By Steve Brawner, © 2023 by Steve Brawner Communications, Inc.

We can assume two things following the recent Arkansas Supreme Court ruling on the LEARNS Act lawsuit. 

First, Gov. Sarah Huckabee Sanders’ education reform legislation will be the law of the land sooner rather than later. 

Second, the Legislature will continue voting on emergency clauses simultaneously with bills – even though the state Constitution requires two votes “upon separate roll call.”

We may need a constitutional amendment so clear no one can argue it. One might be cooking. We’ll get to that shortly.

For background, the Supreme Court’s 5-2 ruling June 15 lifted a temporary restraining order issued by Circuit Court Judge Herbert Wright. Some Marvell-Elaine School District residents had sued the state after it entered into a “transformation contract” with a charter school organization to manage the district under the LEARNS Act.

Plaintiffs argued LEARNS was not yet in effect because legislators had voted for the emergency clause with the same vote as the bill itself, in violation of the Constitution. An emergency clause says a new law will go into effect immediately rather than 90 days after a legislative session ends, which would be Aug. 1. Wright thought the argument strong enough that he issued the restraining order until he could hold a hearing June 20. 

Attorney General Tim Griffin appealed the order to the Supreme Court saying the state couldn’t wait for Aug. 1. That’s too close to school starting. 

The Supreme Court’s majority decision, written by Justice Courtney Hudson, lifted the order and allowed the state to proceed while not messing up many other laws also passed incorrectly with emergency clauses. Legislators have been voting on the two simultaneously for decades. She wrote that the plaintiffs could not prove they suffered irreparable harm that required a restraining order.

Her opinion skirted the emergency clause issue, which will be decided later. But four justices wrote concurring opinions, meaning they agreed but had their own reasons. All four signaled they would have voted against the plaintiffs. 

Justice Karen Baker wrote that the Arkansas Constitution says the state can’t be a defendant in its own courts, a concept known as “sovereign immunity.” 

Justice Rhonda Wood wrote the court cannot decide the emergency clause issue because that’s a political question, and the Constitution lets the House and Senate determine their own rules and procedures. 

Justice Shawn Womack, a former legislator, wrote that the plaintiffs “have no chance of succeeding on the merits” for all of those reasons, including sovereign immunity. He noted that the House and Senate had recorded the votes separately even as they had voted on them simultaneously. He said the Constitution gives them that right.

Justice Barbara Webb agreed with Womack on everything but the sovereign immunity issue.

Two justices dissented: Chief Justice Dan Kemp and Justice Robin Wynne. Wynne died June 21. Sanders will appoint his replacement until a permanent justice can be elected.

Not including the replacement appointment, there would seem to be four votes telling legislators they don’t have to vote on emergency clauses separately from bills. It’s a longstanding, convenient practice. If they’re not forced to change, they won’t.

That’s regrettable. Some lawmakers may want to vote for a bill, but they don’t think it should be treated as an emergency. There might be good reason for that. 

 Also, the emergency clause is more than a technicality. It’s defined in Article 5, Section 1 where the Constitution describes the Legislature’s powers. 

It follows the part of the Constitution dealing with the referendum, which is a citizen-led effort where voters can repeal a law passed by the Legislature. The two are closely related. If a law has an emergency clause, it goes into effect immediately. If it doesn’t, and if a referendum makes the ballot, the law remains “in abeyance” until the election. In other words, it’s not the law yet.

There’s a referendum effort to try to stop LEARNS, by the way, but it’s a long shot.

So what’s next? Maybe this. Attorney David Couch is working on a citizen-led constitutional amendment that would change numerous practices related to citizen-led efforts like amendments and referenda. He’s not convinced the courts will rule against the plaintiffs in the LEARNS case. Depending on what happens, Couch said his amendment “could have some clarifying language” related to the emergency clause.

Couch led successful citizen efforts to raise the minimum wage and legalize medical marijuana, so he’s pretty good at this. 

Stay tuned. In the meantime, assume that LEARNS is now the law of the land, and that the Legislature will continue to vote on bills and emergency clauses simultaneously. 

That’s what the Supreme Court seems to be saying, even if it hasn’t actually said it yet.

Steve Brawner is a syndicated columnist published in 13 outlets in Arkansas. Email him at brawnersteve@mac.com. Follow him on Twitter at @stevebrawner.