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Second effort to overturn Arkansas LEARNS Act rejected by attorney general

Attorney General candidate  Tim Griffin, seen here outside the Arkansas State Capitol on April 17, 2015, has a strong lead in the race according to a new Talk Business & Politics-Hendrix College poll.
Michael Hibblen
Attorney General Tim Griffin is seen in a file photo outside the Arkansas State Capitol on April 17, 2015.

A second effort to place a citizen’s referendum on the ballot to repeal the LEARNS Act, Gov. Sarah Sanders’ signature education bill, has been rejected by Arkansas Attorney General Tim Griffin. The Attorney General is charged with approving ballot titles for proposed referenda.

Citizens for Public Education and Students, or CAPES, was rejected in its first attempt to qualify its referendum in late April.

Griffin outlined several reasons for the latest rejection, although he declared a portion of it “legally sufficient.” In a letter to CAPES executive director Steve Grappe, Griffin said:

“Under the foregoing rules, your proposed popular name is legally sufficient as submitted. But your proposed ballot title is insufficient and must be redesigned. As explained in more detail below, the current version of the ballot title (1) fails to adequately summarize the LEARNS Act; (2) fails to make all the changes noted in my response to your first submission; and (3) is printed in a font that is so small, most people would be unable to read it,” Griffin said.

The LEARNS Act, among many other provisions, creates “education freedom accounts” giving families access to about $7,000 for non-public school options that otherwise would have gone to the public schools where their children would have attended. It also increases the minimum teacher salary from $36,000 to $50,000 and provides every teacher a $2,000 raise.

CAPES is attempting to use a constitutional lever that allows citizen initiatives to challenge enacted laws to be submitted to voters. The window for qualifying is narrow.

CAPES has 90 days from when the Legislature adjourned sine die on May 1 to gain approval and to collect the 54,244 signatures required by the Constitution. That’s 6% of the total votes cast in the last governor’s election. But it needs the AG’s approval of its petition to begin the signature collection process.

Griffin cited a number of problems with the latest CAPES filing.

“In my prior opinion rejecting your first draft, I noted that your ‘ballot title contains no summary of several provisions’ and provided four such examples. Your second draft attempts to address each of those four examples. But as I noted in my prior opinion, those examples were ‘meant to be illustrative not exhaustive.’ And since this second version of your ballot title does not even attempt to summarize numerous other provisions in the act, the ballot title is insufficient,” Griffin said.

“In my prior opinion rejecting your first draft, I noted that most of your proposed ballot title’s summaries were insufficient because the proposed summaries were ‘more like descriptive labels for some of the act’s component parts.’ I provided one example of such a problem. The second version of your ballot title fails to address this problem,” he added.

Another fault Griffin singled out was the proposed ballot title, although he agreed the popular name was adequate. The Attorney General can modify a proposed ballot title, but he is not required to do so. Griffin declined on this referendum.

“It is the sponsor’s duty to at least try to provide a complete summary of the act to be referred. As noted above in section three on the rules governing ballot titles, sponsors must balance brevity with completeness. At this point, you are erring far too much toward brevity,” Griffin said.

His final critique for rejection involved the font size of the referendum submitted. Griffin said it would be too hard for citizens to read and he hypothesized that a court might reject the submission on this issue alone.

“There is no point in carefully summarizing the LEARNS Act if citizens cannot read the summary. Your popular name is in 8-point font, and your ballot title is in 6-point font. It is unclear why you have adopted these constraints. In my opinion, a court would most likely declare that a multipage ballot title in 6-point font is legally insufficient for that reason alone because, regardless of the summary’s content, most people asked to sign the petition or to vote on the matter would be unable to read it,” he said.

CAPES is a party to a lawsuit that was filed earlier this week that seeks to repeal the emergency clause attached to the LEARNS Act. Attorney Ali Noland, on behalf of parents from the Marvell-Elaine School District and CAPES, filed the suit and is seeking a preliminary injunction or temporary restraining order to delay its enactment. Noland will be a guest on this week’s Capitol View TV program.

The lawsuit alleges the Arkansas General Assembly did not follow the state constitution in voting separately for an emergency clause that allowed the LEARNS Act to go into law upon the governor’s signature. The filing, which was made in Pulaski County circuit court, also questions if an emergency clause is even necessary for the measure. It further contends that money spent on state board actions would be an illegal exaction due to the law not being properly in effect, which could lead to additional litigation.

Roby Brock is the Editor-in-Chief and Host of Talk Business & Politics.