Ballot referendum to undo LEARNS Act faces high hurdles

Opponents of Gov. Sarah Sanders’ LEARNS education plan are discussing potential litigation to undo the measure, and a possible citizens’ referendum could also delay enactment or even reverse the new law. That path, however, would be difficult.

The LEARNS bill, SB294, was signed into law on March 8th by Gov. Sanders and has been touted by her administration as “the biggest, boldest, most conservative education reforms” in the state’s history and the nation.

The law sets a new minimum starting teacher salary of $50,000, provides raises of $2,000 to current teachers, outlines initiatives for pre-K, literacy improvement and workforce training, and provides money for public school safety and transportation. The most controversial aspect of LEARNS centers on a voucher program called “education freedom accounts,” which will eventually allow public school funding to follow students to their choice of K-12 education, including charter, parochial and private schools as well as homeschooling.

The Arkansas Department of Education has started holding public meetings to gather input on various aspects of the measure to proceed with rules and regulations to implement it before the start of the next school year.

Legal observers say a possible lawsuit may have to wait until the law is implemented for an aggrieved party to have court standing and to argue they have been injured or harmed.

In the meantime, some opponents of LEARNS are exploring Arkansas’ Constitution, which may offer another path to reverse the governor’s signature education reform measure. It is a route that would no doubt need a big coalition of like-minded activists, deep financial resources, and some political luck.

Article 5, Section 1 of the state Constitution deals with the initiative and referendum process. Initiatives are when citizens propose constitutional amendments or state laws (initiated acts) to voters. There are requirements for signature thresholds, the timing of the petitions to be reviewed, and the posting of legal notices.

The referendum section of the Constitution deals specifically with overturning “any general act, or any item of an appropriation bill, or measure passed by the General Assembly.”

The section of the Constitution also sets requirements for petition signatures. It states that the “petition shall be filed with the Secretary of State not later than 90 days after the final adjournment of the session at which such act was passed.” That final adjournment is known as “sine die,” when the General Assembly officially closes its business, currently slated for early May.

Due to the necessity of using this referendum process quickly to object to a state law, if a group qualified their referendum petition, the measure they seek to overturn “shall remain in abeyance until such vote is taken.” In short, if they made it on the ballot, it would presumably prohibit the law from taking effect.

But LEARNS has an emergency clause, which means it is already in effect upon the governor’s signature earlier this month. How a court might interpret putting the law on ice could be a simple injunction, but it could also be more complicated.

Several Herculean barriers exist to qualify a referendum petition, including new laws enacted this legislative session.

First, a ballot title for the referendum would have to be approved by Attorney General Tim Griffin within 10 days of it being presented to him. Griffin, an ally of Gov. Sanders, could use this process – a return to the old days of qualifying ballot titles – to legally stall or delay the effort. He could seek more clarification of the ballot title in rejecting it or asking for modifications. And he could reject it several times, which was often done under previous Attorneys General.

A new state law, Act 236, which may be challenged for its constitutionality, now requires signatures to be collected from 50 counties instead of 15 counties. That would make opponents of LEARNS have to go much deeper into their pocketbooks and their counties for support. Less populated counties could count towards the 50-county threshold, which might require fewer than 100 signatures in some of those rural counties to meet the requirement.

The total number of statewide signatures needed from those 50 counties is 54,109 based on the need to garner six percent of the total vote from last year’s gubernatorial election, which saw 901,813 ballots cast.

Also, canvassers would have to carry some version of the 145-page LEARNS Act with a signature collection page if they pursued the referendum strategy of overturning state law. This burdensome requirement would no doubt complicate canvassing methods, often the subject of legal challenges.

A tactic being floated by LEARNS opponents includes eyeing the appropriation for the “education freedom accounts” in the Department of Education budget. The referendum clause in the state Constitution would allow a vote to stop “any item of an appropriation bill,” effectively a line-item veto on budget items if all the hoops are jumped through properly. Pursuing this strategy would only require one page on top of the signature collection page for canvassers.

Going after the line item for “education freedom accounts” might be more popular for opponents. Overturning the entire LEARNS Act would stop the governor’s voucher proposal, but it would also eliminate teacher pay raises, investments in pre-K and literacy, and other less divisive aspects of the law. Overturning the funding for “education freedom accounts” would be more of a “kill it with a rifle, instead of a shotgun” approach.

There have been two high-profile efforts to overturn state laws enacted by the legislature in the last 30 years.

In 1992, state lawmakers approved a soft drink tax that the soft drink industry attempted to overturn two years later. Opponents did not go through the referendum process but brought forward a new initiative to reverse the law. Still, they were unsuccessful at the ballot box, losing their effort by a 55-45% margin.

In 2020, the Arkansas Supreme Court ruled that a proposed initiated act to overturn a 2019 state law expanding optometric procedures did not qualify for the ballot because canvassers did not “pass” criminal background checks. If it had qualified and passed, the measure would have overturned Act 579 of 2019, which permitted optometrists to perform limited eye surgeries.