Does amendment to change amendment process strike the right balance?

The 2020 election in Arkansas is shaping up to be a real barn burner. Obviously, it’s a presidential year and that will be front and center. In addition to that, the 92nd General Assembly referred three constitutional amendments to the voters that will spice things up.

One of the referrals involves funding for highways, and seeks to extend the half cent sales tax on gasoline to support highway maintenance. The second would modify state legislative term limits, adopting a 14-year limit but allowing individuals to run for another 14 years after a 4-year break. The third, which will be Issue 3 on the 2020 ballot, will modify the process for amending the Constitution as well as the process for adopting an initiated law.

As most folks know, Arkansas has considered many ballot measures seeking to amend our Constitution or adopt a new law. Some were legislative referrals, such as economic development tools, ethics, term limits and the requirement of a valid identification when presenting to vote.

Others were measures placed on the ballot as the result of a signature gathering process, such as the creation of a state lottery, adoption of medical marijuana and legalized casino gaming. Another significant issue that has been addressed by popularly initiated laws is the increase in the minimum wage.

It has been the concern of many, including members of the General Assembly, that we are too frequently changing the law at the ballot box and that it poses a risk to the policy-making process in our State. The way to address such a concern is to make it more difficult to place measures on the ballot. That sentiment lead to the filing of HJR 1008, which received a favorable vote of both chambers and is slated to appear on the 2020 ballot.

The rules of the game under our current Constitution are as follows:
• The General Assembly can refer its three allotted measures with a simple majority vote of both chambers;
• An initiated law requires signatures from 8% of those who voted in the last gubernatorial election and a constitutional amendment requires 10%;
• Signatures must be obtained from at least 15 of the 75 counties;
Petitions containing the required number of signatures are to be submitted 4 months before the election, which falls in early July;
• If the required number of signatures are submitted by that July date, petitioners can continue to collect signatures for an additional 30 days to make up for any deficiencies – known as the “cure period”; and
• A lawsuit challenging the sufficiency of the ballot language and/or the signatures can be filed essentially anytime.

If HJR 1008 is approved by the voters, the rules will be changed to the following:
• It will require a 3/5 vote of each chamber for a legislative referral;
• The number of signatures will remain the same, but they must come from at least 45 counties;
• Signatures must be turned in by January 15th of the election year;
• There will be no additional time to collection more signatures – no “cure period”; and
• Any lawsuit challenging the measure must be filed by April 15th of the election year.

Make no mistake, these changes will make it more difficult to amend our Constitution or change the law via the initiative process. Pushing the filing deadline to January 15 will require proponents to begin the process much earlier than in the past. The “cure period” has saved almost every initiated measure that has been placed on the ballot. Eliminating it will require initiative proponents to be much more deliberate in collecting signatures before submitting them on the deadline. Additionally, obtaining signatures from 45 counties, instead of 15, will require more time, more canvassers and will cost more money.

Is this a good change? Well, there are arguments both for and against. I can appreciate the need for some predictability in our Constitution and frequent changes can be challenging to individuals and businesses alike. I also believe in the public having a realistic opportunity to change the Constitution, or adopt a law in the absence of legislative action.

The question is whether this measure strikes a good balance. It will be an interesting debate.

Editor’s note: Justin Allen is an attorney with Little Rock-based Wright Lindsey Jennings. The opinions expressed are those of the author.