Previewing Arkansas’ amendment debates ahead of the 2018 election

by Justin Allen (JAllen@wlj.com) 313 views 

There were 31 resolutions filed in 2017 proposing amendments to the Constitution.  Only two of them made the cut. Both of them will be subject to a lot of debate and will make for an exciting election season.

Before the 91st General Assembly convened, I authored a piece discussing the process by which our legislature adopts proposed amendments to the state Constitution, some of the more recent proposals and what might be referred this time.

Now that the session has concluded, it’s time to review what the legislature decided to send to the voters, as well as what it did not.

Senate Joint Resolution 8 (SJR8), sponsored by Senator Missy Irvin, was approved by the legislature and will appear on the ballot in November of 2018. This is the “tort reform” measure which proposes to amend the Constitution as follows:
• Cap contingency fees in civil actions at 33 1/3 of the recovery;
• Cap punitive damages at $500,000 or 3 times the amount of the compensatory damages, whichever is greater;
• Cap non-economic damages at $500,000; and,
• Allow the legislature to adopt rules of pleading, practice and procedure.

A measure of this nature was expected and it was contentious, as expected. Proponents of SJR8 maintained it will bring Arkansas in line with other states, thereby making it more competitive for economic development purposes. It will also provide some predictability with regard to damage rewards for things such as pain and suffering, which are otherwise unpredictable.

Opponents argued that damage caps place a value on human life and should not be written into law. They further argued that it is inappropriate for the legislature to adopt court rules. Such measures should be left exclusively to the courts.

Ultimately, SJR8 passed the Senate with 21 votes in support and the House with 66 votes in support. The campaign associated with SJR8 promises to be a spirited one in advance of the 2018 election.

House Joint Resolution 1016 (HJR1016), sponsored by Representative Robin Lundstrum, will also appear on the 2018 ballot. Quite simply, this measure would amend the Constitution to require the presentation of a valid photo ID in order to cast a ballot in an election.

This issue has been hotly debated at the Capitol over the last few years. In 2013, the legislature passed a bill instituting such a requirement, but it was struck by the Arkansas Supreme Court in a unanimous vote as a violation of the state Constitution. The legislature passed another bill this session – HB 1047 – that will effectively require ID to vote, but it will likely be challenged and might meet the same fate as the 2013 measure.

HJR1016, if adopted by the people, will take care of that issue because it will amend the constitution to require ID. The debate is a familiar one. Proponents say an ID requirement will protect against voter fraud and that is a simple and fair requirement which exists in order to engage in other activities.

Opponents maintain that such a requirement deprives many of their right to vote and reduces participation in the process, which runs contrary to democratic principles. Research shows that many citizens lack an ID, obtaining one can be costly and imposes a travel burden. The lack of an ID is most prevalent among the lower-income, disabled, elderly and minorities, which further compounds the cost and travel burdens associated with obtaining an ID. Finally, opponents submit that in-person voter fraud essentially doesn’t exist. As such, this is a solution in search of a problem.

At the end of the day, HJR1016 enjoyed strong support within the legislature, passing the House with 73 votes and the Senate with 24. In 2018, the voters will decide this issue.

Finally, House Joint Resolution 1003 (HJR1003) was filed by Rep. Jeremy Gillam, the Speaker of the House. This proposal suggested amendments to the Constitution which, ironically, would change the process for amending the Constitution. In short, it would have made it much more difficult to amend the constitution by doing the following:
• Requiring the necessary number of signatures for initiated measures to be obtained from residents of at least 25 counties, instead of 15;
• Requiring that proposed amendments from the legislature obtain 2/3 vote of both chambers in order to appear on the ballot; and,
• Requiring that 3/5 of the voters, as opposed to a majority, approve the proposed amendment.

While the measure passed the House with 79 votes, it failed in the Senate with only 9 votes in support.
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Editor’s note: Justin Allen is a partner with the Little Rock-based law firm of Wright Lindsey Jennings. He leads the firm’s governmental relations group. Opinions, commentary and other essays posted in this space are wholly the view of the author(s). They may not represent the opinion of the owners of Talk Business & Politics.

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