A wave of new laws passed this year is making it harder for Arkansans to put proposals on the ballot.
Arkansas is unique in being one of the few states to have a direct democracy process — a right given to citizens through the state constitution. Groups can organize to put proposals on the ballot, both new laws and amendments to the state constitution. In the past, voters have made decisions on casinos, marijuana and minimum wage, all referred to the ballot through the petition process.
Last year, we saw a slate of ballot measures and proposed amendments attempt to make their way to the finish line. The proposals were about education, abortion, casinos and feminine hygiene products, to name a few.
In the end, only two made it on the ballot. These were both the ones with wealthy backers. And of those two, one, an amendment loosening restrictions on medical marijuana, got thrown out by the Arkansas Supreme Court.
An amendment about a casino in Pope County in western Arkansas was the only one to make it through this exhaustive process. The legislature also has the right to add up to three initiatives onto the ballot every election cycle.
To refer something to the ballot, a proposal must first be drafted. This has two parts: the title and the summary. Then, the attorney general approves it. Most groups needed a few tries to get the ballot title approved. Attorney General Tim Griffin's team often objected to clarity issues like incomplete or inaccurate language.
Step two is a massive undertaking. The groups have to collect signatures from 50 different counties, with a minimum number from each. This amounts to nearly 100,000 signatures for amendments and over 70,000 for initiated acts. Most proposed amendments fall short here.
If they collect enough signatures, the secretary of state counts and verifies the signatures, meaning voters can decide on the proposal for the next election.
Now, the process is even harder. Several laws add additional regulations to the process. It is now extremely difficult or altogether impossible to put anything on the ballot.
These laws passed with broad support in the legislature. In debates, we saw the same arguments play out as each bill passed. The constitution should be hard to amend, supporters say. A big concern is that voters don't know what these proposals mean.
“Canvassers are tricking thousands of Arkansas each year into signing petitions they have already signed or can not legally sign,” said Sen. Kim Hammer, R-Benton, who sponsored several bills restricting the petition process.
Little Rock Public Radio has not seen any genuine evidence of widespread petition fraud, and the Secretary of State’s Office commonly throws out duplicate signatures. But it was part of the justification for the new laws, as most of them concern the signature gathering step.
Senate Bills 207, 208, 209, 210 and 211 added several rules for people collecting signatures. The new laws require, among many things: informing signers that petition fraud is illegal, requiring paid canvassers to live in Arkansas and requiring signers to show photo ID to a canvasser.
One that was especially controversial was Act 274. This law requires a signer to read the petition's ballot title in the presence of a canvasser. The titles can be long, and it's hard to know if the person actually read it or just glanced at it.
Lawmakers say this was partly the result of an unsuccessful proposed amendment to legalize abortion. Canvassers allegedly branded it as an amendment to “protect pregnant women.” Republicans in the legislature thought this was manipulative and they believe some people wouldn't have signed it if they had read it first.
Little Rock attorney David Couch said reading a ballot title out loud to potential petition signers takes an absurd amount of time. He says he interacted with one canvasser in Fayetteville who was taking care to follow the rules.
“It took her ten minutes to interact with one person to get a signature because of all the new laws,” he said.
Couch was also concerned by a law requiring the ballot title to be written at or below an eighth grade reading level. That's a problem because it's subjective.
The law uses a metric called the Flesch-Kincaid Grade Level formula, a math equation that determines the difficulty of a piece of text. The formula involves counting the number of syllables in a word, as well as words per sentence.
Couch believes in practice it borders on parody, saying words like “circulate” or “remainder" can't be used in ballot titles.
“These laws really are above an eighth-grader's reading level,” he said. “So to write a law about amending the constitution and the process is not really something you study in the eighth grade.”
The Arkansas Supreme Court, and in turn the attorney general’s office, sets a very high standard for ballot titles. The language has to explain every aspect of what the proposal would do. These law also requires the title to be one sentence, which then makes it very hard to be at an eighth-grade level according to this formula.
Will there be citizen-led initiatives on the ballot in the next election?
Maybe. There's a proposed meta-amendment to walk these laws back. It's already been rejected twice, because the language wasn't at an eighth grade reading level.
In the meantime, David Couch is leading lawsuits against all of these laws, arguing they're blatant constitutional violations. He is confident court court challenges will be successful. The state constitution refers to this process in pretty plain language as a “power reserved by the people.”
Sen. Kim Hammer, who sponsored several of the laws, said he's been assured by the attorney general that they're constitutional.
