Arkansas Republicans just unconstitutionally limited access to direct democracy
A new law signed by Governor Sarah Huckabee Sanders increases the geographic-distribution requirement for initiative petitions and seems to violate the state constitution
In the past decade, Arkansans have used their powers of direct democracy to adopt progressive policies that their legislature wouldn’t—like a state constitutional amendment to legalize medical cannabis in 2016 and an initiated statute to raise the minimum wage in 2018. Republicans in the legislature have, in turn, retaliated by repeatedly attempting to limit voters’ initiative power. They’ve proposed several constitutional amendments over the last few years that would make it harder for voters to propose new measures—and Arkansans have rejected them.
So the legislature has decided to do statutorily what voters haven’t let it do constitutionally—they’ve passed a law that triples the number of counties that voters are required to gather petitions in. In doing so, they’ve likely violated the state constitution.
It took a while for direct democracy to really take hold in Arkansas. Though voters ratified a constitutional amendment in 1910 that adopted initiative and referendum procedures, it took another decade to modify the procedure so that it was workable. Since then, and for most of the last century, voters have used the process quite regularly.
The original procedure, as adopted by voters in 1910, required signatures from 8% of all “legal voters” in the state to place an initiated amendment or statute on the ballot. In 1920, a voter-initiated amendment raised the threshold to 10% for a constitutional amendment and required that signatures be gathered from “at least fifteen of the counties of the State.” (Arkansas has 75 counties, so 15 counties comes out to 20% of all counties.) For the most part, other than a legislatively proposed amendment in 2014 that increased the amount of time that organizers had to gather signatures, these basic requirements haven’t been modified by voters.
Not for lack of trying by the legislature, though.
In 2020, the legislature proposed a constitutional amendment that would have required petition gatherers to collect signatures from three-fifths of the state’s counties and would have cut down on the time that gatherers had to collect signatures. This amendment was rejected by voters, 44-56%.
Undeterred, in 2022, the legislature proposed another amendment, which would have required 60% of voters to approve any constitutional amendment or initiated statute. As I explained in Bolts at the time, the intent of the legislature was pretty clear—it wanted to limit voters’ ability to use their powers of direct democracy.
So enter, then, the current statutory proposal. It requires that signatures be gathered from “at least fifty counties.” Despite protests from Democrats in the legislature that it was an unconstitutional statute, it passed the legislature by a lopsided margin and was signed into law by Governor Sarah Huckabee Sanders.
Almost immediately thereafter, the League of Women Voters of Arkansas filed suit against the constitutionality of the statute. The argument is pretty clear: “Have you read the constitution?”
As noted above, the Arkansas Constitution requires in Article V, Section 1, that initiative and referendum petitions must be filed “from at least fifteen of the counties of the State[.]” The state legislature seems to read “at least” as allowing the legislature to set a higher standard if it wants to—which makes zero sense in context. Later in Section 1, there’s a provision that “No petition shall be held invalid if it shall contain a greater number of signatures than required herein” (emphasis mine). The effect of this provision is to clarify the meaning of “at least” as it appears earlier in the section—such that voters must submit petitions from “at least fifteen of the counties,” but that if they submit more, that won’t disqualify a petition.
Moreover, the state constitution also articulates a broad defense of the voters’ powers to propose these initiatives. “No law shall be passed . . . in any manner interfering with the freedom of the people in procuring petitions[.]”
While I don’t presume to guess what the Arkansas Supreme Court will do with this statute, the case for the statute’s unconstitutionality is strong. It’s directly contradicted by the clear text of the constitution—and it comes after the legislature attempted to amend the constitution to make a nearly identical change. The legislature, in proposing the 2020 amendment that raised the geographic distribution requirement, recognized what it denies today—that the constitution doesn’t allow the legislature to raise the distribution requirement, and that any change to the requirement requires an amendment.