Arkansas AG unexpectedly approves four ballot proposals ahead of federal court hearing on initiated acts

In a tersely-worded news release, Arkansas Attorney General Leslie Rutledge on Wednesday (May 23) certified four ballot items and rejected another ahead of a hearing Thursday in federal court to clarity the state’s repeated rejections of several proposed constitutional amendments.

After a brief ruling earlier in the day by the Arkansas Supreme Court on a complaint by Little Rock attorney David Couch concerning Rutledge’s refusal to approve or certify an initiated act to increase the state’s minimum wage law, the state’s top attorney quickly announced she is certifying that ballot proposal and three others to authorize casino gaming and revise the legislative redistricting process.

However, Rutledge rejected a proposal that would legalize marijuana, saying it had “insufficiencies and fundamental flaws” in the text of the measure.

“I have issued opinions on ballot proposals based on standards set forth in statutes as well as case law of the Arkansas Supreme Court,” said Rutledge. “However, the Arkansas Supreme Court has once again muddied the waters on these standards by offering no insight in its decision requiring me to certify or substitute language of a ballot title that I had previously rejected.”

Rutledge continued: “In light of the Arkansas Supreme Court’s failure to put forth clear standards, I am certifying these proposals in an exercise of caution to ensure Arkansans are given an opportunity to put these measures on the ballot.”

Couch, the same petitioner who successfully led the effort to put the amendment legalizing medical marijuana on the 2016 ballot, filed his complaint nearly a week ago in the state’s high court seeking an expedited decision on a mandatory injunction to put the minimum wage proposal on the November ballot.

Under the state constitution, petitioners would need to collect 67,887 signatures of registered voters and file the proposal with the Secretary of State no later than July 6. At the same time, petition collectors would also be required to publish the proposed initiated act in a newspaper of general statewide circulation no later than June 6.

“In order to protect the Petitioner’s rights to propose an initiated act it is essential that this matter be expedited,” stated Couch in his motion for a speedy decision. “The sole issue presented in the Petition is whether the Attorney General should be compelled to certify or substitute a popular name and ballot title for Petitioner’s proposed initiated act to raise the minimum wage.”

In a brief one-page order with no explanation, the Supreme Court granted Couch’s petition for a mandatory injunction compelling Rutledge to either approve or certify one of the versions of the ballot proposal, or substitute and certify a more “suitable and correct” version within three days.

Chief Justice Dan Kemp and Justices Robin Wynne, Courtney Goodson, Josephine Hart and Karen Baker affirmed the decision. Justices Shawn Womack and Rhonda Wood dissented. Rutledge noted that the court’s decision would not clear up the process of putting initiatives and amendments up for popular vote.

“To be clear, today’s certifications do not prevent a citizen from legally challenging a ballot proposal once the required number of signatures are submitted to the Arkansas Secretary of State. Therefore, it is a real possibility that any one or all of the certified proposals will not appear on the ballot in November,” Rutledge said. “The Arkansas Supreme Court’s failure to include clear standards and reasoning has only exacerbated the confusion surrounding ballot title submissions.”

That “confusion” surrounding Arkansas’ ballot proposal laws will likely arise again in federal court Thursday when U.S. District Judge Kristine Baker is set to hear arguments concerning a back-and-forth civil case pitting Rutledge and Little Rock attorney Alex Gray on the AG’s rejection of 70 proposed constitutional amendments in the current election cycle.

Baker, on Monday, set the court date for 10:30 a.m. at the U.S. District Court for the Eastern District of Arkansas in downtown Little Rock to hear the Committee to Restore Arkansans’ Rights request for a temporary restraining order and preliminary injunction on the merits of whether Arkansas Code Ann. 7-9-107 violates the U.S. and Arkansas constitutions.

On Monday, Baker laid out the schedule of matters she will take up at Thursday’s hearing, essentially citing the same back-and-forth motions, complaints and requests made in lower since early May. Gray has also filed a request for a temporary restraining order and injunction for Rutledge to take the stand in federal court. Rutledge and Assistant Solicitor General Dylan Jacobs filed motions Wednesday to quash Gray’s subpoena to appear in federal court “on the basis of privilege.”

“Courts have consistently held that a high-ranking government official may not be compelled to testify in a deposition if the deposition is taken in order to probe the mind of the official to determine why he or she exercised his or her discretion in regard to a particular matter,” Rutledge and Jacobs’ motion stated.

Rutledge also reiterated her request that the legislature fix the process of voter-initiated ballot items.

“As I stated last week, I am calling on the General Assembly to create a system ensuring Arkansans have a clear and fair process to amend the constitution and place initiatives on the ballot,” she said.