Bill Filed to Put Attorney General Back in Charge of Reviewing Citizen Ballot Issue Titles
The Attorney General's role in the citizen ballot issue process would be restored under a bill filed this week at the state capitol. Under HB1320, the AG would be required to review and certify ballot titles before citizen groups could collect voter signatures to qualify proposals for the Arkansas ballot.
Attorney General Tim Griffin and Secretary of State John Thurston told the Arkansas Democrat-Gazette they both support HB1320's passage. It's been assigned to the State Agencies and Governmental Affairs Committee, which meets Feb. 1. HB1320 is on the committee's agenda.
How We Got Here
Last year, the Arkansas Supreme Court ruled that the State Board of Election Commissioners role in the citizen initiative process was unconstitutional. Sponsors of a 2022 constitutional amendment to legalize marijuana sued the commission after members refused to certify the amendment's ballot title.
Responsible Growth Arkansas had collected the required 89,151 signatures from across 15 Arkansas counties to qualify for the ballot. But the seven-member commission said the ballot title didn't explain to voters how it would repeal a requirement that food or drinks combined with marijuana not exceed 10mg of THC per portion. One commissioner also said she was concerned that removing requirements for owner background checks could allow people with criminal backgrounds to own marijuana facilities.
Act 376 of 2019
Arkansas is one of 15 states where citizen groups can petition to put a constitutional amendment, state law or referendum on the ballot for voters to decide.
Before 2019, attorneys in the AG's office reviewed every citizen initiative title to ensure they were free from misleading terminology or legal conflicts. Ballot issue titles had to pass to this legal review before sponsors could ask voters to sign their petitions.
The AG's office often rejected proposed ballot issues multiple times (and faced lawsuits too.) AG opinions would outline the reasons why titles failed to qualify. Sponsors would use the AG's legal feedback to fix ballot titles and resubmit them for approval.
Legislators in 2019 said the state shouldn't provide ballot issue groups free legal advice anymore and passed Act 376 to remove the AG review from the process, among other things. Act 376 required citizen groups to instead submit their ballot title to the Secretary of State's Office. Groups could start collecting signatures without any legal review.
The new law also pulled the State Board of Election Commissioners into the process for the first time in decades. The seven-member commission provided education and training to county officials and election officials to help carry out elections. They also investigated election complaints.
Under Act 376, once voter petitions were submitted to the Secretary of State, commissioners were required to certify that ballot titles were 1) presented in a way that were not misleading and 2) written in a way that voters understand a vote "for" the issue would be in favor of the proposal and an "against" vote would be a vote against the proposal.
Only by meeting the signature requirement and having the commission's approval could citizen initiatives be on the statewide ballot.
HB1320 of 2023
In light of the Arkansas Supreme Court's opinion about the commission's role being unconstitutional, Rep. David Ray filed HB1320 on Jan. 30.
One section of the bill would delete Arkansas 7-4-101, which gives the Board of Election Commissioners authority to consider the certification of ballot titles.
Another section removes the Secretary of State from the first days of the process and puts the Attorney General back in as a legal reviewer. HB1320 would give the AG's office 10 business days to either certify the ballot title or provide a more suitable ballot title that concisely explains the proposal.
If the Attorney General finds the ballot title misleading or designed in a way that it's unclear that a FOR vote is in favor of the issue, the AG can reject the title. Ballot issue sponsors would be required to fix it and resubmit it, similar to the process before 2019.
Who Reviews Legislative Ballot Titles?
State legislators have the authority under the Arkansas Constitution to put three constitutional amendments on the statewide ballot for voters to decide. Legislators in the House and Senate vote whether or not to put proposals on the ballot.
Unlike citizen initiatives, legislative proposals don't undergo any legal review by the AG or the Board of Election Commissioners. Past court opinions presume their ballot issues to be constitutional because they came from the legislative branch of government.
However, the Arkansas Supreme Court has disqualified several legislative amendments because too many law changes were rolled into one proposal. Constitutional amendments must be about one topic only.
Legislators have until Feb. 8 to file proposed constitutional amendments for the 2024 ballot. Find out what they've filed in our 2024 Arkansas Ballot Issue Tracker blog.