If it is broke, do fix it

Hand with ballot and boxBy Steve Brawner
© 2016 by Steve Brawner Communications, Inc.

Arkansans opposed to medical marijuana, casinos and/or to limiting jury verdicts in medical cases are probably pleased that the Supreme Court invalidated all three of the proposals.

Still it’s probably not a good thing that ballots are cluttered this year with four citizen-led initiatives where the votes won’t count for three of them. The only one that survived was another medical marijuana proposal.

If there’s anything in state government that’s broken, it’s the citizen-led ballot initiative process. Citizens submit a proposal, sometimes based on narrow self-interest, that gets approved by the attorney general. They raise hundreds of thousands of dollars and collect signatures that are approved by the secretary of state. The campaign begins. And then opponents sue over the same ballot titles that were approved by the attorney general and over the same signatures that were certified by a small army of secretary of state employees. By the time the Supreme Court makes its decision, it’s October and the ballots have already been printed. In the medical marijuana case, citizens had already started voting.

That initiative was invalidated because the Court said too many signatures had problems – some of them quite technical, such as listing a post office address rather than a residence. In her concurring opinion on the medical marijuana case, Justice Courtney Goodson complained that Act 1413 of 2013 left her no choice but to invalidate.

“The petition here failed to satisfy the onerous demands of the Act, even though there is no allegation that the signatures were invalid in any other way. The result is that the wishes of the citizens who signed the petition in good faith are being discarded, and the right of the people to pass judgment on the proposal in the voting booth has been lost,” she wrote.

Senate President Pro Tempore Jonathan Dismang, R-Searcy, the leader of the Senate, said Monday that he expects the Legislature to take steps to mend the process when it meets next year.

Legislators are allowed to recommend three constitutional amendments every two years, and did so this election cycle with measures that would let the governor keep his or her powers when leaving the state, extend county officials’ terms to four years, and allow the state to issue bigger bonds for major economic projects and allow cities and counties to fund Chambers of Commerce. Those are still on the ballot.

Dismang says the Legislature may self-impose a limit of two amendments, one from the House and one from the Senate, and that one of them could address the state’s broken ballot initiative process. That proposed amendment, which voters would see in the 2018 election, would reset the time frames for collecting signatures and require an earlier decision by the Supreme Court, at least before the voting begins. As part of the same effort, the Legislature will try to clean up the technicalities that led to some of this year’s problems.

Dismang doesn’t want to create an environment where there are more constitutional amendments – as opposed to initiated acts like the invalidated medical marijuana proposal. An act has only the force of law and can be changed by the Legislature. An amendment is the permanent law of the land.

In fact, he says it’s too easy to amend the Constitution now. Aside from the Legislature’s potential three amendments each two years, the citizen-led process makes it possible for well-funded individuals to institutionalize their own self-interest. The casino amendment would have granted a permanent constitutional monopoly to three casinos owned by two out-of-state individuals or their assignees, meaning it would have lasted through generations. One of those casinos would have been operated by the Cherokee Nation, which donated $6 million to the effort. It didn’t happen, but it could have, and he’d like to make it less likely.

The truth is that Arkansas’ Constitution is kind of a mess. While the U.S. Constitution is brief and broad, the state’s is sometimes painfully detailed and specific. Constitutional amendments should be timeless and should spell out the permanent duties and roles of government, like whether the governor keep his powers when out of state, and not set policy or make certain things legal or illegal, like medical marijuana. Those should be spelled out in law, which can be changed at any time to fit changing circumstances.

So whatever the fix is, let’s hope it results in fewer, better, broader amendments, and ballots where every vote counts.

Related: Where your vote really counts this year.

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