UACES Facebook Eye-Care Referendum Likely for November Ballot
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Eye-Care Referendum Likely for November Ballot

by Kristin Higgins - February 7, 2020

graphic of an eyeA ballot issue group wanting voters to decide the future of a new eye-care law have collected enough voter signatures to put the issue on the statewide ballot in November.

The Arkansas Secretary of State's Office announced Jan. 31 that Safe Surgery Arkansas collected enough voter signatures to put a referendum of Act 579 on the ballot. 

The announcement came after the Arkansas Supreme Court and a Pulaski County Circuit Court judge rejected efforts to block the referendum

New Arkansas Election Law Complicates Referendum Process

After much debate in the 2019 legislative session, Arkansas legislators passed Act 579 to expand the number of eye-related medical procedures optometrists could perform. Previously, those procedures were only able to be performed by ophthalmologists, who are medical doctors. 
Arkansas provides a process for the public to challenge new state laws through a referendum on the statewide ballot. Collect signatures from 6% of the people who voted for governor in the last election and you can call a referendum on a new state law.
Safe Surgery Arkansas collected more than the required 53,491 voter signatures to hold a referendum on Act 579, known as "An Act to Amend the Definition of 'Practice of Optometry.'"
But complicating the matter was the fact that Arkansas legislators also passed a new election law during the same legislative session. Act 376 requires campaigns to submit to the Secretary of State's Office paperwork proving background checks were conducted on people paid to collect voter signatures before canvassers collect their first signature.
Paperwork for Safe Surgery Arkansas' paid canvassers wasn't filed until after voter signatures were collected, prompting the Secretary of State to void thousands of signatures. The Secretary of State said Safe Surgery Arkansas didn't have enough valid voter signatures to put the referendum on the ballot.

The Lawsuits

Safe Surgery Arkansas challenged the Secretary of State's decision to the Arkansas Supreme Court, saying an emergency clause included in the new election law wasn't valid because no real emergency existed. The group also claimed the law was unconstitutional.
In December, the Arkansas Supreme Court agreed only partially with the ballot issue group, saying the emergency clause wasn't proper because of a lack of emergency. The new law was not in effect at the time voter signatures were collected, they agreed. But they did not rule on the constitutionality of the new election law.
The court ordered the Secretary of State to count the signatures that did not meet the new paperwork requirement. Safe Surgery Arkansas ended with 64,028 valid signatures after the recount.
Arkansans for Healthy Eyes, a ballot issue group that supports Act 579 and expanding optometrists' work, followed up with a new lawsuit in Pulaski County Circuit Court in another attempt to stop the referendum.
The group's argument: If the new election law wasn't in effect for canvasser paperwork, then the same election law's change of who approves ballot titles wasn't in effect. That would mean Safe Surgery Arkansas' referendum ballot title should have been approved by the Attorney General and it wasn't.
On Jan. 28, Pulaski County Circuit Court Judge Wendell Griffen said this latest challenge is outside his jurisdiction and the challenge should made at the Arkansas Supreme Court.

What Now?

The referendum has survived all legal challenges to date. Voters should expect to see the measure on their November ballot. But Arkansas is in new territory with referendums because of Act 376.
The new election law requires the Arkansas Board of Election Commissioners to certify all statewide ballot titles before they are officially on the ballot. The Board of Election Commissioners certified the referendum's ballot title in August. 
Does that certification still count? Arkansans for Healthy Eyes says if the new election law wasn't in effect, the referendum should have been approved under the old rules. The before Act 376 required the Attorney General's Office to sign off on all ballot titles.
Will there be another court challenge? The Arkansas Secretary of State has until Aug. 20 this year to finalize and certify the official November statewide ballot. A lot can happen before then.

Find the Court Cases Online

The Arkansas Supreme Court case is CV-19-641, Safe Surgery Arkansas v. John Thurston. Click here to read the docket .