“An Attack on Direct Democracy in Arkansas”
A new law ratchets up signature requirements that Arkansas voters rejected in 2020, escalating the GOP war on popular ballot initiatives.
Daniel Nichanian, | March 20, 2023
Republican politicians in Arkansas were seething three years ago over progressive initiatives that legalized medical marijuana and increased the minimum wage, so they proposed amending the state constitution to make it harder for residents to place measures on the ballot. Voters responded with a resounding no, rejecting Issue 3 by double-digits in November 2020.
But that didn’t stop Arkansas Republicans, who this month pushed through those same stricter ballot measure rules that voters rebuffed in 2020. This time, lawmakers simply packaged their proposal into a regular bill, which sidesteps another referendum to amend the state constitution, and Republican Governor Sarah Huckabee Sanders signed it into law on March 7.
“I think the ultimate goal is to make it harder for citizens to challenge what their government does,” Senator Bryan King, who opposed House Bill 1419, told Bolts.
King is a Republican, one of three GOP lawmakers (out of 111) who joined Democrats in voting against the bill. Days later, King filed a lawsuit to block it alongside the League of Women Voters of Arkansas, an organization that defends voting rights in the state. Their complaint argues that HB 1419 violates the rules for the ballot initiative process that are laid out in detail in the state constitution.
“We see this bill as an attack on direct democracy in Arkansas,” says Bonnie Miller, the league’s president. “To have them go into session, pass this bill because they lost, and just say, ‘We know that you didn’t want this, that you don’t want us to restrict the process, but we’re just gonna do it anyway’—it’s ridiculous,” she added.
Currently, organizers must collect signatures from no less than 15 of the state’s 75 counties, a requirement embedded in the state constitution. The 2020 proposal that voters rejected would have increased that threshold to 45 counties. HB 1419 increases it to 50 counties. This will require organizers to set up robust signature gathering operations across most of the state, significantly raising the amount of money and resources that citizen groups need to get an initiative on the ballot.
“Even collecting signatures in 15 counties is wildly expensive, and so for them to increase the number of counties to 50, it’s going to shut out groups like ours,” says Miller. “We’re not going to be able to afford to do this.”
David Crouch, an Arkansas attorney who helped jumpstart several initiatives like the successful 2014 medical marijuana measure, and who is now the lead counsel in the lawsuit against HB 1419, agrees. “The grassroots people are going to be screwed,” he said.
HB 1419 is part of a broader nationwide effort by Republican politicians to undercut ballot initiatives. The Ballot Initiative Strategy Center has identified many such bills in recent years; when submitted to voters, like in South Dakota last spring, these changes are often defeated by dramatic margins. But the GOP has also pushed through bills to make the process of qualifying initiatives far more impractical, including imposing more onerous requirements for the geographic distribution of signatures gathered, which is the template that HB 1419 emulates.
Most recently, Oklahoma’s governor chose to schedule a citizen-initiated referendum to legalize recreational weed in an unusual standalone special election, dampening turnout. The day after the measure lost, on March 8, Oklahoma’s GOP-run state Senate passed a bill that would make it easier to invalidate signatures in the future by mandating that voters use their full legal name when signing a petition (any misspellings, nicknames, or other deviations from a government ID could nullify their signatures). The bill now sits in the Oklahoma House.
Even in this national context, the law Arkansas Republicans passed this month stands out for recycling a proposal that voters just recently rejected. But crafting HB 1419 as a regular bill to sidestep voter opposition only works as a legal maneuver if its changes to the ballot initiative process don’t require revising the constitution.
To the bill’s critics, the fact that the state GOP first tried to change the signature requirements for ballot measures with a constitutional amendment in 2020 was acknowledgment that their proposal required one, and that an ordinary statute wouldn’t do. In fact, Republicans initially rebounded from their 2020 failure by drafting yet another constitutional amendment, one that would have forced future initiatives to receive 60 percent of the vote at the polls, rather than 50. Arkansans again rejected that measure overwhelmingly in November 2022, by 18 percentage points.
