challenging signature requirement for ballot access for proposed constitutional amendments

Sen. Bryan King (left), R-Green Forest, asks questions to bill sponsor Sen. Bart Hester, R-Cave Springs, during discussion of SB10, to amend the Freedom of Information Act of 1967, in the House Committee on State Agencies and Governmental Affairs on Wednesday, Sept. 13, 2023, at the state Capitol in Little Rock. (Arkansas Democrat-Gazette/Thomas Metthe)
Sen. Bryan King (left), R-Green Forest, asks questions to bill sponsor Sen. Bart Hester, R-Cave Springs, during discussion of SB10, to amend the Freedom of Information Act of 1967, in the House Committee on State Agencies and Governmental Affairs on Wednesday, Sept. 13, 2023, at the state Capitol in Little Rock. (Arkansas Democrat-Gazette/Thomas Metthe)

A Pulaski County Circuit judge will hear oral arguments Monday that could have major implications on ballot access for proposed constitutional amendments, initiated acts and referendums in Arkansas.

The lawsuit, brought by Sen. Bryan King, R-Green Forest, and the League of Women Voters of Arkansas argues a new law, Act 236, that increases the signature requirement for ballot measures from at least 15 to 50 counties is unconstitutional.

Some direct democracy campaigners see the new law as an attack on the petition process, meant to make it harder for measures to make the ballot. The law's sponsor, Rep. Kendon Underwood, R-Cave Springs, said the law is meant to ensure broader support, particularly from rural areas, for ballot measures.

"I believe our constitution is a sacred document and I believe it should be amended with more widespread support," Underwood said last February during the bill's hearing in committee.

Whether the law is constitutional or not will rely on the court's reading of Article 1, Section 5 of the Arkansas Constitution, which states "it shall be necessary to file from at least fifteen of the counties of the State" for measures to make the ballot.

"At least in there is not a floor... it's a phrase that modifies 15, so it doesn't have to be an exact number," said David Couch, attorney for the plaintiffs.

For a county to be counted toward the minimum, whether it be 15 or 50, campaigns are required to hit a certain signature threshold. For a constitutional amendment, that means collecting signatures that total 5% of the people who voted for governor in the last election, 4% for an initiated act and 3% for a referendum. In total, a constitutional amendment needs at least 90,704 signatures, 72,563 for an initiated act and 54,422 for a referendum.

Couch said Act 236 effectively amends a voter-initiated amendment to the Arkansas Constitution, something the General Assembly doesn't have the power to do.

While an attorney for the plaintiffs, Couch has a personal stake in the outcome of the case given his involvement with several ballot measure campaigns, including amendments and initiated acts on government transparency, ending the sales tax on tampons, expanding access to medical marijuana, and reforming the direct democracy process.

Responding to the argument that the 50-county requirement gives rural voters more of a say in what makes the ballot, Couch said when it comes to the election, all votes count the same.

"This is just what qualifies for the ballot," he said. "Every voter gets one vote, whether he lives in Ashdown or Little Rock, Fayetteville or Foreman. Eventually, there's an election."

The Attorney General's Office, which is tasked with defending the law in court, has argued in its briefs that "the constitution sets the 15 county requirement as a minimum requirement, or floor, instead of as a maximum requirement, or ceiling."

"I will continue to defend the constitutionality of Act 236 and the General Assembly's ability to modify the petition process," Attorney General Tim Griffin said in a statement.

For the groups that will be leading the ballot measure campaigns, the difference between needing to gather signatures in 15 counties versus 50 counties is a major deal.

Bill Kopsky, treasurer of For AR Kids, a group attempting to get a constitutional amendment on education on the ballot, said campaigns that can afford to hire paid canvassers aren't as hurt by the 50 county requirement as grassroots campaigns that rely on volunteers.

"I think it makes ballot measures more expensive and more difficult for grassroots community members and really favors big, deep-pocket campaigns," Kopsky said.

Citizens for Arkansas Public Education and Students, the group that led the campaign to put the LEARNS Act to a referendum last summer, failed in its petition effort on two fronts. While the volunteer-led group came just shy of collecting the 54,422 signatures it needed to put the education law to a referendum, it also, by its own estimate, met the signature threshold in only 48 counties.

For campaigns that can afford to hire paid canvassers, the 50 county threshold may not be as steep, Couch said.

Bill Paschall, a member of the board for Arkansans for Patient Access, the group behind the medical marijuana amendment, admitted the 50 county threshold will be less of a challenge given the backing medical marijuana dispensaries around the state. The group has raised $88,630 entirely from medical marijuana businesses, according to its latest financial disclosure.

"Because we have licensees across the state, we do have resources that others won't have, just because our industry is statewide," Paschall said.

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