Arkansas Act Unconstitutional, Judge Rules

Wed, Mar 5 2014 by Neal Hobson

Yesterday, Circuit Court Judge Mary McGowan issued an 11-page decision declaring Act 1413’s restrictions on initiative and referendum petitions to be unconstitutional and enjoining Arkansas Secretary of State Mark Martin from enforcing the 19-page law’s new “crushing” rules on paid and volunteer signature canvassers.

Act 1413 (Senate Bill 821) was passed at the behest of the state’s current duopoly gaming interests, who presumably wanted to foil any future attempts through ballot measures to permit competition. The law was offered officially as a way to fight fraud in the petition process, after a spate of allegations of fraud and forgery in several 2012 measures.

Yet, the fraud angle behind this massive re-write of petition rules didn’t add up on two accounts: (1) not a single person was prosecuted for the alleged fraud in 2012, when prosecuting the violators of existing laws against fraud would have been the logical first step, and (2) nothing in the act seemed likely to be effective in actually combating fraud.   

The real impact of Act 1413, as Judge McGowan found, would be “crushing to the citizens who wish to bring their issues directly to the people.” It’s regulation of paid petition canvassers severely burdens fundamental First Amendment rights and opens them up to harassment. Moreover, the law gave government officials many new hyper-technical excuses for throwing out whole petition pages over innocent mistakes. The judge also found the law to be unconstitutionally vague by failing to define key terms used in the statute.

All of the above serve to block the average Arkansan from access to the initiative and referendum process.

Judge McGowan was very complimentary of the Secretary of State’s checking of petition signatures in 2012, noting that most voter signatures were verified and any fraudulent ones successfully removed. But this fact actually mitigates the need for Act 1413, because, as the judge wrote, “The secretary of state’s office guaranteed the citizens of Arkansas that the initiative process of 2012 was free of ‘fraud, forgery and other illegal conduct by sponsors, canvassers, notaries and petitioners.’”

After yesterday’s order, the defendant in this case, Secretary of State Mark Martin (in his official capacity), or the intervening Arkansas Attorney General, may now ask for a full trial before Judge McGowan in hopes of changing her mind, or either party can appeal directly to the Arkansas Supreme Court.

One critical element in Arkansas is the excellent language in Article 5 of the state constitution, more commonly known as Amendment 7, which protects the right of citizens to the initiative against an often hostile legislature. Amendment 7 reads in part:

“Unwarranted Restrictions Prohibited. No law shall be passed to prohibit any person or persons from giving or receiving compensation for circulating petitions, nor to prohibit the circulation of petitions, nor in any manner interfering with the freedom of the people in procuring petitions; but laws shall be enacted prohibiting and penalizing perjury, forgery, and all other felonies or other fraudulent practices, in the securing of signatures or filing of petitions.”

Amendment 7 recognizes the need for possible legislation relating to initiative and referendum, stating elsewhere that, “ [L]aws may be enacted to facilitate its operation.” But then, again, immediately adding, “No legislation shall be enacted to restrict, hamper or impair the exercise of the rights herein reserved to the people.”

Last Spring, Citizens in Charge worked to mobilize opposition to this legislation (then Senate Bill 821). We succeeded in removing a major provision, a ban on productivity pay, which has been struck down as unconstitutional in other states. But unfortunately the rest of the bill remained an attempt to make the petition process more difficult, against the clear language of Arkansas’s Amendment 7.

At the November court hearing on the motion for an injunction against Act 1413, Citizens in Charge President Paul Jacob testified as an expert witness on the side of the successful plaintiffs.

Upon hearing the news, Jacob applauded the judge’s decision, and thanked the Arkansas Public Law Center and the Arkansas chapter of the American Civil Liberties Union for making the lawsuit possible and plaintiffs Paul Spencer of the ethics reform group, Regnat Populus, and Nealy Sealy with the group, Arkansas Community Organizations, as well as noting the excellent job done by attorneys Bettina Brownstein and David Couch.

Jacob also expressed particular gratitude for Arkansas’s Amendment 7.

Judge McGowan’s 11-page Decision and Order

Arkansas Times: Judge strikes down 2013 law aimed at hindering ballot petitions

Ark. Democrat-Gazette (subscription needed): Judge bars enforcement of citizenry-petitions law

Advance Arkansas Institute: How SB 821 Endangers the First Amendment