David McAvoy, a progressive advocate who chaired the group Protect AR Voices when it helped fight off the 2020 amendment, is livid that the state is ignoring those repeat election results and calls the new law an unconstitutional “power grab.”
“They tried amending the constitution,” McAvoy says, “and now that the voters have rejected those attempts, they’re just saying, ‘Well, we’re just going to forget what the constitution says and just do whatever we want.’”
The lawsuit against HB 1419 argues specifically that its requirements contradict those in the state constitution’s Article 5, which is the section that regulates the initiative process, and that lawmakers therefore needed to craft their proposal as a constitutional amendment like they did in 2020.
Article 5 states that an initiative must gather signatures “in at least 15 counties.” The lawsuit argues that this constitutional stipulation bars the legislature from passing a law requiring a higher threshold. The bill’s proponents have said this language merely sets “a floor” that lawmakers can raise. Crouch said in an interview that the words “at least” do not authorize lawmakers to raise the threshold because those words needed to be there to clarify that organizers don’t need to pursue signatures from exactly 15 counties. (Case in point: Republicans deployed the same phrasing in HB 1419, which requires signatures from “at least 50 counties.”)
Crouch also points to Article 5’s final clause, which lays out what the legislature is allowed to do when it comes to toying with the rules: “All its provisions shall be treated as mandatory, but laws may be enacted to facilitate its operation. No legislation shall be enacted to restrict, hamper or impair the exercise of the rights herein reserved to the people.” For Crouch, HB 1419 plainly violates these bounds because raising the county threshold from 15 to 50 restricts the ballot initiative process.
“You can’t change the constitution with a bill,” Crouch said. “Facilitate means facilitate, and 15 means 15 and not 50.”
The chief sponsor of HB 1419, Representative Kendon Underwood, did not reply to a request for comment.
Other Republicans who supported the change say the law will ensure that rural voters are heard. A spokesperson for the governor said Sanders signed the bill because she “wants to ensure all Arkansans, especially rural residents, have a voice in this process.” But King, who represents a Northwest Arkansas district, rejects that argument. “I’m a rural guy through and through, I represent rural counties,” he told Bolts. “This is making it harder for the citizens.”
HB 1419 poses a particular challenge to progressive proposals because Democratic-leaning counties tend to be more populous. Until now, progressive organizers needed to spread their work across 15 counties, and Joe Biden received 35 percent in Arkansas’s 15th bluest county in 2020; that’s nearly identical to his statewide result. But once they need 50 counties, they’ll have to find allies in far more conservative territory than even the state as a whole; Biden received just 20 percent of the vote in the state’s 50th bluest county.
The legislature added an “emergency” clause in HB 1419, so the changes take effect immediately. If upheld, it will affect several efforts that state advocates say are already in the works for 2024, such as the rerun of a 2020 proposal to implement an all-party primary coupled with ranked-choice voting—an initiative akin to what Alaska implemented last year. The proposal was set to make the ballot in 2020 but the Arkansas supreme court blocked it over its strict interpretation of a background-check requirement for canvassers gathering signatures.
The fate of HB 1419 will also eventually come down to the state supreme court. In last year’s election, conservatives in Arkansas tried to push the state supreme court further to the right by targeting two justices who have a moderate reputation. Both incumbents secured re-election, though, and are likely to be on the court if it hears the case against the new law or any other restrictions, as the legislature could still escalate its war on direct democracy in the remainder of the session.
On March 10, three days after HB 1419 was signed into law, Republican Representative David Ray filed HB 1601, a new proposal that would require that the canvassers who are hired by organizations to collect signatures first obtain a special license. The bill would ratchet up the costs and bureaucracy associated with the process, just as HB 1419 has required organizations to hire significantly more canvassers given they’ll need to spread in many more counties.
Crouch expects even more attacks on ballot initiatives. “They just feel like they are in power to do whatever they want to do,” he said. “They don’t care anything about the constitution, unless it’s a gun.”