A central Arkansas judge is finally deliberating the constitutionality of a 2023 state law. Parties reargued their cases at a hearing in Little Rock Wednesday.
Act 236 adds controversial restrictions to the canvassing process. Independent groups who want to amend the state constitution, or put an initiative on the ballot, need to collect thousands of signatures across the state.
Before 2023, canvassers were only required to gather signatures from 15 of the state's 75 counties. Act 236 upped that number. Now, groups need signatures from 50 counties.
Many grassroots organizations find the change suffocating, and several recent canvassing efforts have fallen just under the threshold.
The signature gathering referendum process is protected in the Arkansas Constitution. Article 5 gives extensive, clear language enshrining the process as a citizen right, but the specifics of how signatures are collected get more tangled. For years, the legislature has been in a tug of war with the courts as they try to add restrictions to the process, and canvassers insist the rule changes go too far.
Speaking to reporters, plaintiff and attorney David Couch expressed sustained confidence the law would not survive the court challenge. Going through the recent history of successful ballot petitions and cross referencing them to state law, he said regulations exist to “punish” canvassing groups who are successful.
The suit to stop Act 236 was filed by the League of Women Voters of Arkansas, a group that works to put ballot initiatives up for voters. The group was initially joined in the suit by state Sen. Bryan King, R-Green Forest, who told Little Rock Public Radio he didn’t like “the idea that Republicans are trying to make it harder to challenge what their government does.”
Earlier hearings debated whether King’s participation was appropriate. Assistant Attorney General Justin Brascher asked the court:
“Are we going to offer standing to every registered voter for a law they don't like?”
In 2024, then-Pulaski County Circuit Judge Herbert Wright agreed, ruling that King could not be a party in the case, but never ruled on the actual merits of Act 236. Wright has since been elected to the Little Rock District Court; the case has sat dormant for months.
“I'm sorry it wasn't ruled on,” the new judge in the case, Pulaski County Circuit Judge Shawn Johnson, said Wednesday. “I hate that it's taken so long.”
Couch made the argument for the League of Women Voters. He said the constitution clearly sets up the canvassing process. The legislature can’t amend the constitution by passing a law like Act 236. If they want to amend the constitution, it’s a more difficult process.
For the state, Brascher said: “Act 236 does not amend the constitution… There is nothing in that act that does anything to restrict the signature gathering process.”
The constitution says signatures must be collected from “at least fifteen of the counties of the State.” The two words “at least” were the linchpin of his argument.
Brascher's says the wording gives the legislature some breathing room. They can “raise the roof” on the minimum number of counties, as long as they go over 15.
Johnson seemed conflicted during debate. He called the case “intellectually difficult,” as debates over "broadening versus narrowing the constitution” run through American legal history.
Though Johnson has been assigned over 1,000 cases, he said he hopes to rule on this one “as fast as we can”
